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1 US Complaint Over the EU Customs System. PENDING WTO CASE Dzifa Acolatse Jean-Guy Afrika Sarah Ayers Aleksandra Ciric.

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Presentation on theme: "1 US Complaint Over the EU Customs System. PENDING WTO CASE Dzifa Acolatse Jean-Guy Afrika Sarah Ayers Aleksandra Ciric."— Presentation transcript:

1 1 US Complaint Over the EU Customs System. PENDING WTO CASE Dzifa Acolatse Jean-Guy Afrika Sarah Ayers Aleksandra Ciric

2 2 Background of the Case - Introduction U.S. request for a dispute settlement panel to hear its complaint concerning the lack of uniformity in the European customs procedures. Request for panel establishment filed in January 2005 due the failure to resolve the dispute in mid-November 2004 in consultations.

3 3 Background of the Case – Main Argument Brought by the US Violates WTO Customs Law Lack of Uniformity in Implementing Customs Rules Throughout the 25 EU Member States Lack of Procedures for Prompt EU-Wide Review

4 4 Three Reasons for Requesting WTO Consultations 1. The EU has just recently expanded from 15 member states to 25 member states (as of May 1, 2004). The trade barrier inherent in the lack of a uniform customs administration expanded when the new member states joined. 2. Enhancing trade facilitation is a key part of the DOHA Development Agenda. 3. Over the past months, the U.S. has tried to work with the EU to address the concerns of U.S. exporters… and although the EU trade commissioner and his staff have tried to help with individual problems, it has become clear that the allocation of authorities within the EU and even the commission has precluded achieving the necessary systematic solutions. ~ Robert Zoellick

5 5 US Complaint Alleged Lack of Uniformity Differences in licensing requirements for importation of food products. Differences in procedures for processing express delivery shipments. Differences in penalties and differences in procedures regarding the imposition of penalties for violation of customs rules. Differences in record-keeping requirements.

6 6 US Complaint Continued Alleged Lack of Uniformity Differences in the classification and valuation of goods. Differences in the provision of binding classification and valuation information to importers. Differences in procedures for the entry and release of goods; some member states have automated systems, others do not. Differences in certificate of origin requirements. Differences for physical inspection of goods.

7 7 Statement from the US Trade Representative Although the EU is a customs union, there is no single EU customs administration. Lack of conformity, coupled with lack of procedures for prompt EU-wide review can hinder US exports, especially for small to mid-sized businesses. ~ Robert Zoellick, (former) US Trade Representative,USTR Office

8 8 Export Statistics on US Small and Medium-Sized Enterprises 1997: SMEs accounted for 96.5% of all US exporters, up from 95.7% in SMEs share of exports hit 30.6% in 1997, up from 29.5% in 1992 and 26.4% in : Overall, there was a 3% decrease in the number of exporting companies between STILL: SMEs accounted for 96.8% of all US exporters. SMEs share of export value was 29.2%. Source: US Dept. of Commerce-US Census Bureau-Foreign Trade Division

9 9 Exports to the EU15 Data Source: US Dept. of Commerce - A Profile of U.S. Exporting Companies, , Table 5b & Table 5a

10 10 Critical Issues GATT 1994 Issues Regarding Article X:1: Laws, regulations, judicial decisions and administrative rulings of general application pertaining to the classification or the valuation of products for customs purpose shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Regarding Article X:3(a): Customs laws must be administered in a uniform, impartial and reasonable manner. Regarding Article X:3(b): A forum must be maintained for prompt review and correction of administrative actions relating to customs matters.

11 11 Critical Issues Customs laws in the EC are administered by Member States authorities. Key aspects of customs law administration are left to the discretion of Member States, reviewable by national courts. Review by an EC forum (the European Court of Justice) may be available only after years of domestic litigation.

12 12 Critical Issues Member States of the EU are required, due to the EC Law of supremacy over national laws, to adopt all laws and regulations and bring them into their national governing system. However, due to the variation of forms that administration efforts take on in each Member State, the speed and efficiency with which this is performed varies as well. This is a HUGE concern given the recent enlargement of the EU to include many Central and Eastern European nations whose administrative techniques are underdeveloped. In addition, some of the newer Member States are allowed an extra amount of time to incorporate EC Law into their national system.

13 13 EU Customs and Tariffs Customs Code The Community's basic customs legislation is contained in the Customs Code (Council Regulation (EEC) No 2913/92) and the Code's implementing provisions (Commission Regulation (EEC) No 2454/93). Tariffs Tariff Schedule (Council Regulation (EEC) no 2658/87 and annexes thereafter) – gives tariff and statistical nomenclature on the Common Customs Tariff. TARIC - presents all third-country and preferential duty rates currently applicable, as well as all commercial policy measures.

14 14 Customs and Tariff Administration in the EU European Commission - Administrative and Executive Body Commission draws up legislation proposals and presents it to the European Council and European Parliament for approval. Directorate-General for Taxation and Customs Union Division (DGTAXUD) Responsible for the management and implementation of customs and tariffs. Commission is entrusted by EU Treaty to supervise the compliance of EC laws and regulations by Member States. If the Commission feels that a Member State has failed to comply with EC law, then the Commission can bring the Member State before the European Court of Justice. France: Duty rate on dark and Virginia-type tobacco cigarettes

15 15 European Community Law Hierarchy EC LAW Supranational Member State² Law Member State¹ LawMember State³ Law Transposed into: National Customs Authority¹National Customs Authority²National Customs Authority³ Implemented and Enforced by: International Law (i.e. WTO)

16 16 European Communities GATT/WTO Signatory – January 1, 1995 EU15 AustriaPortugal BelgiumSpain DenmarkSweden FinlandUnited Kingdom France Germany Greece Ireland Italy Luxembourg Netherlands 10 New Members Central and Eastern European Countries-CEEC, plus Cyprus & Malta Cyprus Czech Republic Estonia Hungary Latvia Lithuania Malta Poland Slovak Republic Slovenia 2007 Accession Bulgaria and Romania

17 17 How It All Works Decentralization Initially, implementation, complete compliance and enforcement of law are left up to the Member States Administrative Traditions How the Member States Deal with Laws - Interpretations Different Cultures Issues of Corruption - Bribery

18 18 Judicial Concerns Legal Process Would Take a Lot of Time, Energy and Money In the business world, time is of the essence and time is money. US Success in the EU (or Member State) Situation is NOT Guaranteed Therefore, Could Only be Pursued Out of Altruistic Intentions to Establish a Precedent

19 19 EU Counterpoint EC dismissed the US claim as having no legal basis. The EU Trade Commissioner Pascal Lamy stated that the EU, regret(s) the US move to bring this issue to the WTO rather than using the bilateral EU- US Joint Customs Council, which would have provided a better forum for resolving these issues. However, the EU believed that it should proceed with participating in the WTO consultations since the EC was of the opinion that the Community was in fact complying with all WTO rules.

20 20 EU-US Customs Agreement Initialed in Washington, DC on November 7, 1996 Agreement between the European Community and the US on Customs Cooperation and Mutual Assistance in Customs Matters. Article 22: Established a Joint Customs Cooperation Committee. Obligations: 1. See to the proper functioning of the agreement; 2. Examine all issues arising from its application; 3. Take measures necessary for customs cooperation in accordance with the objectives of this agreement; 4. Exchange views on any points of common interest regarding customs cooperation, including future measures and the resources for them; 5. Recommend solutions aimed at attaining the objectives of this agreement.

21 21 The EU Indeed Recognizes that it is not Perfect In a March 2001 report by the EU Court of Auditors, the European Commission stated: The objective that for all trade in goods the Community should operate as a real customs union with uniform treatment of imported goods can be fully obtained only if the customs union is operating on the basis of a single customs administration, which is not the case.

22 22 Conclusion Is the manner in which the EU has established its customs union lacking in uniformity to the extent that it is indeed hampering exports from the US into its borders? If a dispute panel is established, the US must present evidence that the EU customs system has indeed harmed US businesses. Is it more productive and beneficial to handle trade disputes at a multi-lateral level (WTO), or through bilateral means (EU-US Trade Agreement)? Which possesses more power – WTO or Trade Agreements between countries?

23 23 Sources WTO – WT/DS315/1- European Communities – Selected Customs Matters, BBC News - Bridges Weekly Trade News Digest, Volume 8, Number 33, Oct. 6, U.S. Mission to the UN in Geneva, Press Release, U.S. Statements at the WTO Dispute Settlement Body (DSB), Jan. 25, 2005. Office of the USTR, U.S. Requests WTO Panel Against EU Over European Customs System, Jan. 13, 2005. EUBusiness, US Files WTO Complaint Over EU Customs System, Aug. 21, US Department of Commerce, Small & Medium Sized Exporting Companies: A Statistical Profile, Dec US Department of Commerce-US Census Bureau-Foreign Trade Division, A Profile of U.S. Exporting Companies, , pdf. Feb pdf. Feb Tralac, EU Responds to US Complain that it Doesnt Act Like a Customs Union, Sept. 27, European Union in the US, EU-US Partnership, Hogan & Hartson, LLP, U.S. Challenges Lack of Uniformity in EU Customs Administration, Customs and International Trade. October 2004.

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