Proposal for a COUNCIL DECISION on the signing and provisional application of the Protocol extending to customs security measures the Agreement in the form of an Exchange of Letters between the European Economic Community and the Principality of Andorra
Date: 2010-11-10
Institutions: European Commission
Subjects: Andorra, agreement (EU), customs regulations, originating product, third country, trade agreement

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EUROPEAN COMMISSION 

Brussels, 10.11.2010 
COM(2010) 627 final 

2010/0307 (NLE) 
2010/0307 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing and provisional application of the Protocol extending to customs security 
measures the Agreement in the form of an Exchange of Letters between the European 
Economic Community and the Principality of Andorra  

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EXPLANATORY MEMORANDUM 

The attached proposal for a Council Decision constitutes the legal instrument for the signing 
and provisional application of a Protocol between the European Union and the Principality of 
Andorra with a view to extending to customs security measures the scope of the Agreement in 
the  form  of  an  Exchange  of  Letters  between  the  European  Economic  Community  and  the 
Principality of Andorra concluded on 28 June 19901. 

The Community Customs Code2 and its Implementing Rules3, which lay down the rules for 
the  customs  treatment  of  goods  that  are  imported  or  exported,  were  amended  in  20054  and 
20065  respectively  to  make  provision  for  customs  security  measures.  Among  these  security 
arrangements is a provision that traders should submit certain information prior to importing 
or exporting goods, which will make it possible to carry out a risk analysis of such operations 
prior to the entry or exit of the consignments in question. 

In principle, these security measures apply to trade with all non-member countries. However, 
the Community Customs Code allows for different rules concerning the obligation to provide 
pre-arrival and pre-departure information where international agreements provide for special 
security arrangements. It was thus held necessary and in the mutual interest of the European 
Union and the Principality of Andorra to establish amended rules for customs security in their 
bilateral trade in goods. Given the geographical position of the Principality of Andorra and the 
special  ties  it  has  with  the  European  Union  in  the  form  of  a  customs  union,  such  an 
arrangement  is  needed  to  ensure  in  particular  that  trade  runs  smoothly  while  maintaining  a 
high level of security. 

Following  negotiations,  the  arrangement  consisted  in  abolishing  the  requirement  for  a  prior 
declaration  for  goods  traded  between  the  European  Union  and  the  Principality  of  Andorra. 
The  abolition  of  this  requirement  is  subject  to  the  condition  that  the  Contracting  Parties 
undertake  to  guarantee  in  their  respective  territories  an  equivalent  level  of  security  through 
measures based on legislation in force in the European Union. 

In addition to provisions for customs security measures, the arrangement also includes a set of 
rules to ensure that the Agreement and the acquis communautaire remain in alignment and to 
provide that, if the equivalence of the respective security measures is no longer maintained, 
either party may take rebalancing measures, including suspending application of the relevant 
chapter of the Agreement. 

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OJ L 374, 31.12.1990, p. 16. 
Council  Regulation  (EEC)  No  2913/92  establishing  the  Community  Customs  Code  (OJ  L  302, 
19.10.1992, p. 1). 
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). 
Regulation  (EC)  No  648/2005  of  the  European  Parliament  and  of  the  Council  of  13 April  2005 
amending  Council  Regulation  (EEC)  No 2913/92  establishing  the  Community  Customs  Code  (OJ  L 
117, 4.5.2005, p. 13). 
Commission Regulation (EC) No 1875/2006 of 18 December 2006 amending 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 360, 19.12.2006, p. 64). 

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There  is  a  new  Article  12h  concerning  the  protection  of  professional  secrecy  and  personal 
data.  The  exchange  of  personal  data  in  the  context  of  these  measures  is  governed  by 
provisions  in  Regulation  (EC)  No  45/20016  for  the  processing  of  data  by  the  European 
Commission,  and  by  Directive  95/46/EC7  for  the  processing  of  data  by  Member  States. 
Processing  of  data  by  the  Principality  of  Andorra  is  subject  to  national  data  protection 
legislation.  The  Principality  has  ratified  Council  of  Europe  Convention  No  108  for  the 
Protection  of  Individuals  with  regard  to  Automatic  Processing  of  Personal  Data  and  has  a 
level of protection which is in line with the legislation in force in the European Union. 

It  is  specified  that,  unlike  the  customs  union,  this  arrangement  also  applies  to  agricultural 
products. 

The objective of this proposal is to authorise the Commission to sign a Protocol amending the 
Agreement of 28 June 1990 between the European Economic Community and the Principality 
of  Andorra  in  order  to  extend  its  scope  to  customs  security  measures.  Accordingly,  a  new 
Title IIA introducing an "arrangement concerning customs security measures" will be added 
to  the  1990  Agreement.  The  proposal  also  states  that  the  Protocol  will  apply  provisionally 
pending  the  completion  of  the  procedures  required  for  its  conclusion.  Consequently,  a 
proposal  for  a  Council  Decision  concerning  the  conclusion  of  this  Protocol  is  submitted 
separately. 

The proposal has no financial implications for the budget of the European Union. 

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Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on 
the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the  Community 
institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 
Council Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the 
protection of  individuals  with  regard  to  the  processing of  personal  data and on  the free  movement  of 
such data (OJ L 281, 23.11.1995, p. 31). 

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Proposal for a 

COUNCIL DECISION 

on the signing and provisional application of the Protocol extending to customs security 
measures the Agreement in the form of an Exchange of Letters between the European 
Economic Community and the Principality of Andorra  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207(4), first subparagraph, in conjunction with Article 218(5) thereof,  

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

On  16  February  2009  the  Council  authorised  the  European  Commission  to  start 
negotiations  with  the  Principality  of  Andorra  with  a  view  to  negotiating  a  Protocol 
extending to customs security measures the Agreement in the form of an Exchange of 
Letters between the European Economic Community and the Principality of Andorra 
concluded on 28 June 1990. 

The European Commission and the Principality of Andorra have completed the above-
mentioned negotiations by initialling the Protocol. 

The negotiator should, on behalf of the European Union, sign the negotiated Protocol 
pending its conclusion at a later date. 

Pending completion of the internal procedures of the Contracting Parties, the Protocol 
will apply provisionally from 1 January 2011, the date of the last stage of application 
of  the  customs  security  measures  introduced  in  2005  and  2006  respectively  by  the 
amendment  of  Council  Regulation  (EEC)  No  2913/92  establishing  the  Community 
Customs  Code8  and  of  Commission  Regulation  (EEC)  No  2454/93  laying  down 
provisions  for  the  implementation  of  Council  Regulation  (EEC)  No  2913/92 
establishing the Community Customs Code9, 

HAS ADOPTED THIS DECISION:  

The European Commission is hereby authorised to sign, on behalf of the European Union, the 
Protocol extending to customs security measures the Agreement in the form of an Exchange 

Article 1 

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OJ L 302, 19.10.1992, p. 1. 
OJ L 253, 11.10.1993, p. 1. 

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of Letters between the European Economic Community and the Principality of Andorra, and 
to designate the person empowered to sign it. 

The text of the Protocol is attached to this Decision. 

Article 2 

Pending the completion of the procedures required for its conclusion, the Protocol shall apply 
provisionally from 1 January 2011 in accordance with Article 3(3) thereof. 

The European Commission is authorised to agree on another date for provisional application 
of the Protocol. 

The position to be adopted by the European Union in the Joint Committee on matters relating 
to Title IIA of the Agreement shall be determined by the European Commission. 

Article 3 

Article 4 

In  order  to  ensure  the  application  of  Article  12(i)(1)  of  the  Agreement,  the  European 
Commission shall notify the Principality of Andorra of the adoption of European Union acts 
which  constitute  a  development  of  the  EU  law  on  customs  security  measures  covered  by 
Article 12(b) of the Agreement. 

The Commission is authorised to take the necessary measures provided for in Article 12(k) of 
the Agreement in order to ensure the equivalence of the Contracting Parties' customs security 
measures. 

If, on the date of implementation of the relevant European Union legislation, the Principality 
of  Andorra  has  not  adopted  the  new  provisions  and  the  provisional  application  of  these 
provisions is not possible, the Commission shall notify the Principality of the suspension of 
Title IIA of the Agreement in accordance with Article 12(i)(2) thereof. 

This  Decision  shall  enter  into  force  on  the  date  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

Article 5 

Done at 

For the Council 
The President 

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Protocol extending to customs security measures the Agreement in the form of an Exchange of 
Letters between the European Economic Community and the Principality of Andorra 

ANNEX  

THE EUROPEAN UNION 

of the one part, and 

THE PRINCIPALITY OF ANDORRA, 

of the other part, 

hereinafter referred to respectively as "the European Union", "the Principality of Andorra" and "the 
Contracting Parties", 

Having  regard  to  the  Agreement,  in  the  form  of  an  Exchange  of  Letters  between  the  European 
Economic  Community  and  the  Principality  of  Andorra,  signed  in  Luxembourg  on  28  June  1990 
(hereinafter "the Agreement"), 

Whereas there is a need to maintain the existing level of controls and formalities on the passage of 
goods at frontiers between the European Union and the Principality of Andorra and so ensure the 
smooth flow of trade; 

Whereas the Contracting Parties undertake to guarantee in their respective territories an equivalent 
level of security through measures based on legislation in force in the European Union; 

Whereas  it  is  desirable  that  Andorra  be  consulted  on  the  development  of  European  Union  rules 
concerning customs security measures, that it take part in the relevant work of the Customs Code 
Committee and that it be notified of the implementation of such rules; 

Whereas the Contracting Parties are determined to improve security in the trade in goods entering 
or exiting their territories without hampering trade flows; 

Whereas, in the interests of the Contracting Parties, equivalent customs security measures should be 
introduced in respect of the transport of goods to or from third countries; 

Whereas, unlike the Agreement itself, the territorial scope of these customs security measures must 
be defined with reference to the respective customs territories of the Contracting Parties; 

Whereas these customs security measures must also apply to agricultural products (Chapters 1 to 24 
of  the  Harmonised  System),  which  are  excluded  from  the  customs  union  established  between  the 
Contracting Parties; 

Whereas these customs security measures concern the declaration of security data relating to goods 
prior  to  their  entry  and  exit,  the  management  of  security  risks  and  related  inspections  and  the 
allocation of authorised economic operator status for mutually recognised security purposes; 

Whereas the Principality of Andorra has an adequate level of personal data protection; 

Whereas  in  the  case  of  customs  security  measures  there  should  be  provision  for  appropriate 
rebalancing  measures,  including  suspension  of  the  relevant  provisions  where  the  equivalence  of 
customs security measures is no longer assured, 

AGREE AS FOLLOWS:  

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In order to extend the scope of the Agreement to the customs security measures, the following new 
Title IIA shall be added:  

Article 1 

"Title IIA 

ARRANGEMENT CONCERNING CUSTOMS SECURITY MEASURES 

CHAPTER I 

Monitoring the implementation of customs security measures 

Article 12a 

Territories covered 

This Agreement shall apply, on the one hand, to the Community customs territory and, on the other, 
to the customs territory of the Principality of Andorra. 

Article 12b 

Adoption of the Community acquis 

1. The Principality of Andorra shall adopt the customs security measures applied by the European 
Union. "Customs security measures" shall mean the provisions concerning the declaration of goods 
prior to their entry and exit from this customs territory, authorised economic operators, and customs 
security  checks  and  risk  management,  which  are  applicable  in  line  with  the  relevant  customs 
legislation in force at all times in the European Union. The Joint Committee referred to in Article 17 
shall draw up a detailed list of the provisions concerned. 

2.  Notwithstanding  their  exclusion  from  the  customs  union  between  the  European  Union  and  the 
Principality of Andorra pursuant to Article 2, the customs security measures shall also apply to the 
agricultural products covered by Chapters 1 to 24 of the Harmonised System. 

Article 12c 

General principles 

1. The Contracting Parties undertake to set up and apply to the carriage of goods to and from non-
member  countries  the  customs  security  measures  set  out  in  Article  12b(1)  and  thus  to  ensure  an 
equivalent level of security at their external borders. 

2.  The  Contracting  Parties  shall  refrain  from  applying  the  customs  security  measures  set  out  in 
Article 12b(1) to the carriage of goods between their customs territories. 

3. The Contracting Parties shall consult each other prior to the conclusion of any agreement with a 
non-member country relating to customs security measures in order to ensure consistency with this 
arrangement,  particularly  if  the  proposed  agreement  includes  provisions  that  derogate  from  the 
customs security measures set out in this Title. 

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Article 12d 

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Place for lodging entry and  
exit declarations 

1.  The  declaration  prior  to  entry  shall  be  lodged  with  the  competent  authority  of  the  Contracting 
Party  into  whose  customs  territory  the  goods  are  brought  from  a  non-member  country.  That 
authority shall carry out a risk analysis based on information contained in the declaration and any 
customs controls deemed necessary for security purposes, including cases where goods are destined 
for the other Contracting Party.  

2.  The  declaration  prior  to  exit  shall  be  lodged  with  the  competent  authority  of  the  Contracting 
Party in whose customs territory the formalities for exportation or, where appropriate, exit to non-
member countries are carried out. That competent authority shall carry out a risk analysis based on 
the data in this declaration together with the customs security controls deemed necessary. 

3.  When  goods  destined  for  a  non-member  country  leave  the  customs  territory  of  a  Contracting 
Party through the customs territory of the other Contracting Party, the declaration prior to the exit of 
the goods shall be lodged only with the competent authorities of the second Contracting Party. 

Article 12e 

Customs security controls and security-related risk management 

1.  For  the  purpose  of  customs  security  controls,  each  Contracting  Party  shall  establish  a  risk 
management framework, risk criteria and priority areas for security-related customs controls. 

2. The Contracting Parties shall recognise the equivalence of their security-related risk management 
systems. 

3. The Contracting Parties shall cooperate with a view to: 

- exchanging information with the aim of improving and strengthening their risk analysis and the 
effectiveness of security-related customs controls, and 

- establishing  in good time a common framework  for risk management, risk criteria and common 
priority areas for controls, and setting up an electronic system to implement joint risk-management. 

4. The Joint Committee shall adopt any other measure necessary for the application of this article. 

Article 12f 

Monitoring the implementation of customs security measures 

1.  The  Joint  Committee  shall  determine  how  the  Contracting  Parties  are  to  monitor  the 
implementation of this title and to verify compliance with the customs security measures. 

2. This monitoring may take the form of:  

-  regular  assessments  of  the  implementation  of  this  title,  and  in  particular  of  the  equivalence  of 
customs security measures;  

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- a review to improve the way in which it is applied or to amend its provisions so that it better fulfils 
its objectives;  

- the organisation of thematic meetings between experts of both Parties and audits of administrative 
procedures, including on-the-spot visits. 

3.  The  Joint  Committee  shall  ensure  that  measures  taken  under  this  article  uphold  the  rights  of 
economic operators. 

Article 12g 

Exchange of information concerning authorised economic operators 

The Commission and the competent Andorran authorities shall regularly inform each other of the 
identities  of  their  authorised  economic  operators  for  the  purposes  of  security,  and  include  the 
following information:  

a)  the  Trader  Identification  Number  (TIN)  in  a  format  compatible  with  Economic  Operator 
Registration and Identification (EORI) legislation; 

b) the names and addresses of authorised economic operators; 

c) the number of the document granting the status of authorised economic operator; 

d) current status (current, suspended, withdrawn); 

e) periods of altered status;  

f) the date on which the certificate becomes effective; 

g) the authority which issued the certificate. 

Article 12h 

Protection of professional secrecy and personal data 

The information exchanged by the Contracting Parties as part of the measures provided for in this 
title shall enjoy the protection extended to professional secrecy and personal data as defined in the 
relevant laws applicable in the territory of the recipient Contracting Party. 

In particular, this information may not be transferred to persons other than the competent bodies in 
the Contracting Party concerned, nor may it be used by those bodies for purposes other than those 
provided for in this Agreement. 

CHAPTER II 

Management of the arrangement 

Article 12i 

Development of law 

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1. As soon as the European Union draws up new legislation relating to customs security measures, it 
shall seek an informal opinion of Andorran experts. 

2.  The  European  Union  shall  enable  Andorran  experts  to  participate  as  observers  for  items 
concerning  them  in  meetings  of  the  Customs  Code  Committee,  which  assists  the  European 
Commission in the exercise of its powers in matters covered by Title IIA. The provisions set out in 
Articles 66 to 68 of Decision No 1/2003 of the EC-Andorra Joint Committee10 shall apply mutatis 
mutandis. 

3. When the European Commission sends its proposal to the European Parliament and/or Council of 
the European Union, or its draft implementing measures to the Member States, it shall send a copy 
to the Principality of Andorra. 

At the request of one of the Contracting Parties, a preliminary exchange of views may take place in 
the Joint Committee. 

4. In the phase prior to the adoption of the new European Union legislation, and at the request of 
one of their number, the Contracting Parties shall consult each other again on the Joint Committee 
in a continuous process of information and consultation. 

5.  The  Contracting  Parties  shall  cooperate  during  the  information  and  consultation  phase  with  a 
view  to  facilitating,  at  the  end  of  the  process,  the  simultaneous  application  by  the  Contracting 
Parties of the new legislation referred to in paragraph 1. 

Article 12j  

Agreements with non-member countries 

The  Contracting  Parties  agree  that  agreements  concluded  by  either  of  them  with  a  non-member 
country in an area covered by Title IIA shall not create obligations for the other Party, unless the 
Joint Committee decides otherwise. 

Article 12k 

Rebalancing measures 

1.  A  Contracting  Party  may,  after  consultations  within  the  Joint  Committee,  take  appropriate 
rebalancing  measures,  including  suspension  of  Title  IIA,  if  it  finds  that  the  other  Party  is  not 
adhering  to  its  conditions  or  if  the  equivalence  of  the  Contracting  Parties'  customs  security 
measures is no longer assured. 

Where  any  delay  could  jeopardise  the  effectiveness  of  customs  security  measures,  provisional 
protective measures may be taken, without prior consultation, provided that consultations are held 
immediately after their adoption. 

2.  If  the  equivalence  of  the  Contracting  Parties'  customs  security  measures  is  no  longer  assured 
because the amendments provided for in Article 12i have not been adopted by the  Principality of 
Andorra, the European Union may suspend the application of Title IIA, unless the Joint Committee, 
having considered how to continue its application, decides otherwise.  

3. The scope and duration of such measures shall be limited to what is necessary in order to remedy 
the  situation  and  to  secure  a  fair  balance  of  rights  and  obligations  under  this  title.  A  Contracting 

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OJ L 253, 7.10.2003, p. 3. 

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Party  may  ask  the  Joint  Committee  to  hold  consultations  about  the  proportionality  of  these 
measures. If the Joint Committee is unable to settle the dispute, it may, where appropriate, decide to 
submit  it  to  arbitration  in  accordance  with  Article  18(2).  No  question  of  interpretation  of  the 
relevant provisions of EU law may be resolved within this framework. 

Miscellaneous provisions concerning the arrangement relating to customs security measures 

CHAPTER III 

Article 12l 

Revision 

If  a  Contracting  Party  wishes  to  have  this  arrangement  revised,  it  shall  submit  a  proposal  to  that 
effect to the other Party. The revision shall take effect after the respective internal procedures have 
been completed. 

This Protocol shall form an integral part of the Agreement. 

Article 2 

Article 3 

1.  This  Protocol  shall  be  approved  by  the  Contracting  Parties  in  accordance  with  their  own 
procedures. It shall enter into force on […], provided that the Contracting Parties have notified one 
another before that date that the requisite procedures have been completed. 

2. If this Protocol does not enter into force on […], it shall enter into force on the day following the 
date  on  which  the  Contracting  Parties  notify  one  another  that  the  requisite  procedures  have  been 
completed. 

3. Pending completion of the procedures referred to in paragraphs 1 and 2, the Contracting Parties 
shall apply this Protocol provisionally from 1 January 2011 or a later date agreed by them. 

Article 4 

Languages 

This  Protocol  shall  be  drawn  up  in  duplicate  in  the  Bulgarian,  Czech,  Danish,  Dutch,  English, 
Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, 
Portuguese,  Romanian,  Slovak,  Slovene,  Spanish,  Swedish  and  Catalan  languages,  each  of  these 
texts being equally authentic. 

Done at …, … 

For the Principality of Andorra  

For the European Union 

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