2023/2898

22.12.2023

COUNCIL DECISION (EU) 2023/2898

of 19 December 2023

on the position to be taken on behalf of the European Union within the World Customs Organization (WCO) with regard to the adoption of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 31, Article 43(2) and Article 207(4), first subparagraph, in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) By means of Council Decision 87/369/EEC (1) the Union approved the International Convention on the Harmonized Commodity Description and Coding System (2), and the Protocol of Amendment thereto (3) (HS Convention), which, inter alia, established the Harmonized System Committee (HSC).

(2) Pursuant to Article 7(1), points (b) and (c), of the HS Convention, the HSC is responsible for preparing Explanatory Notes, Classification Opinions, other advice as guides for the interpretation of the Harmonized System and for preparing recommendations to secure uniformity in the interpretation and application of the Harmonized System.

(3) Pursuant to Article 8(3) of the HS Convention, Explanatory Notes, Classification Opinions, other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation and application of the Harmonized System prepared during a session of the HSC (‘HSC decisions’) are to be deemed as having been approved by the World Customs Organization (WCO) Council if, as of the end of the second month following the month during which the session at which they were adopted was closed, no Contracting Party to the HS Convention notified the WCO Secretary-General that it entered a request for re-examination by the HSC or referral to the WCO Council.

(4) Pursuant to Article 8(4) of the HS Convention, once a matter has been referred to the WCO Council under the provisions of paragraph 2 of that Article, the WCO Council shall approve such Explanatory Notes, Classification Opinions, other advice or recommendations, unless any WCO Council Member which is a Contracting Party to the HS Convention requests that they be referred in whole or in part to the HSC for re-examination.

(5) It is appropriate to establish the position to be taken on the Union’s behalf in the WCO with regard to the adoption of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the HS Convention, as the decisions at issue prepared by the HSC will be capable of decisively influencing the content of Union law, namely, Council Regulation (EEC) No 2658/87 (4).

(6) It is in the interest of the Union that the positions expressed by the Union in the HSC are established according to principles, criteria and orientations governing the tariff classification of goods. It is also in the interest of the Union that such positions be established in an expeditious manner to allow the Union to exercise its rights in the HSC.

(7) To preserve the Union’s rights, the Commission should also be able to request on behalf of the Union that a matter be referred to the WCO Council or to the HSC for re-examination pursuant to Article 8(2) of the HS Convention, in order to avoid that a decision is adopted on a matter on which the WCO Council is either unable to reach a position before the expiry of the deadline provided for in Article 8(3) of the HS Convention, or has reached a position which differs in substance from the decision that was adopted by the HSC.

(8) In view of the evolving and highly technical nature of the classification of goods under the HS Convention, the high volume of questions dealt with in the two HSC meetings per year, and the short timeframe available to consider documents issued by the WCO Secretariat and Contracting Parties in preparation of the HSC meetings and the consequent need for the position of the Union to take into account and to effectively act upon the new information presented before or during such meetings, necessary steps should be established, in line with the principle of sincere cooperation among the Union institutions enshrined in Article 13(2) of the Treaty on European Union (TEU), for the specification of the position of the Union.

(9) Council Decision (EU) 2020/1707 (5) set up an efficient and expedited procedure for the establishment of the position to be taken on the Union’s behalf on the approval of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention, and on the preparation of such acts in the WCO. As it shall expire on 31 December 2023, it is appropriate to replace it with a new Decision.

(10) In view of the recurrent late availability of working documents before HSC meetings, and in order to preserve the Union’s rights and interests within the WCO, the Commission should strive to call on the WCO Secretariat to ensure the availability of working documents in conformity with the rules of procedure of the HSC, so that such documents are dispatched at least 30 days before the opening of the relevant session.

(11) To ensure that the Council is able to assess and, where appropriate, revise the policy in this Decision on a regular basis, and in the spirit of the sincere cooperation among the Union institutions enshrined in Article 13(2) of the TEU, the validity of this Decision should be limited in time. In preparation of a Strategic Review of the Harmonized System, which is planned to be discussed in the WCO Policy Commission and WCO Council in June 2024, the period of validity of this Decision can be shortened before its expiry, upon a proposal from the Commission.

(12) In order to maintain a Union position on the approval of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention, and on the preparation of such acts in the WCO after the expiry of Decision (EU) 2020/1707 on 31 December 2023, this Decision should apply from 1 January 2024 and should therefore enter into force as a matter of urgency,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union’s behalf on the approval of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention, and on the preparation of such acts in the World Customs Organisation, shall be established in accordance with the principles, criteria and orientations laid down in Section I of the Annex to this Decision.

Article 2

The specification of the Union’s position to be taken under Article 1 shall be conducted in accordance with the specification laid down in Section II of the Annex to this Decision.

Article 3

This Decision shall enter into force on the date of its adoption.

It shall expire on 31 December 2026.

Done at Brussels, 19 December 2023.

For the Council

The President

T. RIBERA RODRÍGUEZ

(1) Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonized Commodity Description and Coding System and of the Protocol of Amendment thereto (

OJ L 198, 20.7.1987, p. 1

(2)

OJ L 198, 20.7.1987, p. 3

(3)

OJ L 198, 20.7.1987, p. 11

(4) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (

OJ L 256, 7.9.1987, p. 1

(5) Council Decision (EU) 2020/1707 of 13 November 2020 on the position to be taken on behalf of the European Union within the World Customs Organization with regard to the adoption of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention (

OJ L 385, 17.11.2020, p. 11

ANNEX

I. Position to be taken on behalf of the European Union within the World Customs Organization with regard to the adoption of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention

1. PRINCIPLES

In the framework of the World Customs Organization (WCO), the Union shall:

(a) promote, contribute to and facilitate the customs classification of goods and the uniform interpretation and application of the Harmonized System (HS), and the reduction of the number of cases and disputes concerning divergent interpretations of the HS;

(b) work towards the appropriate involvement of stakeholders in the preparation phase for decisions of the Harmonized System Committee (HSC) and ensure that decisions adopted in the WCO are in accordance with the International Convention on the Harmonised Commodity Description and Coding System (HS Convention) (1);

(d) promote positions consistent with the best practices developed by the Union in the area concerned;

(e) promote the simplification and modernisation of the HS Nomenclature according to the evolution of the needs of the users and development of new technologies;

(f) ensure coherence with its other policies, including the objective to protect the financial interests of the Union, and international commitments to the extent relevant in light of the specific nature of customs classification.

2. CRITERIA

The positions to be taken on the Union’s behalf in the WCO:

(a) shall be established according to the following general criteria:

— the principle that, in the interest of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant headings of the HS and in the Section or Chapter notes, and

— the general rules for the interpretation of the HS as set out in the Annex to the HS Convention.

(b) where applicable, shall take into account the following specific criteria:

— case law of the Court of Justice of the European Union related to customs classification of goods,

— HS Nomenclature and HS Explanatory Notes, Classification opinions and decisions taken by the HSC,

— the Combined Nomenclature (CN) (2) subheadings and CN Explanatory Notes,

— classification regulations and decisions adopted by the Commission,

— conclusions of the Customs Code Committee, Tariff and Statistical Nomenclature Section, and

— any other legal acts or guidelines related to the customs classification of goods developed by the Council or the Commission.

3. ORIENTATIONS

The Union shall, where appropriate, endeavour to support the adoption of the following decisions in the WCO, according to the principles and criteria referred to in points 1 and 2:

(a) to propose and prepare Explanatory Notes, Classification Opinions or other advice as guidance to the interpretation of the HS;

(b) to prepare recommendations to secure uniformity in the interpretation and application of the HS;

II. Specification of the position to be taken on behalf of the Union within the World Customs Organisation with regard to the adoption of Explanatory Notes, Classification Opinions or other advice on the interpretation of the Harmonized System and recommendations to secure uniformity in the interpretation of the Harmonized System under the HS Convention

Before each meeting of the HSC during which the HSC is called upon to adopt decisions that have legal effects on the Union, the necessary steps shall be taken so that the position to be expressed on the Union’s behalf takes account of the latest technical and other relevant information transmitted to the Commission, in accordance with the principles, criteria and orientations set out in section I. In order to preserve Union’s rights and interests within the WCO, the Commission shall attach special attention to the availability of working documents in conformity with the rules of procedures of the HSC.

To this effect, and based on that information, the Commission shall transmit to the Council, in sufficient time before each meeting of the HSC referred to in point 1, a written document setting out the particulars of the proposed specification of the Union’s position for discussion and endorsement of the details of the position to be expressed on the Union’s behalf. The Council shall examine the Commission’s documents within the best possible timeframe.

If the Council does not endorse a specific part of the proposal, the Commission will not present a Union position on that part at the HSC.

In cases where the Union’s position differs in substance from the decision adopted by the HSC, the Commission shall, in sufficient time before the deadline provided for in Article 8(3) of the HS Convention, transmit to the Council for discussion and endorsement a written document setting out that the decision(s) at issue can be accepted or that the matter needs to be referred to the WCO Council or to the HSC for re-examination pursuant to Article 8(2) of the HS Convention.

To preserve the Union’s rights and avoid a decision on a matter on which the Council is unable to reach a position before the deadline provided for in Article 8(3) of the HS Convention being adopted in the WCO, the Commission shall request on behalf of the Union that the matter be referred to the WCO Council or to the HSC for re-examination pursuant to Article 8(2) of the HS Convention.

(1)

OJ L 198, 20.7.1987, p. 3

(2) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,

OJ L 256, 7.9.1987, p. 9

ELI: http://data.europa.eu/eli/dec/2023/2898/oj

ISSN 1977-0677 (electronic edition)