Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure⁽¹⁾,

Whereas:

Since 1971, the Community has granted trade preferences to developing countries under its scheme of generalised tariff preferences.
The Union’s common commercial policy shall be guided by the principles and pursue the objectives set out in the general provisions on the Union’s external action, laid down in Article 21 of the Treaty on European Union (TEU).
The Union aims to define and pursue common policies and actions in order to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty.
The Union’s common commercial policy is to be consistent with and to consolidate the objectives of the Union policy in the field of development cooperation, laid down in Article 208 of the Treaty on the Functioning of the European Union (TFEU), in particular the eradication of poverty and the promotion of sustainable development and good governance in the developing countries. It is to comply with World Trade Organisation (WTO) requirements, in particular with the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (the ‘Enabling Clause’), adopted under the General Agreement on Tariffs and Trade (GATT) in 1979, under which WTO Members may accord differential and more favourable treatment to developing countries.
The Commission Communication of 7 July 2004 entitled ‘Developing countries, international trade and sustainable development: the function of the Community’s generalised system of preferences (GSP) for the 10-year period from 2006 to 2015’ sets out the guidelines for the application of the scheme of generalised tariff preferences for the period 2006 to 2015.
Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009⁽²⁾, as extended by Regulation (EU) No 512/2011 of the European Parliament and of the Council of 11 May 2011 amending Council Regulation (EC) No 732/2008⁽³⁾ provides for the application of the scheme of generalised tariff preferences (‘the scheme’) until 31 December 2013 or until the scheme under this Regulation is applied, whichever is the earlier. Thereafter, the scheme should continue to apply for a period of 10 years from the date of application of the preferences provided for in this Regulation, except for the special arrangement for the least-developed countries, which should continue to be applied without any expiry date.
By providing preferential access to the Union market, the scheme should assist developing countries in their efforts to reduce poverty and promote good governance and sustainable development by helping them to generate additional revenue through international trade, which can then be reinvested for the benefit of their own development and, in addition, to diversify their economies. The scheme’s tariff preferences should focus on helping developing countries having greater development, trade and financial needs.
The scheme consists of a general arrangement, and two special arrangements.
The general arrangement should be granted to all those developing countries which share a common developing need and are in a similar stage of economic development. Countries which are classified by the World Bank as high-income or upper-middle income countries have per capita income levels allowing them to attain higher levels of diversification without the scheme’s tariff preferences. Those countries include economies which have successfully completed their transition from centralised to market economies. They do not share the same development, trade and financial needs as the remaining developing countries; they are at a different stage of economic development, i.e. they are not similarly-situated as the more vulnerable developing countries; and, in order to prevent unjustified discrimination, they need to be treated differently. Furthermore, the use of tariff preferences provided under the scheme by high-income or upper-middle income countries increases the competitive pressure on exports from poorer, more vulnerable countries and therefore could impose unjustifiable burdens on those more vulnerable developing countries. The general arrangement takes account of the fact that the development, trade and financial needs are subject to change and ensures that the arrangement remains open if the situation of a country changes.
For the sake of consistency, the tariff preferences granted under the general arrangement should not be extended to developing countries which are benefiting from a preferential market access arrangement with the Union, which provides at least the same level of tariff preferences as the scheme for substantially all trade. To provide a beneficiary country and economic operators with time for an orderly adaptation, the general arrangement should continue to be granted for two years as from the date of application of a preferential market access arrangement and this date should be specified in the list of beneficiary countries of the general arrangement.
Countries listed in Annex I to Regulation (EC) No 732/2008 and countries benefiting from autonomous preferential access to the Union market under Regulation (EC) No 732/2008, Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova⁽⁴⁾ and Council Regulation (EC) No 2007/2000 of 18 September 2000 introducing exceptional trade measures for countries and territories participating in or linked to the European Union’s Stabilisation and Association process⁽⁵⁾ should be considered eligible for the scheme. Overseas territories associated with the Union and overseas countries and territories of countries that are not listed in Annex I to Regulation (EC) No 732/2008 should not be considered eligible for the scheme.
The special incentive arrangement for sustainable development and good governance is based on the integral concept of sustainable development, as recognised by international conventions and instruments such as the 1986 United Nations (UN) Declaration on the Right to Development, the 1992 Rio Declaration on Environment and Development, the 1998 International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work, the 2000 UN Millennium Declaration, and the 2002 Johannesburg Declaration on Sustainable Development. Consequently, the additional tariff preferences provided under the special incentive arrangement for sustainable development and good governance should be granted to those developing countries which, due to a lack of diversification and insufficient integration within the international trading system, are vulnerable, in order to help them assume the special burdens and responsibilities resulting from the ratification of core international conventions on human and labour rights, environmental protection and good governance as well as from the effective implementation thereof.
Preferences should be designed to promote further economic growth and, thereby, to respond positively to the need for sustainable development. Under the special incentive arrangement, the ad valorem tariffs should therefore be suspended for the beneficiary countries concerned. The specific duties should also be suspended, unless combined with an ad valorem duty.
Countries that fulfil the eligibility criteria for the special incentive arrangement for sustainable development and good governance should be able to benefit from the additional tariff preferences if, upon their application, the Commission determines that the relevant conditions are met. It should be possible to submit applications as from the date of entry into force of this Regulation. Countries which benefit from the tariff preferences of the scheme under Regulation (EC) No 732/2008 should also submit a new application.
The Commission should monitor the status of ratification of the international conventions on human and labour rights, environmental protection and good governance and their effective implementation, by examining the conclusions and recommendations of the relevant monitoring bodies established under those conventions (the relevant monitoring bodies). Every two years, the Commission should present to the European Parliament and the Council a report on the status of ratification of the respective conventions, the compliance of the beneficiary countries with any reporting obligations under those conventions, and the status of the implementation of the conventions in practice.
For the purposes of the monitoring and the withdrawal of preferences, reports from relevant monitoring bodies are essential. However, such reports may be supplemented by other sources of information, provided that they are accurate and reliable. Without prejudice to other sources, this could include information from civil society, social partners, the European Parliament and the Council.
The special arrangement for the least-developed countries should continue to grant duty-free access to the Union market for products originating in the least-developed countries, as recognised and classified by the UN, except for trade in arms. For a country no longer classified by the UN as a least-developed country, a transitional period should be established, to alleviate any adverse effects caused by the removal of the tariff preferences granted under this arrangement. Tariff preferences provided under the special arrangement for the least-developed countries should continue to be granted for those least-developed countries, which benefit from another preferential market access arrangement with the Union.
To ensure coherence with the market access provisions for sugar in the Economic Partnership Agreements, imports of products under heading 1701 of the Common Customs Tariff should require an import licence until 30 September 2015.
As regards the general arrangement, the differentiation between tariff preferences for non-sensitive products and tariff preferences for sensitive products should be maintained, to take account of the situation of the sectors manufacturing the same products in the Union.
Common Customs Tariff duties on non-sensitive products should continue to be suspended, while duties on sensitive products should enjoy a tariff reduction, in order to ensure a satisfactory utilisation rate while at the same time taking account of the situation of the corresponding Union industries.
Such a tariff reduction should be sufficiently attractive, in order to motivate traders to make use of the opportunities offered by the scheme. Therefore, the ad valorem duties should generally be reduced by a flat rate of 3,5 percentage points from the ‘most favoured nation’ duty rate, while such duties for textiles and textile goods should be reduced by 20 %. Specific duties should be reduced by 30 %. Where a minimum duty is specified, that minimum duty should not apply.
Duties should be suspended totally, where the preferential treatment for an individual import declaration results in an ad valorem duty of 1 % or less or in a specific duty of EUR 2 or less, since the cost of collecting such duties might be higher than the revenue gained.
Graduation should be based on criteria related to sections and chapters of the Common Customs Tariff. Graduation should apply in respect of a section or subsection in order to reduce cases where heterogeneous products are graduated. The graduation of a section or a subsection (made up of chapters) for a beneficiary country should be applied when the section meets the criteria for graduation over three consecutive years, in order to increase predictability and fairness of graduation by eliminating the effect of large and exceptional variations in the import statistics. Graduation should not apply to the beneficiary countries of the special incentive arrangement for sustainable development and good governance and the beneficiary countries of the special arrangement for the least-developed countries as they share a very similar economic profile rendering them vulnerable because of a low, non-diversified export base.
In order to ensure that the scheme benefits only those countries it is intended to benefit, the tariff preferences provided for by this Regulation should apply, as well as the rules of origin of products, laid down in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code⁽⁶⁾.
The reasons for temporary withdrawal of the arrangements under the scheme should include serious and systematic violations of the principles laid down in certain international conventions concerning core human rights and labour rights, so as to promote the objectives of those conventions. Tariff preferences under the special incentive arrangement for sustainable development and good governance should be temporarily withdrawn if the beneficiary country does not respect its binding undertaking to maintain the ratification and effective implementation of those conventions or to comply with the reporting requirements imposed by the respective conventions, or if the beneficiary country does not cooperate with the Union’s monitoring procedures as set out in this Regulation.
Due to the political situation in Burma/Myanmar and in Belarus, the temporary withdrawal of all tariff preferences in respect of imports of products originating in Burma/Myanmar or Belarus should be maintained.
In order to achieve a balance between the need for better targeting, greater coherence and transparency on the one hand, and better promoting sustainable development and good governance through a unilateral trade preference scheme on the other hand, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amendments to the Annexes to this Regulation and temporary withdrawals of tariff preferences due to failure to adhere to the principles of sustainable development and good governance, as well as procedural rules regarding the submission of applications for the tariff preferences granted under the special incentive arrangement for sustainable development and good governance, the conduct of a temporary withdrawal and safeguard investigations in order to establish uniform and detailed technical arrangements. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
In order to provide a stable framework for economic operators, the power to adopt an act in accordance with Article 290 TFEU should be delegated to the Commission in respect of repealing a decision on temporary withdrawal under the urgency procedure before that decision to temporarily withdraw tariff preferences takes effect, where the reasons justifying temporary withdrawal no longer apply.
In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for the control by the Member States of the Commission’s exercise of implementing powers⁽⁷⁾.
The advisory procedure should be used for the adoption of implementing acts on suspension from the tariff preferences of certain GSP sections in respect of beneficiary countries and on the initiation of a temporary withdrawal procedure, taking into account the nature and impact of those acts.
The examination procedure should be used for the adoption of implementing acts on safeguard investigations and on suspension of the preferential arrangements where imports may cause serious disturbance to Union markets.
In order to ensure the integrity and orderly functioning of the scheme, the Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to temporary withdrawals due to non-compliance with customs-related procedures and obligations, imperative grounds of urgency so require.
In order to provide a stable framework for economic operators, upon conclusion of the maximum period of six months, the Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to termination or extension of the temporary withdrawals due to non-compliance with customs-related procedures and obligations, imperative grounds of urgency so require.
The Commission should also adopt immediately applicable implementing acts where, in duly justified cases relating to safeguard investigations, imperative grounds of urgency relating to the deterioration of the economic and/or financial situation of Union producers which would be difficult to repair so require.
The Commission should report regularly to the European Parliament and to the Council on the effects of the scheme under this Regulation. Five years after its entry into force, the Commission should report to the European Parliament and to the Council on the application of this Regulation and assess the need to review the scheme, including the special incentive arrangement for sustainable development and good governance and temporary withdrawal provisions of tariff preferences, taking into consideration the fight against terrorism and the field of international standards on transparency and exchange of information in tax matters. In reporting, the Commission should take into account the implications for development, trade and financial needs of beneficiaries. The report should also include a detailed analysis of the impact of this Regulation on trade and on the Union’s tariff income, with particular attention to the effects on beneficiary countries. Where applicable, compliance with Union sanitary and phytosanitary legislation should also be assessed. The report should also include an analysis of the effects of the scheme with regard to imports of biofuels and sustainability aspects.
Regulation (EC) No 732/2008 should therefore be repealed,

HAVE ADOPTED THIS REGULATION:

CHAPTER I GENERAL PROVISIONS

Article 1

The scheme of generalised tariff preferences (the ‘scheme’) shall apply in accordance with this Regulation.

This Regulation provides for the following tariff preferences under the scheme:

a general arrangement;
a special incentive arrangement for sustainable development and good governance (GSP+); and
a special arrangement for the least-developed countries (Everything But Arms (EBA)).

Article 2

For the purposes of this Regulation:

‘GSP’ means the Generalised Scheme of Preferences by which the Union provides preferential access to its market through any of the preferential arrangements referred to in Article 1(2);
‘countries’ means countries and territories possessing a customs administration;
‘eligible countries’ means all developing countries as listed in Annex I;
‘GSP beneficiary countries’ means beneficiary countries of the general arrangement as listed in Annex II;
‘GSP+ beneficiary countries’ means beneficiary countries of the special incentive arrangement for sustainable development and good governance as listed in Annex III;
‘EBA beneficiary countries’ means beneficiary countries of the special arrangement for least developed countries as listed in Annex IV;
‘Common Customs Tariff duties’ means the duties specified in Part Two of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff⁽⁸⁾, except those duties established as part of tariff quotas;
‘section’ means any of the sections of the Common Customs Tariff as laid down by Regulation (EEC) No 2658/87;
‘chapter’ means any of the chapters of the Common Customs Tariff as laid down by Regulation (EEC) No 2658/87;
‘GSP section’ means a section listed in Annex V and established on the basis of sections and chapters of the Common Customs Tariff;
‘preferential market access arrangement’ means preferential access to the Union market through a trade agreement, either provisionally applied or in force, or through autonomous preferences granted by the Union;
‘effective implementation’ means the integral implementation of all undertakings and obligations undertaken under the international conventions listed in Annex VIII, thus ensuring fulfilment of all the principles, objectives and rights guaranteed therein.

Article 3

A list of eligible countries is established in Annex I.

The Commission shall be empowered to adopt delegated acts in accordance with Article 36 to amend Annex I to take account of changes in the international status or classification of countries.

The Commission shall notify an eligible country concerned of any relevant changes in its status under the scheme.