Proposal for a Council Decision on the signature and conclusion of the Agreement between the European Community and the United States of America on intensifying and broadening the Agreement of 28 May 1997 on customs co-operation and mutual assistance in customs matters to include co-operation on Container Security and related matters
Date: 2004-01-22
Institutions: European Commission
Subjects: United States, carriage of goods, container, cooperation agreement (EU), customs cooperation, customs inspection, maritime transport, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 22.1.2004
COM(2004) 36 final

2004/0007 (ACC)

Proposal for a

COUNCIL DECISION

on the signature and conclusion of the Agreement between the European Community
and the United States of America on intensifying and broadening the Agreement of
28 May 1997 on customs co-operation and mutual assistance in customs matters to
include co-operation on Container Security and related matters

(presented by the Commission)

EN

  EN

EXPLANATORY MEMORANDUM

INTRODUCTION

1.

2.

Following 11 September 2001, the United States launched several initiatives in order
to  tackle  the  perceived  terrorist  threat  of  container  transport.  One  of  the  measures
taken  is  the Container Security  Initiative,  which  aims  at  making maritime  transport
more  secure  without  hindering  legitimate  global  trade.  A  critical  element  of  this
initiative is the availability of advance information to perform sophisticated targeting
and the stationing of US customs officials in the port of shipment.

Participation of Community ports in the Container Security Initiative is necessary to
avoid  significant  barriers  to  large  volumes  of  transatlantic  trade  with  the  United
States resulting from customs control measures in US ports.

PROPOSED EXPANSION OF THE EC/US AGREEMENT TO COVER CONTAINER SECURITY

3.

4.

5.

On  18  March  2003,  the  Council  unanimously  authorised  the  Commission  to
negotiate  with  the  US  an  expansion  of  the  “Agreement  between  the  European
Community and the  United States  of  America on  customs  co-operation  and  mutual
assistance in customs matters” (hereinafter the “EC/US Agreement”). 1

The  draft  “Agreement  between  the  European  Community  and  the  United  States  of
America on intensifying and broadening the Agreement of 28 May 1997 on customs
co-operation  and  mutual  assistance  in  customs  matters  to  include  co-operation  on
Container  Security  and  related  matters”  (hereinafter  the  “Agreement”)  expands  the
customs  co-operation  between  the  European  Community  and  the  United  States  to
container  security  and  related  matters.  It  envisages  the  prompt  and  successful
extension of the Container Security Initiative to all ports in the European Community
that  meet  relevant  requirements.  The  draft  Agreement  also  sets  out  a  work
the
programme  for  further 
development  of  standards  for  risk  management  techniques,  information  required  to
identify  high-risk  shipments  imported  into  the  Parties,  and  industry  partnership
programs.

implementation  measures  cooperation, 

including 

The Commission considers that the text of the proposed agreement is in accordance
with the negotiating directives. In order to enable the Agreement on intensifying and
broadening  the  EC/US  Agreement  to  be  signed,  the  Commission  proposes  that  the
Council approve the attached proposal for a decision on the signing  and conclusion
of the Agreement.

CHOICE OF THE LEGAL BASIS

6.

Article  133  of  the  EC  Treaty  gives  the  Community  the  exclusive  competence  to
formulate a commercial policy based on “uniform principles, particularly in regard to
changes in tariff rates, the conclusion of tariff and trade agreements, the achievement
of  uniformity  in  measures  of  liberalisation,  export  policy  and  measures  to  protect
trade”.

1

OJ L 222 of 12.8.1997, p. 17– 24.

2

 
                                                
7.

8.

9.

One of the core elements of the  commercial policy  are uniform customs  tariffs  and
the  conclusion  of  trade  agreements  aiming  at  the  abolition  of  restrictions  to
international  trade  the  lowering  of  customs  barriers  and  the  functioning  of  the
customs union towards third countries.

To  that  end  the Community  has concluded a large  number  of  bilateral  customs  co-
operation agreements, including the EC/US Agreement.

The  draft  agreement  intensifying  and  broadening  the  EC/US  Agreement  comes  in
essentials  within  the  context  of  Article  133  of  the  EC  Treaty.  Its  direct  aim  is  to
ensure  continued  flow  of  transatlantic  trade  between  Community  ports  and  the
United  States  of  America  on  the  basis  of  uniform  principles.  The  expansion  of  the
cooperation agreement establishes a framework to ensure equal levels and standards
of  control  for  US  and  EC  operators  in  all  Member  States  and  thereby  facilitates
legitimate  trade.  The  external  co-ordination  of  customs  control  standards  with  the
United States of America is also necessary to ensure the continued flow of legitimate
trade in containers from all Community ports.

PROPOSED  CO-ORDINATION  MECHANISM  FOR  FURTHER  INTENSIFYING  CO-OPERATION  ON

CONTAINER SECURITY

10.

11.

12.

13.

14.

The  framework  agreed  at  the  Community  level  leaves  open  to  which  Community
ports  the  Container  Security  Initiative  shall  be  actually  expanded.  Certain  Member
States  have  already  implemented  declarations  of  principle  with  the  United  States
identifying ports that participate in the Container Security Initiative and providing for
the stationing of US customs officials in these ports.

It  is  appropriate  to  authorise  Member  States  to  implement  the  expansion  of  the
Container Security Initiative to all Community ports through  arrangements with the
United  States  or  to  maintain  existing  declarations  of  principles  provided  that  these
are  in  conformity  with  the  Treaty  establishing  the  European  Communities  and
compatible with the EC/US Agreement as expanded.

It is also necessary to ensure close cooperation between the Member States and the
Community institutions for the purpose of the further intensification and broadening
of the customs co-operation under the EC/US Agreement as expanded.

To  that  end  a  consultation  procedure  shall  be  established  whereby  Member  States
envisaging to negotiate further arrangements or agreements with the United States on
matters  covered  by  the  EC/US  Agreement  as  expanded  by  the  Agreement  would
immediately  notify  such  intention  and  provide  the  relevant  information.  If  so
requested  by  a  Member  State  or  the  Commission  within  short  time  limits  the
information  shall  be  subject  of  consultations  between  the  Member  States  and  the
Commission.

The  main  purpose  of  the  consultations  shall  be  to  facilitate  the  exchange  of
information  and  to  ensure  that  the  arrangements  are  consistent  with  the  Treaty
establishing  the  European  Communities  and  common  policies,  in  particular  the
common  framework  of  co-operation  with  the  United  States  set  out  in  the  EC/US
Agreement as expanded.

3

 
15.

16.

Where the Commission considers that an arrangement or  agreement  that a  Member
State  wishes  to  implement  with  the  United  States  of  America  is  incompatible  with
the EC/US Agreement as expanded or that the subject-matter should be addressed in
the  framework  of  the  EC/US  Agreement  as  expanded,  it  shall  inform  the  Member
State accordingly.

The consultation procedure shall be without prejudice to the respective competencies
of the Member States and the European Community to conclude the arrangements or
agreements envisaged.

4

 
2004/0007 (ACC)

Proposal for a

COUNCIL DECISION

on the signature and conclusion of the Agreement between the European Community
and the United States of America on intensifying and broadening the Agreement of
28 May 1997 on customs co-operation and mutual assistance in customs matters to
include co-operation on Container Security and related matters

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article 133, in conjunction with Article 300 (2), first sentence,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

The  Container  Security  Initiative  launched  by  the  United  States  after  the  terrorist
attacks  on  September  11th  2001  aims  at  making  maritime  transport  more  secure
without hindering legitimate global trade. An important element of this initiative is the
availability of advance information to perform sophisticated targeting.

Participation of Community ports in  the  Container  Security  Initiative  is  necessary  to
avoid significant barriers to large volumes of transatlantic trade with the United States
resulting  from  customs  control  measures  in  US  ports.  Certain  Community  ports  are
already participating in the Container Security on the basis of bilateral declarations of
principle between individual Member States and the United States of America. These
declarations  of  principle  identify  Community  ports  that  participate  in  the  Container
Security Initiative and provide for the stationing of US customs officials therein.

The Agreement between the European Community and the United States of America
on  customs  co-operation  and  mutual  assistance  in  customs  matters”  (hereinafter  the
“EC/US Agreement”)2 provides for the possibility of expanding the agreement with a
view  to  increasing  the  levels  of  customs  co-operation  and  supplementing  them  by
means of agreements on specific sectors or matters.

The Commission has negotiated on behalf of the European Community an agreement
with the United States of America intensifying and broadening the EC/US Agreement
of 28 May 1997 on customs co-operation and mutual assistance in customs matters to
include  co-operation  on  Container  Security  and  related  matters  (hereinafter  the
“Agreement”)3,

2

3

OJ L 222 of 12.8.1997, p. 17– 24.
OJ L 222 of 12.8.1997, p. 17– 24.

5

 
                                                
(5)

(6)

(7)

(8)

(9)

(10)

(11)

The Agreement expands the customs co-operation between the European Community
and the United States to cover container security and related matters. It envisages the
prompt and successful expansion of the Container Security Initiative to all ports in the
European Community that meet relevant requirements. The Agreement also sets out a
work  programme  for  further  implementation  measures  cooperation,  including  the
development  of  standards  for  risk  management  techniques,  information  required  to
identify  high-risk  shipments  imported  into  the  Parties,  and  industry  partnership
programs.

The  external  co-ordination  of  customs  control  standards  with  the  United  States  of
America is necessary to ensure the continued flow of legitimate trade in containers. In
particular,  it  is  essential  to  ensure  that  all  Community  ports  can  participate  in  the
Container Security  Initiative on the  basis  of  uniform  principles.  Thus,  the  direct  aim
and  content  of  the  Agreement  concerns  the  facilitation  of  legitimate  trade  from
Community ports with the United States of America.

It  is,  therefore,  necessary  to  approve  the  Agreement  on  intensifying  and  broadening
the Agreement on customs  co-operation and  mutual assistance  in  customs  matters  to
include co-operation on Container Security and related matters that has been initialled
on 18 November 2003;

Member  States  shall  be  authorised  to  implement  the  expansion  of  the  Container
Security  Initiative  to  all  Community  ports  through  arrangements  with  the  United
States identifying Community ports that participate in the Container Security Initiative
and  providing  for  the  stationing  of  US  customs  officials  therein  or  to  maintain  any
such existing declarations of principles to that end, provided these arrangements are in
conformity  with  the  Treaty  establishing  the  European  Communities  and  compatible
with the EC/US Agreement as expanded by the Agreement.

It  is  necessary  to  ensure  close  cooperation  between  the  Member  States  and  the
Community institutions for the purpose of the further intensification and broadening of
the customs co-operation under the EC/US Agreement.

To  that  end  a  consultation  procedure  shall  be  established  whereby  Member  States
envisaging to negotiate further arrangements or agreements with the United States on
matters covered by the EC/US Agreement as expanded would immediately notify such
intention and provide the relevant information. If so requested by a Member State or
the  Commission  within  short  time  limits  the  information  shall  be  subject  of
consultations between the Member States and the Commission.

The  main  purpose  of  the  consultations  shall  be  to  facilitate  the  exchange  of
information  and  to  ensure  that  the  arrangements  are  consistent  with  the  Treaty
establishing  the  European  Communities  and  common  policies,  in  particular  the
common  framework  of  co-operation  with  the  United  States  set  out  in  the  EC/US
Agreement as expanded.

(12) Where  the  Commission  considers  that  an  arrangement  or  agreement  that  a  Member
State wishes to implement with the United States of America is incompatible with the
EC/US Agreement as expanded or that the subject-matter should be addressed in the
framework  of  the  EC/US  Agreement  as  expanded,  it  shall  inform  the  Member  State
accordingly.

6

 
(13)

The consultation procedure shall be without prejudice to the respective competencies
of the Member States and the European Community to conclude the arrangements or
agreements envisaged.

HAS DECIDED AS FOLLOWS:

Article 1

The  Agreement  between  the  European  Community  and  the  United  States  of  America  on
intensifying and broadening the Agreement on customs co-operation and mutual assistance in
customs matters to include co-operation on Container Security and related matters is hereby
approved on behalf of the European Community.

The text of the Agreement is attached to this decision.

Article 2

The President of the Council is hereby authorised to designate the person empowered to sign
the Agreement on behalf of the European Community thereby expressing the consent of the
Community to be bound.

1.

2.

3.

4.

5.

Article 3

Member States are authorised to implement arrangements with the United States of
America in order  to  expand  the  Container  Security  Initiative  to  further  ports  in  the
Community.  Such  arrangements  shall  make  reference  to  the  EC/US  Agreement  as
expanded and comply with Article 5(2) thereof.

Member States may also maintain any such arrangements with the United States of
America.  To the  extent  that  such  arrangements  are  not  compatible  with  the  EC/US
Agreement as expanded, Member States concerned shall enter into contact with the
United States so as to eliminate the incompatibilities established.

Member  States  envisaging  to  negotiate  further  arrangements,  agreements  or
amendments  to  existing  ones  with  the  United  States  relating  to  matters  covered  by
the EC/US Agreement as expanded shall immediately notify the Commission and the
other Member States and provide relevant information with the notification.

If so requested by a Member State or the Commission within 8 working days of the
receipt of the notification, the information shall be subject of consultations between
the Member States and the Commission.

The  main  purpose  of  the  consultations  provided  for  in  paragraph  3  shall  be  to
facilitate  the  exchange  of  information  and  to  ensure  that  the  arrangements  or
agreements  are  consistent  with  the  Treaty  establishing  the  European  Communities
and common policies, in particular the common framework of co-operation with the
United States set out in the EC/US Agreement as expanded.

The consultations shall take place no later than 7 working days after the receipt of the
notification within the Committee established by Article 247 of Regulation 2913/92.

7

 
6.

7.

If  within  5  working  days  after  the  consultations  the  Commission  concludes  that  an
arrangement or agreement that a Member State wishes to implement with the United
States  of  America  is  incompatible  with  the  EC/US  Agreement  as  expanded  or  that
the subject-matter should be addressed in the framework of the EC/US Agreement as
expanded, it shall inform the Member State accordingly.

Member  States shall  transmit  to  the Commission and  to  the other Member  States a
copy of arrangements or agreements referred to in paragraph 1 and 2, as well as any
denunciation of, or amendments thereto.

This  consultation  procedure  is  without  prejudice  to  the  respective  competencies  of  the
Member States and the European Community.

Done at Brussels,

For the Council
The President

8

 
ANNEX

Draft

Agreement between the European Community and the United States of America
on intensifying and broadening the Agreement on customs co-operation and mutual
assistance in customs matters to include co-operation on Container Security and
related matters

THE EUROPEAN COMMUNITY AND THE UNITED STATES OF AMERICA,

Having regard to the provisions of the Agreement between the European Community and the
United States of America on customs co-operation and mutual assistance in customs matters,
which was signed May 28, 1997, hereafter called "the CMAA";

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Acknowledging that U.S. Customs and Border Protection is, as of March 1, 2003, the
successor to the United States Customs Service under the CMAA;

Recalling that the Contracting Parties may by mutual consent decide to expand areas
of co-operation under the CMAA pursuant to Article 3;

Recalling that, under Article 22 of the CMAA, the JCCC consists of representatives of
the Customs Authorities of the Contracting Parties, which in the European Community
are the competent services of the Commission of the European Communities assisted
by the customs authorities of the Member States of the European Community and in
the United States of America is the U.S. Customs and Border Protection, Department
of Homeland Security;

Recognizing that the Joint Customs Co-operation Committee (JCCC) was established
under Article 22 of the CMAA;

Acknowledging  the  long-standing,  close  and  productive  relations  between  the
Customs Authorities of the United States of America and of the European Community;

Being  convinced  that  this  co-operation  can  be  further  improved  by,  among  other
things, intensifying the exchange of relevant information and best practices among the
U.S.  Customs  and  Border  Protection,  the  European  Commission  and  the  Customs
Authorities  of  Member  States  of  the  European  Community  in  order  to  ensure  that
general customs controls of international trade take due account of security concerns;

Acknowledging  the  importance  of  extending  this  co-operation  to  all  modes  of
international transport and all kinds of goods, initially putting priority on sea-container
transport;

9

 
(8)

Recognizing  the  high  volume  of  two-way  sea-container  and  other  modes  of  trade
between  the  European  Community  and  the  United  States  of  America,  and  the
important  role  of  both  the  European  Community  and  the  U.S.  as  transport  hubs  for
containers coming from many countries;

(9)

Recognizing  that  global  sea  containers  are  imported  into,  transhipped  through,  or
transiting the United States of America and the European Community;

(10) Being  convinced  that  there  is  a  need  to  deter,  prevent,  and  interdict  any  terrorist
attempts to disrupt global trade by concealing terrorist weapons in global sea-container
trade or other shipments, or by using such shipments as weapons;

(11) Being convinced of the need to increase security for the European Community and the

United States of America and at the same time facilitate legitimate trade;

(12) Noting the importance of developing, to the extent practicable, reciprocal systems for
securing and facilitating legitimate trade with due regard to threat assessments;

(13) Recognising  that  substantially  greater  security  of  legitimate  trade  can  be  achieved
through  a  system  where  the  customs  authority  of  the  importing  country  works
collaboratively with customs authorities involved in earlier parts of the supply chain to
use  timely  information  and  inspection  technology  to  target  and  screen  high-risk
containers  before  they  are  shipped  from  their  ports  or  places  of  loading  or
transhipment;

(14)

Supporting the objectives of the Container Security Initiative (CSI), which is designed
to safeguard global maritime trade by enhancing co-operation at seaports world wide
in  order  to  identify  and  examine  high-risk  containers  and  ensure  their  in-transit
integrity;

(15) Recalling  Article  5  of  the  CMAA  that  determines  the  relationship  between  that
Agreement  and  any  bilateral  agreement  on  co-operation  and  mutual  assistance  in
customs  matters  that  have  been  or  may  be  concluded  between  individual  Member
States of the European Community and the United States;

(16) Recognizing  that  expansion  of  CSI  should  occur  as  quickly  as  possible  for  all  ports
within the European Community where the exchange of sea-container traffic with the
United  States  of  America  is  more  than  de  minimis  and  where  certain  minimum
requirements are met and where adequate inspection technology exists;

HAVE AGREED ON THE FOLLOWING:

Article 1

To intensify and broaden customs co-operation under the CMAA to improve the security of
sea-container  and  other  shipments  from  all  locations  that  are  imported  into,  transhipped
through, or transiting the European Community and the United States of America.

10

 
Article 2

To take due account of Article 5 of the CMAA, which determines the relations between the
CMAA and any bilateral agreement on co-operation and mutual assistance in customs matters
between Member States of the European Community and the United States of America, and
any CSI Declarations of Principles that complement such bilateral agreements

That  the  objectives  of  the  intensified  and  broadened  co-operation  include,  but  are  not
limited to:

Article 3

(1) 

Supporting the prompt and successful expansion of the CSI to all ports in the
European  Community  that  meet  relevant  requirements,  and  promoting
comparable standards in the relevant U.S. ports;

(2)  Working  together  to  reinforce  the  customs  related  aspects  for  securing  the
logistics  chain  of  international  trade  and,  in  particular,  as  a  first  priority  to
enhance the identification and security screening of all high-risk sea-container
shipments ;

(3) 

(4) 

Establishing  minimum  standards,  to  the  greatest  extent  practicable,  for  risk-
management techniques and related requirements and programs; and

Co-ordinating positions, to the greatest extent practicable, in any multilateral
fora  where  issues  related  to  container  security  may  be  appropriately  raised
and discussed.

Article 4

To  consider  in  the  JCCC  the  appropriate  form  and  content  of  documents  and/or  measures
further  implementing  the  intensified  and  broadened  customs  co-operation  under  this
Agreement.

Article 5

To  form  a  Working  Group,  comprised  of  representatives  of  U.S.  Customs  and  Border
Protection and of the European Commission assisted by interested Member States in order to
examine and make recommendations to the JCCC on issues including, but not limited to those
identified in the Annex.

Article 6

That the Working Group is to report on a regular basis to the Commissioner of U.S. Customs
and  Border  Protection  and  the  Director-General  of  the  Taxation  and  Customs  Union
Directorate General of the European Commission and annually to the JCCC on the progress
of its work.

11

 
Article 7

This agreement shall enter into force upon signature by the Parties which shall have the effect
of expressing their consent to be bound. If the agreement is not signed the same day on behalf
of both Parties, the agreement shall enter into force on the day on which the second signature
is affixed.

Signed at ……………………, on …………………………..

FOR THE EUROPEAN COMMUNITY

FOR THE UNITED STATES OF AMERICA:

12

 
ANNEX to the Agreement between the European Community and the United States of
America on intensifying and broadening the CMAA to include co-operation on
Container Security and related matters

The  Working  Group  created  under  Paragraph  5  of  the  Agreement  between  the  European
Community and the United States of America on intensifying and broadening the CMAA to
include  co-operation  on  Container  Security  and  related  matters  shall  examine  and  make
recommendations on issues including, but not limited to, the following areas of co-operation
between  U.S.  Customs  and  Border  Protection  and  Customs  authorities  in  the  European
Community with a view to ensuring that general customs controls of international trade take
due account of security concerns:

a.

b.

c.

d.

e.

f.

g.

Defining  minimum  standards,  in  particular  in  view  of  participating  in  CSI,  and
recommending methods by which those standards may be met;

Identifying  and  broadening  the  application  of  best  practices  concerning  security
controls of international trade, especially those developed under CSI;

Defining  and  establishing  standards  to  the  greatest  extent  practicable  for  the
information  required  to  identify  high-risk  shipments  imported  into,  transhipped
through, or transiting the United States and the European Community;

Improving and establishing standards to the greatest extent practicable for targeting
and screening such high-risk shipments, to include information exchange, the use of
automated  targeting  systems,  and  the  development  of  minimum  standards  for
inspection technologies and screening methodologies;

Improving  and  establishing  standards  to  the  greatest  extent  practicable  for  industry
partnership-programs  designed  to  improve  supply  chain  security  and  facilitate  the
movement of legitimate trade;

Identifying  any  regulatory  or  legislative  changes  that  would  be  necessary  to
implement the recommendations of the Working Group; and

Considering  the  type  of  documents  and  measures  further  implementing  the
intensified and broadened customs co-operation on the issues set out in this Annex.

13