2003/34/EC: Commission Decision of 10 January 2003 refusing to grant a derogation from Council Decision 2001/822/EC, as regards the rules of origin for sugar from the Netherlands Antilles (notified under document number C(2002) 5501)
Date: 2003-01-10
Institutions: European Commission
Subjects: Netherlands Antilles, derogation from EU law, import licence, originating product, sugar

L 11/50

EN

Official Journal of the European Communities

16.1.2003

COMMISSION

COMMISSION DECISION

of 10 January 2003

refusing to grant a derogation from Council Decision 2001/822/EC, as regards the rules of origin
for sugar from the Netherlands Antilles

(notified under document number C(2002) 5501)

(2003/34/EC)

(5)

(6)

(7)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Decision 2001/822/EC of 27
November 2001 on the association of the overseas countries
and territories with the European Community (1), and in parti-
cular Article 37 of Annex III thereto,

Whereas:

(1)

(2)

(3)

(4)

the concept of

Annex III to Decision 2001/822/EC concerns the defini-
tion of
'originating products' and
methods of administrative cooperation. Article 37(1)
thereof provides that derogations from those rules of
origin may be adopted where justified by the develop-
ment of existing industries or the creation of new indus-
tries in a country or territory, while Article 37(4) stipu-
lates that, in every case, an examination shall be made to
ascertain whether the rules relating to cumulation of
origin do not provide a solution to the problem.

On 20 February 2002 the Netherlands requested a dero-
gation from the rule of origin in respect of an annual
quantity of 3 000 tonnes of non-ACP sugar, imported
from Colombia into the Netherlands Antilles, for proces-
sing and subsequent exportation to the Community over
a period of five years and expected to have a positive
impact on the development of the existing industry. The
Netherlands requested that this derogation be applied
within the annual quantity of 28 000 tonnes provided
for the ACP/EC-OCT cumulation of origin under Article
6(4) of Annex III to Decision 2001/822/EC.

On 13 May 2002, the Netherlands withdrew the request,
pending the outcome of an additional examination of
the possibilities to supply ACP sugar to the producer
concerned.

On 4 October 2002, the Netherlands submitted addi-
tional information, according to which sugar producers
in five different ACP States had refused, in May and June
2002, to supply the producer with the sugar required,

(1) OJ L 314, 30.11.2001, p. 1.

while one sugar producer in Guyana was willing to
supply the quantity and quality requested but offered a
price (USD 450/tonne fob Georgetown) that was much
higher than the price of the Colombian sugar (USD 275/
tonne franco warehouse of the purchaser). The Nether-
lands asked for the request for a derogation from the
rule of origin to be reconsidered, in particular on the
basis of that information.

In particular the Netherlands indicate that the labour
and overheads in the Antilles represents an amount of
EUR 1 095 570 for 3 000 tonnes of finished products.
The
represents
finished
of
value
EUR 3 241 200.

products

the

An examination of the information supplied shows that
the value added of the transaction, as defined by Article
1(i), exceeds 45 % of the ex-works price of the finished
product,
in both cases of supply of Colombian and
Guyana sugar.

According to the information supplied by the Nether-
lands on the occasion of the request of 20 February
2002, the producer obtained, under the annual quota of
28 000 tonnes for 2002, an import licence for a quan-
tity of 6 222 tonnes. Consequently, the application by
the producer for 2002, pursuant to Article 6 of Regula-
tion (EC) No 192/2002, amounted to a quantity of
10 000 tonnes. In accordance with the provisions of
Article 6(1) of Regulation (EC) No 192/2000,
the
producer had to submit its application for 2002 to the
ten working days of
national authorities in the first
February of
that year. The producer concerned has
submitted its application for an import licence prior to
the introduction by the Netherlands of the initial request
for a derogation from the rules of origin. When introdu-
cing its request
the producer
concerned was not in a position to assume that a dero-
gation from the rules of origin would be granted and
therefore took a risk as to whether any or all of the
certificates could be used with the possible consequence
of the loss of the guarantee.

for an import

license,

16.1.2003

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Official Journal of the European Communities

L 11/51

(8)

In the light of all these elements, the requested deroga-
tion is not justified with regard to Article 37(1) of Annex
III. The information provided indicates that the rules
relating to cumulation of origin can provide a solution
to the problem. In particular no information has been
supplied to the effect that the transaction using Guyana
sugar would be so uneconomical as
to cause the
producer to cease its activities. Moreover, given that the
value added represented by the transaction in the case of
supply of both Colombian and Guyana sugar exceeds
45 % of the ex-works price of
the finished product,
Article 37(7) does not apply.

HAS ADOPTED THIS DECISION:

Article 1

The request initially submitted on 20 February 2002 by the
Netherlands, and completed on 4 October 2002, for a deroga-
tion from Council Decision 2001/822/EC, as regards the rules
of origin for sugar from the Netherlands Antilles,
is hereby
rejected.

This Decision is addressed to the Member States.

Article 2

(9)

The measures provided for in this Decision are in accor-
the Customs Code
dance with the opinion of
Committee,

For the Commission

Frederik BOLKESTEIN

Member of the Commission

Done at Brussels, 10 January 2003.