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
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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)
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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
4, 5 - 6 September
Several international instruments
and regimes on export controls
• 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
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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
4, 5 - 6 September
Several international instruments
and regimes on export controls
• 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
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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
4, 5 - 6 September
Wassenaar Arrangement
• 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
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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
4, 5 - 6 September
Wassenaar Arrangement
• 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
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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 nonproliferation efforts
• For instance, dual-use goods: items which
can be used for both civil and military
purposes
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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
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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
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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
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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”
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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)
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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
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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
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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:
–
–
–
–
–
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A- Systems, Equipment, Components
B- Test, Inspection and Production Equipment
C- Materials
D- Software
E- Technology
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)
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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
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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;
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– 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.
WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
4, 5 - 6 September
HS and ECN
• 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
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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/trado
c_131339.pdf
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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
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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
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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
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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
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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
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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
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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)
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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 SubCommittee (see WCO document NR0713E1a
and Annex)
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WORLD MEETING OF CUSTOMS LAW BRUSSELS 2013
4, 5 - 6 September
29
“Studies on Harmonization of Customs Law and Contributions of
the Academy for updating and improving the WCO Instruments”
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
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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
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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)
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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
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
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.
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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
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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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