aetic country of origin 22 september 2008 by hans driessen océ-technologies b.v. netherlands...

AETIC Country of Origin 22 September 2008

by Hans Driessen Océ-Technologies B.V. Netherlands

Country of Origin

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Content

1. Rules of Origin in WTO Legal Framework The Harmonization program

2. Rules of Origin in WCO

3. Rules of Origin in EU Rules of Origin Legal Framework GSP, incl. cumulation

4. Rules of Origin and Trade

5. Exercises and reviews

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Negative statement

A Country of Origin (CoO) is NOT: Where Purchasing bought the goods (but could be) Country where the vendor’s head-office is based (maybe) Country where the purchase is paid (sometimes) If two countries of origin: the one where we buy most (hm..) Where the goods are shipped from (more likely) Where the product is made (coming closer!!)

If not all of these: then what determines the CoO? To be able to determine the proper CoO, rules have been

issued, hereafter referred to as:

Rules of Origin (RoO)

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Part 1

WTO and Rules of Origin

AETIC Rules of Origin September 2008

WORLD TRADE ORGANIZATION

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Part of the Marrakesh declaration of 15 April 1994 that concluded the Uruguay Round (GATT)

GATT provided no RoO provisions Agreement establishing the World Trade Organization The agreements included 4 annexes. Annex 1A (part of Annex 1 that consist of part A,B and

C) is the Multilateral Agreement on Trade in Goods Agreement on Rules of Origin (RoO hereafter) is one of

the 13 agreements of Annex 1A

Legal framework



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Used in non-preferential commercial policy instruments: Most favoured nation treatment Anti Dumping and Countervailing duties Safeguard measures Origin Marking Discriminatory quantitative restrictions (tariff quotas) Government Procurement Trade statistics

Why NPRoO?



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Part IV of the agreement states: The Ministerial Conference shall undertake a harmonization

work program, in conjunction with CCC (WCO) in order to provide more certainty for world trade

The Ministerial Conference will also set a time-frame for the entry into force

Harmonization work to be completed by The Committee on Rules of Origin (CRO) and the Technical Committee on RoO (TCRO). The TCRO is under auspices of the CCC.

TCRO advices the Committee on technical matters. The CCC secretariat shall act as the secretariat to the TC

Harmonization Work programWORLD TRADE ORGANIZATION


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Harmonization Work Program (HWP) NPRoO: Coherent rules concerning origin determination Be objective, understandable and predictable Be administrable in a consistent, uniform, impartial and

reasonable matter and Be coherent and based upon positive standard

Will come back on this in WCO part

Harmonization Work program



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Rules presented at heading level (4 digits) For a whole heading:

CTH Change to this heading from any other heading For a split heading

CTHS Change to this split heading from any other split of this heading or any other heading

Rules presented at subheading level (6 digits) For a whole subheading

CTSH Change to this subheading from any other subheading or from any other heading

CTH For a split subheading

CTSHS to this split subheading from any other split of this subheading, or any other subheading or heading

CTSH and CTH

Rules CTH - CTSH



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Common Declaration with regard to preferential RoO in Annex II to the Agreement.

Preferential RoO shall be defined as those laws, regulations and administrative determinations of general application applied by any Member to determine whether goods qualify for preferential treatment under contractual or autonomous trade regimes leading to granting of tariff preferences going beyond the application of paragraph 1 of Article I of GATT 1994

(Art 1 = Most Favoured Nation treatment)

Preferential RoO



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Members agree to ensure that rules and exceptions are clearly given for CTC, Ad Valorum percentage and Manufacturing.

Rules must be based on a positive standard (What does confer origin and not what doesn’t)

Rules must be published Other rules how to deal with preferential RoO

Setting Rules for Preferential Origin is between trading parties (FTA’s, GSP etc.)

Preferential RoO



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Conclusion after 14 years: The harmonization work for NPRoO is NOT completed As a result it is not a compulsory law or instrument for

WTO members As a result EU adopted its own NPRoO Not only within the EU, but also in other countries (US) Risk of proliferation of rules: uncertainty for Trade Special risk for BRIC: large emerging markets and new

WTO members: rules with high protectionism

(BRIC = Brazil, Russia, India and China)

Status 2008



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Part 2

WCO and Rules of Origin


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174 members (Last update August 2008) Founded in 1950 in Brussels as the Customs Co-operation

Council (CCC). First inaugural session in January 1953 with 17 founding

members 1994 Adopted the informal name “World Customs

Organization” Secretary General: Michel Danet (As of January 2009 Kunio

Mikuriya from Japan) Director, WCO Tariff and Trade Affairs: Mr. Antoine Manga

Massina

WCO in Brief


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Objective: to secure the highest degree of harmony and uniformity in Customs systems

Activities:1. Collection of Revenues

2. Application of Trade Regimes

3. Protection of Society WCO operates through Committees, such as

1. Harmonized System Committee (HS)

2. Technical Committee on Customs Valuation

3. Technical Committee on Rules of Origin (TCRO)

4. Other

What are they doing


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Three pillars:

1. Tariff Classification (Harmonized Tariff Schedule)

2. Value (Art VII of GATT 1994)

3. Origin (WTO Agreement on RoO) Non-preferential Preferential

Or, somewhat more simplified: Which goods at which value coming from where would you like to import?

Three pillars always needed for importation

The Basics


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Technical Committee on Rules of origin: Established by WCO to support the technical work (RoO per HTS

heading, legal text etc.) Training seminars (Look at WCO Premia website for info) Develop manuals and guides Certification and verification (“law enforcement”) Revise, once established.

RoO drafted, based upon the HS 1996, to be aligned with the 2002 version.

Meanwhile the HS 2007 is implemented. Things are getting more complex, or, positively, some alignment work still to be completed, pending a WTO approval

TCRoO


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Status February 2008: Consolidated text of NPRoO drafted. For all headings product specific rules have been compiled Some General Rules and product specific rules for chapters

84-90 have not yet been endorsed by the Committee Co-equal rule proposed for chapters 84-90 as a compromise Compromise rejected (lot of resistance from Trade as well!!) No consensus reached. Committee is seeking further guidance

from WTO Council for Trade in Goods.

WTO Draft NPRoO 2007

HWP


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Definitions General Rules

GR 1: References made to the Harmonized System GR 2: Determination of origin GR 3: Neutral elements (excluding elements which do not

remain in the goods (power, fuel, equipment etc.) GR 4: Packing GR 5: Accessories, spare parts and tools GR 6: Minimal operations and processes

2 Appendices Appendix 1: Definitions of Wholly Obtained Goods Appendix 2: Product Specific Rules of Origin (with 6 rules and

heading provisions)

HWP


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Appendix 2: Only if Appendix 1 (Wholly obtained) cannot be used Based upon 6 standard rules Rule 1and 3 mention primary rules (column 3 and 4) and

residual rules. When a good is processed with articles from the same

subheading, origin will be determined as indicated in the applicable residual rule specified at chapter level.

See examples next pages

HWP


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CHAPTER 92 (Example)Note:A. Primary Rules for Chapters 92 applicable to primary rules

contained in Column (3)1. Limitations on change in classification rules in the matrix.- Where

satisfaction of the rules of this Chapter results solely from the following circumstances, origin shall be determined as indicated herein:

Goods obtained by disassembly

A change of classification which results from the disassembly of goods shall not be considered as the change required by the rule set forth in the matrix. The country of origin of the parts recovered from the goods shall be the country where the parts are recovered, unless the importer, exporter or any person with a justifiable cause to determine the origin of parts demonstrates another country of origin on the basis of verifiable evidence such as origin marks on the part itself or documents. More………………

HWP


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B. Residual Rules for Chapters 92 applicable to rules contained in Column (3)For purposes of Rule 3(d) of Appendix 2 the following residual rules shall be applied in sequence:1. For goods classifiable under provisions for “parts” or “parts and accessories” and which are not described by name, the country of origin shall be the country of assembly provided the goods are produced by the assembly of two or more parts (other than parts of general use, as defined in Note 2 to Section XV or similar parts of plastic (Chapter 39)), and one or more of the parts (other than parts of general use, as defined in Note 2 to Section XV or similar parts of plastic (Chapter 39)) satisfies the requirements for origin in the country of assembly. For purposes of this rule, the following parts shall not be counted nor shall the operations described be deemed to be origin conferring operations:

(a) the attachment of machinery to a base;….. More………..

HWP


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HS Codenumber

Description of goods Origin Criteria

(1) (2) (3) (4)

84.71 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included.

As specified for subheadings and split subheadings

45% value-added rule

8471.60 - Input or output units, whether or not containing storage units in the same housing

CTH(see legal note)

HWP Example printers


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HS Codenumber

Description of goods Origin Criteria

(1) (2) (3) (4)Chapter 90 Optical, photographic, cinematographic,

measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof

90.09 Photo-copying apparatus incorporating an optical system or of the contact type and thermo-copying apparatus.

As specified for subheadings and split subheadings

CTH; or 35% value added rule

- Electrostatic photo-copying apparatus:

9009.11 - Operating by reproducing the original image directly onto the copy (direct process)

CTSH

9009.12 -- Operating by reproducing the original image via an intermediate onto the copy (indirect process)

CTSH

- Other photo-copying apparatus:

9009.21 -- Incorporating an optical system CTSH

9009.22 -- Of the contact type CTSH

HWP Example Copiers


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HWP still ongoing thing. also given recent HTS updates Further co-operation WCO-WTO WCO still law-enforcement function Mutual support in case of audits More involvement in preferential rules (technicalities, law-

enforcement) due to a manifold of RoO Task HWP to be embedded in law: see Agreement on

RoO

HWP: Conclusions


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Rules must be stricter: Example for TV sets: NPRoO 45% value add in last substantial transformation Pref RoO: 60% value add in country of manufacture: non-

originating not to exceed 40%)

Preferential Origin


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Main differences NPRoO and Pref RoO

1. Tariff Change NPRoO: CTH Pref RoO: All others are possible (CTH, CTSH etc.)

2. Value Add NPRoO: Value of non-originating materials must not exceed

“N” % of the ex-factory price Pref RoO: Working and parts value of one particular country

3. Processing Rule: NPRoO: Usually same rule for both. Pref RoO: same


Preferential Origin

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Other differences NPRoO and Pref RoO NPRoO just one list of insufficient operations: pref RoO

varies per Protocol or Agreement NPRoO does not know cumulation NPRoO does not know a direct transport rule NPRoO does not know a “no drawback” rule

Or Preferential rules obviously more strict which is according

the WTO Agreement on Rules of origin.


Preferential Origin

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Part 3

EU and Rules of Origin


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The EU has an internal market with no borders and free circulation of goods, money, people and services, hereafter referred to as “EU”

EU


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EU Regulation 2913/92 articles 22-26 Implementation Provision (EU) 2454/93 art. 66-123 CCIP Annex 9, 10 and 11 of (EU) 2454/93 CCIP EU 450/2008 (Modernized Customs Code) will replace

2913/92 Rules of Origin under articles 35-39 New Implementation Provision (CCIP) Various Protocols

Legal Framework


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Often confused by non-trading specialists (e.g. Purchasing) Provenance:

Position of goods as far as duties are concerned: In Free EU circulation (T2 goods) Not (yet) in Free EU circulation (T1 goods)

Statistical term: last place where the goods have been shipped from before entering the EU

So goods are of EU provenance only if they are: Wholly obtained Imported in the EU (including payment of duties and no drawback

Origin and Provenance


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Art. 22 describe non-preferential rules for: Applying the Customs Tariff of the European Communities Applying measures, other then tariff How to deal with origin documentation

Art. 23: Describes the criteria used for “ Wholly obtained or produced”

Art. 24: Describes “ more than one country” or a further definition of “last

substantial transformation” The last substantial economically justified processing or working should be in an undertaking, equipped for that purpose and result in a new product or represent an imported stage of manufacture

Legal Framework


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Art. 25: A specific clause that any special action with the intent to

circumvent these rules shall not confer origin Art. 26:

That a document must be produced Customs authorities may require additional proof, should they

require so.

Specific criteria on textiles (See articles 36-38 and Annex 9 and 10 of the CCIP)

Legal Framework


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Regulations within CCIP: Art. 35-40

Specific provisions for applying the rule of last substantial transformation

Art. 41-46 Specific provisions on origin relating to accessories, spare parts and

tools as part of the standard equipment of machines Art. 47-54

Provisions relating to Certificates of origin Art. 55-65

Specific provisions to certificates for Agricultural.

Legal Framework


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Country of Origin within EU is defined as:1. Where the goods have been wholly obtained, or

2. When more than one country is concerned, the country where: the final process of manufacture took place sufficient working or processing was carried out, or the last substantial working or processing was performed

all resulting in the manufacture of a new product

Legal Framework


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NPRoO in the US can be divided into:1. Rules for origin marking

US Tariff Act (Chapter 4 Tariff Act of 1930 - Title 19 Customs Duties)

FTC (Federal Trade Commission) protecting rights of consumers

2. Rules for the enforcement of quantitative restrictions on importation of textile products

3. Trade related measures: Imports and import quota’s

Totally different set-up than the EU ones: e.g. EU no marking requirements

Legal Framework US


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The CCIP (Customs Code Implementation Provisions) refers to 3 Annexes:

Annex 9: Introductory notes to Annex 10 and 11 Annex 10: Textiles and Textile articles falling within

section XI of the EC Nomenclature Annex 11: All other products Both Annex 10 and 11 have three columns

Legal Framework


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How the Annexes work: Column 1: The Code of the Combined Nomenclature Column 2: A description of the Product Column 3: Working or processing to be carried out of the

non-originating material “ex” in column 1 means: Only for products as described

(limitation) “several headings grouped” means: all products

concerned

Legal Framework


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Only at preferential RoO Imported non-EU articles subjected to Import duties Articles transformed into new product New product exported to EUR-1 country

Either use of system of refund of duties (through inward processing relief)

Or, alternatively Use of preferential system (EUR-1). Then: No refund or NO DRAW BACK (of duties)

“No Drawback”


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3 Types of Preferential Origin:1. Agreement between EU and one or more 3rd countries

Origin rules in Protocol as annex to each Agreement

2. Autonomous arrangements

Agreements unilateral for developing countries (GSP)

Origin rules in a regulation, part if CCIP (see art 66-97)

3. Mixed schemes: Combination FTA and Customs Union

(Turkey). As long as Duties in EU are paid, you may ship under ATR

Origin rules in EU-Turkey Association Council

Preferential origin


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How is a protocol build up?1. Origin rules

2. Direct Transport

3. Documentation and proof of origin

4. Mutual support arrangements to verify origins

Preferential origin


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Standard criteria for acquiring origin status in EU: Territoriality principle in manufacturing operations: Factory must be within the EU: If a product consists of 99%

EU parts, but is located outside EU: No EU origin Territory described in article 3 CCC For preferential Origin EU is one territory but not recognized

as a country Proof of origin to be supported by long term supplier

declaration (valid maximum 1 year) or a single declaration on supplier’s invoice

Preferential origin


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Same two principles to determine preferential CoO:1. Wholly obtained

2. Sufficiently worked on or processed (NOT the last substantial transformation as NPRoO)

Wholly obtained pretty clear Worked or processed: Conditions of Protocol or

Regulation must be met. Although some shared principles, protocols do vary!!

Also always a list of insufficient operations in each Protocol or Agreement. They never confer origin

Preferential origin


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Unilateral: GSP: General System of Preferences (for Least developed

countries) - just recently renewed Bilateral:

EU - Mexico Multilateral:

Nafta EAR (European Economic Area)

Note: EU puts much effort in establishing more FTA’s, such as Korea, India, Asean, others.

Preferential Agreements


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Unilateral system of granting preferences by the Community (donor countries) to products from developing countries (beneficiary countries).

Countries listed in Appendix 1 of EU of GSP Regulations Agreed at UNCTAD (UN Conference on Trade and

Development) Legal framework Articles 66 to 97 of the CCIP 2454/93 as

well as Annexes 14 to 18 and 21. List rules in Annex 15 CCIP as amended by

(EC) 980/2005

GSP


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Goods covered are all products of Chapter 25 to 97 of the CN that are subject to duties upon entry in the EU

Chapters 1-24 (Agricultural products) limited. Conditions:

1. The goods must originate in a beneficiary country

2. The goods must be transported directly

3. Valid proof of origin issued by competent authority. Usually this is a Form A or invoice declaration.

Note that different RoO apply for all GSP agreements, e.g. those of the EU and US differ!

GSP


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The GSP regulation for the period to 31/12/2008 is Council Regulation (EC) No. 980/2005

Reform is work in process and a important part is a possible relaxation of the RoO. To date nothing has changed although the new GSP scheme is released. However, the old RoO still apply

Annexes work similar as the ones in the Combined Nomenclature mentioned previously.

Only difference is a column four. It is up to the exporter to choose which of the two criteria he will use.

GSP


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Two rules of Origin:1. Wholly obtained2. Goods from more than one country must have sufficiently worked

or processed there. Three options:2.1 Change of HS tariff Heading2.2 Value Percentage2.3 Specific Process

What is sufficient is specified in Annex 14 (explanation) and annex 15 (List of working or processing)

Some minor operations will never confer origin (listed in article 70)

All rules apply on the non-originating materials only

GSP


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CTH: A product is sufficiently worked or processed if can be classified in a different 4-digit heading of the Combined Nomenclature which is different from those in which all the non-originating materials used are classified.

Value, or ad-valorem criterion: the value of the non-originating materials may not exceed a given percentage of the ex-works price. Both “Value” and “ex-works” are defined in article 66.

Specific process criterion: When certain operations or stages in a manufacturing process have to be carried out on the non-originating materials

GSP


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CTH: A product is sufficiently worked or processed if can be classified in a different 4-digit heading of the Combined Nomenclature which is different from those in which all the non-originating materials used are classified.

Example: Straw baskets are classified in 46.02 All materials used are classified within a heading other than that of

the product (remember: the non-originating materials only!!) As straw is classified in heading 14.01, the criterion is satisfied

Note: The examples are directly taken from the EU site

GSP


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Value, or ad-valorem criterion: the value of the non-originating materials may not exceed a given percentage of the ex-works price. Both “Value” and “ex-works” are defined in article 66.

Example: Umbrellas are in heading 66.01 Column three states that the value of all the materials used does not

exceed 50% of the ex-works price. After calculation (note the definitions in art. 66!!) it can be checked if

the criterion is satisfied

GSP


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Specific process criterion: When certain operations or stages in a manufacturing process have to be carried out on the non-originating materials

Example: Just read any of the process descriptions in column three.

GSP


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Examples of insufficient (or minimal) operations: Operations to keep the product in good condition Washing, cleaning, dust removal Simple painting or polishing Sifting, screening, sorting, classifying, grading, matching Simple placing in bottles, cans and all other simple packaging Affixing or printing marks, labeling ,etc Simple assembly of parts of articles to constitute a complete article

or disassembly of products into parts Combination of two or more of the operations mentioned

GSP


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Procedures and Documentation: Council Regulation (EC) 1207/2001.

Procedures on EUR-1 by authorities and EUR-2 by exporters The accepted exporter (approved exporter) Methods for mutual cooperation between member states

If frequent and constant supply there is a possibility for a suppliers declaration Valid for maximum 1 year Pre-scribed form according Annexes

Regulation amended by (EC) 1617/2006 due to Pan-European cumulation

GSP


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Bilateral: Materials originating in the EU (according EU RoO) that are

processed beyond insufficient processing in a beneficiary country will be of origin of that country (also known as “donor country content”).

Also Norway and Switzerland are part of this cumulation

GSP


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Certificate of Origin, Form A Invoice declarations that can be used for low value GSP

exports The movement certificate EUR 1 when goods are

exported to beneficiary countries from the EC Note the lay-out and the way to complete the Form A and

EUR-1 are specified

Documentation GSP


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Bilateral Between two partner countries Example: Milk Albania origin used in EU cheese

Full Only origin products All transformation within the partner territory Last transformation not necessarily substantial (in partner

territory anyhow)

Cumulation


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Regional Materials originating in one country and further processed in

another country of the same group are considered to originate in the latter country, provided that: The added value is greater than the highest customs value of

the materials used originating in any one of the other countries of that group And

Processing is beyond insufficient (also look at special textiles requirement)

If not, CoO is country with highest customs value of that regional group

This operates between the countries of regional groups recognized by EU GSP (see art 72)

Cumulation


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Diagonal Only origin products All transformation within the partner territory Last transformation must be substantial (in partner territory

anyhow)

Cumulation


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The Tolerance rule: Non-originating materials may be used in the manufacture of a

product, even if the rule of sufficient working is not fulfilled, provided that their total value does not exceed 10% of the ex-works price of the product. (specific product rules for textiles)

Examples: Parts of same heading as end product, so no CTH. However,

permitted under tolerance rule if not more than 10% of total value

Cumulation


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1. Harmonized by EU for GSP and FTA’s (chapt. 84,85,90)

2. Focus on restriction of non-originating materials

Value of non-originating materials used shall not exceed a given

percentage of the ex-works value of the product manufactured

Value of non-originating materials used, which are classified in the same

heading as the product manufactured or a given heading shall not

exceed a given percentage of the EXW value of the product manufactured

Value of non-originating materials used shall not exceed value

of originating materials used.

Preferential rules for high tech products


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Non-originating materials:

All materials imported from outside the area formed by the Trade Agreement

Materials coming from partner country without confirmation or origin status (EUR-1)

Materials coming from country of manufacture without confirmation of origin status (supplier declaration)

Preferential rules for high tech products


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If in doubt or just want legal certainty, one can apply for a Binding Origin Ruling decision (BOI).

Issued by National Customs Authorities Decision binding for all Customs administrations within

the community Valid for three years after issuing Still other requirements, such as appropriate

documentation, need to be provided

Binding Origin Ruling


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Part 4

Trade and Rules of Origin


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Statement of Michel Danet, Secretary General WCO during World Customs Forum with the Theme “Getting to Grips with Origin” at WCO HQ June 2008:

RoO have become a very prominent feature of today’s trading system

The manifold of RoO presents challenges not only to Customs but also to the business community

The tangle of multiple and complicated rules particularly from overlapping agreements among members of different trade arrangements may cause harmful effects to the international trading environment.


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ICC only organization representing business worldwide and is only organization that is admitted as observer to almost all WCO work.

Eicta is sectoral organization (ICT and CE) All Trade organizations do see strong advantages in

facilitating international trade in a transparent and predictable way.

Eicta is working together with ITI, Jeita and JBMIA on this issue: Industry point of view is to create rules on heading level rather than on chapter.

ITI: Information Technology Industry Council)JEITA: Japanese Electronics and Information Technologies

Industries Association)JBMIA: Japan Business Machines and Information Systems

Industries Association)


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Questions??

aetic country of origin 22 september 2008 by hans driessen océ-technologies b.v. netherlands...

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