Proposal for a European Parliament and Council Regulation (EC) amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (98/C 228/06) COM(1998) 226 final - 98/0134(COD)

(Submitted by the Commission on 8 June 1998)

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,

Having regard to the opinion of the Economic and Social Committee,

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

(1) Whereas Article 253 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as last amended by Regulation (EC) No 82/97 of the European Parliament and of the Council (2), provides that, before 1 January 1998, the Council shall, on the basis of a Commission report, review the Code with a view to making such adaptations as may appear necessary taking into account in particular the achievement of the internal market, and that the report may be accompanied by proposals;

(2) Whereas the partitioning of the internal market due to the reservation of the direct form of customs representation for particular groups established in the Member State concerned has to be brought to an end; whereas it is appropriate to delay the application of this amendment until 1 January 2002, in order to allow the economic circles to adapt to the new situation;

(3) Whereas the powers of the different authorities to establish exchange rates following the introduction of the euro have not yet been decided;

(4) Whereas it is necessary to define more clearly who is responsible for assigning a customs-approved treatment or use to goods presented to customs;

(5) Whereas provision should be made for the possibility that customs declarations may not have to be accompanied by certain documents;

(6) Whereas, in order to make it easier to take advantage of the arrangements for inward processing, processing under customs control and temporary importation, the rules should be made more flexible;

(7) Whereas it is preferable to use the committee procedure to establish certain alternative methods of calculating the charges due under the outward processing arrangements;

(8) Whereas in some free zones, where there are economic reasons for doing so, it is appropriate to permit completion of the formalities attaching to the customs warehousing procedure, and the carrying out of customs checks by the customs authorities;

(9) Whereas, in certain circumstances, the benefit of favourable tariff treatment granted by reason of the nature or end-use of goods or of differential charges under the outward processing procedure should also be available where a customs debt is incurred for reasons other than the release of goods into free circulation;

(10) Whereas the provisions relating to the place where a customs debt is incurred should include special rules for particular cases where the sum involved is below a given threshold and cases where simplified procedures for release into free circulation are authorised; whereas the implementing provisions should be established in accordance with the committee procedure, taking into account in particular the possible dissociation of the place where the customs debt is incurred and the place where VAT on importation is incurred;

(11) Whereas in some cases it is not immediately possible to calculate the exact amount legally due, with the result that the prescribed three-year limit could lead to faiture of a post-clearance recovery action; whereas in such circumstances the sum probably due should be entered in the accounts in good time; whereas the party concerned should not in any circumstances remain in uncertainty for more than five years in total;

(12) Whereas provision should be made for suspending the obligation to pay a customs debt incurred where goods have been removed from customs supervision and there is more than one debtor, so as to allow customs authorities to initiate recovery proceedings against one particular debtor, giving priority over other debtors;

(13) Whereas the Community's financial interests must be protected against unduly lengthy legal proceedings, and against the total invalidation of a communication where part of the debt is time-barred;

(14) Whereas Regulation (EEC) No 2913/92 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

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

1. The second subparagraph of Article 5(2) is replaced by the following:

'Member States may reserve the right, on their territory, to make customs declarations by indirect representation to customs agents.

Implementing provisions may be laid down in accordance with the Committee procedure, in particular to ensure equitable conditions of access to the two types of representation.`

2. In Article 35, the first paragraph is replaced by the following:

'Where factors used to determine the customs value of goods are expressed in a currency other than that of the Member State where the valuation is made, the rate of exchange to be used shall be that duly published by the competent authorities.`

3. In Article 49(1), the introductory phrase is replaced by the following:

'1. Where goods are covered by a summary declaration, the person who is the holder of the goods shall complete the formalities necessary for them to be assigned a customs-approved treatment or use within:`

4. The following paragraph is added to Article 62:

'3. Exceptions to the requirement established in paragraph 2 may be laid down in accordance with the committee procedure, in particular where the declaration is made electronically.

However, the right of access without prior warning of the national authorities or, where appropriate, of Community authorities, together with the obligation on the part of the operator to keep the proof for a minimum period shall be guaranteed. Implementing measures shall also be defined in accordance with the committee procedure.`

5. Article 115(4) is replaced by the following:

'4. Specific provisions for the application of paragraph 1 may be adopted in accordance with the committee procedure.`

6. The following sentence is added to Article 117(c):

'The cases in which the economic conditions are deemed to have been fulfilled may be determined in accordance with the committee procedure.`

7. Article 118(4) is replaced by the following:

'4. Specific time limits may be laid down in accordance with the committee procedure.`

8. Article 124 is replaced by the following:

'Article 124

1. The drawback system may be used for all goods, with the exception of those which, at the time when they are declared for free circulation, are subject to quantitative import restrictions or to presentation of an import or export certificate.

2. The drawback system may be used only if no export refund has been set for the compensating products at the time the declaration for release for free circulation of the import goods is accepted.

3. Permission to use the drawback system may be granted only if, at the time when the export declaration for the compensating products is accepted, no export refund or tax has been set for the compensating products.

4. Derogations from paragraphs 1, 2 and 3 may be laid down in accordance with the committee procedure.`

9. The second indent of Article 128(1) is replaced by the following:

'- placed, with a view to being subsequently re-exported, under the customs warehousing procedure, the temporary importation procedure or the inward-processing procedure (suspensive arrangement), or in a free zone or free warehouse.`

10. Article 131 is replaced by the following:

'Article 131

The cases in which, and the specific conditions upon which, the procedure for processing under customs control may be used shall be determined in accordance with the committee procedure.`

11. In point (e) of Article 133, the following sentence is added:

'The cases in which the economic conditions are deemed to have been fulfilled may be determined in accordance with the committee procedure.`

12. Article 142 is replaced by the following:

'Article 142

1. Use of the temporary importation procedure with partial relief from import duties shall be granted in respect of goods which are not covered by the provisions adopted in accordance with Article 141 or which are covered by such provisions but do not fulfil all the conditions laid down therein for the granting of temporary importation with total relief.

2. The list of goods in respect of which the temporary importation procedure with partial relief from import duties may not be used, and the conditions subject to which the procedure may be used, shall be determined in accordance with the committee procedure.`

13. Article 144 is replaced by the following:

'Article 144

Where a customs debt is incurred under Article 201(1)(a), or under Articles 203 or 204, for goods placed under the temporary importation procedure with partial relief from import duties, the amount of that debt shall be equal to the difference between the amount of duties calculated pursuant to Article 214 and that payable pursuant to Article 143.`

14. Article 152 is replaced by the following:

'Article 152

By way of derogation from Article 151, the committee procedure may be used to determine the cases in which, and the specific conditions upon which, goods may be released for free circulation following an outward processing operation either with total relief from import duties, or by taking the cost of the processing operation as the basis for assessment for the purpose of applying the customs tariff of the European Communities.`

15. Article 153 is deleted.

16. Article 167 is amended as follows:

(a) in paragraphs 1, 2 and 3, the term 'Member States` is replaced by the term 'the customs authorities`;

(b) the first sentence of paragraph 3 is replaced by the following:

'3. Without prejudice to Article 168a, free zones shall be enclosed.`

17. Article 168(1) is replaced by the following:

'1. The perimeter and the entry and exit points of free zones, where they are enclosed, and of free warehouses shall be subject to supervision by the customs authorities.`

18. The following Article is inserted between Article 168 and heading B ('Placing of goods in free zones or free warehouses`):

'Article 168a

1. The customs authorities may designate free zones where customs checks and formalities shall be carried out, and in which the provisions concerning customs debt shall apply, in accordance with the requirements of the customs warehousing procedure.

Articles 170, 176 and 180 shall not apply to the free zones thereby designated.

2. The free zones designated in accordance with paragraph 1 shall not be regarded as free zones within the meaning of Articles 37, 38 and 205.

References to free zones in other sections of the legislation shall not be taken to refer to the free zones governed by this Article.`

19. Article 212a is replaced by the following:

'Article 212 a

Where customs legislation provides for favourable tariff treatment for goods by reason of their nature or end-use, or provides exemption or total or partial relief from import or export duties pursuant to Articles 21, 145 or 184 to 187, such exemption or relief shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211, on condition that the behaviour of the declarant involves neither fraudulent dealing nor obvious negligence and the produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.`

20. The following paragraphs 5 and 6 are added to Article 215:

'5. If a customs authority finds that a customs debt has been incurred under Article 202 in another Member State, and the amount of the said debt is lower than ECU 5 000, the debt shall be deemed to have been incurred in the Member State where the finding was reached.

6. Where a customs debt is incurred following acceptance of a simplified declaration or some other document for release for free circulation as referred to in Article 76(1)(a) or (b), and where the second subparagraph of Article 218(1) is applied, the customs debt shall be deemed to have been incurred in the Member State where the supplementary declaration under Article 76(2) was lodged.`

21. The following second and third subparagraphs are added to Article 220(1):

'Where checks carried out by the customs authorities are liable to lead to the detection of a customs debt or an amount of duty higher than that already entered in the accounts, but the authorities are unable to determine the exact amount legally due, the said authorities shall enter in the accounts the amount that may eventually be payable on the goods, allowing enough time for that provisional amount to be communicated to the debtor before the expiry of the period laid down in Article 221(3).

However, entry in the accounts of the amount that may eventually be payable on the goods shall be considered null if the customs authorities prove unable to determine the exact amount legally due, within three years of the date of communication to the debtor of the provisional amount as defined in the second subparagraph.`

22. Article 221(3) is amended as follows:

(a) paragraph 3 is replaced by the following:

'3. Communication to the debtor shall not take place after the expiry of a period of two years from the date on which the customs debt was incurred. Calculation of this period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.`

(b) the following paragraphs 4 and 5 are added:

'4. If it is found that the two-year period referred to in paragraph 3 has expired in respect of part of the customs debt, the communication to the debtor shall remain valid in respect of the remaining amount of the duties to which it pertains.

5. Where the customs authorities have been unable to determine the exact amount legally due as a result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, upon the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the two-year period referred to in paragraph 3.`

23. In Article 222, paragraph 2 is replaced by the following:

'2. The cases and conditions in which the debtor's obligation to pay duty shall be suspended may also be provided for in accordance with the committee procedure:

- where an application for remission of duty is made in accordance with Article 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, or

- where the customs debt was incurred under Article 203 and there is more than one debtor, or

- in the cases provided for in the second subparagraph of Article 220(1).`

Article 2

This Regulation shall enter into force on 1 January 1999.

Point 1 of Article 1 shall apply from 1 January 2002.

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

(1) OJ L 302, 19.10.1992, p. 1.

(2) OJ L 17, 21.1.1997, p. 1.