Today custom agents throughout Northern Europe submitted their clearance instructions and documents to EU Customs for canned tuna. Today, July 1st, 2003, is the first day of the “EU Single Duty†Quota. However it already seems that a potential controversy could arise over the interpretation of the rules of origin of the frozen whole round tuna used.
Initially several officials and even some custom consultants had confirmed that the normal rules of origin would apply to canned tuna imports from Asia. This would mean that with a valid GSP form A, importers could clear canned tuna from Thailand, Philippines or Indonesia at 12%.
However, some importers have been informed by sources around customs that they might not be so sure to get the 12% duty, although the canned tuna is produced in Thailand / Philippines / Indonesia. This argument is based on the fact that the EU Council Regulation 975/2003, which announced the 12% duty level and refers in Article 4 to a Certificate of Origin meeting the conditions of Article 47 of Commission Regulation 2454/93, which reads in full:
Subsection 1
Provisions relating to universal certificates of origin
Article 47
When the origin of a product is or has to be proved on importation by the production of a certificate of origin, that certificate shall fulfill the following conditions:
(a) it shall be made out by a reliable authority or agency duly authorized for that purpose by the country of issue;
(b) it shall contain all the particulars necessary for identifying the product to which it relates, in particular:
- the number of packages, their nature, and the marks and numbers they bear,
- the type of product,
- the gross and net weight of the product; these particulars may, however, be replaced by others, such as the number or volume, when the product is subject to appreciable changes in weight during carriage or when its weight cannot be ascertained or when it is normally identified by such other particulars,
- the name of the consignor;
(c) it shall certify unambiguously that the product to which it relates originated in a specific country.
Some customs experts warn that Regulation 975/2003 fails to inform, that the Certificate of Origin mentioned in Article 47 also has to comply with Articles 22 through to 26 of 2913/92, specifically Article 23(2)(f) which states “products of sea fishing and other products taken from the see outside a country’s territorial seas by vessels registered or recorded in the country concerned and flying the flag of that countryâ€. You find articles 22 through 26 of 2913/92 here below:
Article 22
Articles 23 to 26 define the non-preferential origin of goods for the purposes of:
(a) applying the Customs Tariff of the European Communities with the exception of the measures referred to in Article 20 (3) (d) and (e);
(b) applying measures other than tariff measures established by Community provisions governing specific fields relating to trade in goods;
(c) the preparation and issue of certificates of origin.
Article 23
1. Goods originating in a country shall be those wholly obtained or produced in that country.
2. The expression 'goods wholly obtained in a country' means:
(a) mineral products extracted within that country;
(b) vegetable products harvested therein;
(c) live animals born and raised therein;
(d) products derived from live animals raised therein;
(e) products of hunting or fishing carried on therein;
(f) products of sea-fishing and other products taken from the sea outside a country's territorial sea by vessels registered or recorded in the country concerned and flying the flag of that country;
(g) goods obtained or produced on board factory ships from the products referred to in subparagraph (f) originating in that country, provided that such factory ships are registered or recorded in that country and fly its flag;
(h) products taken from the seabed or subsoil beneath the seabed outside the territorial sea provided that that country has exclusive rights to exploit that seabed or subsoil;
(i) waste and scrap products derived from manufacturing operations and used articles, if they were collected therein and are fit only for the recovery of raw materials;
(j) goods which are produced therein exclusively from goods referred to in subparagraphs (a) to (i) or from their derivatives, at any stage of production.
3. For the purposes of paragraph 2 the expression 'country' covers that country's territorial sea.
Article 24
Goods whose production involved more than one country shall be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.
Article 25
Any processing or working in respect of which it is established, or in respect of which the facts as ascertained justify the presumption, that its sole object was to circumvent the provisions applicable in the Community to goods from specific countries shall under no circumstances be deemed to confer on the goods thus produced the origin of the country where it is carried out within the meaning of Article 24.
Article 26
1. Customs legislation or other Community legislation governing specific fields may provide that a document must be produced as proof of the origin of goods.
2. Notwithstanding the production of that document, the customs authorities may, in the event of serious doubts, require any additional proof to ensure that the indication of origin does comply with the rules laid down by the relevant Community legislation.
Also some custom agents have warned their clients that the interpretation of the above regulation could mean that the importer is taking a financial risk, if he uses a Certificate of Origin (GSP Form A) to benefit from the quota. Their argument is that when the importer is not be absolutely sure that the canned tuna is not caught by boats from the same country, he could likely not be entitled to the 12 % duty, but could face the regular 24% tariff.
The same sources argue that only canned tuna from Thailand, which has been caught by Thai owned tuna vessels flying the Thai flag, would meet the rules of origin, as referred to in regulation 975/2003. They say that in case this fish would come from Korean, Taiwanese boats or Japanese boats, this tuna would still be slapped by a 24% duty.
Customs officials in several member states refrain from giving any confirmation on how the rules of origin should and will be used. It looks like importers will have to wait for the verdict of the EU in the coming weeks.
If indeed the rules of origin in regard to the flag of the vessel would be applied, this would mean that especially Thai tuna would have great problems passing within the quota. Philippine and Indonesia canners have usually access to fish from their own local fleets.