Abstract
This chapter considers the impact of customs-related non-tariff barriers on trade and their relationship with tariff barriers. It places such non-tariff barriers in the context of the changing mission of EU customs authorities and value chains. It goes on to examine what they are and who creates them in the EU customs union. Methods of controlling such barriers through international and EU action are then considered. It concludes that the increase in the scope of the mission of customs authorities has increased the opportunities for the creation of such non-tariff barriers, but acknowledges that a wide range of tools exist to control them. Finally, it notes that the inclusion in any instrument of a provision countering such non-tariff barriers is helpful but that the enforceability of any such provision is equally important.
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Notes
- 1.
For a summary of the issue, see World Bank (1987), p. 141 Box 8.3.
- 2.
GATT, European Economic Communities – Import Restrictive Measures on Video Tape Recorders, Communication from the Permanent Mission of Japan, L/5427 (21 December 1982).
- 3.
For a brief summary of the theoretical results of imposing non-tariff barriers such as import quotas, voluntary export restraint agreements, local content requirements and others, see Krugman et al. (2014), pp. 244–251.
- 4.
For example, in Wonnacott and Wonnacott (2005), p. 1 (1, fn. 1), the authors say: “We follow much of the literature in using ‘tariffs’ generically to include not only tariffs proper but also other trade barriers such as quotas.”
- 5.
For an example of a case in which the Court of Justice held that a regulation imposing anti-dumping duty was invalid, see CJEU, C-338/10, Grünwald Logistik Service GmbH (GLS), in which Regulation (EC) No 1355/2008 imposing duty of €531.2 per net weight tonne on certain preserved or prepared citrus fruits originating in China was held invalid for breaching the EU regulation governing the imposition of anti-dumping duty.
- 6.
See WTO, Bali Ministerial Declaration and decisions.
- 7.
WTO, Negotiating an agreement on trade facilitation.
- 8.
WTO news (2014).
- 9.
European Commission, State of Play of TTIP negotiations after 6th round, 29 July 2014; see especially paras. 3.3 and 3.8, available at http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152699.pdf.
- 10.
For discussion of the political as well as the economic importance of customs unions, see Marant and De Vanssay (1994), p. 181 onwards.
- 11.
- 12.
See, generally, Tovias (1991), p. 5 (18), on which these comments are based.
- 13.
- 14.
Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1.
- 15.
See Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1, Article 3(d).
- 16.
The Portuguese version, for example, refers to “equilíbrio adequado”.
- 17.
Ricardo (1817). See chapter VI, Foreign Trade, pp. 156–157: “Under a system of perfectly free commerce, each country naturally devotes its capital and labour to such employments as are most beneficial to each. This pursuit of individual advantage is admirably connected with the universal good of the whole […] It is this principle which determines that wine shall be made in France and Portugal, that corn shall be grown in America and Poland, and that hardware and other goods shall be manufactured in England.”
- 18.
See Pascal Lamy’s speech to the French Senate, WTO News (2010).
- 19.
On the literature on international supply chain security, see, for example, Altemöller (2011), p. 21.
- 20.
OECD et al. (2014), pp. 30–31.
- 21.
Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1.
- 22.
See generally Ray (1987), p. 285.
- 23.
OECD (2005), p. 11.
- 24.
As to which see, in particular, the Consolidated version of the Treaty on European Union, [2012] OJ C 326/13, Article 11.
- 25.
United Nations Security Council Resolution 2036, S/RES/2036 (2012), para. 22.
- 26.
United Nations Security Council Resolution 1478, S/RES/1478 (2003), para. 17(a); United Nations Security Council Resolution 1521 S/RES/1521 (2003), para. 10.
- 27.
United Nations Security Council Resolution 2094, S/RES/2094 (2013), para. 23, affirming sanctions on items and luxury goods imposed in 2006 and the list of additional items and luxury goods of 17 September 2013, section B) 1 and 2.
- 28.
Engman (2005), pp. 135–176.
- 29.
ECJ, C-158/82, Commission v Denmark, [1983] ECR 3573.
- 30.
WTO (2012).
- 31.
See also WTO, Committee on Customs Valuation, Report (2013) of the Committee for Customs Valuation to the Council for Trade in Goods, G/L/1043 (4 October 2013).
- 32.
See also WTO, Report (2013) of the Committee on Rules of Origin to the Council for Trade in Goods, G/L/47 (10 October 2013). It states that 41 members have indicated that they apply some form of non-preferential rules of origin, 44 members have indicated that they do not apply non-preferential rules and 46 members have given no indication of their practice. This state of affairs renders harmonisation difficult. “Given this difference in Members’ views, it is difficult for the chairman to draw a future roadmap.” See para. 7.
- 33.
Special Report of the Court of Auditors 8/99 on securities and guarantees provided for in the Community Customs Code to protect the collection of traditional own resources together with the Commission’s replies, [2000] OJ C 70/1.
- 34.
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, [1992] OJ L 302/1, Art. 140.2.
- 35.
See Special Report of the Court of Auditors 8/99 on securities and guarantees provided for in the Community Customs Code to protect the collection of traditional own resources together with the Commission’s replies, [2000] OJ C 70/1 (70/5, para. 15). For the requirements as to the level of security required, see Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, [1992] OJ L 302/1, Art. 192.
- 36.
See Special Report of the Court of Auditors 8/99 on securities and guarantees provided for in the Community Customs Code to protect the collection of traditional own resources together with the Commission’s replies, [2000] OJ C 70/1 (70/5, para. 16).
- 37.
See Special Report of the Court of Auditors 8/99 on securities and guarantees provided for in the Community Customs Code to protect the collection of traditional own resources together with the Commission’s replies, [2000] OJ C 70/1 (70/13 and 14, para. 16).
- 38.
WTO dispute, European Communities – Selected Customs Matters, WT/DS315.
- 39.
General Agreement on Tariffs and Trade 1994 (GATT 1994), 1867 U.N.T.S. 187, Article VIII:3, also limits what customs penalties may be imposed, stating, for example, that substantial penalties shall not be imposed for minor breaches of customs regulations.
- 40.
See European Commission, Proposal for a Directive of the European Parliament and of the Council on the Union legal framework for customs infringements and sanctions, COM(2013)884 final.
- 41.
WTO dispute, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371. See also, for example, WTO disputes, Thailand – Customs Valuation of Certain Products from the European Communities, WT/DS370 and Colombia – Customs Measures on Importation of Certain Goods from Panama, WT/DS348.
- 42.
See, for example, Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, [1987] OJ L 256/1.
- 43.
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, [1992] OJ L 302/1, Art 1.
- 44.
See Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1, Art. 5(2)(a).
- 45.
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, [1992] OJ L 302/1, Art. 4(3).
- 46.
Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1, Art 5(1).
- 47.
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, [1992] OJ L 302/1, Art 13.1.
- 48.
Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1, Art. 46.1.
- 49.
Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1, Art. 46.1, Article 1, second para. For an example of a case on customs valuation in which the Court of Justice of the EU referred to the requirement of the uniform application of EU law, see CJEU, C-116/12, Christodolou, 12 December 2013, para. 34.
- 50.
See Treaty on European Union, Article 6.2. On 18 December 2014 the CJEU delivered Opinion of the Court 2/13 in which it found incompatible with the Treaty on European Union the proposed agreement for the accession of the EU to the European Convention on the Protection Human Rights and Fundamental Freedoms.
- 51.
See, e.g., ECJ, T-19/01, Chiquita Brands and Ors v Commission, [1991] ECR II-321. The Court dismissed the claim, which is discussed at paras. 216–223.
- 52.
In repayment and remission claims, 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 [1993] OJ L 253/1 provided for contact between a trader and a national administration and a national administration and the Commission. No right to be heard by the Commission was given to a trader. Following ECJ, T-346/94, France-aviation v Commission, [1995] ECR II-2841, the relevant legislation was amended so that a statement from the trader was sent by the national administration to the Commission. This was held inadequate in ECJ, T-42/96, Eyckeler & Malt [1998] ECR II-401, and ECJ, T-50/96, Primex Produkte Import-export GmbH &Co. KG, [1998] ECR II-3773. A right to state a point of view to the Commission was given by Commission Regulation (EC) No 1677/98 of 29 July 1998 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, [1998] OJ L 212/18, Article 1, para. 9, which inserted Article 906a into the Commission Regulation of 1993 referred to above.
- 53.
See, for example, ECJ, C-349/07, Sopropé, [2008] ECR I-10369, para 36, and, more recently, CJEU, Joined Cases C-29/13 and C-30/13, Global Trans Lodzhistik OOD, para. 57.
- 54.
See ECHR, Air Canada v UK, 9/1994/456/537, and UK Supreme Court, R (on the application of Eastenders Cash and Carry plc and ors) v The Commissioners for HMRC, [2014] UKSC 34, paras. 24(3) and (4).
- 55.
WTO dispute, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371; see also, for example, WTO disputes, Thailand – Customs Valuation of Certain Products from the European Communities, WT/DS370 and Colombia – Customs Measures on Importation of Certain Goods from Panama, WT/DS348.
- 56.
See, e.g., GATT, report of the Panel, United States – Customs User Fee, L/6264, BISD 35S/245; WTO, report of the Appellate Body, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, WT/DS56/AB/R.
- 57.
The EU approved the Uruguay Round agreements by Council Decision (EC) 800/94 of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994), [1994] OJ L 336/1.
- 58.
See, e.g., Art 6.2.1.i of the WTO’s Trade Facilitation Agreement which requires fees and charges for customs processing to be limited to “the approximate cost of the services rendered on or in connection with the specific import or export operation in question”.
- 59.
The International Convention on the Simplification and Harmonisation of Customs Procedures (Revised Kyoto Convention) entered into force on 3 February 2006. See Council Decision of 17 March 2003 concerning the accession of the European Community to the Protocol of Amendment to the International Convention on the simplification and harmonisation of customs procedures (Kyoto Convention), 2003/231/EC, [2003] OJ L86/21 amended by Council Decision of 26 April 2004, 2004/485/EC, [2004] OJ L162/113.
- 60.
- 61.
See further and more generally Santana and Jackson (2012), p. 462 (466). Reference should be made to the entirety of issue 3 of volume 11, which is a special issue on Standards and Non-Tariff Barriers in Trade, Heckelei/Swinnen (Guest Editors).
- 62.
As was indicated by Judge Luis Olavo Baptista on 1 October 2013 in Tax Protectionism and Tax Discrimination: Relevance of Multilateral and Bilateral Trade and Investment Agreements, São Paulo, conference of IFA, IBDT, EMAG and FAUDASP.
- 63.
CJEU, T-512/09, Rusal Armenal ZAO, 5 November 2013, para. 36.
- 64.
See further Foltea (2012), p. 815.
- 65.
For an example of a case in which the duty of good administration was relevant, see e.g. ECJ, Joined Cases T-186/97, T-187/97 and ors, Kaufring & Ors v Commission, [2001] ECR II-1337, paras. 257–275. See also the Charter of Fundamental Rights of the EU, [2012] OJ C 326/391, Article 41 (right to good administration).
- 66.
Consolidated version of the Treaty on the Functioning of the European Union (TFEU), [2012] OJ C 326/47, Art 26.2 (see Article 8a of the EEC Treaty, Article 13 of the Single Act and Article 7a of the EC Treaty).
- 67.
In Annex I to Commission Communication to the Council and to Parliament “Abolition of Border Controls”, SEC(92)877 final, para. 3.
- 68.
ECJ, T-113/96, Édouard Dubois et Fils SA v Council & Commission, [1998] ECR II-125, para. 14.
- 69.
ECJ, T-113/96, Édouard Dubois et Fils SA v Council & Commission, [1998] ECR II-125, para. 2.
- 70.
ECJ, 8/74, Procureur du Roi v Benoît and Gustave Dassonville, [1974] ECR 837, para. 5. See also ECJ, 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649 (“Cassis de Dijon”), which found an indistinct requirement relating to alcohol content of all alcoholic drinks inconsistent with free movement rules.
- 71.
CJEU, C-481/12, UAB ‘Juvelta’ v VĮ ‘Lietuvos prabavimo rūmai’, 16 January 2014, para. 16. The current prohibition on the imposition of quantitative restrictions and all measures having equivalent effect is found in TFEU, Articles 34 and 35; see also CJEU, C-443/10, Philippe Bonnarde v Agence de Services et de Paiement, [2011] ECR I-09327, especially paras. 26 and 27.
- 72.
See, eg, ECJ, 266/81, SIOT v Ministre delle Finance, [1983] ECR 731 (777, para. 16) and ECJ, C-320/03, Commission v Austria, [2005] ECR I-9871, para. 65. “Transit” is, of course, specifically mentioned in TFEU, Art 36.
- 73.
See, e.g., ECJ, C-206/06, Essent Netwerk Noord BV, [2008] ECR 5498; and CJEU, C-677/11, Doux Élevage SNC and Coopérative agricole, Opinion of Advocate-General Wathalet, paras. 100–105.
- 74.
See the Opinion of Advocate-General Jacobs in ECJ, C-90/94, Haahr Petroleum Ltd v Åbenrå Havn and ors, [1997] ECR I-4085, para 41. The definition was established in ECJ, 24/68 Commission v Italy, [1969] ECR 193, paras. 9 and 11; ECJ, Joined Cases 2/69 and 3/69, Diamantarbeiders v Brachfeld, [1969] ECR 211, paras. 18 and 20.
- 75.
ECJ, C-163/90, Administration des Douanes et droits Indirects v Leopold Legros, [1992] ECR I-4625. See also ECJ, Joined Cases C-363/93, René Lancry SA v Direction Générale des Souanes and Société Dindar Confort and others [1994] ECR I-3957, and ECJ, Joined Cases C-485/93 and C-486/93, Simitzi v Municipality of Kos, [1995] ECR I-2655.
- 76.
ECJ, C-517/04, Visserijbedrijf D. J. Koornstra & Zn. vof v Productschap Vis, [2006] ECR I-5015.
- 77.
ECJ, C-158/82, Commission v Denmark, [1983] ECR 3573.
- 78.
See OECD (2005), p. 136.
- 79.
This limitation is obviously not found in GATT 1994. For an example of a case in which a charge was accepted as a charge for services but the services were inconsistent with the internal market, see ECJ, C-272/95, Bundesanstalt für Landwirtschaft und Ernährung v Deutsches Milch-Kontor GmbH, [1997] ECR I-1905. The service in question was the inspection of samples of skimmed milk powder to determine whether the product qualified for aid under a particular regulation.
- 80.
In ECJ, 63/74, Cadsky v Instituto Nazionale per il Commercio Estero [1975] ECR 281, charges for quality control of salad vegetables were not a service to the exporter.
- 81.
See, e.g., ECJ, C-389/00, Commission v Germany, [2003] ECR I-2001, para. 40; see also ECJ, Noted Case 209/89, Commission v Italy, [1991] ECR I-1575, para. 10, and ECJ, 111/89, Netherlands v P Bakker Hillegom BV, [1990] ECR I-1735, para. 12.
- 82.
ECJ, 170/88, Ford España SA v Estado Español, [1989] ECR 2305.
- 83.
ECJ, 1/83, IFG v Freistaat Bayern, [1984] ECR 349, paras. 13 and 17. For more details generally in relation to charges having equivalent effect, see Lyons (2008), pp. 72–83.
- 84.
See TFEU, Article 207.
- 85.
See Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/2.
- 86.
See, e.g., Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/2, Articles 8, 9, and 11.
- 87.
Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/2, Article 19.
- 88.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2011] OJ L 127/1, Article 2.3, contains a definition of customs duty, but Article 6.9 deals with fees and charges for services rendered, as mentioned below. Some comparison between EU international agreements and those of the USA was made by Neufeld (2014), p. 13.
- 89.
ECJ, C-125/94, Aprile Srl, in liquidation v Amministrazione delle Finanze dello Stato, [1995] ECR I-2919, para. 39, which concerned trade between EEC Member States and EFTA countries. As was noted earlier, there may be some differences of approach where a charge seeks to put an authority in the position in which it may provide a service.
- 90.
See also ECJ, 87/75, Conceria Daniele Bresciani v Amministrazione Italian delle Finanze, [1976] ECR 129, in relation to the first Yaoundé Convention and ECJ, T-115/94, Opel Austria GmbH v Council, [1997] ECR II-39 in relation to the EEA Agreement.
- 91.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2011] OJ L 127/1, for example, Article 2.14 provides for the elimination of sectoral non-tariff measures as set out in Annexes 2B to 2E; Article 4.1 makes the WTO Agreement on Technical Barriers to Trade a part of the free trade agreement, and Chapter 5 deals with sanitary and phytosanitary measures. See also Article 13.6 in which the parties commit themselves to advancing trade in environmental goods and service “including through addressing related non-tariff barriers”.
- 92.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, [2011] OJ L 127/1, Article 6.1(a).
- 93.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, [2011] OJ L 127/1, Article 6.1(b).
- 94.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, [2011] OJ L 127/1, Article 6.2.
- 95.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, [2011] OJ L 127/1, Article 6.3.
- 96.
Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, [2011] OJ L 127/1, Article 6.9(a)–(d) inclusive.
- 97.
See Commission Regulation (EU) No 1063/2010 of 18 November 2010 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, [2010] OJ L307/1.
- 98.
See Community Customs Code, Art 4(16).
- 99.
See Art 5(16) of the Union Customs Code, Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1.
- 100.
See Title VII of Regulation (EU) 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), [2013] OJ L269/1.
- 101.
See Lamy (2012), p. 8.
- 102.
See further Santana and Jackson (2012), p. 462.
- 103.
See Walters (2011), p. 169 (178).
- 104.
Provisions related to customs matters in the bilateral trade agreements of the EU may, in the appropriate circumstances, be relied on by individual traders. An example from many years ago is in ECJ, C-432/92, The Queen v Min. of Agriculture, Fisheries and Food, ex. p. Anastasiou (Pissouri) Ltd, [1994] ECR I-3087.
- 105.
See Kolben (2010), p. 461, who notes at p. 491 that bilateral and regional activity may achieve more in the field of labour standards than “focusing on an institution that is perhaps symbolically potent, but practically limited”. Perhaps a new WTO agreement on trade facilitation will disprove this assessment but enforceability is still likely to remain an important consideration.
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QC, T.L. (2015). The Interaction of Customs and Non-tariff Barriers. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2015. European Yearbook of International Economic Law, vol 6. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46748-0_2
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