EN Official Journal of the European Union L 145/1

REGULATION (EC) No 450/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 April 2008

laying down the Community Customs Code (Modernised Customs Code)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 26, 95, 133 and 135 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

(1) The Community is based upon a customs union. It is advisable, in the interests both of economic operators and of the customs authorities in the Community, to assemble current customs legislation in a Community Customs Code (hereinafter referred to as the Code). Based on the concept of an internal market, the Code should contain the general rules and procedures which ensure the implementation of the tariff and other common policy measures introduced at Community level in connection with trade in goods between the Community and countries or territories outside the customs territory of the Community, taking into account the requirements of those common policies. Customs legislation should be better aligned on the provisions relating to the collection of import charges without change to the scope of the tax provisions in force.

(2) In accordance with the Communication from the Commission concerning the protection of the Community's financial interests and the Action Plan for 2004-2005, it is appropriate to adapt the legal framework for the protection of the financial interests of the Community.

(3) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (3) was based upon integration of the customs procedures applied separately in the respective Member States during the 1980s. That Regulation has been repeatedly and substantially amended since its introduction, in order to address specific problems such as the protection of good faith or the taking into account of security requirements. Further amendments to the Code are necessary as a consequence of the important legal changes which have occurred in recent years, at both Community and international level, such as the expiry of the Treaty establishing the European Coal and Steel Community and the entry into force of the 2003 and 2005 Acts of Accession, as well as the Amendment to the International Convention on the simplification and harmonisation of customs procedures (hereinafter referred to as the revised Kyoto Convention), the accession of the Community to which was approved by Council Decision 2003/231/EC (4). The time has now come to streamline customs procedures and to take into account the fact that electronic declarations and processing are the rule and paper-based declarations and processing the exception. For all of these reasons, further amendment of the present Code is not sufficient and a complete overhaul is necessary.

(4) It is appropriate to introduce in the Code a legal framework for the application of certain provisions of the customs legislation to trade in goods between parts of the customs territory to which the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (5) apply and parts of that territory where those provisions do not apply, or to trade between parts where those provisions do not apply. Considering the fact that the goods concerned are Community goods and the fiscal nature of the measures at stake in this intra-Community trade, it is justifiable to introduce, through implementing measures, appropriate simplifications to the customs formalities to be applied to those goods.

(5) The facilitation of legitimate trade and the fight against fraud require simple, rapid and standard customs procedures and processes. It is therefore appropriate, in line with the Communication from the Commission on a simple and paperless environment for customs and trade, to simplify customs legislation, to allow the use of modern tools and technology and to promote further the uniform application of customs legislation and modernised approaches to customs control, thus helping to ensure the basis for efficient and simple clearance procedures. Customs procedures should be merged or aligned and the number of procedures reduced to those that are economically justified, with a view to increasing the competitiveness of business.

(6) The completion of the internal market, the reduction of barriers to international trade and investment and the reinforced need to ensure security and safety at the external borders of the Community have transformed the role of customs authorities giving them a leading role within the supply chain and, in their monitoring and management of international trade, making them a catalyst to the competitiveness of countries and companies. Customs legislation should therefore reflect the new economic reality and the new role and mission of customs authorities.

(7) The use of information and communication technologies, as laid down in the future Decision of the European Parliament and of the Council on a paperless environment for customs and trade, is a key element in ensuring trade facilitation and, at the same time, the effectiveness of customs controls, thus reducing costs for business and risk for society. It is therefore necessary to establish in the Code the legal framework within which that Decision can be implemented, in particular the legal principle that all customs and trade transactions are to be handled electronically and that information and communication systems for customs operations are to offer, in each Member State, the same facilities to economic operators.

(8) Such use of information and communication technologies should be accompanied by harmonised and standardised application of customs controls by the Member States, to ensure an equivalent level of customs control throughout the Community so as not to give rise to anti-competitive behaviour at the various Community entry and exit points.

(9) In the interests of facilitating business, while at the same time providing for the proper levels of control of goods brought into or out of the customs territory of the Community, it is desirable that the information provided by economic operators be shared, taking account of the relevant data-protection provisions, between customs authorities and with other agencies involved in that control, such as police, border guards, veterinary and environmental authorities, and that controls by the various authorities be harmonised, so that the economic operator need give the information only once and that goods are controlled by those authorities at the same time and at the same place.

(10) In the interests of facilitating certain types of business, all persons should continue to have the right to appoint a representative in their dealings with the customs authorities. However, it should no longer be possible for that right of representation to be reserved under a law laid down by one of the Member States. Furthermore, a customs representative who complies with the criteria for the granting of the status of authorised economic operator, should be entitled to provide his services in a Member State other than the one where he is established.

(11) Compliant and trustworthy economic operators should, as ‘authorised economic operators’, be able to take maximum advantage of widespread use of simplification and, taking account of security and safety aspects, benefit from reduced levels of customs control. They may thus enjoy the status of ‘customs simplification’ authorised economic operator or the status of ‘security and safety’ authorised economic operator. They may be granted one or other status, or both together.

(12) All decisions, that is to say, official acts by the customs authorities pertaining to customs legislation and having legal effect on one or more persons, including binding information issued by those authorities, should be covered by the same rules. Any such decisions should be valid throughout the Community and should be capable of being annulled, amended except where otherwise stipulated, or revoked where they do not conform to the customs legislation or its interpretation.

(13) In accordance with the Charter of Fundamental Rights of the European Union, it is necessary, in addition to the right of appeal against any decision taken by the customs authorities, to provide for the right of every person to be heard before any decision is taken which would adversely affect him.

(14) The streamlining of customs procedures within an electronic environment requires the sharing of responsibilities between the customs authorities of different Member States. It is necessary to ensure an appropriate level of effective, dissuasive and proportionate sanctions throughout the internal market.

(15) In order to secure a balance between, on the one hand, the need for customs authorities to ensure the correct application of customs legislation and, on the other, the right of economic operators to be treated fairly, the customs authorities should be granted extensive powers of control and economic operators a right of appeal.

(16) In order to minimise the risk to the Community, its citizens and its trading partners, the harmonised application of customs controls by the Member States should be based upon a common risk management framework and an electronic system for its implementation. The establishment of a risk management framework common to all Member States should not prevent them from controlling goods by random checks.

(17) It is necessary to establish the factors on the basis of which import or export duties and other measures in respect of trade in goods are applied. It is also appropriate to lay down clear provisions for issuing proofs of origin in the Community, where the exigencies of trade so require.

(18) It is desirable to group together all cases of incurrence of a customs debt on importation, other than following the submission of a customs declaration for release for free circulation or temporary admission with partial relief, in order to avoid difficulties in determining the legal basis on which the customs debt was incurred. The same should apply in cases of incurrence of a customs debt on exportation.

(19) Since the new role of customs authorities implies the sharing of responsibilities and cooperation between inland and border customs offices, the customs debt should, in most cases, be incurred at the place where the debtor is established, as the customs office competent for that place can best supervise the activities of the person concerned.

(20) Furthermore, in line with the revised Kyoto Convention, it is appropriate to provide for a reduced number of cases where administrative cooperation between Member States is required in order to establish the place where the customs debt was incurred and to recover the duties.

(21) The rules for special procedures should allow for the use of a single guarantee for all categories of special procedures and for that guarantee to be comprehensive, covering a number of transactions.

(22) In order to ensure better protection of the financial interests of the Community and of the Member States, a guarantee should cover non-declared or incorrectly declared goods included in a consignment or in a declaration for which it is provided. For the same reason, the undertaking of the guarantor should also cover amounts of import or export duty which fall to be paid following post-release controls.

(23) In order to safeguard the financial interests of the Community and of the Member States and to curb fraudulent practices, arrangements involving graduated measures for the application of a comprehensive guarantee are advisable. Where there is an increased risk of fraud it should be possible to prohibit temporarily the application of the comprehensive guarantee, taking account of the particular situation of the economic operators concerned.

(24) It is appropriate to take account of the good faith of the person concerned in cases where a customs debt is incurred through non-compliance with customs legislation and to minimise the impact of negligence on the part of the debtor.

(25) It is necessary to lay down the principle of how to determine the status of Community goods and the circumstances pertaining to the loss of such status, and to provide a basis for determining when that status remains unaltered in cases where goods temporarily leave the customs territory of the Community.

(26) It is appropriate, where an economic operator has provided, in advance, the information necessary for risk-based controls on the admissibility of the goods, to ensure that quick release of goods is then the rule. Fiscal and trade policy controls should primarily be performed by the customs office competent in respect of the premises of the economic operator.

(27) The rules for customs declarations and for the placing of goods under a customs procedure should be modernised and streamlined, in particular by requiring that customs declarations be, as a rule, made electronically and providing for only one type of simplified declaration.

(28) Since the revised Kyoto Convention favours the lodging, registering and checking of the customs declaration prior to the arrival of the goods and, furthermore, the dissociation of the place where the declaration is lodged from the place where the goods are physically located, it is appropriate to provide for centralised clearance at the place where the economic operator is established. Centralised clearance should include the facility for the use of simplified declarations, deferment of the date of the submission of a complete declaration and required documents, periodic declaration and deferred payment.

(29) In order to help to ensure neutral conditions for competition throughout the Community, it is appropriate to lay down at Community level the rules governing the destruction or disposal otherwise of goods by the customs authorities, these being matters which have previously required national legislation.

(30) It is appropriate to lay down common and simple rules for the special procedures (transit, storage, specific use and processing), supplemented by a small set of rules for each category of special procedure, in order to make it simple for the operator to choose the right procedure, to avoid errors and to reduce the number of post-release recoveries and repayments.

(31) The granting of authorisations for several special procedures with a single guarantee and a single supervising customs office should be facilitated and there should be simple rules on the incurrence of a customs debt in these cases. The basic principle should be that goods placed under a special procedure, or the products made from them, are to be assessed at the time when the customs debt is incurred. However, it should also be possible, where economically justified, to assess the goods at the time when they were placed under a special procedure. The same principles should apply to usual forms of handling.

(32) In view of the increased security-related measures introduced into the Code under Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (6), the placing of goods into free zones should become a customs procedure and the goods should be subject to customs controls at entry and with regard to records.

(33) Given that the intention of re-exportation is no longer necessary, the inward processing suspension procedure should be merged with processing under customs control and the inward processing drawback procedure abandoned. This single inward-processing procedure should also cover destruction, except where destruction is carried out by, or under the supervision of, customs.

(34) Security-related measures relating to Community goods brought out of the customs territory of the Community should apply equally to the re-export of non-Community goods. The same basic rules should apply to all types of goods, with the possibility of exceptions where necessary, such as for goods only transiting through the customs territory of the Community.

(35) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedure for the exercise of implementing powers conferred on the Commission (7).

(36) It is appropriate to provide for the adoption of measures implementing this Code. These measures should be adopted in accordance with the management and regulatory procedures provided for in Articles 4 and 5 of Decision 1999/468/EC.

(37) In particular, the Commission should be empowered to define the conditions and criteria necessary for the effective application of this Code. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation or to supplement this Regulation by the addition of new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(38) It is appropriate, in order to ensure an effective decision-making process, to examine questions relating to the preparation of a position to be taken by the Community in committees, working groups and panels established by or under international agreements dealing with customs legislation.

(39) In order to simplify and rationalise customs legislation, a number of provisions presently contained in autonomous Community acts have, for the sake of transparency, been incorporated into the Code. The following Regulations, together with Regulation (EEC) No 2913/92, should therefore be repealed: Council Regulation (EEC) No 3925/91 of 19 December 1991 concerning the elimination of controls and formalities applicable to the cabin and hold baggage of persons taking an intra-Community flight and the baggage of persons making an intra-Community sea crossing (8) and Council Regulation (EC) No 1207/2001 of 11 June 2001 on procedures to facilitate the issue or the making out in the Community of proofs of origin and the issue of certain approved exporter authorisations under the provisions governing preferential trade between the European Community and certain countries (9).

(40) Since the objectives of this Regulation, namely, to lay down rules and procedures applicable to goods brought into or out of the customs territory of the Community in order to enable the Customs Union to function effectively as a central pillar of the internal market, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

TABLE OF CONTENTS

TITLE I GENERAL PROVISIONS

CHAPTER 1 Scope of customs legislation, mission of customs and definitions

CHAPTER 2 Rights and obligations of persons with regard to customs legislation

Section 1 Provision of information

Section 2 Customs representation

Section 3 Authorised economic operator

Section 4 Decisions relating to the application of customs legislation

Section 5 Penalties

Section 6 Appeals

Section 7 Control of goods

Section 8 Keeping of documents and other information; charges and costs

CHAPTER 3 Currency conversion and time limits

TITLE II FACTORS ON THE BASIS OF WHICH IMPORT OR EXPORT DUTIES AND OTHER MEASURES IN RESPECT OF TRADE IN GOODS ARE APPLIED

CHAPTER 1 Common customs tariff and tariff classification of goods

CHAPTER 2 Origin of goods

Section 1 Non-preferential origin

Section 2 Preferential origin

CHAPTER 3 Value of goods for customs purposes

TITLE III CUSTOMS DEBT AND GUARANTEES

CHAPTER 1 Incurrence of a customs debt

Section 1 Customs debt on importation

Section 2 Customs debt on exportation

Section 3 Provisions common to customs debts incurred on importation and exportation

CHAPTER 2 Guarantee for a potential or existing customs debt

CHAPTER 3 Recovery and payment of duty and repayment and remission of the amount of import and export duty

Section 1 Determination of the amount of import or export duty, notification of the customs debt and entry in the accounts

Section 2 Payment of the amount of import or export duty

Section 3 Repayment and remission of the amount of import or export duty

CHAPTER 4 Extinguishment of customs debt

TITLE IV GOODS BROUGHT INTO THE CUSTOMS TERRITORY OF THE COMMUNITY

CHAPTER 1 Entry summary declaration

CHAPTER 2 Arrival of goods

Section 1 Entry of goods into the customs territory of the Community

Section 2 Presentation, unloading and examination of goods

Section 3 Formalities after presentation

Section 4 Goods moved under a transit procedure

TITLE V GENERAL RULES ON CUSTOMS STATUS, PLACING GOODS UNDER A CUSTOMS PROCEDURE, VERIFICATION, RELEASE AND DISPOSAL OF GOODS

CHAPTER 1 Customs status of goods

CHAPTER 2 Placing goods under a customs procedure

Section 1 General provisions

Section 2 Standard customs declarations

Section 3 Simplified customs declarations

Section 4 Provisions applying to all customs declarations

Section 5 Other simplifications

CHAPTER 3 Verification and release of goods

Section 1 Verification

Section 2 Release

CHAPTER 4 Disposal of goods

TITLE VI RELEASE FOR FREE CIRCULATION AND RELIEF FROM IMPORT DUTIES

CHAPTER 1 Release for free circulation

CHAPTER 2 Relief from import duties

Section 1 Returned goods

Section 2 Sea-fishing and products taken from the sea

Section 3 Implementing measures

TITLE VII SPECIAL PROCEDURES

CHAPTER 1 General provisions

CHAPTER 2 Transit

Section 1 External and internal transit

Section 2 Community transit

CHAPTER 3 Storage

Section 1 Common provisions

Section 2 Temporary storage

Section 3 Customs warehousing

Section 4 Free zones

CHAPTER 4 Specific use

Section 1 Temporary admission

Section 2 End-use

CHAPTER 5 Processing

Section 1 General provisions

Section 2 Inward processing

Section 3 Outward processing

TITLE VIII DEPARTURE OF GOODS FROM THE CUSTOMS TERRITORY OF THE COMMUNITY

CHAPTER 1 Goods leaving the customs territory

CHAPTER 2 Export and re-export

CHAPTER 3 Relief from export duties

TITLE IX CUSTOMS CODE COMMITTEE AND FINAL PROVISIONS

CHAPTER 1 Customs code committee

CHAPTER 2 Final provisions

ANNEX CORRELATION TABLES

TITLE I

GENERAL PROVISIONS

CHAPTER 1

Scope of customs legislation, mission of customs and definitions

Article 1

Subject matter and scope

1. This Regulation establishes the Community Customs Code, hereinafter referred to as ‘the Code’, laying down the general rules and procedures applicable to goods brought into or out of the customs territory of the Community.

Without prejudice to international law and conventions and Community legislation in other fields, the Code shall apply uniformly throughout the customs territory of the Community.

2. Certain provisions of the customs legislation may apply outside the customs territory of the Community within the framework of legislation governing specific fields or of international conventions.

3. Certain provisions of the customs legislation, including the simplifications for which it provides, shall apply to the trade in goods between parts of the customs territory of the Community to which the provisions of Directive 2006/112/EC apply and parts of that territory where those provisions do not apply, or to trade between parts of that territory where those provisions do not apply.

The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the provisions referred to in the first subparagraph and simplified formalities for their implementation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4). Those measures shall also take account of particular circumstances pertaining to the trade in goods involving only one Member State.

Article 2

Mission of customs authorities

Customs authorities shall be primarily responsible for the supervision of the Community’s international trade, thereby contributing to fair and open trade, to the implementation of the external aspects of the internal market, of the common trade policy and of the other common Community policies having a bearing on trade, and to overall supply chain security. Customs authorities shall put in place measures aimed, in particular, at the following:

(a) protecting the financial interests of the Community and its Member States;

(b) protecting the Community from unfair and illegal trade while supporting legitimate business activity;

(c) ensuring the security and safety of the Community and its residents, and the protection of the environment, where appropriate in close cooperation with other authorities;

(d) maintaining a proper balance between customs controls and facilitation of legitimate trade.

Article 3

Customs territory

1. The customs territory of the Community shall comprise the following territories, including their territorial waters, internal waters and airspace:

— the territory of the Kingdom of Belgium,

— the territory of the Republic of Bulgaria,

— the territory of the Czech Republic,

— the territory of the Kingdom of Denmark, except the Faeroe Islands and Greenland,

— the territory of the Federal Republic of Germany, except the Island of Heligoland and the territory of Buesingen (Treaty of 23 November 1964 between the Federal Republic of Germany and the Swiss Confederation),

— the territory of the Republic of Estonia,

— the territory of Ireland,

— the territory of the Hellenic Republic,

— the territory of the Kingdom of Spain, except Ceuta and Melilla,

— the territory of the French Republic, except New Caledonia, Mayotte, Saint-Pierre and Miquelon, Wallis and Futuna Islands, French Polynesia and the French Southern and Antarctic Territories,

— the territory of the Italian Republic, except the municipalities of Livigno and Campione d’Italia and the national waters of Lake Lugano which are between the bank and the political frontier of the area between Ponte Tresa and Porto Ceresio,

— the territory of the Republic of Cyprus, in accordance with the provisions of the 2003 Act of Accession,

— the territory of the Republic of Latvia,

— the territory of the Republic of Lithuania,

— the territory of the Grand Duchy of Luxembourg,

— the territory of the Republic of Hungary,

— the territory of Malta,

— the territory of the Kingdom of the Netherlands in Europe,

— the territory of the Republic of Austria,

— the territory of the Republic of Poland,

— the territory of the Portuguese Republic,

— the territory of Romania,

— the territory of the Republic of Slovenia,

— the territory of the Slovak Republic,

— the territory of the Republic of Finland,

— the territory of the Kingdom of Sweden,

— the territory of the United Kingdom of Great Britain and Northern Ireland and of the Channel Islands and the Isle of Man.

2. The following territories, including their territorial waters, internal waters and airspace, situated outside the territory of the Member States shall, taking into account the conventions and treaties applicable to them, be considered to be part of the customs territory of the Community:

(a) FRANCE The territory of Monaco as defined in the Customs Convention signed in Paris on 18 May 1963 (Journal officiel de la République française (Official Journal of the French Republic) of 27 September 1963, p. 8679);

(b) CYPRUS The territory of the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia as defined in the Treaty concerning the Establishment of the Republic of Cyprus, signed in Nicosia on 16 August 1960 (United Kingdom Treaty Series No 4 (1961) Cmnd. 1252).

Article 4

Definitions

For the purposes of the Code, the following definitions shall apply:

1. ‘customs authorities’ means the customs administrations of the Member States responsible for applying the customs legislation and any other authorities empowered under national law to apply certain customs legislation;

2. ‘customs legislation’ means the body of legislation made up of the following: (a) the Code and the provisions adopted at Community level and, where appropriate, at national level, to implement it; (b) the Common Customs Tariff; (c) the legislation setting up a Community system of reliefs from customs duties; (d) international agreements containing customs provisions, insofar as they are applicable in the Community;

3. ‘customs controls’ means specific acts performed by the customs authorities in order to ensure the correct application of customs legislation and other legislation governing the entry, exit, transit, transfer, storage and end-use of goods moved between the customs territory of the Community and other territories, and the presence and movement within the customs territory of non-Community goods and goods placed under the end-use procedure;

4. ‘person’ means a natural person, a legal person, and any association of persons which is not a legal person but which is recognised under Community or national law as having the capacity to perform legal acts;

5. ‘economic operator’ means a person who, in the course of his business, is involved in activities covered by customs legislation;

6. ‘customs representative’ means any person appointed by another person to carry out the acts and formalities required under the customs legislation in his dealings with customs authorities;

7. ‘risk’ means the likelihood of an event that may occur, with regard to the entry, exit, transit, transfer or end-use of goods moved between the customs territory of the Community and countries or territories outside that territory and to the presence of goods which do not have Community status, which would have any of the following results: (a) it would prevent the correct application of Community or national measures; (b) it would compromise the financial interests of the Community and its Member States; (c) it would pose a threat to the security and safety of the Community and its residents, to human, animal or plant health, to the environment or to consumers;

8. ‘customs formalities’ means all the operations which must be carried out by the persons concerned and by the customs authorities in order to comply with the customs legislation;

9. ‘summary declaration’ (entry summary declaration and exit summary declaration) means the act whereby, before or at the time of the event, a person informs the customs authorities, in the prescribed form and manner, that goods are to be brought into or out of the customs territory of the Community;

10. ‘customs declaration’ means the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure, with an indication, where appropriate, of any specific arrangements to be applied;

11. ‘declarant’ means the person lodging a summary declaration or a re-export notification or making a customs declaration in his own name or the person in whose name such a declaration is made;

12. ‘customs procedure’ means any of the following procedures under which goods may be placed in accordance with this Code: (a) release for free circulation; (b) special procedures; (c) export;

13. ‘customs debt’ means the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force;

14. ‘debtor’ means any person liable for a customs debt;

15. ‘import duties’ means customs duties payable on the importation of goods;

16. ‘export duties’ means customs duties payable on the exportation of goods;

17. ‘customs status’ means the status of goods as Community or non-Community goods;

18. ‘Community goods’ means goods which fall into any of the following categories: (a) goods wholly obtained in the customs territory of the Community and not incorporating goods imported from countries or territories outside the customs territory of the Community. Goods wholly obtained in the customs territory of the Community shall not have the customs status of Community goods if they are obtained from goods placed under the external transit procedure, a storage procedure, the temporary admission procedure or the inward-processing procedure in cases determined in accordance with Article 101(2)(c); (b) goods brought into the customs territory of the Community from countries or territories outside that territory and released for free circulation; (c) goods obtained or produced in the customs territory of the Community, either solely from goods referred to in point (b) or from goods referred to in points (a) and (b);

19. ‘non-Community goods’ means goods other than those referred to in point (18) or which have lost their customs status as Community goods;

20. ‘risk management’ means the systematic identification of risk and the implementation of all measures necessary for limiting exposure to risk. This includes activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regular monitoring and review of that process and its outcomes, based on international, Community and national sources and strategies;

21. ‘release of goods’ means the act whereby the customs authorities make goods available for the purposes specified for the customs procedure under which they are placed;

22. ‘customs supervision’ means action taken in general by the customs authorities with a view to ensuring that customs legislation and, where appropriate, other provisions applicable to goods subject to such action are observed;

23. ‘repayment’ means the refunding of any import or export duty that has been paid;

24. ‘remission’ means the waiving of the obligation to pay import or export duties which have not been paid;

25. ‘processed products’ means goods placed under a processing procedure which have undergone processing operations;

26. ‘person established in the customs territory of the Community’ means: (a) in the case of a natural person, any person who has his habitual residence in the customs territory of the Community; (b) in the case of a legal person or an association of persons, any person who has his registered office, central headquarters or a permanent business establishment in the customs territory of the Community;

27. ‘presentation of goods to customs’ means the notification to the customs authorities of the arrival of goods at the customs office or at any other place designated or approved by the customs authorities and the availability of those goods for customs controls;

28. ‘holder of the goods’ means the person who is the owner of the goods or who has a similar right of disposal over them or who has physical control of them;

29. ‘holder of the procedure’ means the person who makes the customs declaration, or on whose behalf the customs declaration is made, or the person to whom the rights and obligations of that person in respect of a customs procedure have been transferred;

30. ‘commercial policy measures’ means non-tariff measures established, as part of the common commercial policy, in the form of Community provisions governing international trade in goods;

31. ‘processing operations’ means any of the following: (a) the working of goods, including erecting or assembling them or fitting them to other goods; (b) the processing of goods; (c) the destruction of goods; (d) the repair of goods, including restoring them and putting them in order; (e) the use of goods which are not to be found in the processed products, but which allow or facilitate the production of those products, even if they are entirely or partially used up in the process (production accessories);

32. ‘rate of yield’ means the quantity or percentage of processed products obtained from the processing of a given quantity of goods placed under a processing procedure;

33. ‘message’ means a communication in a prescribed format containing data transmitted from one person, office or authority to another using information technology and computer networks.

CHAPTER 2

Rights and obligations of persons with regard to customs legislation

Section 1

Provision of information

Article 5

Exchange and storage of data

1. All exchanges of data, accompanying documents, decisions and notifications between customs authorities and between economic operators and customs authorities required under the customs legislation, and the storage of such data as required under the customs legislation, shall be made using electronic data-processing techniques.

The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down exceptions to the first subparagraph, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Those measures shall define the cases in which and the conditions under which paper or other transactions may be used in place of electronic exchanges of data, taking the following, in particular, into account:

(a) the possibility of temporary failure of the customs authorities’ computerised systems;

(b) the possibility of temporary failure of the economic operator’s computerised systems;

(c) international conventions and agreements which provide for the use of paper documents;

(d) travellers without direct access to the computerised systems and with no means of providing electronic information;

(e) practical requirements for declarations to be made orally or by any other act.

2. Except where these are otherwise specifically provided for in the customs legislation, the Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures laying down the following:

(a) the messages to be exchanged between customs offices, as required for the application of the customs legislation;

(b) a common data set and format of the messages to be exchanged under the customs legislation.

The data referred to in point (b) of the first subparagraph shall contain the particulars necessary for risk analysis and the proper application of customs controls, using, where appropriate, international standards and commercial practices.

Article 6

Data protection

1. All information acquired by the customs authorities in the course of performing their duties which is by its nature confidential or which is provided on a confidential basis shall be covered by the obligation of professional secrecy. Except as provided for under Article 26(2), such information shall not be disclosed by the competent authorities without the express permission of the person or authority that provided it.

Such information may, however, be disclosed without permission where the customs authorities are obliged or authorised to do so pursuant to the provisions in force, particularly in respect of data protection, or in connection with legal proceedings.

2. Communication of confidential data to the customs authorities and other competent authorities of countries or territories outside the customs territory of the Community shall be permitted only in the framework of an international agreement ensuring an adequate level of data protection.

3. The disclosure or communication of information shall take place in full compliance with data-protection provisions in force.

Article 7

Exchange of additional information between customs authorities and economic operators

1. Customs authorities and economic operators may exchange any information not specifically required under the customs legislation, in particular for the purpose of mutual cooperation in the identification and counteraction of risk. That exchange may take place under a written agreement and may include access to the computer systems of economic operators by the customs authorities.

2. Any information provided by one party to the other in the course of the cooperation referred to in paragraph 1 shall be confidential unless both parties agree otherwise.

Article 8

Provision of information by the customs authorities

1. Any person may request information concerning the application of customs legislation from the customs authorities. Such a request may be refused where it does not relate to an activity pertaining to international trade in goods that is actually envisaged.

2. Customs authorities shall maintain a regular dialogue with economic operators and other authorities involved in international trade in goods. They shall promote transparency by making the customs legislation, general administrative rulings and application forms freely available, wherever practical without charge, and through the Internet.

Article 9

Provision of information to the customs authorities

1. Any person directly or indirectly involved in the accomplishment of customs formalities or in customs controls shall, at the request of the customs authorities and within any time limit specified, provide those authorities with all the requisite documents and information, in an appropriate form, and all the assistance necessary for the completion of those formalities or controls.

2. The lodging of a summary declaration or customs declaration, or notification, or the submission of an application for an authorisation or any other decision, shall render the person concerned responsible for the following:

(a) the accuracy and completeness of the information given in the declaration, notification or application;

(b) the authenticity of any documents lodged or made available;

(c) where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations.

The first subparagraph shall apply also to the provision of any information in any other form required by or given to the customs authorities.

Where the declaration or notification is lodged, the application is submitted or information is provided by a customs representative of the person concerned, the customs representative shall also be bound by the obligations set out in the first subparagraph.

Article 10

Electronic systems

1. Member States shall cooperate with the Commission with a view to developing, maintaining and employing electronic systems for the exchange of information between customs offices and for the common registration and maintenance of records relating, in particular, to the following:

(a) economic operators directly or indirectly involved in the accomplishment of customs formalities;

(b) applications and authorisations concerning a customs procedure or the status of authorised economic operator;

(c) applications and special decisions granted in accordance with Article 20;

(d) common risk management, as referred to in Article 25.

2. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the following:

(a) the standard form and content of the data to be registered;

(b) maintenance of those data, by the customs authorities of Members States;

(c) the rules for access to those data by: (i) economic operators, (ii) other competent authorities,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Section 2

Customs representation

Article 11

Customs representative

1. Any person may appoint a customs representative.

Such representation may be either direct, in which case the customs representative shall act in the name of and on behalf of another person, or indirect, in which case the customs representative shall act in his own name but on behalf of another person.

A customs representative shall be established within the customs territory of the Community.

2. Member States may define, in accordance with Community law, the conditions under which a customs representative may provide services in the Member State where he is established. However, without prejudice to the application of less stringent criteria by the Member State concerned, a customs representative who complies with the criteria laid down in Article 14(a) to (d) shall be entitled to provide such services in a Member State other than the one where he is established.

3. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down in particular, the following:

(a) the conditions under which the requirement referred to in the third subparagraph of paragraph 1 may be waived;

(b) the conditions under which the entitlement referred to in paragraph 2 may be conferred and proved;

(c) any further measures for the implementation of this Article,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Article 12

Empowerment

1. When dealing with the customs authorities, a customs representative shall state that he is acting on behalf of the person represented and specify whether the representation is direct or indirect.

A person who fails to state that he is acting as a customs representative or who states that he is acting as a customs representative without being empowered to do so shall be deemed to be acting in his own name and on his own behalf.

2. The customs authorities may require any person stating that he is acting as a customs representative to produce evidence of his empowerment by the person represented.

The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down derogations from the first subparagraph, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Section 3

Authorised economic operator

Article 13

Application and authorisation

1. An economic operator who is established in the customs territory of the Community and who meets the conditions set out in Articles 14 and 15 may request the status of authorised economic operator.

The customs authorities shall, if necessary following consultation with other competent authorities, grant that status, which shall be subject to monitoring.

2. The status of authorised economic operator shall consist in two types of authorisations: that of a ‘customs simplification’ authorised economic operator and that of a ‘security and safety’ authorised economic operator.

The first type of authorisation shall enable economic operators to benefit from certain simplifications in accordance with the customs legislation. Under the second type of authorisation the holder thereof shall be entitled to facilitations relating to security and safety.

Both types of authorisations may be held at the same time.

3. The status of authorised economic operator shall, subject to Articles 14 and 15, be recognised by the customs authorities in all Member States, without prejudice to customs controls.

4. Customs authorities shall, on the basis of the recognition of the status of authorised economic operator and provided that the requirements related to a specific type of simplification provided for in the customs legislation are fulfilled, authorise the operator to benefit from that simplification.

5. The status of authorised economic operator may be suspended or revoked in accordance with the conditions laid down pursuant to Article 15(1)(g).

6. The authorised economic operator shall notify the customs authorities of all factors arising after that status was granted which may influence its continuation or content.

Article 14

Granting of status

The criteria for the granting of the status of authorised economic operator shall be the following:

(a) a record of compliance with customs and tax requirements;

(b) a satisfactory system of managing commercial and, where appropriate, transport records, which allows appropriate customs controls;

(c) proven solvency;

(d) pursuant to Article 13(2), in cases where an authorised economic operator wishes to take advantage of the simplifications provided for in accordance with the customs legislation, practical standards of competence or professional qualifications directly related to the activity carried out;

(e) pursuant to Article 13(2), in cases where an authorised economic operator wishes to take advantage of facilitations with regard to customs controls relating to security and safety, appropriate security and safety standards.

Article 15

Implementing measures

1. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down rules in respect of the following:

(a) the granting of the status of authorised economic operator;

(b) the cases in which review of the status of authorised economic operator is to be carried out;

(c) the granting of authorisations for the use of simplifications by authorised economic operators;

(d) identification of the customs authority competent for the granting of such status and authorisations;

(e) the type and extent of facilitations that may be granted to authorised economic operators in respect of customs controls relating to security and safety;

(f) consultation with and provision of information to other customs authorities;

(g) the conditions under which the status of authorised economic operator may be suspended or revoked;

(h) the conditions under which the requirement of being established in the customs territory of the Community may be waived for specific categories of authorised economic operators, taking into account, in particular, international agreements,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

2. Those measures shall take account of the following:

(a) the rules adopted pursuant to Article 25(3);

(b) professional involvement in activities covered by customs legislation;

(c) practical standards of competence or professional qualifications directly related to the activity carried out;

(d) the economic operator as the holder of any internationally recognised certificate issued on the basis of relevant international conventions.

Section 4

Decisions relating to the application of customs legislation

Article 16

General provisions

1. Where a person requests that the customs authorities take a decision relating to the application of customs legislation, that person shall supply all the information required by those authorities in order for them to be able to take that decision.

A decision may also be requested by, and taken with regard to, several persons, in accordance with the conditions laid down in the customs legislation.

2. Except where otherwise provided for in the customs legislation, a decision as referred to in paragraph 1 shall be taken, and the applicant notified, without delay, and at the latest within four months of the date on which all the information required by the customs authorities in order for them to be able to take that decision is received by those authorities.

However, where the customs authorities are unable to comply with those time limits, they shall inform the applicant of that fact before the expiry of those time limits, stating the reasons and indicating the further period of time which they consider necessary in order to give a decision on the request.

3. Except where otherwise specified in the decision or in the customs legislation, the decision shall take effect from the date on which the applicant receives the decision, or is deemed to have received it. Except in the cases provided for in Article 24(2), decisions adopted shall be enforceable by the customs authorities from that date.

4. Before taking a decision which would adversely affect the person or persons to whom it is addressed, the customs authorities shall communicate the grounds on which they intend to base their decision to the person or persons concerned, who shall be given the opportunity to express their point of view within a period prescribed from the date on which the communication was made.

Following the expiry of that period, the person concerned shall be notified, in the appropriate form, of the decision, which shall set out the grounds on which it is based. The decision shall refer to the right of appeal provided for in Article 23.

5. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the following:

(a) the cases in which and conditions under which the first subparagraph of paragraph 4 shall not apply;

(b) the period referred to in the first subparagraph of paragraph 4,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

6. Without prejudice to provisions laid down in other fields which specify the cases in which, and the conditions under which, decisions are invalid or become null and void, the customs authorities who issued a decision may at any time annul, amend or revoke it where it does not conform with the customs legislation.

7. Except when a customs authority acts as a judicial authority, the provisions of paragraphs 3, 4 and 6 of this Article and of Articles 17, 18 and 19 shall also apply to decisions taken by the customs authorities without prior request from the person concerned and, in particular, to the notification of a customs debt as provided for in Article 67(3).

Article 17

Community-wide validity of decisions

Except where otherwise requested or specified, decisions taken by the customs authorities which are based upon or related to the application of customs legislation shall be valid throughout the customs territory of the Community.

Article 18

Annulment of favourable decisions

1. The customs authorities shall annul a decision favourable to the person to whom it is addressed if all the following conditions are satisfied:

(a) the decision was issued on the basis of incorrect or incomplete information;

(b) the applicant knew or ought reasonably to have known that the information was incorrect or incomplete;

(c) if the information had been correct and complete, the decision would have been different.

2. The person to whom the decision was addressed shall be notified of its annulment.

3. Annulment shall take effect from the date on which the initial decision took effect, unless otherwise specified in the decision in accordance with the customs legislation.

4. The Commission may, in accordance with the management procedure referred to in Article 184(3), adopt measures for the implementation of this Article, in particular in respect of decisions addressed to several persons.

Article 19

Revocation and amendment of favourable decisions

1. A favourable decision shall be revoked or amended where, in cases other than those referred to in Article 18, one or more of the conditions laid down for its issue were not or are no longer fulfilled.

2. Except where otherwise specified in the customs legislation, a favourable decision addressed to several persons may be revoked only in respect of a person who fails to fulfil an obligation imposed under that decision.

3. The person to whom the decision was addressed shall be notified of its revocation or amendment.

4. Article 16(3) shall apply to the revocation or amendment of the decision.

However, in exceptional cases where the legitimate interests of the person to whom the decision was addressed so require, the customs authorities may defer the date on which revocation or amendment takes effect.

5. The Commission may, in accordance with the management procedure referred to in Article 184(3), adopt measures for the implementation of this Article, in particular in respect of decisions addressed to several persons.

Article 20

Decisions relating to binding information

1. The customs authorities shall, on formal request, issue decisions relating to binding tariff information, hereinafter referred to as ‘BTI decisions’, or decisions relating to binding origin information, hereinafter referred to as ‘BOI decisions’.

Such a request shall be refused in any of the following circumstances:

(a) where the application is made, or has already been made, at the same or another customs office, by or on behalf of the holder of a decision in respect of the same goods and, for BOI decisions, under the same circumstances determining the acquisition of origin;

(b) where the application does not relate to any intended use of the BTI or BOI decision or any intended use of a customs procedure.

2. BTI or BOI decisions shall be binding only in respect of the tariff classification or determination of the origin of goods.

Those decisions shall be binding on the customs authorities, as against the holder of the decision, only in respect of goods for which customs formalities are completed after the date on which the decision takes effect.

The decisions shall be binding on the holder of the decision, as against the customs authorities, only with effect from the date on which he receives, or is deemed to have received, notification of the decision.

3. BTI or BOI decisions shall be valid for a period of three years from the date on which the decision takes effect.

4. For the application of a BTI or BOI decision in the context of a particular customs procedure, the holder of the decision must be able to prove that:

(a) in the case of a BTI decision, the goods declared correspond in every respect to those described in the decision;

(b) in the case of a BOI decision, the goods in question and the circumstances determining the acquisition of origin correspond in every respect to the goods and the circumstances described in the decision.

5. By way of derogation from Article 16(6) and Article 18, BTI or BOI decisions shall be annulled where they are based on inaccurate or incomplete information from the applicants.

6. BTI or BOI decisions shall be revoked in accordance with Article 16(6) and Article 19.

They may not be amended.

7. The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures for the implementation of paragraphs 1 to 5 of this Article.

8. Without prejudice to Article 19, the measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down

(a) the conditions under which, and the moment when, the BTI or BOI decision ceases to be valid;

(b) the conditions under which, and the period of time for which, a decision as referred to in point (a) may still be used in respect of binding contracts based upon the decision and concluded before the expiry of its validity;

(c) the conditions under which the Commission may issue decisions requesting Member States to revoke or amend a decision relating to binding information and giving different binding information compared with other decisions on the same subject,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

9. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the conditions under which other decisions relating to binding information are to be issued shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Section 5

Penalties

Article 21

Application of penalties

1. Each Member State shall provide for penalties for failure to comply with Community customs legislation. Such penalties shall be effective, proportionate and dissuasive.

2. Where administrative penalties are applied, they may take, inter alia, one of the following forms, or both:

(a) a pecuniary charge by the customs authorities, including, where appropriate, a settlement applied in place of and in lieu of a criminal penalty;

(b) the revocation, suspension or amendment of any authorisation held by the person concerned.

3. Member States shall notify the Commission, within six months from the date of application of this Article, as determined in accordance with Article 188(2), of the national provisions in force as envisaged in paragraph 1 and shall notify it without delay of any subsequent amendment affecting them.

Section 6

Appeals

Article 22

Decisions taken by a judicial authority

Articles 23 and 24 shall not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision relating to the application of customs legislation taken by a judicial authority, or by customs authorities acting as judicial authorities.

Article 23

Right of appeal

1. Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of customs legislation which concerns him directly and individually.

Any person who has applied to the customs authorities for a decision and has not obtained a decision on that request within the time limits referred to in Article 16(2) shall also be entitled to exercise the right of appeal.

2. The right of appeal may be exercised in at least two steps:

(a) initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;

(b) subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.

3. The appeal must be lodged in the Member State where the decision has been taken or applied for.

4. Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.

Article 24

Suspension of implementation

1. The submission of an appeal shall not cause implementation of the disputed decision to be suspended.

2. The customs authorities shall, however, suspend implementation of such a decision in whole or in part where they have good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.

3. In the cases referred to in paragraph 2, where the disputed decision has the effect of causing import duties or export duties to be payable, suspension of that decision shall be conditional upon the provision of a guarantee, unless it is established, on the basis of a documented assessment, that such a guarantee would be likely to cause the debtor serious economic or social difficulties.

The Commission may, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures for the implementation of the first subparagraph of this paragraph.

Section 7

Control of goods

Article 25

Customs controls

1. The customs authorities may carry out all the customs controls they deem necessary.

Customs controls may in particular consist of examining goods, taking samples, verifying declaration data and the existence and authenticity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts.

2. Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures, on the basis of criteria developed at national, Community and, where available, international level.

Member States, in cooperation with the Commission, shall develop, maintain and employ a common risk management framework, based upon the exchange of risk information and analysis between customs administrations and establishing, inter alia, common risk evaluation criteria, control measures and priority control areas.

Controls based upon such information and criteria shall be carried out without prejudice to other controls carried out in accordance with paragraphs 1 and 2 or with other provisions in force.

3. The Commission, without prejudice to paragraph 2 of this Article, shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt implementing measures laying down the following:

(a) common risk management framework;

(b) common criteria and priority control areas;

(c) the risk information and analysis to be exchanged between customs administrations.

Article 26

Cooperation between authorities

1. Where, in respect of the same goods, controls other than customs controls are to be performed by competent authorities other than the customs authorities, customs authorities shall, in close cooperation with those other authorities, endeavour to have those controls performed, wherever possible, at the same time and place as customs controls (one-stop-shop), with customs authorities having the coordinating role in achieving this.

2. In the framework of the controls referred to in this Section, customs and other competent authorities may, where necessary for the purposes of minimising risk and combating fraud, exchange with each other and with the Commission data received in the context of the entry, exit, transit, transfer, storage and end-use of goods, including postal traffic, moved between the customs territory of the Community and other territories, the presence and movement within the customs territory of non-Community goods and goods placed under the end-use procedure, and the results of any control. Customs authorities and the Commission may also exchange such data with each other for the purpose of ensuring a uniform application of Community customs legislation.

Article 27

Post-release control

The customs authorities may, after releasing the goods and in order to ascertain the accuracy of the particulars contained in the summary or customs declaration, inspect any documents and data relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so.

Such inspections may be carried out at the premises of the holder of the goods or his representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes.

Article 28

Intra-Community flights and sea crossings

1. Customs controls or formalities shall be carried out in respect of the cabin and hold baggage of persons either taking an intra-Community flight, or making an intra-Community sea crossing, only where the customs legislation provides for such controls or formalities.

2. Paragraph 1 shall apply without prejudice to either of the following:

(a) security and safety checks;

(b) checks linked to prohibitions or restrictions.

3. The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures for the implementation of this Article, laying down the cases in which and the conditions under which customs controls and formalities may be applied to the following:

(a) the cabin and hold baggage of the following: (i) persons taking a flight in an aircraft which comes from a non-Community airport and which, after a stopover at a Community airport, continues to another Community airport; (ii) persons taking a flight in an aircraft which stops over at a Community airport before continuing to a non-Community airport; (iii) persons using a maritime service provided by the same vessel and comprising successive legs departing from, calling at or terminating in a non-Community port; (iv) persons on board pleasure craft and tourist or business aircraft;

(b) cabin and hold baggage: (i) arriving at a Community airport on board an aircraft coming from a non-Community airport and transferred at that Community airport to another aircraft proceeding on an intra-Community flight; (ii) loaded at a Community airport onto an aircraft proceeding on an intra-Community flight for transfer at another Community airport to an aircraft whose destination is a non-Community airport.

Section 8

Keeping of documents and other information; charges and costs

Article 29

Keeping of documents and other information

1. The person concerned shall, for the purposes of customs controls, keep the documents and information referred to in Article 9(1) for at least three calendar years, by any means accessible by and acceptable to the customs authorities.

In the case of goods released for free circulation in circumstances other than those referred to in the third subparagraph, or goods declared for export, that period shall run from the end of the year in which the customs declarations for release for free circulation or export are accepted.

In the case of goods released for free circulation duty-free or at a reduced rate of import duty on account of their end-use, that period shall run from the end of the year in which they cease to be subject to customs supervision.

In the case of goods placed under another customs procedure, that period shall run from the end of the year in which the customs procedure concerned has ended.

2. Without prejudice to Article 68(4), where a customs control in respect of a customs debt shows that the relevant entry in the accounts has to be corrected and the person concerned has been notified of this, the documents and information shall be kept for three years beyond the time limit provided for in paragraph 1 of this Article.

Where an appeal has been lodged or where court proceedings have begun, the documents and information must be kept for the period provided for in paragraph 1 of this Article or until the appeals procedure or court proceedings are terminated, whichever is the later.

Article 30

Charges and costs

1. Customs authorities shall not impose charges for the performance of customs controls or any other application of the customs legislation during the official opening hours of their competent customs offices.

However, the customs authorities may impose charges or recover costs where specific services are rendered, in particular the following:

(a) attendance, where requested, by customs staff outside official office hours or at premises other than customs premises;

(b) analyses or expert reports on goods and postal fees for the return of goods to an applicant, particularly in respect of decisions taken pursuant to Article 20 or the provision of information in accordance with Article 8(1);

(c) the examination or sampling of goods for verification purposes, or the destruction of goods, where costs other than the cost of using customs staff are involved;

(d) exceptional control measures, where these are necessary due to the nature of the goods or to potential risk.

2. The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down measures for the implementation of the second subparagraph of paragraph 1, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

CHAPTER 3

Currency conversion and time limits

Article 31

Currency conversion

1. The competent authorities shall publish, and/or make available on the Internet, the rate of exchange applicable where the conversion of currency is necessary for one of the following reasons:

(a) because factors used to determine the customs value of goods are expressed in a currency other than that of the Member State where the customs value is determined;

(b) because the value of the euro is required in national currencies for the purposes of determining the tariff classification of goods and the amount of import and export duty, including value thresholds in the Community Customs Tariff.

2. Where the conversion of currency is necessary for reasons other than those referred to in paragraph 1, the value of the euro in national currencies to be applied within the framework of the customs legislation shall be fixed at least once a year.

3. The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures for the implementation of this Article.

Article 32

Time limits

1. Where a period, date or time limit is laid down in the customs legislation, such period shall not be extended or reduced and such date or time limit shall not be deferred or brought forward unless specific provision is made in the provisions concerned.

2. The rules applicable to periods, dates and time limits set out in Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (10) shall apply, except where otherwise specifically provided for in Community customs legislation.

TITLE II

FACTORS ON THE BASIS OF WHICH IMPORT OR EXPORT DUTIES AND OTHER MEASURES IN RESPECT OF TRADE IN GOODS ARE APPLIED

CHAPTER 1

Common Customs Tariff and tariff classification of goods

Article 33

Common Customs Tariff

1. Import and export duties due shall be based on the Common Customs Tariff.

Other measures prescribed by Community provisions governing specific fields relating to trade in goods shall, where appropriate, be applied in accordance with the tariff classification of those goods.

2. The Common Customs Tariff shall comprise the following:

(a) the Combined Nomenclature of goods as laid down in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (11);

(b) any other nomenclature which is wholly or partly based on the Combined Nomenclature or which provides for further subdivisions to it, and which is established by Community provisions governing specific fields with a view to the application of tariff measures relating to trade in goods;

(c) the conventional or normal autonomous customs duties applicable to goods covered by the Combined Nomenclature;

(d) the preferential tariff measures contained in agreements which the Community has concluded with certain countries or territories outside the customs territory of the Community or groups of such countries or territories;

(e) preferential tariff measures adopted unilaterally by the Community in respect of certain countries or territories outside the customs territory of the Community or groups of such countries or territories;

(f) autonomous measures providing for a reduction in or exemption from customs duties on certain goods;

(g) favourable tariff treatment specified for certain goods, by reason of their nature or end-use, in the framework of measures referred to under points (c) to (f) or (h);

(h) other tariff measures provided for by agricultural or commercial or other Community legislation.

3. Where the goods concerned fulfil the conditions included in the measures laid down in points (d) to (g) of paragraph 2, the measures referred to in those provisions shall apply, at the request of the declarant, instead of those provided for in point (c) of that paragraph. Such application may be made retrospectively, provided that the time limits and conditions laid down in the relevant measure or in the Code are complied with.

4. Where application of the measures referred to in points (d) to (g) of paragraph 2, or the exemption from measures referred to in point (h) thereof, is restricted to a certain volume of imports or exports, such application or exemption shall, in the case of tariff quotas, cease as soon as the specified volume of imports or exports is reached.

In the case of tariff ceilings such application shall cease by virtue of a legal act of the Community.

5. The Commission shall, in accordance with the management procedure referred to in Article 184(3), adopt measures for the implementation of paragraphs 1 and 4 of this Article.

Article 34

Tariff classification of goods

1. For the application of the Common Customs Tariff, ‘tariff classification’ of goods shall consist in the determination of one of the subheadings or further subdivisions of the Combined Nomenclature under which those goods are to be classified.

2. For the application of non-tariff measures, ‘tariff classification’ of goods shall consist in the determination of one of the subheadings or further subdivisions of the Combined Nomenclature, or of any other nomenclature which is established by Community provisions and which is wholly or partly based on the Combined Nomenclature or which provides for further subdivisions to it, under which those goods are to be classified.

3. The subheading or further subdivision determined in accordance with paragraphs 1 and 2 shall be used for the purpose of applying the measures linked to that subheading.

CHAPTER 2

Origin of goods

Section 1

Non-preferential origin

Article 35

Scope

Articles 36, 37 and 38 lay down rules for the determination of the non-preferential origin of goods for the purposes of applying the following:

(a) the Common Customs Tariff with the exception of the measures referred to in Article 33(2)(d) and (e);

(b) measures, other than tariff measures, established by Community provisions governing specific fields relating to trade in goods;

(c) other Community measures relating to the origin of goods.

Article 36

Acquisition of origin

1. Goods wholly obtained in a single country or territory shall be regarded as having their origin in that country or territory.

2. Goods the production of which involved more than one country or territory shall be deemed to originate in the country or territory where they underwent their last substantial transformation.

Article 37

Proof of origin

1. Where an origin has been indicated in the customs declaration pursuant to customs legislation, the customs authorities may require the declarant to prove the origin of the goods.

2. Where proof of origin of goods is provided pursuant to customs legislation or other Community legislation governing specific fields, the customs authorities may, in the event of reasonable doubt, require any additional evidence needed in order to ensure that the indication of origin does comply with the rules laid down by the relevant Community legislation.

3. A document proving origin may be issued in the Community where the exigencies of trade so require.

Article 38

Implementing measures

The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures for the implementation of Articles 36 and 37.

Section 2

Preferential origin

Article 39

Preferential origin of goods

1. In order to benefit from the measures referred to in points (d) or (e) of Article 33(2) or from non-tariff preferential measures, goods shall comply with the rules on preferential origin referred to in paragraphs 2 to 5 of this Article.

2. In the case of goods benefiting from preferential measures contained in agreements which the Community has concluded with certain countries or territories outside the customs territory of the Community or with groups of such countries or territories, the rules on preferential origin shall be laid down in those agreements.

3. In the case of goods benefiting from preferential measures adopted unilaterally by the Community in respect of certain countries or territories outside the customs territory of the Community or groups of such countries or territories, other than those referred to in paragraph 5, the Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures laying down the rules on preferential origin.

4. In the case of goods benefiting from preferential measures applicable in trade between the customs territory of the Community and Ceuta and Melilla, as contained in Protocol 2 to the 1985 Act of Accession, the rules on preferential origin shall be adopted in accordance with Article 9 of that Protocol.

5. In the case of goods benefiting from preferential measures contained in preferential arrangements in favour of the overseas countries and territories associated with the Community, the rules on preferential origin shall be adopted in accordance with Article 187 of the Treaty.

6. The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt measures necessary for the implementation of the rules referred to in paragraphs 2 to 5 of this Article.

CHAPTER 3

Value of goods for customs purposes

Article 40

Scope

The customs value of goods, for the purposes of applying the Common Customs Tariff and non-tariff measures laid down by Community provisions governing specific fields relating to trade in goods, shall be determined in accordance with Articles 41 to 43.

Article 41

Method of customs valuation based on the transaction value

1. The primary basis for the customs value of goods shall be the transaction value, that is the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with measures adopted pursuant to Article 43.

2. The price actually paid or payable is the total payment made or to be made by the buyer to the seller or by the buyer to a third party for the benefit of the seller for the imported goods and includes all payments made or to be made as a condition of sale of the imported goods.

3. The transaction value shall apply provided that the following conditions are satisfied:

(a) there are no restrictions as to the disposal or use of the goods by the buyer, other than any of the following: (i) restrictions imposed or required by a law or by the public authorities in the Community; (ii) limitations of the geographical area in which the goods may be resold; (iii) restrictions which do not substantially affect the customs value of the goods;

(b) the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued;

(c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with measures adopted pursuant to Article 43;

(d) the buyer and seller are not related or the relationship did not influence the price.

Article 42

Secondary methods of customs valuation

1. Where the customs value of goods cannot be determined under Article 41, it shall be determined by proceeding sequentially from point (a) to paragraph 2(d) of this Article, until the first point under which the customs value of goods can be determined.

The order of application of points (c) and (d) shall be reversed if the declarant so requests.

2. The customs value, pursuant to paragraph 1, shall be:

(a) the transaction value of identical goods sold for export to the customs territory of the Community and exported at or about the same time as the goods being valued;

(b) the transaction value of similar goods sold for export to the customs territory of the Community and exported at or about the same time as the goods being valued;

(c) the value based on the unit price at which the imported goods, or identical or similar imported goods, are sold within the customs territory of the Community in the greatest aggregate quantity to persons not related to the sellers;

(d) the computed value.

3. Where the customs value cannot be determined under paragraph 1, it shall be determined, on the basis of data available in the customs territory on the Community, using reasonable means consistent with the principles and general provisions of the following:

(a) the agreement on implementation of Article VII of the General Agreement on Tariffs and Trade;

(b) Article VII of General Agreement on Tariffs and Trade;

(c) this chapter.

Article 43

Implementing measures

The Commission shall, in accordance with the regulatory procedure referred to in Article 184(2), adopt the measures laying down the following:

(a) the elements which, for the purposes of determining the customs value, must be added to the price actually paid or payable, or which may be excluded;

(b) elements which are to be used to determine the computed value;

(c) the method of determination of the customs value in specific cases, and with regard to goods for which a customs debt is incurred after the use of a special procedure;

(d) any further conditions, provisions and rules necessary for the application of Articles 41 and 42.

TITLE III

CUSTOMS DEBT AND GUARANTEES

CHAPTER 1

Incurrence of a customs debt

Section 1

Customs debt on importation

Article 44

Release for free circulation and temporary admission

1. A customs debt on importation shall be incurred through the placing of non-Community goods liable to import duties under either of the following customs procedures:

(a) release for free circulation, including under the end-use provisions;

(b) temporary admission with partial relief from import duties.

2. A customs debt shall be incurred at the time of acceptance of the customs declaration.

3. The declarant shall be the debtor. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor.

Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up on the basis of information which leads to all or part of the import duties not being collected, the person who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false shall also be a debtor.

Article 45

Special provisions relating to non-originating goods

1. Where a prohibition of drawback of, or exemption from, import duties applies to non-originating goods used in the manufacture of products for which a proof of origin is issued or made out in the framework of a preferential arrangement between the Community and certain countries or territories outside the customs territory of the Community or groups of such countries or territories, a customs debt on importation shall be incurred in respect of those non-originating goods, through the acceptance of the re-export notification relating to the products in question.

2. Where a customs debt is incurred pursuant to paragraph 1, the amount of import duty corresponding to that debt shall be determined under the same conditions as in the case of a customs debt resulting from the acceptance, on the same date, of the customs declaration for release for free circulation of the non-originating goods used in the manufacture of the products in question for the purpose of ending the inward-processing procedure.

3. Article 44(2) and (3) shall apply mutatis mutandis. However, in the case of non-Community goods as referred to in Article 179, the person who lodges the re-export notification shall be the debtor. In the event of indirect representation, the person on whose behalf the notification is lodged shall also be a debtor.

Article 46

Customs debt incurred through non-compliance

1. For goods liable to import duties, a customs debt on importation shall be incurred through non-compliance with any of the following:

(a) one of the obligations laid down in customs legislation concerning the introduction of non-Community goods into the customs territory of the Community, their removal from customs supervision, or the movement, processing, storage, temporary admission or disposal of such goods within that territory;

(b) one of the obligations laid down in customs legislation concerning the end-use of goods within the customs territory of the Community;

(c) a condition governing the placing of non-Community goods under a customs procedure or the granting, by virtue of the end-use of the goods, of duty exemption or a reduced rate of import duty.

2. The time at which the customs debt is incurred shall be either of the following:

(a) the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met;

(b) the moment when a customs declaration is accepted for the placing of goods under a customs procedure where it is established subsequently that a condition governing the placing of the goods under that procedure or the granting of a duty exemption or a reduced rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.

3. In cases referred to under points (a) and (b) of paragraph 1, the debtor shall be any of the following:

(a) any person who was required to fulfil the obligations concerned;

(b) any person who was aware or should reasonably have been aware that an obligation under the customs legislation was not fulfilled and who acted on behalf of the person who was obliged to fulfil the obligation, or who participated in the act which led to the non-fulfilment of the obligation;

(c) any person who acquired or held the goods in question and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under the customs legislation was not fulfilled.

4. In cases referred to under point (c) of paragraph 1, the debtor shall be the person who is required to comply with the conditions governing the placing of the goods under a customs procedure or declaring the goods concerned under that procedure or the granting of a duty exemption or reduced rate of import duty by virtue of the end-use of the goods.

Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up, or any information required under the customs legislation relating to the conditions governing the placing of the goods under a customs procedure is given to the customs authorities, which leads to all or part of the import duties not being collected, the person who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false shall also be a debtor.

Article 47

Deduction of an amount of import duty already paid

1. Where a customs debt is incurred, pursuant to Article 46(1), in respect of goods released for free circulation at a reduced rate of import duty on account of their end-use, the amount of import duty paid when the goods were released for free circulation shall be deducted from the amount of the import duty corresponding to the customs debt.

The first subparagraph shall apply mutatis mutandis where a customs debt is incurred in respect of scrap and waste resulting from the destruction of such goods.

2. Where a customs debt is incurred, pursuant to Article 46(1), in respect of goods placed under temporary admission with partial relief from import duties, the amount of import duty paid under partial relief shall be deducted from the amount of the import duty corresponding to the customs debt.

Section 2

Customs debt on exportation

Article 48

Export and outward processing

1. A customs debt on exportation shall be incurred through the placing of goods liable to export duties under the export procedure or the outward-processing procedure.

2. The customs debt shall be incurred at the time of acceptance of the customs declaration.

3. The declarant shall be the debtor. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor.

Where a customs declaration is drawn up on the basis of information which leads to all or part of the export duties not being collected, the person who provided the information required for the declaration and who knew, or who should reasonably have known, that such information was false shall also be a debtor.

Article 49

Customs debt incurred through non-compliance

1. For goods liable to export duties, a customs debt on exportation shall be incurred through non-compliance with either of the following:

(a) one of the obligations laid down in customs legislation for the exit of the goods;

(b) the conditions under which the goods were allowed to leave the customs territory of the Community with total or partial relief from export duties.

2. The time at which the customs debt is incurred shall be one of the following:

(a) the moment at which the goods actually leave the customs territory of the Community without a customs declaration;

(b) the moment at which the goods reach a destination other than that for which they were allowed to leave the customs territory of the Community with total or partial relief from export duties;

(c) should the customs authorities be unable to determine the moment referred in point (b), the expiry of the time limit set for the production of evidence that the conditions entitling the goods to such relief have been fulfilled.

3. In cases referred to under point (a) of paragraph 1, the debtor shall be any of the following:

(a) any person who was required to fulfil the obligation concerned;

(b) any person who was aware or should reasonably have been aware that the obligation concerned was not fulfilled and who acted on behalf of the person who was obliged to fulfil the obligation;

(c) any person who participated in the act which led to the non-fulfilment of the obligation and who was aware or should reasonably have been aware that a customs declaration had not been lodged but should have been.

4. In cases referred to under point (b) of paragraph 1, the debtor shall be any person who is required to comply with the conditions under which the goods were allowed to leave the customs territory of the Community with total or partial relief from export duties.

Section 3

Provisions common to customs debts incurred on importation and exportation

Article 50

Prohibitions and restrictions

1. The customs debt on importation or exportation shall be incurred even if it relates to goods which are subject to measures of prohibition or restriction on importation or exportation of any kind.

2. However, no customs debt shall be incurred on either of the following:

(a) the unlawful introduction into the customs territory of the Community of counterfeit currency;

(b) the introduction into the customs territory of the Community of narcotic drugs and psychotropic substances other than where strictly supervised by the competent authorities with a view to their use for medical and scientific purposes.

3. For the purposes of penalties as applicable to customs offences, the customs debt shall nevertheless be deemed to have been incurred where, under the law of a Member State, customs duties or the existence of a customs debt provide the basis for determining penalties.

Article 51

Several debtors

Where several persons are liable for payment of the amount of import or export duty corresponding to one customs debt, they shall be jointly and severally liable for the full amount of the debt.

Article 52

General rules for calculation of the amount of import or export duty

1. The amount of the import or export duty shall be determined on the basis of those rules for calculation of duty which were applicable to the goods concerned at the time at which the customs debt in respect of them was incurred.

2. Where it is not possible to determine precisely the time at which the customs debt is incurred, that time shall be deemed to be the time at which the customs authorities conclude that the goods are in a situation in which a customs debt has been incurred.

However, where the information available to the customs authorities enables them to establish that the customs debt had been incurred prior to the time at which they reached that conclusion, the customs debt shall be deemed to have been incurred at the earliest time that such a situation can be established.

Article 53

Special rules for calculation of the amount of import duty

1. Where costs for storage or usual forms of handling have been incurred within the customs territory of the Community in respect of goods placed under a customs procedure, such costs or the increase in value shall not be taken into account for the calculation of the amount of import duty where satisfactory proof of those costs is provided by the declarant.

However, the customs value, quantity, nature and origin of non-Community goods used in the operations shall be taken into account for the calculation of the amount of import duty.

2. Where the tariff classification of goods placed under a customs procedure changes as a result of usual forms of handling within the customs territory of the Community, the original tariff classification for the goods placed under the procedure shall be applied at the request of the declarant.

3. Where a customs debt is incurred for processed products resulting from the inward-processing procedure, the amount of import duty corresponding to such debt shall, at the request of the declarant, be determined on the basis of the tariff classification, customs value, quantity, nature and origin of the goods placed under the inward-processing procedure at the time of acceptance of the customs declaration relating to those goods.

4. Where customs legislation provides for a favourable tariff treatment of goods, or for relief or total or partial exemption from import or export duties, pursuant to Article 33(2)(d) to (g), Articles 130 to 133 or Articles 171 to 174, or pursuant to Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (12), such favourable tariff treatment, relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 46 or 49 of this Regulation, on condition that the failure which led to the incurrence of a customs debt did not constitute an attempt at deception.

Article 54

Implementing measures

The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the following:

(a) the rules for the calculation of the amount of import or export duty applicable to goods;

(b) further special rules for specific procedures;

(c) derogations from Articles 52 and 53, in particular to avoid the circumvention of the tariff measures referred to in Article 33(2)(h),

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 184(4).

Article 55

Place where the customs debt is incurred

1. A customs debt shall be incurred at the place where the customs declaration or the re-export notification referred to in Articles 44, 45 and 48 is lodged or where the supplementary declaration referred to in Article 110(3) is to be lodged.

In all other cases, the place where a customs debt is incurred shall be the place where the events from which it arises occur.

If it is not possible to determine that place, the customs debt shall be incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred.

2. If the goods have been entered for a customs procedure which has not been discharged, and the place cannot be determined, pursuant to the second or third subparagraphs of paragraph 1, within a specified period of time, the customs debt shall be incurred at the place where the goods were either placed under the procedure concerned or were introduced into the customs territory of the Community under that procedure.

The measures designed to amend non-essential elements of this Regulation, by supplementing it, laying down the period of time referred to in the first subparagraph of this