COMMON POSITION (EC) No 36/96

adopted by the Council on 28 May 1996

with a view to adopting Council Regulation (EC) No . . ./96 of the European Parliament and of the Council amending Regulation (EEC) No 2913/92 establishing a Community customs code

(96/C 248/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 28, 100a and 113 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(1) Whereas Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community customs code (4), as amended by the Act of Accession, stipulates that the customs territory of the Community does not include the AAland islands, unless a declaration is made in accordance with Article 227 (5) of the Treaty; whereas this Regulation should be amended in view of the fact that the abovementioned condition has been satisfied and the islands in question form part of the Republic of Finland;

(2) Whereas the interim Agreement on trade and customs union between the European Economic Community and the Republic of San Marino of 27 November 1992 (5) defines the territories to which that Agreement applies; whereas the territory of San Marino cannot therefore be considered part of the Community's customs territory;

(3) Whereas measures are needed to ensure that goods obtained from non-Community goods placed under a suspensive arrangement in no circumstances enter the Community economy without import duties being paid, even if they have acquired Community origin; whereas the definition of Community goods must be altered accordingly; whereas such goods must be subject to the same suspensive arrangements as the goods from which they have been obtained;

(4) Whereas the Uruguay Round Agreement on agriculture (6) involves the abolition of agricultural levies;

(5) Whereas the Uruguay Round Agreement on rules of origin (1) requires the contracting parties to issue assessments of the origin of goods to any person with a justifiable cause;

(6) Whereas a number of products are subject to import duties fixed in ecus; whereas the conversion of such duties into national currency has to be made faster in order to prevent deflection of trade;

(7) Whereas in other cases where customs legislation fixes amounts in ecus the conversion of such amounts into national currency needs to be made more flexible;

(8) Whereas, in order to prepare for customs formalities, traders have to be able to examine goods not only in the case of direct importation but also when an external transit procedure comes to an end;

(9) Whereas, by Council Decision 93/392/EEC of 15 March 1993 on the conclusion of the Convention on Temporary Admission (2), the Community ratified the Convention on Temporary Admission negotiated under the auspices of the Customs Cooperation Council and agreed at Istanbul on 26 June 1990, and approved its Annexes; whereas henceforth the ATA carnet may also be used on the basis of that Convention;

(10) Whereas, under the inward-processing procedure in the form of the drawback system, the possibility of drawback should in certain cases be extended to goods in the unaltered state; whereas, where import duties have been refunded under the drawback system, subsequent releases for free circulation should nevertheless remain possible without special authorization, as is the case under the suspension system;

(11) Whereas notice of the re-export of goods previously imported into the Community's customs territory is not considered necessary in all cases;

(12) Whereas where Community legislation provides for relief or exemption from import or export duties, such relief or exemption must be applicable in all cases, regardless of the circumstances in which the debt is incurred; whereas, in these circumstances, the application of the normal rate of duty seems an inappropriate sanction in the event of a failure to comply with the customs procedure rules;

(13) Whereas the cases in which the debtor's obligation to pay the duties is suspended should be defined more clearly;

(14) Whereas a customs debt must be quashed whenever a customs declaration is invalidated; whereas such cases are not limited to those provided for in Article 66 of the Community customs code;

(15) Whereas Article 3 (3) (b) of Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit (3) has become redundant;

(16) Whereas in order to ensure that the customs code remains easy to use for practical purposes, the Commission has stated its readiness to publish annual updates of the code, together with its implementing provisions,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 2913/92 is hereby amended as follows:

1. In Article 3:

(a) paragraph 1 shall be amended as follows:

- the fifth indent shall be replaced by the following:

'- the territory of the French Republic, except the overseas territories and Saint-Pierre and Miquelon and Mayotte,`,

- the thirteenth indent shall be replaced by the following:

'- the territory of the Republic of Finland,`;

(b) paragraph 2 shall be replaced by the following:

'2. Although situated outside the territory of the French Republic, the territory of the Principality of Monaco as defined in the Customs Convention signed in Paris on 18 May 1963 shall, by virtue of that Convention, be considered to be part of the customs territory of the Community (Official Journal of the French Republic of 27 September 1963, p. 8679)`.

2. Article 4 shall be amended as follows:

(a) the final part of point 5 shall be replaced by the following:

'. . .; this term covers inter alia binding information within the meaning of Article 12;`;

(b) the first indent of point 7 shall be replaced by the following:

'- wholly obtained in the customs territory of the Community under the conditions referred to in Article 23 and not incorporating goods imported from countries or territories not forming part of the customs territory of the Community. Goods obtained from goods placed under a suspensive arrangement shall not be considered to have Community status in cases of special economic importance determined in accordance with the committee procedure`;

(c) in the second indent of point 10, 'agricultural levies and other` shall be deleted;

(d) in the second indent of point 11, 'agricultural levies and other` shall be deleted.

3. Article 12 shall be replaced by the following:

'Article 12

1. The customs authorities shall issue binding tariff information or binding origin information on written request, acting in accordance with the committee procedure.

2. Binding tariff information or binding origin information shall be binding on the customs authorities as against the holder of the information only in respect of the tariff classification or determination of the origin of goods.

Binding tariff information or binding origin information shall be binding on the customs authorities only in respect of goods on which customs formalities are completed after the date on which it was issued by them.

In matters of origin the formalities in question shall be those relating the application of Articles 22 and 27.

3. The holder of such information must be able to prove that:

- for tariff purposes: the goods declared correspond in every respect to those described in the information,

- for origin purposes: the goods concerned and the circumstances determining the acquisition of origin correspond in every respect to the goods and the circumstances described in the information.

4. Binding information shall be valid for a period of six years in the case of tariffs and three years in the case of origin from the date of issue. By way of derogation from Article 8, it shall be annulled where it is based on inaccurate or incomplete information from the applicant.

5. Binding information shall cease to be valid:

(a) in the case of tariff information:

(i) where a regulation is adopted and the information no longer conforms to the law thereby laid down;

(ii) where it is no longer compatible with the interpretation of one of the nomenclatures referred to in Article 20 (6):

- at Community level, by reason of amendments to the Explanatory Notes to the combined nomenclature or a judgement of the Court of Justice of the European Communities,

- at international level, by reason of a classification opinion or an amendment of the Explanatory Notes to the nomenclature of the Harmonized Commodity Description and Coding System, adopted by the World Customs Organization established in 1952 under the name "the Customs Cooperation Council";

(iii) where it is revoked or amended in accordance with Article 9, provided that the revocation or amendment is notified to the holder.

The date on which binding information ceases to be valid for the cases cited in (i) and (ii) shall be the date of publication of the said measures or, in case of international measures, the date of the Commission communication in the "C" series of the Official Journal of the European Communities;

(b) in the case of origin information:

(i) where a regulation is adopted or an agreement is concluded by the Community and the information no longer conforms to the law thereby laid down;

(ii) where it is no longer compatible with:

- at Community level, the Explanatory Notes and opinions adopted for the purposes of interpreting the rules or with a judgement of the Court of Justice of the European Communities,

- at international level, the Agreement on Rules of Origin established in the World Trade Organization (WTO) or with the Explanatory Notes or an origin opinion adopted for the interpretation of that Agreement;

(iii) where it is revoked or amended in accordance with Article 9, provided that the holder has been informed in advance.

The date on which the binding information ceases to be valid for the cases cited in (i) and (ii) shall be the date indicated when the abovementioned measures are published or, in the case of international measures, the date shown in the Commission communication in the "C" series of the Official Journal of the European Communities.

6. The holder of binding information which ceases to be valid pursuant to paragraph 5 (a) (i) or (ii) or (b) (i) or (ii) may still use that information for a period of six months from the date of publication or notification, provided that he concluded firm and definitive contracts for the purchase or sale of the goods in question, on the basis of the binding information, before that measure was adopted. However, in the case of products for which an import, export or advance-fixing certificate is submitted when customs formalities are carried out, the period of six months is replaced by the period of validity of the certificate.

In the case of paragraph 5 (a) (i) and (b) (i), the regulation or agreement may lay down a period within which the first subparagraph shall apply.

7. The classification or determination of origin in binding information may be applied, on the conditions laid down in paragraph 6, solely for the purpose of:

- determining import or export duties,

- calculating export refunds and any other amounts granted for imports or exports as part of the common agricultural policy,

- using import, export or advance-fixing certificates which are submitted when formalities are carried out for acceptance of the customs declaration concerning the goods in question, provided that such certificates were issued on the basis of the information concerned.

In addition, in exceptional cases where the smooth operation of the arrangements laid down under the common agricultural policy may be jeopardized, it may be decided to derogate from paragraph 6, in accordance with the procedure laid down in Article 38 of Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (*) and in the corresponding Articles in other Regulations on the common organization of markets.

(*) OJ No 172, 30. 9. 1966, p. 3025/66. Regulation as last amended by Regulation (EC) No 3290/94 (OJ No L 349, 31. 12 1994, p. 105).`;

4. Article 18 shall be replaced by the following:

'Article 18

1. The value of the ecu in national currencies to be applied for the purposes of determining the tariff classification of goods and import duties shall be fixed once a month. The rates to be used for this conversion shall be those published in the Official Journal of the European Communities on the penultimate working day of the month. Those rates shall apply throughout the following month.

However, where the rate applicable at the start of the month differs by more than 5 % from that published on the penultimate working day before the 15th of that same month, the latter rate shall apply from the 15th until the end of the month in question.

2. The value of the ecu in national currencies to be applied within the framework of customs legislation in cases other than those referred to in paragraph 1 shall be fixed once a year. The rates to be used for this conversion shall be those published in the Official Journal of the European Communities on the first working day of October, with effect from 1 January of the following year. If no rate is available for a particular national currency, the rate applicable to that currency shall be that obtaining on the last day for which a rate was published in the Official Journal of the European Communities.

3. The customs authorities may round up or down the sum resulting from the conversion into their national currency of an amount fixed in ecus for purposes other than determining the tariff classification of goods or import or export duties.

The rounded-off amount may not differ from the original sum by more than 5 %.

The customs authorities may retain unchanged the national-currency value of a sum fixed in ecus if, at the time of the annual adjustment provided for in paragraph 2, the conversion of that sum, prior to the abovementioned rounding-off, results in a variation of less than 5 % in the national-currency value or a reduction in that value.`.

5. In the second indent of point (c) of Article 20 (3), 'agricultural levies and other` shall be deleted.

6. Article 31 (1) shall be amended as follows:

'of 1994` shall be added at the end of the first and second indents.

7. In Article 55, '43` shall be replaced by '42`.

8. In point (a) of Article 83, 'in accordance with Article 66` shall be deleted.

9. The following shall be inserted:

'Article 87a

In the cases referred to in the second sentence of the first indent of Article 4 (7), any products or goods obtained from goods placed under a suspensive arrangement shall be considered as being placed under the same arrangement.`.

10. In point (c) of Article 91 (2) '(ATA Convention)` shall be deleted.

11. Article 112 (3) shall be replaced by the following:

'3. Where import goods are released for free circulation in accordance with Article 76 (1) (c), the type, customs value and quantity to be taken into account for the purposes of Article 214 shall be those applicable when the goods were placed under the customs-warehousing procedure.

The first subparagraph shall apply provided that the rules of assessment in question were ascertained or accepted at the time when the goods were placed under the customs-warehousing procedure, unless the declarant requests their application at the time when the customs debt is incurred.

The first subparagraph shall apply without prejudice to a post-clearance examination within the meaning of Article 78.`.

12. In the third indent of Article 124 (1), 'an agricultural levy or any other` shall be replaced by 'an`.

13. Article 128 shall be amended as follows:

(a) paragraphs 1 and 2 shall be replaced by the following:

'1. The holder of the authorization may ask for the import duty to be repaid or remitted when he can establish to the satisfaction of the customs authority that import goods released for free circulation under the drawback system in the form of compensating products or goods in the unaltered state have been either:

- exported, or

- placed, with a view to being subsequently re-exported, under the Community transit procedure, the customs-warehousing procedure, the temporary importation procedure or the inward-processing procedure (suspension system), or in a free zone or free warehouse,

provided that all conditions for use of the procedure have otherwise been satisfied.

2. For the purposes of being assigned a customs-approved treatment or use referred to in the second indent of paragraph 1, compensating products or goods in the unaltered state shall be considered to be non-Community goods.`;

(b) paragraph 4 shall be replaced by the following:

'4. Without prejudice to point (b) of Article 122, where compensating products or goods in the unaltered state placed under a customs procedure or in a free zone or free warehouse in accordance with paragraph 1 are released for free circulation, the amount of import duties repaid or remitted shall be considered to constitute the amount of the customs debt.`.

14. In point (c) of Article 163 (2), '(ATA Convention)` shall be deleted.

15. The first sentence of Article 182 (3) shall be replaced by the following:

'Save in cases determined in accordance with the committee procedure, re-exportation or destruction shall be the subject of prior notification of the customs authorities.`.

16. The following shall be inserted:

'Article 212a

Where the customs rules provide relief or exemption from import or export duties under Articles 184 to 187 such relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 and 211 where the behaviour of the declarant implies neither fraudulent dealing nor manifest negligence and he produces evidence that the other conditions for the application of relief or exemption have been satisfied.`.

17. Point (b) of the second subparagraph of Article 217 (1) shall be replaced by the following:

'(b) where the amount of duty legally exceeds that determined on the basis of binding information.`.

18. Article 222 (2) shall be replaced by the following:

'2. Provisions may be made in accordance with the committee procedure for the debtor's obligation to pay duty to be suspended in certain cases and on certain conditions:

- where an application for remission of duty is lodged in accordance with Articles 236, 238 or 239,

or

- where goods are seized with a view to subsequent confiscation in accordance with the second indent of point (c) or with point (d) of Article 233.`.

19. In the first indent of point (c) of the first paragraph of Article 233, 'in accordance with Article 66` shall be deleted.

20. In the twenty-sixth indent of Article 251 (1) 'except for Article 3 (3) (b)` shall be deleted.

Article 2

This Regulation shall enter into force on 1 January 1997.

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

Done at Brussels, . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 260, 5. 10. 1995, p. 8.

(2) OJ No C 174, 17. 6. 1996, p. 14.

(3) European Parliament opinion of 14 February 1996 (OJ No C 65, 4. 3. 1996, p. 69), Council common position of . . . (not yet published in the Official Journal) and European Parliament Decision of . . . (not yet published in the Official Journal).

(4) OJ No L 302, 19. 10. 1992, p. 1, as amended by the Act of Accession of 1994.

(5) OJ No L 359, 9. 12. 1992, p. 14.

(6) OJ No L 336, 23. 12. 1994, p. 22.

(1) OJ No L 336, 23. 12. 1994, p. 144.

(2) OJ No L 130, 27. 5. 1993, p. 1.

(3) OJ No L 262, 26. 9. 1990, p. 1.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In a letter dated 18 July 1995, the Commission forwarded a proposal for a Regulation based on Articles 28, 100a and 113 of the Treaty amending Council Regulation (EEC) No 2913/92 establishing the Community customs code.

The European Parliament delivered its opinion at first reading at its part session from 12 to 16 February 1996. Following this opinion, the Commission forwarded an amended proposal in a letter dated 10 May 1996.

The Economic and Social Committee delivered its opinion on 27 March 1996.

The Council adopted its common position, in accordance with Article 189b of the Treaty, on 28 May 1996.

II. OJECTIVE

The purpose of the Commission proposal is to make application of Community customs instruments more effective in the light of experience gained since the entry into force of the Community customs code on 1 January 1994. This proposal also provides for the incorporation of certain results of the Uruguay Round in the area of rules of origin and for adjustments aimed at easing certain formalities and at filling a number of gaps which have since been detected in the customs code.

III. ANALYSIS OF THE COMMON POSITION

General observation

The Council's discussions led essentially to the adoption of almost all of the text proposed by the Commission; the amendments which were made to it are outlined below.

Recitals

The final recital inserted in the common position relating to annual updating of the code corresponds to amendment No 2 proposed by the Parliament. It was, however, deemed peferable to incorporate this idea in a recital which reflected a declaration of the Commission's intention on the subject.

The final recital in the Commission proposal has been deleted in conjunction with the deletion of Article 2 of the Commission proposal (see last point in the statement of reasons).

Articles of the proposal

Article 1

Point 2 re Article 4

The Council has rejected the Commission's proposal that all goods obtained from goods places under a suspensive arrangement should be considered non-Community goods. As these goods can, only in certain cases, be of considerable economic significance, the Council preferred to leave it to the Code Committee to determine the cases in which these derived products might be considered as having non-Community status.

Point 3 re Article 12

The amendments made to paragraph 2 of the new Article 12 are purely drafting amendments and are simply intended to clarify the text.

Point 9 re Article 87a

The beginning of the Article has been amended in order to bring it into line with the first indent in point 7 of Article 4.

Point 16 re Article 212a

This Article has been

- extended, on the one hand, to include not only relief but all of the privileged operations referred to in Articles 184 to 187 of the code,

- circumscribed, on the other hand, by certain conditions which stipulate that relief or exemption will remain applicable only if the behaviour of the declarant implies neither fraudulent dealing nor manifest negligence.

The Council considers this more balanced text in keeping with the spirit of amendment No 1 proposed by the European Parliament.

Point 18 re Article 220 (1)

The Council has rejected the Commissions's proposal that a subparagraph be added to Article 220 (1). The Council is fully aware of the problems which irregularities in the application of certain preferential agreements pose for proper implementation of the rules regarding subsequent recovery of customs debt. It feels, however, that the Commission proposal is unlikely to solve these problems and that a more detailed study will be required before an overall solution can be found.

For that reason, at the same time as the common position, the Council adopted a Decision on the post-clearance recovery of customs debt which was published in Official Journal No C... and requests the Commission to carry such a study and to make appropriate proposals before 31 December 1996.

The Council has in fact identified several possibilities, both individual and combined, to solve these problems, ranging

- from short-term measures such as establishing criteria which will enable a decision to be taken, in accordance with the Customs Code Committee procedure, to waive the collection of duties (Article 220 of the customs code) or to refund or remit duties (Article 239), and possibly introducing an early warning system to alert economic operators where the validity of the supporting documents accompanying requests for the application of preferential rates is suspect,

- to long-term measures such as examining the possibility of including provisions in the Community's future preferential arrangements which will ensure that they are applied correctly and eliminate the causes of the flawed operation of certain current preferential arrangements.

The Council has asked the Commission to take particular account of these factors when drawing up its proposals.

Article 2

The Council considered that the date of entry into force of the Regulation should be deferred until 1 January 1997 as the date proposed by the Commission was no longer realistic.

Former Article 2 proposed by the Commission

This Article has been deleted. The Council found that Articles 2 to 5 of Council Regulation (EEC) No 3925/91 on the elimination of controls carried out on passengers' baggage had nothing to do with the Community customs code. It considered it inappropriate that a single legislative act should contain measures covering entirely different areas and felt that the amendment proposed by the Commission should be the subject of a separate act.