10. 9. 79 Official  Journal  of the European  Communities No C 227/23 
4. While  the aid proposed  for the 1978  harvest  is on 
average  slightly  lower  than  that  for 1977  (326  units  of 
account  per  hectare  in 1978  as against  335  units  of 
account  per  hectare  in 1977),  it makes  it possible  to 
obtain  an average  per hectare  income  of 3 291  units  of 
account  (including  aid)  in 1978  as against  3 179  units  of account  in 1977.  This  also  reduces  EAGGF  spending  by 
0 • 6 million  units  of account. 
5. In  the light  of the above,  the Economic  and  Social 
Committee  endorses  the draft  Regulation. 
Done  at Brussels,  22 May  1979. 
The Chairman 
of the Economic  and  Social  Committee 
Fabrizia  BADUEL  GLORIOSO 
Opinion  on the proposal  for a Council  Regulation  defining  the conditions  under  which  a 
person  may  be permitted  to make  a customs  declaration 
The text  referred  to the Committee  has  been  published  in Official  Journal  of the European 
Communities  No  C 29 of 1 February  1979,  page  3. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 2 February  1979  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 168th 
plenary  session  held  in Brussels  on 22 and  23 May  1979. 
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  made  by the Council  on 
2 February  1979  for an opinion, 
Having  regard  to the  decision  taken  by its Bureau  on 
20 February  1979  instructing  the Section  for Industry, 
Commerce,  Crafts  and Services  to draw  up an opinion  on 
the matter, 
Having  regard  to the opinion  issued  by the Section  for 
Industry,  Commerce,  Crafts  and  Services  at its meeting 
held on 25 April  1979, 
Having  regard  to the  oral  report  submitted  by the 
rapporteur,  Mr Marvier, 
Having  regard  to its discussions  at its 168th  plenary 
session  held  on 22 and  23 May  1979  (meeting  of 22 May 
1979), HAD  ADOPTED  THE  FOLLOWING  OPINION 
unanimously: 
1. General  comments 
1.1. The  Committee  wishes  first  of all to refer  to its 
opinion  of 17 July  1974  on the proposal  for a Council 
Directive  on the  harmonization  of procedures  for  the 
release  of goods  for free  circulation. 
The Committee  approved  this  draft  Directive,  subject  to 
certain  specific  comments,  but for nearly  five  years  now 
it has been  pending  before  the Council. 
. The  draft  Regulation  (not  a draft  Directive  in the present 
case)  defining  the conditions  under  which  a person  may 
be permitted  to make  a customs  declaration  reiterates, 
No C 227/24 Official  Journal  of the European  Communities 10. 9. 79 
with  the addition  of a few  details,  the definition  of a 
declarant  already  given  in the draft  Directive.  Articles  2 
and 4 of the draft  Regulation  between  them  reproduce 
Article  3 of the draft  Directive  in its entirety. 
The Committee  is astonished  that  a Directive,  for which 
it was  claimed  at the time  that  there  was  an urgent  need, 
can be held  up for so long  before  the Council.  It also 
notes  that  the  explanatory  memorandum  to the  draft 
Regulation  now  submitted  for  its opinion  makes  no 
mention  of these  circumstances  and  does  not  explain 
why it is now  necessary  to repeat  part  of a draft  Directive 
in a draft  Regulation.  This  is all the more  inexplicable 
since  some  provisions  of the draft  Directive  have  been 
amended  in the meantime. 
1.2. This  said,  the  Committee,  having  already 
approved  the abovementioned  draft  Directive,  can only 
re-state  its approval  of the  attempt  to establish  a 
Community  definition  of a customs  declarant. 
1.3. As  the draft  Regulation  is based  on Article  235  of 
the Treaty,  which  requires  unanimous  agreement  among 
the Member  States,  the Committee  nevertheless  wonders 
whether  the differences  of opinion  which  led to the draft 
Directive  being  blocked  by the Council  will  not  mean 
that the draft  Regulation  suffers  the same  fate.  At all 
events,  measures  will  have  to be taken  to ensure  that  the 
two instruments  can be applied  simultaneously. 
1.4. The  Committee  would  further  point  out that  the 
draft  Regulation  can  legally  apply  only  to customs 
declarations  proper.  All the procedures  and  formalities 
for the other  declarations  (fiscal,  statistical,  exchange 
control,  etc.)  which  normally  accompany  imports  remain 
under  national  jurisdiction. 
1.5. Under  these  circumstances  it is to be feared  that 
the provisions  of the draft  Regulation  will  be called  into 
question,  since  the Member  States  can  require  that,  in 
order  to comply  with  national  formalities,  certain 
conditions  must  be met;  they  are  free  to fix  these 
conditions,  which  obviously  would  not  be in line  with 
the principles  established  by the new  Regulation. 
There  is a very  precise  distinction  in law between  release 
for free  circulation  under  Community  conditions  and 
release  to the market  under  national  conditions  but,  it is 
exceptional  to make  such  a distinction  in practice.  In the 
vast majority  of cases  the formalities  are effected  in a 
single  operation  and  it would,  of course,  be the most 
restrictive  conditions  which  prevailed. 
The Committee  acknowledges  that  Member  States  which 
adopted  such  restrictive  practices  could  be prosecuted  for 
setting  up barriers  to the  free  movement  of goods. However,  it feels  it must  point  out the inadequacy  of a 
legal  instrument  which,  although  based  on a Council 
Directive  and  Regulation,  will  still  require  the 
intervention  of the  Court  of Justice  to give  it real 
practical  effect. 
While  approving  the  draft,  the  Committee  therefore 
wonders  whether  it will  really  solve  the  current 
problems. 
2. Specific  comments 
2.1. Preamble 
The Committee  would  like  the  preamble  to the 
Regulation  to expressly  repeat  the  principle  stated  in 
paragraph  (c) of the explanatory  memorandum,  namely, 
that 'any  person  domiciled  in the Community  should  be 
permitted  to make  a customs  declaration,  irrespective  of 
the Member  State  in which  the customs  formalities  are 
completed'. 
2.2. Article  2 
The Committee  considers  that  the  words  'any  person 
able to produce  . . . the goods  in question  as well  as all 
documents  . . .' must  be taken  to mean  'any  person 
practically  and  legally  capable  . . .'. 
2.3. Article  3 
This  Article  represents  the principal  new  element  not 
contained  in the earlier  draft  Directive.  Its content  must 
therefore  be very  clear.  The  Committee  realizes  that 
this Article  is intended  to make  possible  a customs 
declaration  for all customs  procedures,  whereas  the draft 
Directive  covers  only  the release  for free  circulation  and 
Regulation  (EEC)  No 227/77  on Community  transit  -
which  already  stipulates  that  any person  domiciled  in the 
Community  may  make  a transit  declaration  - has  been 
applied  restrictively  in some  Member  States  in this 
respect.  For  its  part,  the  Committee  considers  it 
necessary  that  the customs  declarant  should  be able  to 
act in respect  of all customs  procedures,  but  it would 
point  out that  in this  case  the present  text  needs  refining. 
Article  3 (2) as it stands  now,  may  be interpreted  as 
meaning  that  customs  declarations  involving  a 
commitment,  authorization,  etc.,  may  only  be 
established  in the declarant's  own  name  and  on his own 
behalf.  This  would  rule  out  all customs  procedures 
except  those  concerning  release  to the market.  Only  the 
10. 9. 79 Official  Journal  of the European  Communities No C 227/25 
case referred  to in Article  3 (1) (b) (declarant  in his own 
name  but  on behalf  of another  person)  presents  any 
dangers  in this  respect.  It is therefore  proposed  that  the 
following  be added  at the end  of Article  3 (2): 
'Subject  to the conditions  laid  down  by this Regulation 
another  person  may  establish  this  declaration  in the 
name  of and  on behalf  of the person  for whom  the 
authorization  or the document  required  was  issued.' 
2.4. Article  3 (3),  second  sentence 
While  acknowledging  the customs  authorities'  need  for 
this provision,  the  Committee  considers  that  the 
obligation  for the declarant  to supply  proof  of the precise 
legal  capacity  in which  he is acting  could  considerably 
complicate  his task.  In fact  and  in law  the  relations 
between  principals  and  agents  comes  under  national 
commercial  law  or, in the case  of a transport  contract, 
the relevant  International  Conventions  to which  the 
Member  States  are Contracting  Parties.  In both  cases  it is 
therefore  up  to the  Member  States,  and  not  the 
Commission,  to judge  the evidence.  So as to avoid  the 
difficulties  which  the proof  of a representative's  power  to 
act on another  person's  behalf  might  pose,  it would 
suffice  if the representative  is considered  as being  a party 
to the  customs  operation  himself  instead  of being 
another  person's  representative.  This  is a practical 
solution.  It relieves  the customs  authorities  of the need  to 
track  down  the  customs  debtor  afterwards  — an 
operation  which  always  involves  varying  degrees  of 
difficulty. 
2.5. Article  5 
Article  5 makes  it possible  to exclude  a person 
throughout  the Community  from  the right  to declare  on 
behalf  of another  person. Its present  wording  raises  two  questions: 
(a) To implement  this  provision  some  kind  of index 
would  have  to be drawn  up which  would  be difficult 
to keep  up to date. 
(b) It does  not state  which  authorities  are competent  in 
this matter.  Is it the  Commission  or the  Member 
States?  Furthermore,  are  these  offences  against 
Community  law  or against  national  law? 
If the final  text  did not  give  a positive  answer  to these 
questions,  Article  5 would  have  to be deleted. 
2.6. Article  6 
As it has already  stated  in numerous  earlier  opinions,  the 
Committee  considers  that  a multiplicity  of Regulations 
and committees  must  be avoided.  It therefore  approves 
the reference  to a 'General  Customs  Regulation 
Committee',  provided  that  this  is not superimposed  on 
the existing  committees.  It would  further  observe  that  all 
the texts  relating  to customs  declarations  and  clearance 
procedures  should,  as far  as possible,  be brought 
together  in one  legal  text,  without  this  leading  to a delay 
in the implementation  of this  Regulation  and  the other 
proposals  which  are pending. 
2.7. Article  6 (2) 
The Committee  observes  that  the Directive  referred  to is 
that on the release  of goods  for free  circulation,  pending 
before  the  Council,  and  that  the  text  on which  the 
Committee  delivered  its opinion  in 1974  has  undergone 
various  amendments  which  have  not been  brought  to the 
Committee's  attention. 
Done  at Brussels,  22 May  1979. 
The Chairman 
of the Economic  and  Social  Committee 
Fabrizia  BADUEL  GLORIOSO