8. 3. 78 Official  Journal  of the European  Communities No C 59/45 
Opinion  on the proposal  for a Council  Regulation  laying  down  conditions  for the post-
clearance  collection  of import  or export  duties  which  have  been  underpaid  on goods  entered 
for a customs  procedure  involving  the obligation  to pay  such  duties 
The text  referred  to the Committee  has been  published  in Official  Journal  of the European 
Communities,  No  C 138  of 11 June  1977,  page  13. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 8 June  1977  the Council  referred  the abovementioned  proposal  to the Economic  and 
Social  Committee  in accordance  with  Article  198  of the Treaty  establishing  the European 
Economic  Community. 
B. OPINION  OF THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and Social  Committee  prepared  its opinion  on the above  matter  at its 153rd 
plenary  session  held  in Brussels  oh 23 and  24 November  1977. 
The full text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE, 
Having  regard  to the Treaty  establishing  the European 
Economic  Community,  and  in particular  Article  198 
thereof, 
Having  regard  to the request  for an opinion  made  by 
the Council  of the European  Communities  on 8 June 
1977, 
Having  regard  to the decision  taken  by its chairman  on 
28 July  1977  instructing  the  Section  for  Industry, 
Commerce,  Crafts  and Services  to draw  up an opinion 
on the matter, 
Having  regard  to the opinion  issued  by that  Section  at 
its meeting  on 9 November  1977, 
Having  regard  to the  oral  report  submitted  by the 
rapporteur,  Mr Marvier, 
Having  regard  to the discussions  at its 153rd  plenary 
session  held  on 23 and  24 November  1977  (meeting  of 
23 November), 
HAS  ADOPTED  THE  FOLLOWING  OPINION 
unanimously: 
1. General  comments 
1.1. The  Committee  approves  the Commission's  pro-
posal  seeking  to standardize  the rules  governing  the re-covery  of outstanding  amounts  of import  or export  duty 
not collected  at the time  of the customs  clearance  of the 
goods. 
1.2. It is right  that  customs  duties,  which  are part  of 
the Community's  own  resources,  should  be collected  in 
full. This  means  that  on occasions  the post-clearance 
collection  of duties  is necessary,  if mistakes  or 
omissions  are discovered. 
1.3. It is also  true,  the  Committee  admits,  that  the 
economic  protection  which  it is the main  task  of cus-
toms  duties  to provide  should  be the same  for all. 
1.4. On  the other  hand,  in the business  world  it is of 
unquestionable  importance  to know  precisely  what  the 
final  cost  of a product  one  imports  or exports  is going 
to be. Customs  duties,  and  similar  charges  are a cost 
component  and  to run  a business  properly  it is impor-
tant that  the amount  of duty  charged  when  the goods 
are declared  should  not in principle  be revised  after  one 
has resold  the goods  or at least  taken  a final  decision  on 
their  price. 
1.5. In view  of these  conflicting  requirements,  the 
Committee  acknowledges  the difficulty  in proposing  a 
solution  that  would  completely  satisfy  both  the customs 
authorities  and  the business  world. 
1.6. Nevertheless,  the Committee  would  like  to make 
two points  which  it regards  as important: 
— the  draft  Regulation  expressly  states  in Article  3 
that it applies  solely  to non-fraudulent  cases.  It is 
No C 59/46 Official  Journal  of the European  Communities 8. 3. 78 
therefore  dealing  exclusively  with  honest  declarants 
who have  not  done  anything  wrong.  Greater  ac-
count  should  be taken  of this  fact  in the Regulation, 
— the  Commission  admits  in the commentary  that  the 
proposed  provisions  are often  more  stringent  than 
those  in force  in the Member  States. 
1.7. In the light  of these  two  remarks,  the Committee 
thinks  that  some  provisions  of the Regulation  should  be 
reconsidered  so as to make  them  more  favourable  to 
legitimate  business  interests. 
2. Specific  comments 
2.1. Article  1 (2) 
2.1.1.  A legal  means  should  be found  which  obviates 
the need  to repeat  the  definition  of duties  in each 
Community  instrument.  This  is one of the consequences 
of the lack  of a system  of Community  customs  law. 
2.2. Article  2 
2.2.1.  The  time  limit  for recovery  of outstanding  sums 
by the customs  authorities  is between  three  and,  in ex-
treme  cases,  four  years.  This  period  is much  too  long 
and may  disrupt  business  activity  because  of the element 
of uncertainty  and  risk  it introduces  into  all foreign 
buying  and  selling  transactions.  It is perhaps  also  odd 
that the authorities  should  have  twice  as much  time  to 
rectify  their  own  mistakes  as the party  liable  to duty  has 
to claim  repayment.  It is suggested  that  the time  limit 
for recovery  be the same  as for repayment,  namely  two 
years. 
2.3. Article  5 
2.3.1.  The  provisions  of this  Article  ought  to be 
clarified.  The  barring  of post-clearance  collection  when 
the information  on which  the initial  calculation  of duty 
was based  was  established  by the authorities  themselves 
or endorsed  by them  is a fair provision. 
2.3.2.  However,  its scope  is singularly  reduced  by the 
two conditions  that  are attached  to it, namely: 
— the  declarant  must  have  acted  in good  faith  and  it 
must  be established  that  he observed  all the rules 
and regulations  in force  when  submitting  his declar-
ation, 
— only  information  which  has been  actually  checked  is 
deemed  to have  been  endorsed  by the authorities. 2.3.3.  Good  faith  is a very  subjective  notion,  and  the 
onus  of proof  falls  ultimately  on the declarant.  He will 
often  have  difficulty  in proving  good  faith,  especially 
afterwards.  Observance  of the provisions  laid  down,  as 
stipulated  in the text,  on the other  hand,  is an objective 
fact, which  can  be verified.  This  latter  stipulation 
should  be maintained,  but the clause  'where  it is estab-
lished  that  the declarant  has acted  in good  faith'  should 
be put into  the negative.  Article  5(1)  would  then  read: 
'Article  5 (1) 
No action  may  be initiated  by the competent  au-
thorities  for  post  clearance  collection  where  the 
amount  of the import  duties  or export  duties  al-
though  subsequently  found  to be lower  than  the 
amount  which  was  legally  due,  has been  calculated 
on the  basis  of information  determined  by the 
competent  authorities  themselves  or recognized  by 
them  as being  in accordance  with  their  require-
ments.  This  provision  shall  not  apply  where  the 
declarant  did not act in good  faith  and  it is estab-
lished  that  he did not comply  with  all the provisions 
laid down  in the rules  in force  concerning  his decla-
ration. 
The provision  shall  also  not  apply  in the case  of 
material  or copying  errors  recognizably  affecting  the 
amount  of import  duties  or export  duties  legally 
due.' 
This rewording  results  in a reversal  of the burden  of 
proof.  It is right  that  the onus  of proof  should  be on the 
authorities  for it is they  who  are retrospectively  claim-
ing that  the amount  of duty  paid  on goods  with  their 
agreement  was  incorrect. 
2.3.4.  Also,  it transpires  from  Article  5 (1) that  ele-
ments  may  be called  into  question  if the  competent 
authorities  do not  recognize  them  as being  in accord-
ance  with  their  requirements.  Article  5 (2)  defines 
'elements  according  with  requirements'  as elements  that 
have  been  examined  physically,  and  whose  exactness 
has been  recognized.  These  elements  must  be mentioned 
on the  declaration.  Normally,  customs-declaration 
checks  are either  carried  out on a very  small  percentage 
of the relevant  goods  or take  the form  of an overall 
scrutiny  of documents  attached  to the declaration  (in-
voice,  etc.).  The  part  of documents  checked  is not 
specified  on declaration  by the customs  department. 
2.3.5.  In addition,  modern  customs  techniques  are 
tending  to reduce  physical  examinations  of goods  and 
checking  of documents  at the time  of clearance  to a 
minimum.  This  is a welcome  development.  For  their 
checks  customs  authorities  are coming  to rely  more  and 
more  on establishing  an overall  picture  of a firm's  trade 
using  broad-meshed  procedures,  so that  the seemingly 
generous  provisions  of paragraph  1 of Article  5 should 
only very  rarely  be applicable. 
,8.3.78 Official  Journal  of the European  Communities No C 59/47 
2.4. Article  8 
2.4.1.  Application  of complex  provisions  several  years 
after  the event  will  always  be a rather  cumbersome 
process.  The  threshold  of five  units  of account  below 
which  claims  are not pursued  would  therefore  seem  very 
low. If' the administrative  cost  of recovering  such amounts  were  calculated,  it would  probably  turn  out to 
be much  higher.  A threshold  of 20 units  of account 
would  probably  be better  suited  to the administrative 
and commercial  conditions  of today. 
2.4.2.  Subject  to the above  reservations  the Committee 
approves  the draft  Regulation. 
Done  at Brussels,  23 November  1977. 
The Chairman 
of the Economic 
and Social  Committee 
Basil  de FERRANTI