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Council Regulation (EC) No 2368/2002Show full title

Council Regulation (EC) No 2368/2002 of 20 December 2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds

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Changes over time for: Council Regulation (EC) No 2368/2002 (without Annexes)

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CHAPTER IU.K.SUBJECT MATTER AND DEFINITIONS

[F1Article 1U.K.

This Regulation sets up a [F2United Kingdom] system of certification and import and export controls for rough diamonds for the purposes of implementing the Kimberley Process certification scheme.

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This Regulation does not prejudice or substitute any provisions in force relating to customs formalities and controls.]

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Article 2U.K.

For the purposes of this Regulation the following definitions shall apply:

(a)

‘Kimberley Process’ means the forum in which the participants have designed an international certification scheme for rough diamonds;

(b)

‘Kimberley Process certification scheme’ (hereinafter ‘KP certification scheme’) means the international certification scheme negotiated by the Kimberley Process as set out in Annex I;

(c)

[F4‘Participant’ means any State, regional economic integration organisation, WTO-member or separate customs territory that fulfils the requirements of the KP certification scheme [F5and has notified that fact to the Chair of the KP certification scheme];]

(d)

‘certificate’ means a document duly issued and validated by a participant's competent authority identifying a shipment of rough diamonds as being in compliance with the requirements of the KP certification scheme;

(e)

‘competent authority’ means the authority designated by a participant to issue, validate or verify certificates;

(f)

[F6‘United Kingdom competent authority’ means ‘the Secretary of State’;]

(g)

[F7‘United Kingdom certificate’ means a certificate issued by the United Kingdom competent authority;]

(h)

‘conflict diamonds’ means rough diamonds as defined under the KP Certification Scheme;

(i)

‘rough diamond’ means a diamond that is unworked or simply sawn, cleaved or bruted and falls under the Harmonised Commodity Description and Coding System 7102 10, 7102 21 and 7102 31 (hereinafter ‘HS code’);

(j)

‘imports’ means the physical entering or bringing into any part of the geographical territory of a participant;

(k)

‘export’ means the physical leaving or taking out of any part of the geographical territory of a participant;

(l)

‘shipment’ means one or more parcels;

(m)

‘parcel’ means one or more diamonds that are packed together;

(n)

‘parcel of mixed origin’ means a parcel that contains rough diamonds from two or more countries of origin;

(o)

F8...

(p)

F8...

(q)

F8...

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CHAPTER IIU.K.IMPORT REGIME

Article 3U.K.

[F1The import of rough diamonds into the [F9United Kingdom] F10... shall be prohibited unless all of the following conditions are fulfilled:]

(a)

the rough diamonds are accompanied by a certificate validated by the competent authority of a participant;

(b)

the rough diamonds are contained in tamper-resistant containers, and the seals applied at export by that participant are not broken;

(c)

the certificate clearly identifies the consignment to which it refers.

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Article 4U.K.

[F111.Containers and the corresponding certificates shall without delay be submitted for verification to the United Kingdom competent authority.]

4.The importer shall be responsible for the proper movement of the rough diamonds and the costs thereof.

5.[F12The United Kingdom competent authority] shall opt for either of the following methods to verify that the content of a container matches the particulars on the corresponding certificate:

(a)it will open each container with a view to such verification; or

(b)it will identify the containers to be opened with a view to such verification on the basis of a risk analysis or equivalent system that gives due consideration to rough diamond shipments.

6.[F12The United Kingdom competent authority] shall complete the verification without delay.

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Article 5U.K.

1.If [F12the United Kingdom competent authority] establishes that the conditions in Article 3 are:

(a)fulfilled, it shall confirm this on the original certificate and provide the importer with an authenticated and forgery-resistant copy of that confirmed certificate. This confirmation procedure shall take place within 10 working days of the submission of the certificate;

(b)not fulfilled, it shall detain the shipment.

2.If [F12the United Kingdom competent authority] finds that the failure to fulfil the conditions is not made knowingly or intentionally or is the result of an action by another authority in the exercise of its proper duties, it may proceed with the confirmation and release the shipment, after the necessary remedial measures have been taken to ensure that the conditions are met.

3.[F12The United Kingdom competent authority] shall, within one month, inform F13... the competent authority of the participant that purportedly issued or validated the certificate for the shipment of any failure to fulfil the conditions.

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F14Article 6U.K.

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F15Article 7U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 8U.K.

[F11.[F16The United Kingdom competent authority] shall consult participants on the practical arrangements for providing the competent authority of the exporting participant that has validated a certificate with confirmation of imports into the [F9United Kingdom]F17....]

F182.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F19Article 9U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 10U.K.

F201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.[F12The United Kingdom competent authority] shall keep the originals of certificates provided for under Article 3(a) submitted for verification for at least three years. It shall provide [F21the Chair of the Kimberley Process Certification Scheme] with access to these original certificates [F22as necessary for the monitoring or facilitation of the KP certification scheme].

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CHAPTER IIIU.K.EXPORT REGIME

Article 11U.K.

[F1The export from the [F9United Kingdom] F23... of rough diamonds shall be prohibited unless both of the following conditions are fulfilled:]

(a)

the rough diamonds are accompanied by a corresponding [F24United Kingdom certificate] issued and validated by [F12the United Kingdom competent authority] [F25, or a certificate issued and validated under this Regulation prior to IP completion day];

(b)

the rough diamonds are contained in tamper-resistant containers sealed in accordance with Article 12.

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Article 12U.K.

1.[F12The United Kingdom competent authority] may issue a [F24United Kingdom certificate] to an exporter when it has established that:

[F1(a)the exporter has provided conclusive evidence that:

(i)

the rough diamonds for which a certificate is being requested were lawfully imported in accordance with Article 3; F26...

(ii)

F27...]

(b)the other information requested on the certificate is correct;

(c)the rough diamonds are effectively destined for arrival in the territory of a participant, and

(d)the rough diamonds are to be transported in a tamper-resistant container.

2.[F12The United Kingdom competent authority] shall not validate a [F24United Kingdom certificate] until it has verified that the content of the container matches the particulars on the corresponding certificate and that the tamper-resistant container containing the rough diamonds has subsequently been sealed on the responsibility of that authority.

3.[F12The United Kingdom competent authority] shall opt for either of the following methods to verify that the content of a container matches the particulars thereon on the certificate:

(a)it will verify the content of each container; or

(b)it will identify the containers, the content of which shall be verified, on the basis of a risk analysis or equivalent system that gives due consideration to rough diamond shipments.

4.[F12The United Kingdom competent authority] shall provide the exporter with an authenticated forgery-resistant copy of the [F24United Kingdom certificate] it has validated. The exporter shall keep any copy accessible for at least three years.

5.The [F24United Kingdom certificate] shall be valid for export for no more than two months from the date of issue. If the rough diamonds are not exported within this period, the [F24United Kingdom certificate] shall be returned to F28... [F12the United Kingdom competent authority].

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Article 13U.K.

If an exporter is a member of a diamond organisation listed [F29in the list of self-regulating diamond organisations, as published by the Secretary of State for the purposes of Article 17], [F12the United Kingdom competent authority] may accept as conclusive evidence of lawful import into the [F30United Kingdom] a signed declaration by the exporter to that effect. Such a declaration shall contain at least the information to be given in an invoice under Article 17(2)(a)(ii).

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Article 14U.K.

1.If [F12the United Kingdom competent authority] establishes that a shipment of rough diamonds, for which a [F24United Kingdom certificate] is requested, does not fulfil the conditions of Articles 11, 12, or 13, that authority shall detain the shipment.

2.If [F12the United Kingdom competent authority] finds that the failure to fulfil the conditions is not made knowingly or intentionally or is the result of an action by another authority in the exercise of its proper duties, it may release the shipment and proceed with the issuing and validation of a [F24United Kingdom certificate], after the necessary remedial measures have been taken to ensure that the conditions are met.

3.[F12The United Kingdom competent authority] shall, within one month, inform F31... the competent authority of the participant that purportedly issued or validated the certificate for the shipment of any failure to fulfil the conditions.

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Article 15U.K.

F321.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F332.The United Kingdom competent authority shall keep for at least three years the authenticated copies provided for under Article 12(4) as well as all information received from an exporter to justify the issue and validation of a United Kingdom certificate.

The United Kingdom competent authority shall provide the Chair of the Kimberley Process Certification Scheme with access to those authenticated copies of this information as necessary for the monitoring or facilitation of the KP certification scheme.]

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Article 16U.K.

1.The [F34United Kingdom competent authority] shall consult participants on the practical arrangements for obtaining confirmation of imports of rough diamonds exported from the [F35United Kingdom] covered by a certificate validated by [F12the United Kingdom competent authority].

F362.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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CHAPTER IVU.K.INDUSTRY SELF-REGULATION

Article 17U.K.

1.Organisations representing traders in rough diamonds which have established a system of warranties and industry self-regulation for the purposes of implementing the KP Certification Scheme may apply to the [F37Secretary of State] for listing in [F38the list of self-regulating organisations published by the Secretary of State for the purposes of this Article].

2.When applying for listing, an organisation shall:

(a)provide conclusive evidence that adopted rules and regulations whereby its members dealing in rough diamonds, whether natural or legal persons, undertake that they will F39...:

(i)

sell only diamonds purchased from legitimate sources in compliance with the provisions of relevant United Nations Security Council Resolutions and of the Kimberley Process Certification Scheme and guarantee in writing on the invoice accompanying each sale of rough diamonds that, on the basis of their personal knowledge and/or written warranties provided by the supplier of such rough diamonds, the rough diamonds sold are therefore not conflict diamonds;

(ii)

see that each sale of rough diamonds is accompanied by an invoice containing the said signed guarantee unequivocally identifying the seller and buyer and their registered offices, containing the VAT identification number of the seller, where applicable, the quantity/weight and qualification of the goods sold, the value of the transaction and the date of delivery;

(iii)

not buy rough diamonds from suspect or unknown sources of supply and/or rough diamonds originating in non-participants in the KP certification scheme;

(iv)

not buy rough diamonds from any source found, after legally binding due process, to have violated government laws and regulations concerning the trade in conflict diamonds;

(v)

not buy rough diamonds in, or from, any region that is the subject of an advisory notice from a governmental or KP certification scheme authority to the effect that conflict diamonds are emanating from, or are available for sale in, that region;

(vi)

not knowingly buy, sell or assist others in buying or selling conflict diamonds;

(vii)

ensure that all employees buying or selling rough diamonds within the diamond trade are fully informed of trade resolutions and government regulations restricting the trade in conflict diamonds;

(viii)

create and maintain for at least three years records of invoices received from suppliers and issued to customers;

(ix)

instruct an independent auditor to certify that these records have been created and maintained accurately and either that it has identified no transactions which failed to comply with the undertakings referred to in (i) to (viii) or that any transaction which failed to comply with such undertakings has been duly reported to [F12the United Kingdom competent authority] [F40, or, if prior to IP completion day, a competent authority];

and

(b)provide conclusive evidence that is has adopted rules and regulations which oblige the organisation:

(i)

to expel any member found, after a due process inquiry by the organisation itself, to have seriously violated the abovementioned undertakings; and

(ii)

to publicise that member's expulsion and notify the [F41United Kingdom competent authority] thereof;

(iii)

to make known to all its members all governmental and KP certification scheme laws, regulations and guidelines regarding conflict diamonds and the names of any natural or legal person found guilty, after legally binding due process, of violating these laws and regulations;

and

(c)provide F42... [F12the United Kingdom competent authority] with a complete list of all its members dealing in rough diamonds, including full names, addresses, location and other information which will contribute to avoiding mistaken identities.

3.Organisations covered by this Article shall immediately notify F43... [F12the United Kingdom competent authority] F44... of all changes in their membership subsequent to the application for listing.

[F454.The Secretary of State must publish a list containing each organisation that fulfils the requirements of this Article.]

5.(a)A listed organisation or a member thereof shall provide [F12the United Kingdom competent authority] with access to any information that may be needed to assess the proper functioning of the system of warranties and industry self-regulation. Where circumstances justify, [F12the United Kingdom competent authority] may require additional guarantees that an organisation is able to maintain a credible system.

F46(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6.If, in the course of monitoring the proper functioning of the system, [F12the United Kingdom competent authority] F47... obtains credible information that a listed organisation covered by this Article F48..., or a member thereof F49..., is infringing the provisions of this Article, it shall inquire into the matter to verify whether the provisions of this Article have effectively been infringed.

F507.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8.If an inquiry leads to the conclusion that an organisation is infringing the provisions of this Article, [F12the United Kingdom competent authority] F51... shall take the appropriate measures with a view to removing that organisation from the list [F52of self-regulating organisations published by the Secretary of State for the purposes of this Article].

F539.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10.Organisations or their members covered by this Article acting in the territory of a participant other than the [F54United Kingdom] shall be considered to have complied with the provisions of this Article if they comply with the rules and regulations that this participant has laid down for the purpose of implementing the Kimberley Process Certification Scheme.

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CHAPTER VU.K.TRANSIT

[F1Article 18U.K.

Articles 4, 11, 12, and 14 shall not apply to rough diamonds which enter the [F9United Kingdom] F55... solely for the purposes of transit to a participant outside [F56the United Kingdom], on condition that neither the original container in which rough diamonds are being transported nor the original accompanying certificate issued by a competent authority of a participant has been tampered with at entry into or exit from the [F9United Kingdom] F55..., and the transit purpose is clearly attested by the accompanying certificate.]

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CHAPTER VIU.K.GENERAL PROVISIONS

Article 19U.K.

F571.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.[F58The Secretary of State must provide the Chair of the Kimberley Process Certification Scheme with the information showing that the United Kingdom competent authority] can reliably, timely, effectively and adequately fulfil the tasks required by this Regulation.

F593.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.[F60The United Kingdom competent authority] may ask an economic operator to pay a fee for the production, issue and/or validation of a certificate and for a physical inspection in accordance with Articles 4 and 14. Under no circumstances shall the amount of that fee exceed the costs incurred by that competent authority for the operation concerned. No levies or similar duties shall be charged in relation to such operations.

F615.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F626.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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[F4Article 20U.K.

On the basis of relevant Information provided to the Chair of the KP certification scheme and/or by participants, the [F63Secretary of State must publish (and update from time to time to reflect any changes)] the list of participants and their competent authorities.]

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F64Article 21U.K.

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F64Article 22U.K.

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F64Article 23U.K.

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Article 24U.K.

1.Any natural or legal person providing services directly or indirectly related to the activities covered by Articles 3, 4, 6, 7, 11, 12, 13, 17 or 18 shall exercise due diligence for establishing that the activities for which it provides services comply with the provisions of this Regulation.

2.The participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent the provisions of this Regulation shall be prohibited.

F653.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 25U.K.

Information supplied in accordance with this Regulation shall be used only for the purposes for which it was provided.

F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 26U.K.

Compliance with this Regulation does not discharge any natural or legal person from compliance, fully or partially, with any other obligation under F67... national legislation.

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Article 27U.K.

Each Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed. Such sanctions shall be effective, proportionate and dissuasive and shall be capable of preventing those responsible for the infringement from obtaining any economic benefit from their action.

Pending the adoption, where necessary, of any legislation to this end, the sanctions to be imposed where the provisions of this Regulation are infringed shall, where relevant, be those determined by the Member States in order to give effect to Article 5 of Regulation (EC) No 303/2002.

Article 28U.K.

This Regulation shall apply:

(a)

within the [F9United Kingdom], including its airspace, or on board any aircraft or any vessel under the jurisdiction of [F68the United Kingdom];

(b)

to any national of [F68the United Kingdom], and to any legal person, entity, or body which is incorporated or constituted under the law of [F68the United Kingdom].

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[F69Article 29U.K.

Amendments to the certification scheme

(1)Where the condition in paragraph (2) is met, the Secretary of State may by regulations amend this Regulation.

(2)The condition is that that the Secretary of State considers that this Regulation is no longer effective to ensure that the law of the United Kingdom is consistent with the international Kimberley Process requirements.

(3)Regulations under this Article may only contain provision that the Secretary of State considers to be—

(a)appropriate for the purposes of ensuring that this Regulation is consistent with the international Kimberley Process requirements; or

(b)appropriate in connection with any provision made under point (a).

(4)Regulations under this Article may contain transitional and consequential provisions and savings.

(5)The power in this Article to make regulations is exercisable by the Secretary of State by statutory instrument.

(6)A statutory instrument containing regulations under this Article may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7)In this Article “the international Kimberley Process requirements” means any certification requirements or similar controls relating to the import or export of rough diamonds that are agreed from time to time by the Participants.]

Textual Amendments

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This Regulation shall be binding in its entirety and directly applicable in all Member States.

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