Address https://gelex.eu/eli/EU/decision/2021/563@2021-03-31/en

Contents

1. Preamble
2. 1. Article 1
   2. Article 2
3. ANNEX
4. ANNEX

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (hereinafter the Code), and in particular Article 34(11) and point (a) of the first subparagraph of Article 37(2) thereof,

After consulting the Customs Code Committee,

Whereas:

(1) Article 33(1) of the Code provides for that the customs authorities shall, upon application, take decisions relating to binding origin information (BOI decisions). Article 19(1) of Commission Implementing Regulation (EU) 2015/2447 stipulates that the customs authorities shall transmit to the Commission the relevant details of the BOI decisions taken, on a quarterly basis.

(2) The BOI decisions referred to in the Annex contain a determination of the non-preferential origin of goods, incompatible with Article 60(2) of the Code. In particular, those BOI decisions are incompatible with the rules on the acquisition of origin laid down in that Article, as the processing or working operations carried out in the last country of production are not economically justified within the meaning of Article 33 of Commission Delegated Regulation (EU) 2015/2446.

(3) Article 60(2) of the Code stipulates that goods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture.

(4) Article 33 of Delegated Regulation (EU) 2015/2446 stipulates that any processing or working operation carried out in another country or territory shall be deemed not to be economically justified if it is established on the basis of the available facts that the purpose of that operation was to avoid the application of the measures referred to in Article 59 of the Code.

(5) Commission Implementing Regulation (EU) 2018/886 introduced certain commercial policy measures concerning certain products originating in the United States of America. The products to which these commercial policy measures apply are listed in Annex I to that Regulation. Motorcycles with reciprocating internal combustion piston engine of a cylinder capacity exceeding 800 cm3 falling under CN code 87115000 are among the products listed in that Annex. The measures set up by Regulation (EU) 2018/886 are measures referred to in Article 59 of the Code.

(6) Subsequent to the publication of the European Union’s commercial policy measures, the producer of the motorcycles falling under CN code 87115000 and covered by the BOI decisions referred to in the Annex, reported with a Form 8-K current report submitted to the United States Securities and Exchange Commission on 25 June 2018 its plan to shift production of certain motorcycles destined to the European Union’s market from the United States of America to its international facilities in another country to avoid the European Union’s commercial policy measures.

(7) Even if the avoidance of the commercial policy measures may not necessarily be the only purpose of the shift of production, the conditions mentioned in the first paragraph of Article 33 of Delegated Regulation (EU) 2015/2446 are met based on the available facts. The processing or working operations carried out in the last country of production shall therefore be deemed not to be economically justified. As a result, the determination of the non-preferential origin of the motorcycles is to be based on the third paragraph of the same Article 33.

(8) According to this provision, where the last working or processing is deemed not to be economically justified, the goods shall be considered to have undergone their last substantial, economically justified processing or working, resulting in the manufacture of a new product or representing an important stage of manufacture, in the country or territory where the major portion of the materials originated, as determined on the basis of the value of the materials.

(9) Since the determination of the non-preferential origin of the motorcycles covered by the BOI decisions referred to in the Annex is not based on the rule laid down in the third paragraph of Article 33 of Delegated Regulation (EU) 2015/2446, the Commission deems this determination of non-preferential origin to be incompatible with Article 60(2) of the Code, in conjunction with Article 33 of Delegated Regulation (EU) 2015/2446.

(10) According to Article 23(3) of the Code, the customs authorities, which took a decision, may at any time annul, amend or revoke it where it does not conform to the customs legislation. However, the customs authorities, which took the BOI decisions referred to in the Annex, did not revoke them.

(11) Therefore, to ensure a correct and uniform determination of the non-preferential origin of goods, the BOI decisions concerned should be revoked. The customs authority which took the BOI decisions should therefore revoke them as soon as possible following the notification of this Decision and notify the Commission to that effect,

HAS ADOPTED THIS DECISION:

Article 1

1. The BOI decisions referred to in column 1 of the table set out in the Annex taken by the customs authority specified in column 2 of that table for the product specified in column 3 of that table shall be revoked in accordance with paragraph 2.

2. The customs authority specified in column 2 of the table set out in the Annex shall revoke the BOI decisions referred to in column 1 of that table and notify the holder thereof at the earliest possible date and in any case not later than 10 days from the notification of this Decision.

3. When the customs authority revokes the BOI decisions and makes the notification pursuant to paragraph 2, it shall notify the Commission thereof.

Article 2

This Decision is addressed to the Kingdom of Belgium.

Done at Brussels, 31 March 2021. For the Commission Paolo Gentiloni Member of the Commission

ANNEX

ANNEX

Binding origin information — reference no Customs authority CN code of the product 1 2 3 BE-20192406001 Direction générale Analyses Economiques et Economie internationale Service Commerce et Investissements internationaux bâtiment Atrium C Rue du Progrès 50 1210 Bruxelles Belgique Federale Overheidsdienst Economie, KMO, Middenstand en Energie Algemene Directie Economische Analyses en Internationale Economie Dienst internationale handel en investeringen City Atrium C Vooruitgangsstraat 50 1210 Brussel België 87115000 BE-20192406002 Direction générale Analyses Economiques et Economie internationale Service Commerce et Investissements internationaux bâtiment Atrium C Rue du Progrès 50 1210 Bruxelles Belgique Federale Overheidsdienst Economie, KMO, Middenstand en Energie Algemene Directie Economische Analyses en Internationale Economie Dienst internationale handel en investeringen City Atrium C Vooruitgangsstraat 50 1210 Brussel België 87115000

Versions

1. 2021-03-31

Cited by

• Judgment of the Court (Fourth Chamber) 21 November 2024 Judgment · Grade B

  By their appeal, Harley-Davidson Europe Ltd and Neovia Logistics Services International NV seek to have set aside the judgment of the General Court of the European Union of 1 March 2023, Harley-Davidson Europe and Neovia Logistics Services International v Commission (T‑324/21, EU:T:2023:101; the judgment under appeal), by which the General Court dismissed their action for the annulment of Commission Implementing Decision (EU) 2021/563 of 31 March 2021 on the validity of certain decisions relating to binding origin information (OJ 2021 L 119, p. 117; the decision at issue), addressed to the Kin

• Opinion of Advocate General Kokott delivered on 30 May 2024 Case C‑297/23 P Harley-Davidson Europe Ltd. and Neovia Logistics Services International v European Commission Opinion · Grade B

  Ever since the film Easy Rider at the latest, Harley-Davidson has stood for the typical American motorcycle. But is a Harley-Davidson from Thailand still an American motorcycle? It may come as a surprise, but that is essentially the Commission’s view, which is vehemently disputed by Harley-Davidson in these proceedings. The background is a trade dispute between the United States of America and the European Union, in which both sides had imposed prohibitive additional customs duties on certain goods of the other side, the European Union in particular on the motorcycles referred to. Harley-David

• Opinion of Advocate General Kokott delivered on 30 May 2024 Case C‑297/23 P Harley-Davidson Europe Ltd. and Neovia Logistics Services International v European Commission Opinion · Grade B

  annul Implementing Decision (EU) 2021/563 of 31 March 2021 on the validity of certain decisions relating to binding origin information; and

• Judgment of the General Court (Eighth Chamber, Extended Composition) 1 March 2023 Judgment · Grade B

  By the present action under Article 263 TFEU, the applicants, Harley-Davidson Europe Ltd (together with the group to which it belongs, Harley-Davidson) and Neovia Logistics Services International (Neovia) seek the annulment of Commission Implementing Decision (EU) 2021/563 of 31 March 2021 on the validity of certain decisions relating to binding origin information (OJ 2021 L 119, p. 117; the contested decision), addressed to the Kingdom of Belgium. By that decision, the European Commission requested the revocation of two decisions concerning binding origin information (the BOI decisions), adop

• Judgment of the General Court of 1 March 2023 — Harley-Davidson Europe and Neovia Logistics Services International v Commission (Case T-324/21) Notice · Grade B

  Customs unionRegulation (EU) No 952/2013Determination of the non-preferential origin of certain motorcycles manufactured by Harley-DavidsonCommission Implementing Decision requesting the revocation of decisions relating to binding origin information adopted by the national customs authoritiesConcept of processing or working operations which are not economically justifiedRight to be heard2023/C 134/12Language of the case: English Applicants: Harley-Davidson Europe Ltd (Oxford, United Kingdom), Neovia Logistics Services International (Vilvoorde, Belgium) (represented by: O. van Baelen, G. Lebrun