Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Customs Sub-Committee established by the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, as regards the replacement of Protocol I to that Agreement, concerning the definition of the concept of 'originating products' and methods of administrative cooperation, by a new protocol which refers to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin
Date: 2018-07-04
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: Mediterranean region (EU), Ukraine, Union for the Mediterranean, administrative cooperation, association agreement (EU), joint body (EU), originating product, protocol to an agreement, regional cooperation, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 4.7.2018  COM(2018) 510 final/2 2018/0280 (NLE)  CORRIGENDUM This document corrects document COM (2018)510 final of 3.07.2018. Concerns all language versions. Addition of the inter-institutional reference. The text shall read as follows:  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Customs Sub-Committee established by the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, as regards the replacement of Protocol I to that Agreement, concerning the definition of the concept of 'originating products' and methods of administrative cooperation, by a new protocol which refers to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  the  Union’s 
behalf  in  the  Customs  Sub-Committee  established  by  the  Association  Agreement  ('the 
Agreement') between the European Union, of the one part, and Ukraine, of the other part, in 
connection with the envisaged adoption of a decision as regards the replacement of Protocol I 
to  that  Agreement,  concerning  the  definition  of  the  concept  of  'originating  products'  and 
methods  of  administrative  cooperation,  by  a  new  protocol  which  refers  to  the  Regional 
Convention on pan-Euro-Mediterranean preferential rules of origin1 ('the Convention'). 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

Protocol I to the Association Agreement 

The  Agreement  establishes  a  preferential  trade  regime.  This  regime  provides  for  market 
access between the Union and Ukraine. Protocol I to the Agreement concerns the definition of 
the  concept  of  'originating  products'  and  methods  of  administrative  cooperation.  The 
agreement entered into force on 1 September 2017. 

2.2. 

The EU-Ukraine Customs Sub-Committee 

Article  39(1)  of  Protocol  I  provides  that  the  Customs  Sub-Committee  established  by  the 
Agreement may decide to amend Protocol I to the Association Agreement. More specifically, 
article 39(2) of Protocol I provides that the Customs Sub-Committee may decide, following 
the accession of Ukraine to the Regional Convention of the pan-Euro-Mediterranean rules of 
origin  to  replace  the  rules  of  origin  set  out  in  this  Protocol  by  those  appended  to  the 
Convention. 

2.3. 

The envisaged act of the EU-Ukraine Customs Sub-Committee 

The EU-Ukraine Customs Sub-Committee is to adopt a decision regarding the replacement of 
Protocol I to the Agreement, concerning the definition of the concept of 'originating products' 
and methods of administrative cooperation, by a new protocol which refers to the Convention. 

The purpose of the envisaged act is to ensure the effective implementation of the Convention. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The  Convention  lays  down  provisions  on  the  origin  of  goods  traded  under  relevant 
Agreements concluded between the Contracting Parties. The Union signed the Convention on 
15 June 2011. Ukraine requested to accede to the Convention on 12 September 2016 and with 
its Decision No 1/20172 of 16 May 2017, the Joint Committee of the Convention decided that 
Ukraine should be invited to accede to the Convention. 

The Union deposited its instrument of acceptance with the depositary of the Convention on 26 
March  2012.  Ukraine  deposited  its  instrument  of  acceptance  with  the  depositary  of  the 
Convention on 19 December 2017. As a consequence, in application of its Article 10(2) and 
10(3),  the  Convention  entered  into  force  in  relation  to  the  Union  on  1 May 2012  and  in 
relation to Ukraine on 1 February 2018 respectively. 

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2 

OJ L 54, 26.2.2013, p. 4. 
OJ L 191, 22.07.2017, p. 11 

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Article  6  of  the  Convention  provides  that  each  Contracting  Party  shall  take  appropriate 
measures  to  ensure  that the Convention is  effectively  applied.  The proposed  decision of the 
EU-Ukraine  Customs  Sub-Committee  is  a  procedural  step  necessary  for  achieving  the  main 
objective  of  the  Convention,  which  is  to  replace  the  protocols  on  rules  of  origin  in  the 
Agreements between Contracting Parties to the Convention by a Protocol which refers to the 
Convention.  

No recourse to a stakeholder's consultation was therefore necessary. 

Furthermore, it has not been necessary to conduct an impact assessment, since the proposed 
amendments are technical in nature and do not affect the substance of the protocol on rules of 
origin currently in effect. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The notion of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not have a binding effect under international law but are ‘capable of decisively influencing the 
content of the legislation adopted by the EU legislature’.  

4.1.2.  Application to the present case 

The  EU-Ukraine  Customs  Sub-Committee  is  a  body  set  up  by  an  agreement,  namely  the 
Association Agreement between the European Union and its Member States, of the one part, 
and Ukraine, of the other part. 

The act which the EU-Ukraine Customs Sub-Committee is called upon to adopt constitutes an 
act having legal effects. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
agreement. 

The procedural legal basis for the proposed decision, therefore, is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  envisaged  act  in  respect  of  which  a  position  is  adopted  on 
behalf of the Union. If the envisaged act pursues two aims or has two components and if one 
of  those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

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4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to the common commercial policy. 

The substantive legal basis of the proposed decision, therefore, is Article 207 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  207  in  conjunction  with  Article 
218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  act  of  the  EU-Ukraine  Customs  Sub-Committee  will  amend  the  Association 
Agreement, it is appropriate to publish it in the Official Journal of the European Union after 
its adoption. 

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2018/0280 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Customs Sub-
Committee established by the Association Agreement between the European Union and 
its Member States, of the one part, and Ukraine, of the other part, as regards the 
replacement of Protocol I to that Agreement, concerning the definition of the concept of 
'originating products' and methods of administrative cooperation, by a new protocol 
which refers to the Regional Convention on pan-Euro-Mediterranean preferential rules 
of origin 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207 in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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The  Association  Agreement  between  the  European  Union  and  its  Member  States,  of 
the one part, and Ukraine, of the other part, (‘the Agreement’) was concluded by the 
Union  by  Council  Decision  2014/668/EU3  and  entered  into  force  on  1  September 
2017. 

Pursuant  to  Article  39(1)  of  Protocol  I  to  the  Agreement  ('Protocol  I'),  the  Customs 
Sub-Committee  established  under  Article  83  of  Chapter  5  of  Title  IV  of  the 
Agreement (‘the Customs Sub-Committee’) may adopt amendments to the provisions 
of that Protocol. 

Pursuant to Article 39(2) of Protocol I, the Customs Sub-Committee may also decide, 
following  accession  of  Ukraine 
the  Regional  Convention  on  pan-Euro-
Mediterranean preferential rules of origin4 (‘the Convention’), to replace the rules of 
origin set out in that Protocol by those appended to the Convention.  

to 

The  Convention  lays  down  provisions  on  the  origin  of  goods  traded  under  relevant 
agreements  concluded  between  the  Contracting  Parties  and  entered  into  force  in 
relation to the Union on 1 May 2012 and in relation to Ukraine on 1 February 2018. 

The Customs Sub-Committee is to adopt a Decision on the replacement of Protocol I, 
concerning  the  definition  of  the  concept  of  'originating  products'  and  methods  of 
administrative cooperation, by a new protocol which refers to the Convention. 

Council Decision 2014/668/EU of 23 June 2014 on the signing, on behalf of the European Union, and 
provisional  application of  the  Association Agreement  between the European  Union and  the  European 
Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as 
regards Title III (with the exception of the provisions relating to the treatment of third-country nationals 
legally employed as workers in the territory of the other Party) and Titles IV, V, VI and VII thereof, as 
well as the related Annexes and Protocols (OJ L 278, 20.9.2014, p.1). 
OJ L 54, 26.2.2013, p. 4. 

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(6) 

(7) 

(8) 

(9) 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  in  the 
Customs  Sub-Committee,  as  the  Decision  of  the  Customs  Sub-Committee  will  be 
binding on the Union. 

Article 6 of the Convention provides that each Contracting Party is to take appropriate 
measures to ensure that the Convention is effectively applied. To that effect, Protocol I 
should be replaced by a new protocol which, with regard to the rules of origin, refers 
to the Convention.  

The position to be taken on the Union’s behalf in the Customs Sub-Committee should 
be based on the attached draft Decision. 

As  the  Decision  of  the  Customs  Sub-Committee  will  amend  Protocol  I,  it  should  be 
published in the Official Journal of the European Union. 

(10) 

In the Customs Sub-Committee, the Union is to be represented by the Commission in 
accordance with Article 17(1) of the Treaty on European Union, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the    Customs  Sub-Committee  established 
under Article 83 of Chapter 5 of Title IV of the Association Agreement between the European 
Union and its  Member States,  of the one part, and Ukraine, of the other  part  (‘the Customs 
Sub-Committee’), shall be based on the draft Decision attached to this Decision. 

Minor  changes  to  the  draft  Decision  referred  to  in  Article  1  may  be  agreed  to  by  the 
representatives of the Union in the Customs Sub-Committee without a further decision of the 
Council. 

Article 2 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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