Proposal for a Council Regulation applying the arrangements for goods originating in certain states which are part of the African, Caribbean and Pacific Group of States (ACP) provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements
Date: 2007-11-13
Institutions: European Commission
Subjects: ACP countries, economic agreement, market access, originating product, trade agreement, trade cooperation, trade policy

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.11.2007 
COM(2007) 717 final 

2007/0250 (ACC) 

Proposal for a 

COUNCIL REGULATION 

applying the arrangements for goods originating in certain states which are part of the 
African, Caribbean and Pacific Group of States (ACP) provided for in agreements 
establishing, or leading to the establishment of, Economic Partnership Agreements 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

This  proposal  for  a  Council  Regulation  applying  the  arrangements  for  goods  originating  in 
certain  states  which  are  part  of  the  African,  Caribbean  and  Pacific  Group  of  States  (ACP) 
provided  for  in  agreements  establishing,  or  leading  to  the  establishment  of,  Economic 
Partnership  Agreements  follows  from  the  Communication  from  the  Commission  to  the 
Council and the European Parliament on Economic Partnership Agreements (EPAs) that was 
adopted by the Commission on 23 October 2007 (COM(2007) 635). 

That Communication sets out how the core objectives of full, comprehensive EPAs with all 
ACP  regions  can  be  achieved  while  minimising,  as  far  as  is  possible,  the  risks  of  trade 
disruption  for  those  African  Caribbean  and  Pacific  (ACP)  Regions  or  Sub-Regions  that 
conclude  negotiations  on  agreements  establishing,  or  leading  to  the  establishment  of, 
Economic  Partnership  Agreements  before  the  expiry  of  the  current  trade  regime  on  31 
December  2007  and  in  a  manner  consistent  with  the  Community's  international  obligations. 
The  Regulation  does  this  by  establishing  a  legal  basis  to  apply  the  arrangements  for  goods 
provided  for  in  agreements  establishing,  or  leading  to  the  establishment  of,  Economic 
Partnership Agreements 

This Regulation will be based on provisions in those agreements permitting the application of 
the agreements, in so far as is feasible, before the provisional application on a mutual basis of 
the  agreements.  As  such  it  will  continue  in  force  once  the  agreements  are  provisionally 
applied and have entered into force,  and will be amended or  superseded  in order  to bring it 
into conformity with those aspects of the agreements which it has not been feasible to include 
in this Regulation. As a result, this Regulation is without prejudice to the relevant procedures 
for the conclusion and entry into force of the agreements. 

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2007/0250 (ACC) 

Proposal for a 

COUNCIL REGULATION 

applying the arrangements for goods originating in certain states which are part of the 
African, Caribbean and Pacific Group of States (ACP) provided for in agreements 
establishing, or leading to the establishment of, Economic Partnership Agreements 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
133 thereof, 
Having regard to the proposal from the Commission1, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Article  37(1)  of  the  Partnership  Agreement  between  the  members  of  the  African, 
Caribbean and Pacific Group of States, of the one part, and the European Community 
(EC)  and  its  Member  States,  of  the  other  part,  signed  in  Cotonou  on  23  June  20002 
(hereinafter  referred  to  as  the  'ACP-EC  Partnership  Agreement')  provides  that 
Economic  Partnership  Agreements  (EPAs)  are  to  enter  into  force  no  later  than  1 
January 2008. 

Article 36(3) of the Cotonou Agreement provides for the  maintenance of the trading 
arrangements contained in Annex V to that Agreement until 31 December 2007. 

The  Community  has  since  2002  been  negotiating  Economic  Partnership  Agreements 
with  the  ACP  Group  of  States  in  the  form  of  six  regions  comprising  the  Caribbean, 
Central  Africa,  Eastern  and  Southern  Africa,  the  Pacific  Island  States,  the  South 
African Development Community and West Africa. 

Those  agreements  establishing,  or  leading  to  the  establishment  of,  Economic 
Partnership Agreements for which negotiations have been concluded provide that the 
parties  may  take  steps  to  apply  the  agreement,  before  provisional  application  on  a 
mutual  basis,  to  the  extent  feasible.  It  is  appropriate  to  take  action  to  apply  the 
agreements on the basis of these provisions. 

The  arrangements  included  in  this  Regulation  are  to  be  amended,  as  necessary,  in 
accordance  with  the  agreements  establishing,  or  leading  to  the  establishment  of, 
Economic  Partnership  Agreements,  as  and  when  such  agreements  are  signed  and 
concluded pursuant to Article 300 of the Treaty and are in force. The arrangements are 
to  be  terminated  in  whole  or  in  part  if  the  agreements  in  question  do  not  enter  into 
force within a reasonable period of time in accordance with the Vienna Convention on 
the Law of Treaties. 

(6) 

For the Community, the arrangements in the agreements establishing, or leading to the 
establishment of, Economic Partnership Agreements, shall provide for duty free access 

1 
2 

OJ C , , p. . 
OJ L 317, 15.12.2000, p. 3. Agreement as rectified by OJ L 385, 29.12.2004, p. 88.  

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and  no  tariff  rate  quotas  for  all  products  with  the  exception  of  arms,  subject  to 
transitional  periods  and  arrangements  for  certain  sensitive  products  and  specific 
arrangements for the French Overseas Departments. In the light of the specificities of 
the  situation  of  South  Africa,  products  originating  in  South  Africa  shall  continue  to 
benefit  from  the  relevant  provisions  of  the  Agreement  on  Trade,  Development  and 
Cooperation between the European Community and its Member States, of the one part, 
and South Africa, of the other part3, until such time as an agreement establishing, or 
leading  to  the  establishment  of,  Economic  Partnership  Agreements  enters  into  force 
between the Community and South Africa. 

Instead of relying on the special arrangements for least-developed countries provided 
for in Regulation (EC) No 980/2005 of 27 June 2005 applying a scheme of generalised 
tariff preferences4, it is preferable that those least-developed countries which are also 
ACP  States  base  their  future  trade  relationship  with  the  Community  on  Economic 
Partnership Agreements. In order to facilitate such a development, it is appropriate to 
provide  that  such  countries  which  have  concluded  negotiations  on  agreements 
establishing,  or  leading  to  the  establishment  of,  Economic  Partnership  Agreements, 
and  which  can  benefit  from  the  arrangements  provided  under  this  Regulation  may 
continue  to  benefit,  for  a  limited  period  of  time,  from  the  special  arrangements  for 
least  developed  countries  in  Regulation  (EC)  No  980/20055  in  respect  of  those 
products  where  the  transitional  arrangements  set  out  in  this  Regulation  are  less 
favourable. 

The  rules  of  origin  applicable  to  imports  made  under  this  Regulation  should  for  a 
transitional  period  be  those  set  in  Annex  II  to  this  Regulation.  Those  rules  of  origin 
shall  gradually  be  replaced  on  the  basis  of  the  relevant  Economic  Partnership 
Agreement. 

It is necessary to provide for the possibility to temporarily suspend the arrangements 
set  out  in  this  Regulation  in  the  event  of  a  failure  to  provide  administrative  co-
operation, irregularities or  fraud. Where a Member State provides information  to  the 
Commission on a possible fraud or failure to provide administrative cooperation, the 
relevant Community legislation shall apply, in particular Regulation (EC) No 515/97 
of 13 March 1997 on mutual assistance between the administrative authorities of the 
Member States and cooperation between the latter and the Commission to ensure the 
correct application of the law on customs and agricultural matters6.  

It is appropriate that this Regulation provides for transitional arrangements for  sugar 
and  rice,  together  with  special  transitional  safeguard  and  surveillance  mechanisms 
applicable after the termination of the transitional arrangements. 

In the context of the transitional arrangements for sugar, Protocol 3 attached to Annex 
V  to  the  Cotonou  Agreement  (containing  the  text  of  Protocol  3  on  ACP  sugar)  will 
cease to apply with effect from 1 October 20097.  

(7) 

(8) 

(9) 

(10) 

(11) 

(12)  Upon  the  termination  of  Protocol  3  and  in  view  of  the  particular  sensitivity  of  the 
sugar market, it is appropriate to adopt transitional measures for that product. At the 

3 
4 
5 
6 

7 

OJ L 311, 4.12.1999, p. 1. 
OJ L 169, 30.6.2005 p. 1. 
OJ L 169, 30.6.2005 p. 1. 
OJ  L  82,  22.3.1997,  p.  1.  Regulation  as  amended  by  Regulation  (EC)  No  807/2003  (OJ  L  122, 
16.5.2003, p. 36). 
Council Decision 2007/627/EC of 28 September 2007 (OJ L 255 29.9.2007 p. 38). 

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same  time,  it  is  appropriate  to  adopt  specific  transitional  surveillance  and  safeguard 
measures for certain agricultural processed products with a potential high content on 
sugar which could be traded to circumvent the transitional specific safeguard measures 
for sugar imports into the EC. 

It is also appropriate to adopt general safeguard measures for the products covered by 
this Regulation.  

In  view  of  the  particular  sensitivity  of  agricultural  products,  it  is  appropriate  that 
bilateral  safeguard  measures  may  be  taken  when  imports  cause  or  threaten  to  cause 
disturbances  in  the  markets  for  such  products  or  disturbances  in  the  mechanisms 
regulating those markets. 

In  accordance  with  Article  299(2)  of  the  Treaty,  due  account  should  be  taken  in  all 
Community  policies  of  the  particular  structural,  social  and  economic  situation  of  the 
outermost regions of the Community specifically with reference to customs and trade 
policies.  

(13) 

(14) 

(15) 

(16)  Special  account  should  therefore  be  taken  both  of  the  sensitivity  of  agricultural 
products,  especially  sugar,  and  of  the  particular  vulnerability  and  interests  of  the 
outermost  regions  of  the  Community  when  laying  down  the  rules  on  bilateral 
safeguards in an effective manner.  

(17)  The measures necessary for the implementation of this Regulation should be adopted 
in  accordance  with  Decision  1999/468/EC  of  28  June  1999  laying  down  the 
procedures for the exercise of implementing powers conferred on the Commission8. 

(18)  This Regulation makes it necessary to repeal the current set of Regulations adopted in 
the  context  of  Annex  V  of  the  ACP-EC  Partnership  Agreement,  notably  Regulation 
(EC)  No  2285/2002  on  the  safeguard  measures  provided  for  in  the  ACP-EC 
Partnership Agreement and repealing Regulation (EEC) No 3705/909, Regulation (EC) 
No  2286/2002  of  10  December  2002  on  the  arrangements  applicable  to  agricultural 
products and goods resulting from the processing of agricultural products originating 
in  the  African,  Caribbean  and  Pacific  States  (ACP  States)  and  repealing  Regulation 
(EC) No 1706/98 and Article 1(2) of Regulation (EC) No 1964/2005 of 29 November 
2005  on  the  tariff  rates  for  bananas10.  As  a  consequence,  all  implementing  measures 
based on those provisions which are repealed are rendered obsolete. 

HAS ADOPTED THIS REGULATION: 

Chapter 1 
Subject matter, scope and market access 

Article 1 

Subject matter 

This Regulation applies the arrangements for goods originating in certain states which are part 
of  the  African,  Caribbean  and  Pacific  Group  of  States  (ACP)  provided  for  in  agreements 
establishing, or leading to the establishment of, Economic Partnership Agreements. 

8 

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10 

OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 
11). 
OJ L 348, 21.12.2002, p. 3. 
OJ L 316, 2.12.2005, p. 1. 

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1. 

2. 

3. 

1. 

2. 

3. 

4. 

Article 2 

Scope 

This  Regulation  shall  apply  to  goods  originating  in  the  regions  and  states  listed  in 
Annex I. 

The  Council  shall,  upon  a  proposal  from  the  Commission,  amend  Annex  I  to  add 
regions or states from the ACP Group of States which have concluded negotiations 
on  an  agreement  between  the  Community  and  that  region  or  state  which  at  least 
meets the requirements of Article XXIV GATT 1994. 

The state or region will remain on Annex I unless the Council, upon a proposal from the 
Commission, amends Annex I to remove a region or state from that Annex, in particular, 
where: 

(a) 

(b) 

(c) 

the  region  or  state  signals  its  intent  not  to  ratify  an  agreement  which  has 
permitted it to be included in Annex I;  

ratification  of  an  agreement  which  has  permitted  a  region  or  state  to  be 
included in Annex I has not taken place within a reasonable period of time such 
that the entry into force of the agreement is unduly delayed; or, 

the  agreement  is  terminated,  or  the  region  or  state  concerned  terminates  its 
rights  and  obligations  under  the  agreement  but  the  agreement  otherwise 
remains in force. 

Article 3 

Market access for goods originating in regions or states listed in Annex I 

Subject  to  Articles  6,  7  and  8,  import  duties  shall  be  eliminated  on  all  products  of 
Chapters 1 to 97 but not 93 of the Harmonized System originating in a region or state 
listed in Annex I. Such elimination shall be subject to the transitional safeguard and 
surveillance  mechanisms  set  out  in  Articles  9  and  10  and  the  general  safeguards 
mechanism provided for in Articles 11 to 22. 

For products of Chapter 93 of the Harmonized System originating in regions or states 
listed in Annex I the applied MFN duties shall continue to apply. 

Notwithstanding Article 3(2) of Regulation (EC) No 980/2005, goods originating in 
least-developed countries listed in Annex I of that Regulation and which are included 
in Annex I to this Regulation shall, in addition to the arrangements provided for in 
this  Regulation,  continue  to  benefit  from  the  preferences  provided  pursuant  to 
Regulation (EC) No 980/2005 in respect of products: 

(a) 

of  tariff  heading  1006  except  for  subheading  10061010,  until  31  December 
2009; and, 

(b)  of tariff heading 1701, until 30 September 2009. 

Paragraph 1 and Articles 6, 7 and 8 shall not apply to products originating in South 
Africa. Such products shall be subject to the relevant provisions of the Agreement on 
Trade,  Development  and  Cooperation  between  the  European  Community  and  its 
Member States, of the one part, and the Republic of South Africa, of the other part11. 
In  accordance  with  the  procedure  referred  to  in  Article  24(3),  an  Annex  shall  be 

11 

OJ L 311, 4.12.1999, p. 1. 

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5. 

1. 

2. 

3. 

1. 

2. 

added to this Regulation setting out the regime applicable to products originating in 
South  Africa  once  the  relevant  trade  provisions  of  the  Agreement  on  Trade, 
Development and Cooperation have been superceded by the relevant provisions of an 
agreement establishing, or leading to the establishment of, an Economic Partnership 
Agreement. 

Paragraph 1 and Article 7 shall not apply to products of either tariff heading 1701 or 
tariff  heading  0803  0019  originating  in  a  region  or  state  listed  in  Annex  I  and 
released for free circulation in the French overseas departments until 1 January 2018. 
This  period  shall  be  extended  to  1  January  2023  unless  otherwise  agreed  with  the 
regions  or  states  listed  in  Annex  I  as  provided  for  in  the  relevant  agreements.  The 
Commission  shall  publish  a  notice  in  the  Official  Journal  of  the  European  Union 
informing interested parties of the termination of this provision.  

Chapter II 
Rules of origin and Administrative Co-operation 

Article 4 

Rules of Origin 

The  rules  of  origin  set  out  in  Annex  II  shall  apply  in  order  to  determine  whether 
products originate in the regions or states listed in Annex I.  

The rules or origin set out in Annex II shall be superseded by those annexed to any 
agreement  with  the  countries  listed  in  Annex  I  when  that  agreement  is  either 
provisionally applied, or enters into force, whichever is the earliest. The Commission 
shall  publish  a  notice  in  the  Official  Journal  of  the  European  Union  to  inform 
operators.  The  notice  shall  specify  the  date  of  provisional  application  or  entry  into 
force, which shall be the date from which the rules of origin in the agreement shall 
apply to products covered by this Regulation.  

The  Commission  assisted  by  the  Customs  Code  Committee  established  by 
Regulation  (EEC)  2913/92  shall  monitor  the implementation  and  application  of  the 
provisions of Annex II. Technical amendments and decisions on the management of 
Annex II may be adopted in accordance with the procedure laid down in Article 247 
and 247A of Regulation (EC) No 2913/92. 

Article 5 

Administrative co-operation 

Where the Commission has made a finding, on the basis of objective information, of 
a  failure  to  provide  administrative  cooperation  and/or  of  irregularities  or  fraud,  it 
may  temporarily  suspend  the  elimination  of  duties  in  Articles  3,  6  and  7  (hereafter 
referred to as the "relevant treatment"), in accordance with this Article. 

For the purpose of this Article a failure to provide administrative co-operation shall 
mean, inter alia: 

a) 

b) 

a  repeated  failure  to  respect  relevant  obligations  requiring  the  verification  of 
the originating status of the product(s) concerned; 

a  repeated  refusal  or  undue  delay  in  carrying  out  and/or  communicating  the 
results of subsequent verification of the proof of origin; 

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c) 

a  repeated  refusal  or  undue  delay  in  obtaining  authorisation  to  conduct 
administrative co-operation missions to verify the authenticity of documents or 
accuracy  of  information  relating  to  the  granting  of  the  relevant  treatment 
provided for in this Regulation. 

For the purpose of this Article a finding of irregularities or fraud may be made, inter 
alia, where there is a rapid increase, without satisfactory explanation, in imports of 
goods  exceeding  the  usual  level  of  production and  export  capacity  of  the  region  or 
state concerned. 

Where the Commission, on the basis of information provided by a Member State or 
on its own initiative, finds that the conditions laid down in paragraphs 1 and 2 above, 
are fulfilled, the Commission may, acting in accordance with the procedure set out in 
Article 24(2) of this Regulation, suspend the relevant treatment provided it has first: 

(a) 

informed the Committee provided for in Article 24; 

(b)  notified  the  region  or  state  concerned  in  accordance  with  any  relevant 
procedures applicable between the Community and that state or region; and, 

(c) 

published  a  notice  in  the  Official  Journal  of  the  European  Union  stating  that 
that  a  finding  has  been  made  of  a  failure  to  provide  administrative  co-
operation, irregularities or fraud. 

The  period  of  suspension  under  this  Article  shall  be  limited  to  that  necessary  to 
protect  the  Community’s  financial  interests.  It  shall  not  exceed  six  months,  which 
may be renewed. On conclusion of the period, the Commission shall decide either to 
terminate the suspension after informing the Committee provided for in Article 24 or 
to  extend  the  period  of  suspension  in  accordance  with  the  procedure  referred  to  in 
paragraph 3. 

The temporary suspension procedures set out in paragraphs 2 to 4 of this Article shall 
be superseded by those set out in any agreement with the countries listed in Annex I 
when that agreement is either provisionally applied, or enters into force, whichever is 
the  earliest.  The  Commission  shall  publish  a  notice  in  the  Official  Journal  of  the 
European Union to inform operators. The notice shall specify the date of provisional 
application  or  entry  into  force,  which  shall  be  the  date  from  which  the  temporary 
suspension  procedures  in  the  agreement  shall  apply  to  products  covered  by  this 
Regulation. 

3. 

4. 

5. 

6. 

In  order  to  implement  the  temporary  suspension  set  out  in  any  agreement  with  the 
countries listed in Annex I, the Commission shall, without undue delay: 

(a) 

inform the Committee provided for in Article 24 that a finding has been made 
of a failure to provide administrative co-operation, irregularities or fraud; and 

(b)  publish the notice in the Official Journal of the European Union stating that a 
finding  has  been  made  of  a  failure  to  provide  administrative  co-operation, 
irregularities or fraud. 

The  Commission  shall  take  a  decision  suspending  the  relevant  treatment  in 
accordance with the procedure set out in Article 24(2) of this Regulation.  

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Chapter III 
Transitional arrangements 

SECTION 1  
RICE 

Article 6 

1. 

2. 

3. 

1. 

2. 

Zero duty tariff rate quotas and eventual elimination of duties 

Import  duties  on  the  products  of  tariff  heading  1006  shall  be  eliminated  as  from  1 
January  2010,  with  the  exception  of  import  duties  on  the  products  of  subheading 
1006 10 10 which shall be eliminated as from 1 January 2008.  

The  following  tariff  rate  quotas  at  zero  duty  shall  be  opened  for  products  of  tariff 
heading  1006  except  for  subheading  1006  10  10  originating  in  the  states  listed  in 
Annex I which form part of the CARIFORUM region: 

(a) 

187,000 tonnes, husked rice equivalent, for the period between 1 January 2008 
and 31 December 2008; 

(b)  250,000 tonnes, husked rice equivalent, for the period between 1 January 2009 

and 31 December 2009. 

The detailed rules for implementing the tariff quotas referred to in paragraph 2 shall 
be determined in accordance with the procedures referred to in Articles 13 and 26(2) 
of Regulation (EC) No 1785/200312. 

SECTION 2 
SUGAR 

Article 7 

Zero duty tariff rate quotas and eventual elimination of duties 

Import  duties  on  products  of  tariff  heading  1701  shall  be  eliminated  as  from  1 
October 2009.  

In addition to the tariff rate quotas opened and administered pursuant to Article 28 of 
Regulation (EC) No 318/200613, the following tariff rate quotas shall be opened for 
products of tariff subheading 1701 11 10 for the period between 1 October 2008 and 
30 September 2009: 

(a) 

150,000  tonnes,  white  sugar  equivalent,  at  zero  duty  reserved  for  products 
originating in least developed countries as listed in Annex I to Regulation (EC) 
No  980/2005  and  which  are  listed  in  Annex  I.  This  tariff  rate  quota  shall  be 
divided between regions according to quantities to be determined in conformity 
with the agreements qualifying regions or states for inclusion in Annex I; and, 

(b)  80,000  tonnes,  white  sugar  equivalent,  at  zero  duty  reserved  for  products 
originating  in  regions  or  states  which  are  not  least  developed  countries  and 

12 
13 

OJ L 270, 21.10.2003 p. 96. 
OJ L 58, 28.2.2006, p. 1. 

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which  are  listed  in  Annex  I.  This  tariff  rate  quota  shall  be  divided  between 
regions  according  to  quantities  to  be  determined  in  conformity  with  the 
agreements qualifying regions or states for inclusion in Annex I. 

3. 

4. 

Article  30  of  Regulation  (EC)  No  318/2006  shall  apply  to  imports  under  the  tariff 
rate quotas referred to in the previous paragraph. 

The detailed rules for dividing by region and implementing the tariff quotas referred 
to  in  this  Article  shall  be  determined  by  the  Commission  in  accordance  with  the 
procedures referred to in Article 39(2) of Regulation (EC) No 318/2006. 

Article 8 

Transitional arrangement 

For the period between 1 October 2009 and 30 September 2012, Article 7(1) shall not apply to 
imports  of  products  of  CN  code  1701  unless  the  importer  undertakes  to  purchase  such 
products at a price not lower than 90% of the reference price (on a c.i.f. basis) set in Article 3 
of Regulation (EC) No 318/2006 for the relevant marketing year. 

1. 

2. 

3. 

4. 

5. 

Article 9 

Transitional safeguard mechanism for sugar 

For the period 1 October 2009 to 30 September 2015 the treatment granted in Article 
7(1)  for  imports  of  products  of  tariff  heading  1701  originating  in  regions  or  states 
listed  in  Annex  I  and  which  are  not  least-developed  countries  listed  in  Annex  I  to 
Regulation (EC) No 980/2005 may be suspended when: 

(a) 

imports originating in regions or states which are ACP States and which are not 
least  developed  countries  listed  in  Annex  1  to  Regulation  (EC)  No  980/2005 
exceed the following quantities:  

(i) 1.38 million tonnes in the marketing year 2009/2010, 

(ii) 1.45 million tonnes in the marketing year 2010/2011, 

(iii) 1.6 million tonnes in the marketing years 2011/2012 to 2014/2015; and 

(b) 

imports originating in all ACP States exceed 3.5 million tonnes. 

The quantities provided for in paragraph 1(a) may be subdivided by region. 

During the period of application of this Article, imports of products of tariff heading 
1701 originating in regions or states listed in Annex I will require an import licence. 

The suspension of the treatment granted in Article 7(1) shall terminate at the end of 
the marketing year in which it was introduced. 

Detailed  rules  on  the  subdivision  of  quantities  provided  for  in  paragraph  1,  for  the 
management of  the system referred  to in  paragraphs 1, 3 and 4 shall  be adopted in 
accordance  with  the  procedure  referred  to  in  Article  39(2)  of  Regulation  (EC)  No 
318/2006. 

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1. 

2. 

3. 

4. 

Article 10  

Transitional surveillance mechanism 

For  the  period  1  January  2008  to  30  September  2015,  imports  of  products  of  tariff 
headings  17049099,  18061030,  18061090,  21069059,  21069098  originating  in 
regions  or  states  listed  in  Annex  I  shall  be  subject  to  the  surveillance  mechanism 
provided  for  in  Article  308d  of  Commission  Regulation  (EEC)  No  2454/93  laying 
down  provisions  for  the  implementation  of  Regulation  (EEC)  No  2913/92 
establishing the Community Customs Code14. 

On the basis of that surveillance, the Commission will verify if there is a cumulative 
increase of imports of one or more of these products originating in a particular region 
by  more  than  20%  in  volume  during  a  period  of  twelve  consecutive  months 
compared to the average of the yearly imports over the previous three twelve month 
periods. 

If the level referred to in paragraph 2 is reached, the Commission shall analyse the 
pattern of trade, the economic justification and the sugar content of such imports. If 
the  Commission  concludes  that  such  imports  are  used  to  circumvent  the  tariff  rate 
quotas,  transitional  arrangements  and  special  safeguard  mechanism  provided  for  in 
Articles  7,  8  and  9,  it  may  suspend  the  application  of  Article  3(1)  to  imports  of 
products  of  tariff  headings  17049099,  18061030,  18061090,  21069059,  21069098 
originating  in  regions  or  states  listed  in  Annex  I  which  are  not  least-developed 
countries  listed  in  Annex  I  to  Regulation  (EC)  No  980/2005  until  the  end  of  the 
marketing year concerned. 

Detailed rules for the management of this system and decisions of suspension shall 
be adopted in accordance with the procedure referred to in Article 16 of Regulation 
(EC) No 3448/9315.  

Chapter IV 
General safeguard provisions 

Article 11 

Definitions 

For the purposes of this Chapter: 

(a) 

(b) 

(c) 

(d) 

14 
15 

"Community  industry"  means  the  Community  producers  as  a  whole  of  the  like  or 
directly  competitive  products  operating  within  the  territory  of  the  Community,  or 
those  Community  producers  whose  collective  output  of  the  like  or  directly 
competitive  product  constitutes  a  major  proportion  of  the  total  Community 
production of those products 

"serious  injury"  means  a  significant  overall  impairment  in  the  position  of 
Community producers; 

"threat of serious injury" means serious injury that is clearly imminent; 

"disturbances" means disorders in a sector or industry; 

OJ L 253, 11.10.1993, p. 1. 
OJ L 318, 20.12.1993, p. 18. 

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(e) 

"threat of disturbances" means disturbances that are clearly imminent.  

Article 12 

Principles 

1. 

2. 

A  safeguard  measure  may  be  imposed  in  accordance  with  the  provisions  set  out  in 
this  Chapter  where  products  originating  in  the  States  listed  in  Annex  I  are  being 
imported in the Community in such increased quantities and under such conditions as 
to cause or threaten to cause any of the following: 

(a) 

serious injury to the Community industry  

(b)  disturbances in a sector of the economy, particularly where these disturbances 
produce major social problems or difficulties which could bring about serious 
deterioration in the economic situation of the Community, or  
disturbances in the markets of agricultural products16 or mechanisms regulating 
those markets. 

(c) 

In cases where products originating in the States listed in Annex I are being imported 
in the Community in such increased quantities and under such conditions as to cause 
or threaten to cause disturbances in the economic situation  of  one or  several of the 
Community's outermost regions, a safeguard measure may be imposed in accordance 
with the provisions set out in this Chapter. 

Article 13 

Determination of the conditions to impose safeguard measures 

1. 

The  determination  of  serious  injury  or  a  threat  thereof  shall  cover  inter  alia  the 
following factors:  

(a) 

(b) 

(c) 

the volume of imports, in particular where there has been a significant increase, 
either  in  absolute  terms  or  relative  to  production  or  consumption  in  the 
Community; 

the  price  of  imports,  in  particular  where  there  has  been  a  significant  price 
undercutting as compared with the price of a like product in the Community; 

the  consequent  impact  on  Community  producers  as  indicated  by  trends  in 
certain economic factors such as production, capacity utilisation, stocks, sales, 
market  share,  the  depression  of  prices  or  prevention  of  price  increases  which 
would normally have occurred, profits, return on capital employed, cash flow, 
employment; 

(d) 

factors  other  than  trends  in  imports  which  are  causing  or  may  have  caused 
injury to the Community producers concerned. 

2. 

The  determination  of  disturbances  or  a  threat  thereof  shall  be  based  on  objective 
factors, including the following elements: 

(a) 

the  increase  in  the  volume  of  imports  in  absolute  or  relative  terms  to 
Community production and to imports from other sources and 

16 

For  the  purpose  of  this  article  agricultural  products  are  those  covered  by  Annex  I  of  the  WTO 
Agreement on Agriculture. 

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3. 

4. 

1. 

2. 

3. 

4. 

(b) 

the effect of such imports on prices, or 

(c) 

the  effect  of  such  imports  on  the  situation  of  the  Community  industry  or  the 
economic  sector  concerned,  including  inter  alia  on  the  levels  of  sales, 
production, financial situation and employment. 

In  determining  whether  imports  are  made  under  such  conditions  as  to  cause  or 
threaten to cause disturbances in the markets of agricultural products or mechanisms 
regulating 
including  Regulations  creating  Common  Market 
Organisations,  all  relevant  objective  factors  must  be  taken  into  consideration, 
including one or more of the following elements: 

those  markets, 

(a) 

(b) 

the  volume  of  imports  as  compared  to  previous  calendar  or  marketing  years' 
levels, as the case may be, internal production and consumption, planned future 
levels according to the reform of the Common Market Organisations; 

level of internal prices compared to the reference or target prices if applicable, 
and,  if  not  applicable,  compared  to  the  average  internal  market  prices  during 
the same period of previous marketing years; 

(c)  As  of  1  October  2015,  in  the  markets  of  products  of  tariff  heading  1701: 
situations  where  the  Community  average  market  price  of  white  sugar  falls 
during  the  two  consecutive  months  below  80%  of  the  average  Community 
market price for white sugar prevailing during the previous marketing year.  

In determining whether the conditions referred to above are being met in the case of 
the  Community's  outermost  regions,  the  analyses  are  limited  to  the  territory  of  the 
outermost  region(s)  concerned.  Particular  attention  shall  be  paid  to  the  size  of  the 
local industry, its financial situation and the situation of employment. 

Article 14 

Initiation of proceedings 

An  investigation  shall  be  initiated  upon  request  by  a  Member  State  or  on  the 
Commission's  own  initiative  if  it  is  apparent  to  the  Commission  that  there  is 
sufficient evidence to justify such initiation. 

The Member States shall inform the Commission should trends in imports from any 
of  the  States  referred  to  in  Annex  I  appear  to  call  for  safeguard  measures.  This 
information  shall  contain  the  evidence  available,  as  determined  on  the  basis  of  the 
criteria laid down in Article 13. The Commission shall pass this information on to all 
the Member States within three working days. 

Consultation with the Member States shall take place within eight working days of 
the  Commission  sending  the  information  to  Member  States  as  provided  for  in 
paragraph 2. Where, after consultation, it is apparent that there is sufficient evidence 
to justify an initiation of a proceeding, the Commission shall publish a notice in the 
Official Journal of the European Union. Initiation shall take place within one month 
of receipt of information from a Member State.  

If  the  Commission,  after  consulting  the  Member  States,  takes  the  view  that  the 
circumstances  set  out  in  Article  12  exist,  it  shall  immediately  notify  the  region  or 
states  in  Annex  I  concerned  of  its  intention  to  initiate  an  investigation.  The 
notification may be accompanied by an invitation for consultations with the aim of 
clarifying the situation and arriving at a mutually satisfactory solution. 

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1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

6. 

Article 15 

The investigation 

Following  the  initiation  of  the  proceeding,  the  Commission  shall  commence  an 
investigation.  

The  Commission  may  request  Member  States  to  supply  information  and  Member 
States shall take whatever steps are necessary in order to give effect to such request. 
Where  this  information  is  of  general  interest  or  where  its  transmission  has  been 
requested by a Member State, the Commission shall forward it to all Member States 
provided  it is  not confidential, and if confidential then a non-confidential summary 
shall be forwarded.  

In the case of an investigation limited to an outermost region, the Commission may 
request  the  competent  local  authorities  to  supply  the  information  referred  to  in 
paragraph 2 above, via the Member State concerned.  

The investigation shall, whenever possible, be concluded within six months from the 
initiation  of  the  investigation.  In  exceptional  circumstances,  this  time  limit  may  be 
extended by a further period of three months. 

Article 16 

Imposition of provisional safeguard measures 

Provisional  safeguard  measures  shall  be  applied  in  critical  circumstances  where  a 
delay  would  cause  damage  which  it  would  be  difficult  to  repair,  pursuant  to  a 
preliminary  determination  that  circumstances  set  out  in  Article  12  as  appropriate, 
exist. The Commission shall take such provisional measures after consultation with 
Member States or, in cases of extreme urgency, after informing the Member States. 
In this latter case, consultation shall take place within ten days of notification of the 
Member States of the action taken by the Commission.  

In view of the particular situation of outermost regions and their vulnerability to any 
surge in imports, provisional safeguard measures shall be applied in proceedings that 
concern  them  where  a  preliminary  determination  has  shown  that  imports  have 
increased. In that case, the Commission shall inform Member States upon taking the 
measures  and  consultation  shall  take  place  within  ten  days  of  notification  to  the 
Member States of the action taken by the Commission.  

Where  a  Member  State  requests  immediate  intervention  by  the  Commission  and 
where  the  conditions  in  paragraph  1  or  2  of  this  Article  are  met,  the  Commission 
shall take a decision within five working days of the receipt of the request. 

The Commission shall forthwith inform the Council and the Member  States  of any 
decision  taken  under  paragraphs  1,  2  and  3.  The  Council,  acting  by  a  qualified 
majority,  may  decide differently within  one month of having been informed by  the 
Commission pursuant to this paragraph.  

Provisional  measures  may  take  the  form  of  an  increase  in  the  customs  duty  on  the 
product concerned up to a level which does not exceed the customs duty applied to 
other WTO members, or the duty level of tariff quotas.  

The  duration  of  provisional  measures  shall  not  exceed  180  days.  In  cases  where 
provisional measures are limited to outermost regions, their duration may not exceed 
200 days. 

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7. 

Should  the  provisional  safeguard  measures  be  repealed  because  the  investigation 
shows  that  the  conditions  contained  in  Articles  12  and  13  are  not  met,  any  duty 
collected as a result of these provisional measures shall be automatically refunded.  

Article 17 

Termination of investigation and proceeding without measures 

Where bilateral safeguard measures are deemed unnecessary and there is no objection within 
the Advisory Committee referred to in Article 21, the investigation  and proceeding  shall be 
terminated  by  Commission  decision.  In  all  other  cases,  the  Commission  shall  submit  to  the 
Council  forthwith  a  report  on  the  results  of  the  consultation,  together  with  a  proposal  for  a 
Council  Regulation  that  the  proceeding  be  terminated.  The  proceeding  shall  be  deemed 
terminated  if,  within  one  month,  the  Council  acting  by  qualified  majority  has  not  decided 
otherwise.  

Article 18 

Imposition of definitive measures 

1. 

2. 

3. 

4. 

Where the facts as finally established show that the circumstances set out in Article 
12,  as  appropriate,  are  met,  the  Commission  shall  request  consultations  with  the 
region  or  state  concerned  meeting  in  the  context  of  the  appropriate  institutional 
arrangement  set  up  in  the  relevant  agreements  permitting  a  region  or  state  to  be 
included in Annex 1 with a view to seeking a mutually acceptable solution 

If the consultations referred to in paragraph 1 do not lead to a mutually satisfactory 
solution  within  thirty  days  of  the  matter  being  referred  to  the  region  or  state 
concerned,  a  decision  to  impose  definitive  bilateral  safeguard  measures  shall  be 
taken  by  the  Commission,  in  consultation  with  Member  States,  within  twenty 
working days following the end of the consultation period. 

Any  decision  taken  by  the  Commission  pursuant  to  this  Article  shall  be 
communicated  to  the  Council  and  Member  States.  Any  Member  State  may,  within 
ten working days following the day of such communication, refer the decision to the 
Council.  

If  a  Member  State  refers  the  Commission's  decision  to  the  Council,  the  Council, 
acting by a qualified majority, may confirm, amend or revoke the decision. If within 
one  month  of  the  referral  of  the  matter,  the  Council  has  not  taken  a  decision,  the 
decision taken by the Commission shall be deemed confirmed.  

5. 

Definitive measures may take one of the following forms: 

– 

– 

– 

a suspension of the further reduction of the rate of import duty for the product 
concerned originating in the region or state concerned,  

an increase in the customs duty on the product concerned up to a level which 
does not exceed the customs duty applied to other WTO members, 

a tariff quota. 

6. 

No bilateral safeguard measure shall be applied on the same product from the same 
region or state less than one year after previous such measures have lapsed or been 
removed. 

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1. 

2. 

3. 

4. 

Article 19 

Duration and review of safeguard measures 

A  safeguard  measure  shall  remain  in  force  only  for  such  period  of  time  as  may  be 
necessary  to  prevent  or  remedy  the  serious  injury  or  disturbances.  The  period  shall 
not exceed two years, unless it is extended under paragraph 2. Where the measure is 
limited to one or several of the outermost region(s) of the Community, the period of 
application may not exceed four years.  

The initial period of duration of a safeguard measure may exceptionally be extended 
provided  it  is  determined  that  the  safeguard  measure  continues  to  be  necessary  to 
prevent or remedy serious injury or disturbances.  

Extensions  shall  be  adopted  in  accordance  with  the  procedures  of  this  Regulation 
applying to investigations and using the same procedures as the initial measures. 

The total duration of a safeguard measure may not exceed four years, including any 
provisional measure. In the case of a measure limited to outermost regions, this limit 
is extended to eight years. 

If  the  duration  of  a  safeguard  measure  exceeds  one  year,  it  shall  be  progressively 
liberalised  at  regular  intervals  during  its  period  of  application,  including  any 
extension. 

Consultations  with  the  region  or  state  concerned  shall  be  held  periodically  in  the 
relevant  institutional  bodies  of  the  agreements,  with  a  view  to  establishing  a 
timetable for their abolition as soon as circumstances permit. 

Article 20 

Surveillance measures 

1. 

Where the trend in imports of a product originating in an ACP State is such that they 
could  cause  one  of  the  situations  referred  to  in  Article  12,  imports  of  that  product 
may be subject to prior Community surveillance. 

2. 

The decision to impose surveillance shall be taken by the Commission. 

Any  decision  taken  by  the  Commission  pursuant  to  this  Article  shall  be 
communicated  to  the  Council  and  Member  States.  Any  Member  State  may,  within 
ten working days following the day of such communication, refer the decision to the 
Council. 

If  a  Member  State  refers  the  Commission's  decision  to  the  Council,  the  Council, 
acting by a qualified majority, may confirm, amend or revoke the decision. If within 
one  month  of  the  referral  of  the  matter,  the  Council  has  not  taken  a  decision,  the 
decision taken by the Commission shall be deemed confirmed. 

3. 

4. 

Surveillance  measures  shall  have  a  limited  period  of  validity.  Unless  otherwise 
provided,  they  shall  cease  to  be  valid  at  the  end  of  the  second  six-month  period 
following the first six months after the measures were introduced. 

Surveillance  measures  may  be  limited  to  the  territory  of  one  or  more  Community 
outermost region(s) where necessary. 

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5. 

The  decision  to  impose  surveillance  measures  shall  be  communicated  forthwith  to 
the  appropriate  institutional  body  set  up  in  the  relevant  agreements  permitting  a 
region or state to be included in Annex I for information. 

Article 21 

Consultations 

The competent consultative committee for the purposes of this Chapter shall be the Advisory 
Committee provided for in Article 4 of Regulation (EC) No 3285/94. In the case of products 
falling  under  CN  code  1701,  the  competent  committee  shall  be  assisted  by  the  committee 
established pursuant to Article 39 of Regulation (EC) No 318/2006. 

Exceptional measures with limited territorial application 

Article 22 

Where  it  emerges  that  the  conditions  laid  down  for  the  adoption  of  bilateral  safeguard 
measures  are  met  in  one  or  some  Member  States  of  the  Community,  the  Commission,  after 
having examined alternative solutions, may exceptionally, and in accordance with Article 134 
of  the  Treaty,  authorise  the  application  of  surveillance  or  safeguard  measures  limited  to  the 
Member State or Member States concerned if it considers that such measures applied at that 
level are more appropriate than measures applied throughout the Community. These measures 
must be strictly limited in time and must disrupt the operation of the internal market as little 
as possible. 

Chapter V 
Procedural provisions 

Article 23 

Adaptation to technical developments 

This  Regulation  shall  be  amended  in  accordance  with  the  procedure  referred  to  in  Article 
24(3) in order to take account of any technical modifications which may be necessary in the 
light of agreements concluded with the regions or states listed in Annex I.  

Article 24 

Committee 

1. 

2. 

3. 

4. 

The  Commission  shall  be  assisted  by  the  EPA  Implementation  Committee 
(hereinafter referred to as 'the Committee'). 

Where  reference  is  made  to  this  paragraph,  Articles  3  and  7  of  Decision 
1999/468/EC shall apply. 

Where  reference  is  made  to  this  paragraph,  Articles  5  and  7  of  Decision 
1999/468/EC shall apply. 

The  period  provided  for  in  Article  5(6)  of  Decision  1999/468/EC  shall  be  three 
months. 

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Chapter VI 
Final provisions 

Article 25 

Amendments 

Article 1(2) of Regulation (EC) No 1964/2005 is deleted. 

Article 26 

Repeals of existing acts 

The following Regulations are hereby repealed: 

(a)  Regulation (EC) No 2285/2002 

(b)  Regulation (EC) No 2286/2002  

Article 27 

Entry into force 

This Regulation shall enter into force on the day of its publication in the Official Journal of 
the European Union and shall become applicable on 1 January 2008. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the Council 
The President 

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ANNEX 1 

List of regions or states which have concluded negotiations

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19 

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ANNEX 2  

Rules of origin 

This Annex is distributed as a separate document. 

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LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS HAVING A 
BUDGETARY IMPACT EXCLUSIVELY LIMITED TO THE REVENUE SIDE 

1. 

NAME OF THE PROPOSAL: 

Council Regulation applying the arrangements for goods originating in certain states 
which are part of the African, Caribbean and Pacific Group of States (ACP) provided 
for  in  agreements  establishing,  or  leading  to  the  establishment  of,  Economic 
Partnership Agreements. 

2. 

BUDGET LINES: 

Chapter and Article: 12/120 

Amount budgeted for the year concerned: 16 431 900 000 (PDB 2008) 

3. 

FINANCIAL IMPACT  

(cid:133) 

(cid:59) 

Proposal has no financial implications 

Proposal has no financial impact on expenditure but has a financial impact on 
revenue – the effect is as follows: 

The proposal removes all remaining customs tariffs on products originating in those 
ACP  regions  or  states  that  conclude  negotiations  on  Economic  Partnership 
Agreements or agreements including WTO compatible trade arrangements. In 2006 
the  theoretical  maximum  duties  payable  on  products  originating  in  the  ACP  States 
were € 17.3 million which amounts to € 13.0 million net revenue. 

The  only  exception  is  South  Africa,  which  is  party  to  the  Economic  Partnership 
Agreement negotiations but will be offered a separate trade arrangement that retains 
customs  tariffs  on  certain  products  imported  into  the  Community.  This  trade 
arrangement is under negotiation and a financial assessment will be included with the 
proposal  to  Council  for  a  Decision  authorising  signature  of  the  relevant  Economic 
Partnership Agreement. 

Under  the  provisions  of  the  Cotonou  Agreement  and  the  Everything  But  Arms 
Arrangement  of  the  Generalised  System  of  Preferences  over  99%  of  goods 
originating in the ACP states enter the Community free of customs tariffs. It is worth 
noting that 95% of goods originating in South Africa also enter the Community free 
of  customs  tariffs  under  the  provisions  of  the  Trade  and  Development  Cooperation 
Agreement. 

No additional expenditure is envisaged. 

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(€ million to one decimal place) 

Budget line 

Revenue 

12  month  period, 
starting 1.1.2008 

Article 3, Chapter 1, 
Title I 

Impact on own resources 

13.0 

2008 

13.0 

Situation following action 

2009 

13.0 

2010 

13.0 

2011 

13.0 

2012 

13.0 

2013 

13.0 

Article 3, Chapter 1, 
Title I 

4. 

ANTI-FRAUD MEASURES 

In  order  to  protect  the  Communities'  financial  interests  against  fraud  and  other 
irregularities,  the  Commission  may  carry  out  on-the-spot  checks  and  inspections  in 
accordance  with  Article  5,  Chapter  II  of  this  Regulation.  Where  necessary, 
investigations  shall  be  conducted  by  the  European  Anti-Fraud  Office  (OLAF)  and 
these  shall  be  governed  by  Regulation  (EC)  No  1073/1999  of  the  European 
Parliament  and  of  the  Council.  The  Commission  will  conduct  regular  document-
based and on-the-spot checks. 

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