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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September

WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September. “ Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments ”.

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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September

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  1. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonized system and uniform application of tariff classification, for customs purposes and for dual use goods • Renato Antonini, 5 September 2013

  2. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” The concept of export controls • Export controls: restrictions imposed by countries on the exports of certain goods, software and technology • ‘exports’: broad scope, it includes also transfer of technology by intangible means (such as orally or electronically)

  3. Several international instruments and regimes on export controls WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” 3 Treaty on the Non-Proliferation of Nuclear Weapons Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction

  4. Several international instruments and regimes on export controls WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” 4 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction United Nations Security Council Resolutions taken under Chapter VII of the UN Charter (in particular Article 41) and Resolution 1540 (2004) of the United Nations Security Council

  5. Wassenaar Arrangement WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” 5 The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Good and Technologies (“Wassennaar Arrangement”) First global multilateral arrangement on export controls for conventional weapons and sensitive dual-use goods and technologies

  6. Wassenaar Arrangement WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” 6 Complements and reinforces the existing control regimes for weapons of mass destruction and their delivery systems Promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies

  7. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Dual-use goods • Identification of goods and technology subject to export controls: security objectives and international non-proliferation efforts • For instance, dual-use goods: items which can be used for both civil and military purposes

  8. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Dual-use goods • Statement of Understanding on Control of Non-Listed Dual-Use Items (part of WA): also not listed items can be made subject to control if are or may be intended, entirely or in part, for a military end-use

  9. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Dual-use goods • Or the exporter is aware that items in question are intended, entirely or in part, for a military end-use, the exporter must notify the, which will decide whether or not it is expedient to make the export concerned subject to authorisation

  10. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Example: the EU Dual-Use Regulation • EU dual-use regime • since 2000: Council Regulation 1334/2000 • Dual-use Regulation re-casted in 2009 after many amendments • Current dual-use Regulation in place: Council Regulation 428/2009, as modified the last time by Regulation 388/2012

  11. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Example: the EU Dual Use Regulation • Definition of dual-use goods in Article 1 (a) of Regulation 428/2009: “dual-use items” shall mean items, including software and technology, which can be used for both civil and military purposes, and shall include all goods which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices”

  12. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Example: the EU Dual Use Regulation • Annex I to Regulation 428/2009: list of products that are considered dual-use goods and for which an export authorisation/license is required • The Annex is based on control lists of international export control regimes (in particular, the WA)

  13. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • Annex I classifies dual-use items and technology in 10 categories: • Category 0: nuclear materials, facilities and equipment • Category 1: materials, chemicals, ‘micro organisms’ and ‘toxins’; • Category 2: materials processing; • Category 3: electronics; • Category 4: computers; • Category 5: telecommunications and ‘information security’; • Category 6: sensors and lasers; • Category 7: navigation and avionics; • Category 8: marine, and • Category 9: propulsion systems, space vehicles and related equipment. • Annex I also includes software

  14. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • Annex I is not an exhaustive list of dual-use items • Member States are still allowed to place goods on a national exclusion lists or subject to national export controls. • “catch-all clause” (Art. 4 of the Regulation): Member States can require export licences for all items and technology not listed in Annex I in case: • the goods in question are or may be intended for projects regarding biological, chemical or nuclear weapons of mass destruction or for missiles capable of delivering such weapons; • the country of destination is subject to a weapons embargo and the goods could be used for the manufacture of weapons; • the goods concerned can be used as parts of the military goods of the EU (or national) military lists AND have been previously exported without a valid authorisation or in violation of an authorisation

  15. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • Annex I provides items with an Export Control Number (ECN). How to construct an ECN? • Within each of the ten categories, items are arranged in groups. Each category is divided into the same five groups, which are identified by the letters A to E: • A- Systems, Equipment, Components • B- Test, Inspection and Production Equipment • C- Materials • D- Software • E- Technology

  16. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • These 5 groups correspond to: • A = “The product” • B = The equipment to make and test “the product” • C = The materials to make “the product” (A,B,C = commodities only) • D = The software to develop, produce or use “the product” (D = software only) • E = The technology to develop, produce or use “the product” (E = information and technical assistance only (technology)

  17. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • These groups are themselves divided into further subcategories identified by combinations of three numbers (and sometimes letters) • As a result: each product listed in Annex I has its own 5 character ECN

  18. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Export Control Number • In conclusion, an ECN should be read as follows: • first character: number referring to one of the main 10 categories; • second character: letter referring to one of the 5 groups within a specific category; • last three characters: somehow reflect the control regime(s): • 001 - 099 Wassenaar Arrangement; • 101 - 199 Missile Technology Control Regime; • 201 - 299 Nuclear Suppliers Group; • 301 - 399 Australia Group; and • 901 - 999 Unilateral (National) Controls.

  19. HS and ECN WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” 19 • When goods enter or leave a customs territory: critical importance of classification of the items under the relevant HS code • Also for export control purposes, items are being given a classification number • Both classification systems are mostly triggered by the movement of items across borders and obviously interact with each other

  20. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” HS and ECN • To facilitate the correlation between dual-use classification and tariff classification, the European Commission has devised a correlation list between the TARIC and the Dual-Use Regulation, see http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_131339.pdf

  21. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” HS and ECN • However: no exact matching • The fact that a certain customs code corresponds to an ECN does not imply necessarily that all items covered by this customs code are export control items

  22. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and ECN • More harmonization between customs tariffs and control lists would be very useful • For exporters: the more both classification systems would be harmonized or matching, the less onerous the burden would become on the exporters to assess whether their goods are subject to export control

  23. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • For the customs authorities: trade controls carried out by customs authorities or other authorities would be easier and thus more effective • But harmonization is not an easy task, inter alia because the HS and ECN are developed and managed by different bodies

  24. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Moreover, controlled items are not the same worldwide. There are some items which are controlled by several WCO members, but other items are not (for instance, in the EU, Member States can add controlled items) • Controlled items are often modified

  25. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Harmonization is not a result which can be obtained with one single action: progressive harmonization is needed • Use of HS by international export control regimes: to the extent possible, HS codes could be used in the framework of international regimes when controlled items are identified

  26. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Taking into account export controls in HS review process: Where possible, HS codes could be revised in order to distinguish between controlled and non controlled items • An example is the work carried out by the Research Group for Biological Arms controls in 2007-2008

  27. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • The Research Group compiled a list of approx. 40 positions of controlled items (biotechnology equipment) to which individual HS codes should have been assigned • The list was developed using the item lists of export control regimes (such as the Australia Group)

  28. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • With help of the WCO HS Secretariat, the list was submitted to the WCO HS Review Sub-Committee (see WCO document NR0713E1a and Annex)

  29. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments”

  30. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • This attempt was not successful since it was proposed by a private academic organization and several WCO members opposed this approach • The support of major countries (for instance, by putting forward the proposal) might have led to a different result

  31. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Taking into account export controls when amending Explanatory Notes: Also the Explanatory Notes concerning HS including export control items could provide guidance as regards the export control items

  32. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Make correlation list of HS codes and export control lists: WCO makes correlation lists with selected international conventions (for instance, for dual-use goods) • Already exists for Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their Destruction (CWC)

  33. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers

  34. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers CWC administered by OPCW (Organisation for the Prohibition of Chemical Weapons - The Hague) The symbol .X. in the Table indicates full coverage, which means that all goods of the specified subheading are controlled by the convention mentioned in the header of the corresponding column, while "EX" indicates partial coverage.

  35. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • Taking into account export controls when making additional subcategories at national level: At national level, the HS code could be complemented with additional subcategories to identify export control items

  36. WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013 4, 5 - 6 September “Studies on Harmonization of Customs Law and Contributions of the Academy for updating and improving the WCO Instruments” Harmonization between HS and export control numbers • The harmonization would also allow to identify and keep detailed track of controlled items in the world • The WCO, in cooperation with international export control regimes, is ideally placed to coordinate this progressive process of harmonization

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