EN Official Journal of the European Union C 363/6

Communication from the Commission concerning autonomous tariff suspensions and quotas

2011/C 363/02

1. INTRODUCTION

1.1. By virtue of Article 31 of the Treaty on the Functioning of the European Union (TFEU), autonomous tariff suspensions and quotas are approved by the Council acting on a qualified majority on the basis of a Commission proposal. In 1998 the Commission published a communication (1) defining the guiding principles and procedures to be followed by the Commission in drawing up its proposals to the Council.

1.2. This revised communication takes into account the objectives of the ‘Customs 2013’ action programme and the needs and comments conveyed by Member States following the seminar on autonomous tariff suspensions and quotas held the 23 and 24 September 2010 in Istanbul. The scope of the revision is limited and twofold: it clarifies some principles of the autonomous tariff suspensions and quotas schemes, on one hand, and the procedure to be followed by Member States and operators to apply for such an autonomous measure, on the other hand.

1.3. Future amendments to this communication, of substantive nature, may be necessary following the study on the impact of autonomous tariff quotas and supensions on the EU econmy which the Commission intends to launch in the course of 2012. The study will include the impact on small and medium-sized enterprises (SME).

1.4. The objective pursued by the Commission in determining these guiding principles is to specify the economic reasoning behind the policy of the Union in this sector. This is also in conformity with the transparency rules set out by the Commission.

1.5. The Commission intends to follow the general policy defined in this communication and the corresponding administrative arrangements for tariff suspensions and quotas taking effect in the second half of 2012.

2. POLICY OVERVIEW — GENERAL PRINCIPLES

2.1. Role of the Common Customs Tariff

2.1.1. Article 28 of the TFEU states that ‘the Union shall comprise a customs union which shall cover all trade in goods and which shall involve […] the adoption of a common customs tariff in the relations with third countries’. Since 1968, the Union has applied the main component of this common customs tariff (2) as one of a set of measures designed to promote the efficiency and competitive capacity of its industry on an international scale.

2.1.2. In addition to promoting industrial development within the Union, the duty rates fixed in this tariff are intended to strengthen the Union’s industrial production capacity, thereby making it easier for its producers to compete with third country suppliers. Consequently, except derogations foreseen in the Union provisions, the duties laid down in this tariff must be paid in respect of all products entered for free circulation. Payment of these duties therefore constitutes the normal state of affairs.

2.2. Concept of tariff suspensions and quotas

2.2.1. The suspensions approved on the basis of Article 31 of the TFEU constitute an exception to the normal state of affairs, during the period of validity of the measure and for an unlimited quantity (tariff suspension) or a limited quantity (tariff quota). Both measures permit the total or partial waiver of the third country duties applicable to imported goods (anti-dumping and countervailing duties or specific duty rates are not affected by these tariff suspensions and quotas). Goods for which anti-dumping or countervailing duties are applicable should normally be excluded from granting a suspension or quota. Goods which are subject to import prohibitions and restrictions (e.g. Convention on International Trade in Endangered Species (CITES)) cannot benefit from a tariff suspension or quota.

2.2.2. Goods imported under the tariff suspension or quota arrangements enjoy freedom of movement throughout the Union; consequently, once a tarif suspension or quota is granted, any operator in any Member State is eligible to benefit from it. A tariff suspension or quota granted in response to a request from one Member State could have consequences for all the others, and so there should be close and extensive cooperation between the Member States and the Commission so that all Union interests are taken into consideration. Autonomous tariff quotas are managed by the Commission in close cooperation with the Member States in a central tariff quota database. These tariff quotas are allocated on a ‘first-come first-served’ basis in accordance with the legal provisions of Articles 308a to 308c of Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3).

2.2.3. European Union enlargement, technical progress and the changes in traditional international trade routes have changed the economic background in an increasingly globalised economy. It is important to ensure that tariff suspensions enable companies established in the European Union to maintain full employment and obtain the necessary parts to manufacture sophisticated products with a high EU added value, even where the activity consists mainly of the assembly of parts.

2.3. Characteristics of tariff suspensions and quotas

2.3.1. Article 31 of the TFEU stipulates that the Council fixes the duties under the Common Customs Tariff on proposals from the Commission. That includes alterations or suspensions of these duties.

2.3.2. Tariff suspensions and quotas should be reviewed regularly with the possibility of deletion on request of a party concerned. In exceptional cases, where a continuation of a tariff suspension implies the lasting need to supply the Union with certain products at reduced or zero rates (e.g. needed specific product not available (tariff suspension) or too small (tariff quota) to justify the investments necessary to launch a Union production), the Commission may propose an amendment to the Common Customs Tariff. In this regard, the Commission will act on requests from Member States as well as on its own initiative.

2.3.3. Moreover, since tariff suspensions constitute an exception to the general rule represented by the Common Customs Tariff, they must, like all derogations, be applied in a coherent manner.

2.3.4. To avoid discrimination, tariff suspensions must be open to all Union importers and third country suppliers. This means that a tariff suspension or quota will not be granted in respect of: (i) goods covered by an exclusive trading agreement; or (ii) goods traded between related parties which have exclusive intellectual property rights over their production; or (iii) goods where the description contains internal company specific terms such as company denominations, brand names, specifications, article numbers, etc.

2.4. The role of autonomous tariff suspensions and quotas

2.4.1. The Commission considers that customs duties have a particular economic function. Autonomous tariff suspensions, which are intended to cancel fully or partially the effects of these duties over a given period, may be granted only in case of an unavailability of the products within the Union. Autonomous tariff quotas may be opened for goods which are produced within the Union in insufficient quantities.

2.4.2. Furthermore, as customs duties contribute to the Union’s traditional own resources, the economic reasons given should be assessed in relation to the general interest of the Union.

2.4.3. The regime of tariff suspensions and quotas proofed in the past to be a very efficient policy tool in supporting economic activity in the European Union and will be in the future which is shown by the constant increasing number of applications transmitted to the Commission. At present these measures reflect between 5 % to 6 % of the budgeted traditional own resources.

2.4.4. By allowing enterprises to obtain supplies at a lower cost for a certain period, it would become possible to stimulate economic activity within the Union, to improve the competitive capacity of these enterprises and, in particular, to enable the latter to maintain or create employment, modernise their structures, etc. In 2011 there are approximately 1 500 autonomous suspensions and quotas in force, whereas during the recent recession of the EU economy an increase of requests was registered by the Commission which shows the importance of this policy for the Union’s industry.

2.5. Product scope for autonomous tariff suspensions

2.5.1. The aim of tariff suspensions is to enable Union enterprises to use raw materials, semi-finished goods or components not available or produced within the Union, with the exception of ‘finished’ products.

2.5.2. Notwithstanding paragraphs 2.5.3 and 2.5.4, for the purposes of this communication, ‘finished goods’ are commodities that exhibit one or more of the following characteristics: — are ready for sale to the end-user, to be packed or not within the Union for retail sale, — are disassembled finished goods, — will not undergo any substantial processing or transformation (4), or — have already the essential character of the complete or finished product.

2.5.3. As Union producers are converting increasingly to assembling products requiring parts that are already highly technical sophisticated, some of the parts required are used without major modification and could therefore be considered as ‘finished’ products. Nevertheless tariff suspensions could, in certain cases, be granted for ‘finished’ products used as components in the final product, provided the added value of such an assembly operation is sufficiently high.

2.5.4. In the case of equipment or material to be used in the production process, a tariff suspension could be considered (although such products are generally ‘finished’ products), provided these equipment and material are specific and necessary for the manufacture of clearly identifiable products and provided the tariff suspensions are not jeopardising competing Union enterprises.

2.6. Product scope for autonomous tariff quotas

All provisions laid down in paragraph 2.5 are applicable to autonomous tariff quotas as well. Fishery products are excluded from the tariff quotas scheme, as a parallel examination based also on their sensitivity may lead to their inclusion in an extra proposal from the Commission for a Council regulation opening and providing for the management of autonomous Community tariff quotas for certain fishery products.

2.7. The beneficiaries of autonomous tariff suspensions and quotas

Autonomous tariff suspensions and quotas are destined for firms producing in the Union. Where the use of the product is confined to a particular purpose, this will be monitored in accordance with the procedures governing the control of the end-use (5).

Special attention will be paid to the interests of SME. As autonomous tariff suspensions and quotas could ease the SME internationalisation, initiatives will be taken to raise SME awareness of this tool. As mentioned above, the impact of this scheme on SME will be part of a broader evaluation to be launched in 2012.

Meanwhile, tariff suspensions should not cover goods subject to an economically insignificant amount of duty.

2.8. Customs union with Turkey

For products, which are subject to the rules of the customs union with Turkey (all goods except agricultural products and products that fell under the ECSC Treaty), the same criteria apply, since Turkey’s rights and obligations in this case are similar to the Member States’ ones.

Turkey may as well submit requests for tariff suspensions and quotas and Turkish delegates can participate in the meetings of the Economic Tariff Questions Working Group (ETQG) to discuss requests with the delegates of all Member States and the Commission. Turkish production will be taken into account in the same manner as Union production to decide about implementation of a new tariff suspension as well as for the calculation of appropriate tariff quota volumes.

Turkish requests for a tariff suspension, after being examined by the Commission, may be included into the proposal submitted to the Council. The decision-making process for tariff quotas is different as they will not be part of the Council regulation. These tariff quotas based on Turkish requests would only be applicable within Turkey.

3. GENERAL GUIDELINES

For the reasons outlined above, the Commission intends following the line of action as indicated below in its proposals to the Council and the regulations it can adopt.

3.1. The main purpose of autonomous tariff suspensions and quotas is to enable Union enterprises to use raw materials, semi-finished goods or components without being required to pay the normal duties laid down in the Common Customs Tariff. All applications for tariff suspensions are firstly submitted to the delegates of the ETQG, who examine their appropriateness. Thereafter the applications are discussed cautiously over three meetings of the ETQG and measures are proposed only after this examination of the economic reasons, on which the requests are based, has being carried out. The Commission will submit its proposals (which are partially updating every six months the lists of products subject to tariff suspensions or the lists of products subject to tariff quotas) to the Council for application as of 1 January and as of 1 July to take account of new requests and technical or economic trends in products and markets.

3.2. In principle, unless the Union interest dictates otherwise, and in deference to international obligations, no tariff suspension or quota measure will be proposed in the following situations: — where identical, equivalent or substitute products are manufactured in sufficient quantities within the Union. The same applies in cases where, in the absence of production in the Union, the measure could result in a distortion of competition between the Union enterprises with regard to the finished products in which the goods in question are to be incorporated, or in products of a related sector, — where the goods in question are finished products intended for sale to end-consumers without further substantial processing or without forming an integral part of a bigger final product for whose functioning they are necessary, — where the goods imported are covered by an exclusive trading agreement which restricts the possibility of Union importers to purchase these products from third country manufacturers, — where goods are traded between related parties (6) which have exclusive intellectual property rights (e.g. trade names, industrial designs and patents) over these goods, — where the benefits of the measure are unlikely to be passed on to the Union processors or producers concerned, — where other special procedures exist to serve Union producers (e.g. inward processing), — where the applicant will use the merchandise for trade purposes only, — where a tariff suspension or quota would entail a conflict with any other Union policy (e.g. other preferential arrangements, free trade agreements, trade defence measures, quantitative or environmental restrictions).

3.3. Where there is some Union production of identical, equivalent or substitute products to the product to be imported but such production is insufficient to meet the requirements of all the relevant processing or manufacturing companies, tariff quotas (limited to the unavailable quantities) or partial tariff suspensions may be granted. A request for a tariff quota may be presented as such or result from the examination of a request for tariff suspension. In this context, account will be taken, where appropriate, of consequential damage to any manufacturing capacity which could be made available in the Union.

3.4. As far as possible, the equivalence of imported and Union products is assessed with reference to objective criteria, due account being taken of the essential chemical, physical and technical characteristics of each, their intended function and commercial use and, in particular, their mode of operation and their current or future availability on the Union market. Differences in price between the imported and Union products are not taken into account in the evaluation.

3.5. In accordance with the provisions in the Annexes hereafter, requests for tariff suspensions or quotas should be submitted by the Member States on behalf of Union processing or manufacturing companies, identified by name, which are adequately equipped to use the imported goods in their production processes. Applicants should indicate that they have recently made a genuine, though unsuccessful, attempt to obtain the goods in question or equivalent or substitute products from potential Union suppliers. For tariff quota requests the Union producer/s name/s have to be indicated in the request. Applicants must also provide the information which will enable the Commission to examine their request on the basis of the criteria laid down in this communication. For practical reasons, requests where the amount of uncollected customs duty is estimated to be less than EUR 15 000 per year cannot be taken into consideration. Enterprises may group together to reach this threshold.

3.6. The current balances of tariff quotas are available daily in the Internet on the EUROPA portal as follows: http://ec.europa.eu/taxation_customs/common/databases/index_en.htm, and click on ‘quota’. The consolidated annexes of the tariff suspension and quota regulations, a list of the new requests and the addresses of the Member States’ administrations responsible will also be made available on the same server.

4. ADMINISTRATIVE ARRANGEMENTS

Experience gained in this area suggests that the best way of administering this sector involves the collection of requests in such a way as to ensure that, when approved, new tariff suspensions and quotas and modifications enter into force on either on 1 January or on 1 July of each year. This grouping facilitates the treatment of these measures within the framework of TARIC (Tarif intégré des Communautés européennes/Integrated Tariff of the European Communities) and, consequently, their application by the Member States. To this end, the Commission will make every effort to present its proposals for tariff suspensions and quotas to the Council in sufficient time for the relevant regulations to be published in the Official Journal of the European Union in advance of their date of application.

4.1. Transmission of new requests

4.1.1. Requests are transmitted to a central office in each of the Member States. Their addresses can be found via the following link: http://ec.europa.eu/taxation_customs/dds2/susp/faq/faqsusp.jsp?Lang=en#Who. Member States are responsible for making sure that the requests fulfil the conditions of this communication and that the information provided in the requests is accurate in all material aspects. Only requests fulfilling the conditions laid down in this communication are sent to the Commission by the Member States.

4.1.2. Transmission to the Commission should be made in due time taking into account the time necessary for the completion of the procedure of evaluation and publication of a tariff suspension or quota. The deadlines to be met are published in Annex V to this communication.

4.1.3. Requests are to be submitted electronically in word processing format using the forms of Annex I. To speed up the administrative and efficient processing of the requests, it is recommended that, along with requests drafted in the language of the applicant, an English, French or German version (including all attachments) is supplied.

4.1.4. All requests are to be joined by a declaration that they are not subject to an exclusive trading agreement (see Annex II to this communication).

4.1.5. Requests for tariff suspensions and quotas are examined by the Commission with the aid of the opinion of the Economic Tariff Questions Group (ETQG). The group meets at least three times per round (see timetable in Annex V to this communication) to discuss the requests under the Commission’s aegis, according to the requirements and nature of the products to be examined.

4.1.6. The proceeding described in paragraph 3.3 of the communication does not release the applicant of the obligation to mention clearly which kind of measure is requested (i.e. tariff suspension or quota); as for quota requests the envisaged volume is part of the request.

4.1.7. The description of the product should be made by using the denominations and wording of the Combined Nomenclature or, if not suitable, of the International Standard Organisation (ISO), International Non-proprietary Names (INN), International Union of Pure and Applied Chemistry (IUPAC), European Customs Inventory of Chemical Substances (ECICS) or Colour Index (CI) names.

4.1.8. The measurement units used should be those of the Combined Nomenclature and in case of non-existence of supplementary units those of the International System of Units (SI). In case test methods and standards are necessary to describe the requested goods these should be internationally recognised. Brand names, company internal quality standards, product specifications, article numbers or similar terms are not acceptable.

4.1.9. The Commission may reject requests in cases where misleading product descriptions are not corrected by the second ETQG meeting.

4.1.10. Requests for tariff suspension or quota are to be accompanied by all the documentation required for a thorough examination of the measures concerned (technical data sheets, explanatory leaflets, sales literature, statistics, samples, etc.). When it is deemed necessary, the Commission may ask the Member State concerned to provide any additional information relating to a request for tariff suspension which it considers essential for the preparation of a proposal to the Council. In case of missing data and documentation the applicant can deliver it until the second meeting of ETQG; if it is not presented by then the Commission may reject the request. Objections to these incomplete requests have to be presented during the third meeting at the latest.

4.1.11. In case any information is confidential, it should be clearly labelled as such and the level of confidentiality needs to be specified (i.e. for Commission use only, for information of the members of ETQG only). Nevertheless, the Chairman of the ETQG may communicate this information to another Member State or Commission Service at its express request, but needs the explicit permission of the representative of the Member State responsible for that information. The delegates of ETQG and the Commission officials are required to take all the necessary precautions to keep the information confidential. However, a request will not be taken into account if any piece of information essential for scrutiny or discussion cannot be supplied for whatever reason (in particular to protect ‘company confidential information’ such as manufacturing processes, chemical formulae or compositions, etc.).

4.2. Transmission of prolongation requests

4.2.1. Requests are to be submitted electronically in word processing format using the form of Annex III to a central office in each of the Member States (see link in 4.1.1), where they are examined to make sure that the requests fulfil the conditions of this communication. The Member States decide under their responsibility which requests are sent to the Commission. The deadlines to be met are published in Annex V to this communication.

4.2.2. The administrative aspects concerning the new requests are applicable, mutatis mutandis, to the prolongation requests.

4.3. Requests for amendments of measures or increase of tariff quota volumes

Requests to amend the product description of a tariff suspension or quota are to be submitted and decided twice a year and will follow the same deadlines as new requests (see Annex V).

Requests to increase the volume of an existing tariff quota can be presented and accepted at any time and in case of acceptance by the Member States be published in the next coming regulation, either 1 January or 1 July. For these requests no deadline for objections is applicable.

4.4. Commission address where requests have to be transmitted to:

European Commission

Directorate-General for Taxation and Customs Union

TAXUD-SUSPENSION-QUOTA-REQUESTS@ec.europa.eu

Requests involving other Commission departments will be transmitted to them.

4.5. Transmission of objections

4.5.1. Objections are transmitted to a central office in each of the Member States (see link in 4.1.1), where they are examined to make sure that the requests fulfil the conditions of this communication. The Member States decide under their responsibility which objections they present via the CIRCA system to the members of ETQG and the Commission.

4.5.2. Objections are to be submitted electronically in word processing format using the form of Annex IV. The deadlines to be met are published in Annex V to this communication.

4.5.3. The Commission may reject an objection when it was sent late, the form was not sufficiently filled in, requested samples were not made available, contacts between the opposing and requesting companies were not made in due time (ca. 15 working days) or the objection form contained misleading or inaccurate information.

4.5.4. In cases where the objecting and requesting companies are not able to communicate (e.g. competition legislation) the Directorate-General for Taxation and Customs Union of the Commission will act as an impartial arbitrator; in cases where this is advisable other Commission departments will be involved.

4.5.5. The Member State acting for the applicant has to take care that company contacts are initiated and has to prove this if requested by the Commission or members of the ETQG.

(1) OJ C 128, 25.4.1998, p. 2.

(2) Council Regulation (EEC) No 2658/87 (OJ L 256, 7.9.1987, p. 1).

(3) OJ L 253, 11.10.1993, p. 1.

(4) For guidance on what constitutes substantial processing or transformation resort will be made to the ‘list rules’ regarding the determination of the non-preferential origin published in the following site: http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/non-preferential/ — Also, repacking operations cannot be considered as substantial processing or transformation.

(5) Articles 291 to 300 of Commission Regulation (EEC) No 2454/93.

(6) For guidance on the meaning of related parties, please refer to Article 143 of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 253, 11.10.1993, p. 1).

ANNEX I Form for: REQUEST FOR TARIFF SUSPENSION/TARIFF QUOTA (Delete inappropriate measure) (Member State: ) Part I (to be published on DG TAXUD website) 1. Combined Nomenclature code: 2. Precise product description taking into account customs tariff criteria: For chemical products only (mainly chapter 28 + 29 of Combined Nomenclature): 3. (i) CUS No (Reference number in European Customs Inventory of Chemicals): (ii) CAS No (Chemical Abstracts Service Registry Number): (iii) Other No: REQUEST FOR TARIFF SUSPENSION/TARIFF QUOTA (Delete inappropriate measure) (Member State: ) Part II (to be public for the members of ETQG) 4. Further information including commercial denomination, mode of operation, intended use of the imported product, type of product in which it is to be incorporated and end-use of that product: For chemical products only: 5. Structural formula: 6. Products are subject to a patent: Yes/No If yes, number of the patent and of issuing authority: 7. Products are subject to an anti-dumping/anti-subsidy measure: Yes/No If yes, further explanation why a tariff suspension/quota is requested: 8. Name and addresses of firms known in the EU approached with a view to the supply of identical, equivalent or substitute products (obligatory for quota requests): Dates and results of these approaches: Reasons for the unsuitability of the products of these firms for the purpose in question: 9. Calculation of tariff quota volume: Annual consumption of applicant: Annual EU production: Requested tariff quota volume: 10. Special remarks: (i) indication of similar tariff suspensions or quotas: (ii) indication of existing binding tariff information: (iii) other remarks: REQUEST FOR TARIFF SUSPENSION/TARIFF QUOTA (Delete inappropriate measure) (Member State: ) Part III (for Commission only) 11. Request submitted by: Address: Tel./Fax: E-mail: 12. Anticipated annual imports for 20XX (first year of the validity period requested): — value (in EUR): — quantity (in weight and supplementary unit if applicable for the CN code in question): 13. Current imports (for 20XX — 2 year) (year preceding the year in which the request is made): — value (in EUR): — quantity (in weight and supplementary unit if applicable for the CN code in question): 14. Applicable duty rate at the time of the request (including preferential agreements, freetrade agreements, if they exist for the origin of the requested goods): Third country duty rate: Preferential duty rate applicable: yes/no (if yes, duty rate: …) 15. Estimated uncollected customs duties (in EUR) on an annual basis: 16. Origin of requested goods: Name of non-EU producer: Country: 17. Names and addresses of the user in the EU: Address: Tel./Fax: E-mail: 18. Declaration by the interested party that the imported products are not the subject of an exclusive trading agreement (join extra sheet— see Annex II to this communication) (obligatory) Annexes (products data sheets, explanatory leaflets, brochures, etc.) Number of pages: NB: If any of the items of information in part II or III is confidential, separate pages, clearly labelled as such, have to be added. The level of confidentiality needs to be specified also on the cover page.

ANNEX II Form for: DECLARATION OF NON-EXISTENCE OF AN EXCLUSIVE TRADING AGREEMENT (1) Name: Address: Tel./Fax: E-mail: Name and function of signatory: I herewith declare, on behalf of (company's name) that the following product(s) (product description(s)) is/are not subject to an exclusive trading agreement. (Signature, date) (1) Exclusive trading agreements are any agreements that hinder other companies than the applicant to import the requested product(s).

ANNEX III Form for: REQUEST FOR PROLONGATION OF A TARIFF SUSPENSION (Member State: ) Part I (public) Combined Nomenclature (CN) or TARIC code: Precise product description: Part II Request submitted for (Name and address of the importer/the user in the EU): Applicable duty rate at the time of the request (including preferential agreements, free trade agreements, if they exist for the origin of the requested goods): Imports (year 20XX, first year of the new validity period requested): — value (in EUR): — quantity (in weight and supplementary unit if applicable for the CN code in question): Estimated uncollected customs duties (in EUR) on an annual basis:

ANNEX IV Form for: OBJECTION TO A REQUEST FOR TARIFF SUSPENSION/TARIFF QUOTA (delete inappropriate measure) (Member State: ) Part I Request No: CN-Code: Goods description: Working No:  Goods are currently produced in the Union or Turkey and are available on the market.  Equivalent or substitute products are currently obtainable within the Union or Turkey. Explanatory comments (differences, why and how it may replace the requested product): Technical data sheets which prove the character and quality of the offered product have to be attached.  Other: Suggested compromise (explanatory comments): Transfer into a tariff quota: Suggested quota volume: Partial tariff suspension: Suggested duty rate: Other proposals: Remarks: Company producing currently an identical, equivalent or substitute product within the EU or Turkey Name of the company: Person to contact: Address: Tel.: Fax: E-mail: Product trade name: OBJECTION TO A REQUEST FOR TARIFF SUSPENSION/TARIFF QUOTA (delete inappropriate measure) (Member State: ) Part II Production capacity (available for the market; e.g. not bound in house or by contracts): Present: Within the next six months: