# CE2004084EN.01082701.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/827 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/827

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(2004/C 84 E/0922)

WRITTEN QUESTION E-0637/04

by Toine Manders (ELDR) to the Commission

(3 March 2004)

Subject:   Inconsistencies in the Community Customs Code (CCC)

Subject:

In a number of instances, disputes arise between the customs authorities and taxable persons as to whether or not customs duties are owed. Where, after years and years of litigation, it is shown that the persons concerned were indeed liable to pay customs duties (pursuant to Article 236 of the CCC), that does not preclude the possibility that special conditions exist which make the payment of customs duties unreasonable for the persons concerned (pursuant to Article 239 of the CCC).

Where a debtor submits an application pursuant to Article 239 of the CCC for the repayment of the customs duties levied, this is usually declared inadmissible on the grounds that the debtor did not submit the appropriate application within one year from the date on which the amount of the duties was communicated to him, as laid down in Article 239 of the CCC. The customs authorities argue thus: if the debtor has been issued with a demand for payment with which he disagrees, proceedings must be initiated in order to prove that the amount demanded was not legally owed (pursuant to Article 236 of the CCC). Subsequently, an application must be submitted in accordance with Article 239 of the CCC to ensure that the deadlines are properly applied. In my opinion, that gives rise to a rather anomalous situation. In the appeal (and the further course of the procedure), the debtor argues that he is not liable for the customs duties levied; subsequently, in order not to forfeit his rights, the debtor has to submit a claim (pursuant to Article 239 of the CCC) in which he actually admits to being liable for the duties but claims that special conditions exist which should exempt him from having to pay the customs duties levied. Given the all-embracing scope of Article 239 of the CCC, I cannot believe that that was ever the objective of the measure.

| 1. | Is the Commission aware of the repayment/remission procedures laid down in Articles 236 and 239 of the CCC? |
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1.

Is the Commission aware of the repayment/remission procedures laid down in Articles 236 and 239 of the CCC?

| 2. | Can the Commission indicate why a period of three years is laid down in Article 236 of the CCC and a period of just one year in Article 239 of the CCC? |
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2.

Can the Commission indicate why a period of three years is laid down in Article 236 of the CCC and a period of just one year in Article 239 of the CCC?

| 3. | Does the one-year period laid down in Article 239 of the CCC have a suspensive effect if the legality of the customs duties levied has not been irrevocably established? |
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3.

Does the one-year period laid down in Article 239 of the CCC have a suspensive effect if the legality of the customs duties levied has not been irrevocably established?

| 4. | Can the Commission define the ‘exceptional cases’ to which reference is made in Article 239(2) of the CCC? |
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4.

Can the Commission define the ‘exceptional cases’ to which reference is made in Article 239(2) of the CCC?

| 5. | Can a case which has been the subject of court proceedings for those reasons be regarded as an exceptional case? If not, then what is the function of Article 239 of the CCC? |
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5.

Can a case which has been the subject of court proceedings for those reasons be regarded as an exceptional case? If not, then what is the function of Article 239 of the CCC?

Answer given by Mr Bolkestein on behalf of the Commission

(5 April 2004)

(5 April 2004)

| 1. | The Commission has already started examining how Article 239 of the Community Customs Code (CCC) can be adapted to align its rules of procedure as far as possible on those of Article 236. However, it feels that the inconsistencies the Honourable Member sees in the procedures, depending on whether an application for remission/repayment is made on the basis of Article 236 or on the basis of Article 239, are only apparent.
  It should be noted that it is the Member States' customs authorities who establish the debt, communicate it to the debtor (thus affording him the possibility of contesting the existence or amount of the debt) and examine whether repayment/remission applications were lodged in keeping with the rules. |
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1.

The Commission has already started examining how Article 239 of the Community Customs Code (CCC) can be adapted to align its rules of procedure as far as possible on those of Article 236. However, it feels that the inconsistencies the Honourable Member sees in the procedures, depending on whether an application for remission/repayment is made on the basis of Article 236 or on the basis of Article 239, are only apparent.

It should be noted that it is the Member States' customs authorities who establish the debt, communicate it to the debtor (thus affording him the possibility of contesting the existence or amount of the debt) and examine whether repayment/remission applications were lodged in keeping with the rules.

| 2. | The periods for submitting the application differ depending on whether it is based on Article 236 or Article 239 of the Code as the grounds for repayment/remission are themselves different. Taxable persons invoking Article 236 of the Code consider that a customs debt does not exist so it is only right that they be allowed the same time (three years) to obtain repayment/remission as that granted to the customs authorities to notify the amount of the debt (CCC Article 221(2)). On the other hand, in the cases referred to in Article 239 of the Code, the customs debt does exist but for reasons of fairness it is not appropriate to collect or repay it. Article 900 of the Code's implementing provisions (1) lists situations where duties may be repaid or remitted on the basis of Article 239. A period of one year is normally sufficient for a trader to realise that a particular situation applies to him so that he can then request repayment or remission. |
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2.

The periods for submitting the application differ depending on whether it is based on Article 236 or Article 239 of the Code as the grounds for repayment/remission are themselves different. Taxable persons invoking Article 236 of the Code consider that a customs debt does not exist so it is only right that they be allowed the same time (three years) to obtain repayment/remission as that granted to the customs authorities to notify the amount of the debt (CCC Article 221(2)). On the other hand, in the cases referred to in Article 239 of the Code, the customs debt does exist but for reasons of fairness it is not appropriate to collect or repay it. Article 900 of the Code's implementing provisions (1) lists situations where duties may be repaid or remitted on the basis of Article 239. A period of one year is normally sufficient for a trader to realise that a particular situation applies to him so that he can then request repayment or remission.

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| 3. | The periods referred to in Articles 236 and 239 commence as soon as the amount of the duties has been communicated to the debtor. An appeal does not have suspensory effect. So, as the legislation stands, traders contesting the existence of a debt must also submit an application for repayment/remission within the period laid down in Article 239. In order to comply with the time limits, traders may have to take steps in parallel which should have a logical sequence but that procedure is not detrimental to them. |
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3.

The periods referred to in Articles 236 and 239 commence as soon as the amount of the duties has been communicated to the debtor. An appeal does not have suspensory effect. So, as the legislation stands, traders contesting the existence of a debt must also submit an application for repayment/remission within the period laid down in Article 239. In order to comply with the time limits, traders may have to take steps in parallel which should have a logical sequence but that procedure is not detrimental to them.

| 4. and 5. | As the Honourable Member points out, the one-year period referred to in Article 239 may be exceeded only in exceptional cases. In the absence of case law on this point, the Commission considers that this must be taken to mean the situations referred to in the second paragraph of Article 236(2) (unforeseeable circumstances or force majeure). At any rate, the fact that the existence of the debt has been contested, possibly before the courts, does not constitute an exceptional case within the meaning of Article 239 of the Code. |
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4. and 5.

As the Honourable Member points out, the one-year period referred to in Article 239 may be exceeded only in exceptional cases. In the absence of case law on this point, the Commission considers that this must be taken to mean the situations referred to in the second paragraph of Article 236(2) (unforeseeable circumstances or force majeure). At any rate, the fact that the existence of the debt has been contested, possibly before the courts, does not constitute an exceptional case within the meaning of Article 239 of the Code.

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(1)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, OJ L 253, 11.10.1993.

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