20061223

P6_TC1-COD(2005)0246

Position of the European Parliament adopted at first reading on 12 December 2006 with a view to the adoption of Regulation (EC) No …/2007 of the European Parliament and of the Council laying down the Community Customs Code (Modernized 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 Protocol 2 to the Act of Accession of Spain and Portugal, concerning the Canary Islands and Ceuta and Melilla, and in particular Article 9 (1) 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 the customs authorities in the Community, to assemble current customs legislation in a Community Customs Code (hereinafter called "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. This should be without prejudice to specific provisions laid down in other fields as may exist or be introduced in the context, inter alia, of legislation relating to agriculture, the environment, the common commercial policy, statistics or own resources. 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 [3], 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 [4], was based upon integration of the customs procedures applied separately in the 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, both at 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 Act of Accession on 1 May 2004, as well as the Amendment to the International Convention on the simplification and harmonization of customs procedures (hereinafter referred to as the "Kyoto Convention"), the Accession of the Community to which was approved by Council Decision 2003/231/EC [5]. 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; a complete overhaul is necessary.

(4) 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 [6], to simplify customs legislation, so as to allow the use of modern tools and technology and to promote further the uniform application of customs legislation, thus contributing to ensuring 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.

(5) 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, making them a central part of the globalization process and, in the monitoring and management of international trade, 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.

(6) The use of Information and Communication Technology (hereinafter referred to as "IT") 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 the legal principle that all customs and trade transactions are to be handled electronically and that IT systems for customs operations offer, in each Member State, the same facilities to economic operators.

(7) Such use of information and communication technologies should be accompanied by harmonisation of customs checks, which should be effective throughout the Community and should not give rise to anti-competitive behaviour at the various Community entry and exit points.

(8) 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 appropriate that the information provided by economic operators is 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, so that the economic operator need give the information only once ("single window") and that the goods are controlled by those authorities at the same time and at the same place ("one stop shop").

(9) In the interests of facilitating certain types of business, economic operators 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 this right of representation to be circumscribed under a law laid down by one of the Member States. Furthermore, the customs representative should be able to be granted the status of economic operator.

(10) Compliant and trustworthy economic operators should, as "Authorized 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.

(11) All decisions, that is 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 be able to be annulled, amended except where stipulated, or revoked where they do not conform to the customs legislation or its interpretation.

(12) In accordance with the Charter of Fundamental Rights, 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. Such a provision within the Code should also apply to cases of post-clearance recovery and to decisions on repayment or remission claims.

(13) 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 in order to discourage any serious infringements of the customs rules and thus reduce the risk of fraud, of threats to safety and security, and to protect the financial interests of the Community. This can only be achieved through a common Community framework, which allocates jurisdiction for the imposition of penalties and delimits those penalties, in full respect of the Charter of Fundamental Rights.

(14) 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.

(15) In order to minimize the occurrence of risk to the Community, its citizens and its trading partners, the harmonized 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.

(16) 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.

(17) As regards the rules on preferential origin, it is appropriate, in order to expedite the decision-making process within the Community, to confer on the Commission powers for the adoption of these rules in the case of goods benefiting from preferential measures applicable to trade between the customs territory of the Community and Ceuta and Melilla.

(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 case of incurrence of a customs debt on exportation.

(19) Since the new role of customs authorities implies the sharing of responsibilities and co-operation 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 this place can best supervise the activities of the person concerned.

(20) Furthermore, in line with the Kyoto Convention, it is appropriate to provide for a reduced number of cases where administrative co-operation 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 a declaration for which it is provided. For the same reason, the undertaking of the guarantor should also cover amounts of duties 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.

(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 minimize 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, the circumstances pertaining to the loss of such status, and to provide a basis for determining when this 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 responsible for the premises of the economic operator.

(27) The rules for customs declarations should be modernized and streamlined, in particular requiring that customs declarations are, as a rule, made electronically and providing for only one type of simplified declaration.

(28) Since the 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 centralized clearance at the place where the economic operator is established. Centralized 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 contribute to ensuring 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, which have previously required national legislation.

(30) It is appropriate to provide 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 the choice for the operator of the right procedure simple, to avoid errors and to reduce the number of post-release recoveries and repayments.

(31) The granting of authorizations 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 assessed at the time the customs debt is incurred. However, it should also be possible, where economically justified, to assess the goods at the time 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 [7], 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) For goods placed under a specific use, a basic legal framework should be established relating to the suspension of excise duty, provided for under Council Directive 92/12/EEC of 25 February 1992, on the General Arrangements for products subject to excise duty and on the holding, movement and monitoring of such products [8], VAT at importation provided for under Articles 7(3) and 10(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment [9], and commercial policy measures.

(34) 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 one inward processing procedure should also cover destruction, except where destruction is carried out by, or under the supervision of, customs.

(35) 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.

(36) It is appropriate, in order to ensure an effective decision-making process and uniformity, to streamline mechanisms for the adoption of implementing measures, explanatory notes, guidelines and decisions of the Commission requesting the withdrawal of a decision taken by the customs authorities, as well as for the preparation of a common position in committees, working groups and panels introduced by or under international agreements dealing with customs legislation. The management procedure is most appropriate for the adoption of implementing provisions, and the consultative procedure most appropriate for the adoption of guidelines and explanatory notes.

(37) 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 [10].

(38) It is appropriate to provide empowerment for the adoption of implementing provisions, notably where the Community accepts commitments and obligations in relation to international agreements which require the adaptation of provisions of the Code.

(39) In order to simplify and rationalize 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 [11],

- Council Regulation (EC) No 82/2001 of 5 December 2000 concerning the definition of the concept of "originating products" and methods of administrative co-operation in trade between the customs territory of the Community and Ceuta and Melilla [12],

- Council Regulation (EC) No 1207/2001 of 11 June 2001 on procedures to facilitate the issue of movement certificates EUR.1, the making-out of invoice declarations and forms EUR.2 and the issue of certain approved exporter authorizations under the provisions governing preferential trade between the European Community and certain countries [13].

(40) In accordance with the principle of proportionality, it is necessary, and appropriate for the effective functioning of the Customs Union as a central pillar of the internal market, to lay down rules and procedures applicable to goods brought into or out of the customs territory of the Community. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty,

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

CHAPTER 1

SCOPE OF CUSTOMS LEGISLATION, MISSION OF CUSTOMS AND DEFINITIONS

Article 1

Subject matter and scope

This regulation establishes the Community Customs Code, hereinafter "the Code", laying down the general rules and procedures applicable to goods brought into or out of the customs territory of the Community.

The Code shall apply uniformly throughout the customs territory of the Community without prejudice to legislation in other fields pertaining to such trade.

Article 2

Mission of customs authorities

Customs authorities shall be responsible for the supervision of the Community's international trade, thereby contributing to 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 with a bearing on trade, as well as to overall supply chain security. These tasks shall include 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 citizens, and the environment, where appropriate in close co-operation 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 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 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 and French Polynesia;

- the territory of Ireland;

- 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 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 the Republic 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 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 the conventions and treaties applicable to them into account, 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 (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).

3. 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.

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) international agreements containing customs provisions, in so far as they are applicable in the Community.

(3) "Person" means natural persons, legal persons, and any association of persons which is not a legal person but which is recognized under Community or national law as having the capacity to perform legal acts.

(4) "Economic operator" means a person who, in the course of his business, is involved in activities covered by customs legislation.

(5) "Customs representative" means any person established on the territory of the EU who provides customs services to third parties.

(6) "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 citizens, to human, animal or plant health, to the environment or to consumers.

(7) "Customs controls" means specific acts performed by the customs authorities pursuant to Articles 27 to 30.

(8) "Summary declaration" means a declaration to be made before goods are brought into or out of the customs territory of the Community.

(9) "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 the specific arrangement to be applied.

(10) "Declarant" means the person making a summary declaration or a customs declaration in his own name or the person in whose name a customs declaration is made.

(11) "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.

(12) "Import duties" means customs duties as laid down in the Common Customs Tariff, payable on the importation of goods.

(13) "Export duties" means customs duties as laid down in the Common Customs Tariff, payable on the exportation of goods.

(14) "Non-Community goods" means goods other than those referred to in point (20) or which have lost their status as Community goods.

(15) "Risk management" means the systematic identification of risk and the implementation of all measures necessary for limiting exposure to risk.

(16) "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.

(17) "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.

(18) "Drawback" means the repayment or remission of import duties on goods released for free circulation if such goods are exported from the customs territory of the Community in an unaltered state or in the form of processed products.

(19) "Processed products" means goods placed under a processing procedure which have undergone processing operations.

(20) "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.

(21) "Customs status" means the status of goods as Community or non-Community goods.

(22) "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 of the customs territory of the Community;

(b) goods imported from countries or territories outside of the customs territory of the Community 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).

(23) "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.

(24) "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.

(25) "Holder of the procedure" means the person who makes the 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.

(26) "Commercial policy measures" means non-tariff measures established, as part of the common commercial policy, in the form of Community provisions governing the import and export of goods.

(27) "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).

(28) "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.

CHAPTER 2

RIGHTS AND OBLIGATIONS OF PERSONS WITH REGARD TO CUSTOMS LEGISLATION

Section 1

Provision of information

Article 5

Exchange of data

1. All required exchanges of data, accompanying documents, decisions and notifications between customs authorities and between economic operators and customs authorities shall be made using electronic data processing techniques.

The Commission may, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by means of measures laying down exceptions to the first subparagraph of this paragraph.

2. Save where otherwise specifically provided, the Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the following:

(a) the rules defining and governing 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 data 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.

The systems necessary for the electronic exchange of data between customs offices in accordance with paragraph 1 shall be in place by 30 June 2009, at the latest.

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 for the purposes of customs controls as provided for under Article 28(2), such information shall not be disclosed by the competent authorities without the express permission of the person or authority who provided it.

Such information may, however, be disclosed without permission where the competent authorities are obliged or authorized 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 administrations and other bodies of countries or territories outside the customs territory of the Community shall be permitted only in the framework of an international agreement, ensuring an equivalent level of data protection.

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, for the purpose of mutual co-operation 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 co-operation 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 import or export operation actually envisaged.

2. Customs administrations shall maintain a regular dialogue with economic operators and other authorities involved in international trade in goods. They shall promote transparency by making the legislation, administrative rulings and application forms pertaining to international trade in goods available to economic operators free of charge and, wherever practical, 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 shall provide the customs authorities with all the requisite documents and information, irrespective of the medium used, and all the requisite assistance, at the request of the customs authorities and within any time limit specified.

2. Without prejudice to the possible application of penalties, the lodging of a summary declaration or customs declaration, including a simplified declaration, or notification, or the submission of an application for an authorization or any other decision, shall render the person concerned responsible for the following:

(a) the accuracy of the information given in the declaration, notification or application, or in any other relevant form;

(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 procedure concerned, or to the conduct of the authorized operations.

The first subparagraph shall apply also to the provision of any information required by the customs authorities.

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

Article 10

Common data system

Member States shall co-operate with the Commission with a view to developing, maintaining and employing an electronic system for the common registration and maintenance of records of the following:

(a) all persons directly or indirectly involved in the accomplishment of customs formalities;

(b) any authorization concerning a customs procedure or the status of Authorized Economic Operator.

The data shall be accessible to the customs administrations of the Member States in the course of their duties and, in accordance with the rules referred to in the third paragraph, to economic operators.

The Commission shall, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by supplementing it by laying down the standard form and content of the data to be registered and the rules for access to that data.

Section 2

Customs representation

Article 11

Customs representative

1. Any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down in the customs legislation, hereinafter a "customs representative".

Such customs 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.

2. A customs representative must be established within the customs territory of the Community.

The Commission may, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by supplementing it by laying down the conditions under which the requirement referred to in the first subparagraph of this paragraph may be waived.

3. The status of customs representative shall be subject to the following criteria:

- it shall be open to all persons making application for the status,

- it shall be managed by a government body in the Member State,

- it shall be recognized in all Member States when it has been registered in the Member State of application,

- it shall be subject to practical standards of competent or professional qualifications directly linked to the activity carried out.

There shall be no numeric limit on the number of customs representatives in the EU.

A person with the status of customs representative and with the status of authorised economic operator shall be able to benefit from all simplifications.

4. Without prejudice to the provisions of paragraph 3, any person pursuing a commercial activity shall be authorised to address the customs authorities, without being obliged to be represented by a customs representative.

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 customs representation is direct or indirect.

A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person 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 in the name of or on behalf of another person to produce evidence of his powers to act as a customs representative, except where a person belongs to a category of persons entitled to act on behalf of another person.

The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures identifying the categories of persons referred to in the first subparagraph of this paragraph.

Article 13

Customs representation and authorised economic operator status

1. Where a person acts as a customs representative on a regular and commercial basis, he may be granted the status of "authorized economic operator" in accordance with Article 14.

2. A customs representative may act as a fiscal representative, as provided for under value added tax, hereinafter "VAT", and excise provisions in force.

Section 3

Authorized Economic Operator

Article 14

Application and authorization

1. A person who is established in the customs territory of the Community and who meets the conditions set out in Articles 15 and 16 may request the status of authorized economic operator.

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

2. The status of authorized economic operator covers two types of authorisation: that of "customs simplification" authorised economic operator and that of "security and safety" authorised economic operator.

The first authorisation enables economic operators to benefit from certain simplifications in accordance with this Code or its implementing provisions. Under the second authorisation the holder thereof is entitled to facilitations relating to security and safety.

Both authorisations may be held at the same time.

3. The status of authorized economic operator shall, subject to Articles 15 and 16, be recognized 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 authorized economic operator and provided that the requirements related to a specific type of simplification provided for in Community customs legislation are fulfilled, authorize the operator to benefit from that simplification.

5. The status of authorized economic operator may be suspended or withdrawn in accordance with the conditions laid down pursuant to point (h) of Article 16.

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

Article 15

Granting of status

The criteria for the granting of the status of authorized economic operator shall be at least the following:

(a) an appropriate record of compliance with customs and fiscal requirements;

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

(c) where appropriate, proven financial solvency;

(d) pursuant to Article 14(2), in cases where an authorised economic operator wishes to take advantage of the simplifications provided for in accordance with this Code or its implementing provisions, practical standards of competence or professional qualifications directly related to the activity carried out;

(e) pursuant to Article 14(2), in cases where an authorised economic operator wishes to take advantage of facilitations with regard to customs checks relating to security and safety, appropriate security and safety standards.

Article 16

Implementing measures

The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures governing the following matters:

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

(b) the frequency of review of the status of authorized economic operator;

(c) the granting of authorizations for the use of simplifications;

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

(e) the type and extent of facilitations that may be granted 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 a request made by the applicant for an authorization may be limited to one or more Member States;

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

(i) the conditions under which the requirement of being established in the Community may be waived for specific categories of authorized economic operators, taking into account, in particular, international agreements.

Section 4

Decisions relating to the application of customs legislation

Article 17

General provisions

1. Where a person requests that the customs authorities take a decision, 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.

2. A decision as referred to in paragraph 1 shall be taken, and the applicant notified, at the latest within two months of the date on which the request is received by the customs authorities, except where otherwise provided for in the customs legislation.

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. Unless 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 25(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 their objections to the latter, stating the grounds on which they base those objections. The person concerned shall be given the opportunity to express his point of view, within a period from the date on which the objections were sent.

The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the period referred to in the first subparagraph of this paragraph.

Upon expiry of this 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 requirement to communicate objections before a decision is taken which would adversely affect the person to whom it is addressed, 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 set out in Article 72(3).

The decision shall refer to the right of appeal provided for in Article 24.

5. 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 annul, amend or revoke it where it does not conform with the customs legislation or with guidelines or explanatory notes for its interpretation.

Article 18

Community-wide validity of decisions

Unless otherwise requested or specified, decisions taken by the customs authorities shall be valid throughout the customs territory of the Community.

Article 19

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.

4. The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of paragraphs 1, 2 and 3 of this Article, in particular in respect of decisions addressed to several persons.

Article 20

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 19, one or more of the conditions laid down for its issue were not or are no longer fulfilled.

2. Unless 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. The revocation or amendment of the decision shall take effect from the date on which the notification of the revocation or amendment is received, or is deemed to have been received, by the person to whom it was addressed.

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 procedure referred to in Article 194(2), adopt measures for the implementation of paragraphs 1 to 4 of this Article, in particular in respect of decisions addressed to several persons.

Article 21

Special decisions

1. The customs authorities shall, on request, issue decisions specifying binding tariff information, hereinafter "BTI decisions", or decisions specifying binding origin information, hereinafter "BOI decisions".

Such a request may be refused where it does not relate to any customs procedure actually envisaged.

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

They shall be binding on the customs authorities, as against the person to whom the decision was addressed, only in respect of goods for which customs formalities are completed after the date of the decision.

They shall be binding on the person addressed, 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 specified in the decision.

4. For the application of a BTI or BOI decision in the context of a particular customs procedure, the person to whom that decision is addressed 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 17(5) and Article 19, 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 17(5) and Article 20.

They may not be amended.

7. Notwithstanding Article 20, the Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the following:

(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.

8. The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the conditions under which other special decisions are to be issued.

Section 5

Customs penalties

Article 22

Customs 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. Administrative penalties shall take one of the following forms, or both:

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

(b) the withdrawal, suspension or amendment of any authorization held by the person concerned.

Where administrative penalties are combined with criminal penalties, on the basis of the same facts, aggregation of such penalties shall be proportionate.

Section 6

Appeals

Article 23

Decisions taken by a judicial authority

Articles 24, 25 and 26 shall not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision taken by a judicial authority.

Article 24

Right of appeal

1. Any person shall have the right to appeal against any decision taken by the customs authorities 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 17(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 another body which may be a judicial authority or an equivalent specialized 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 specialized body, according to the provisions in force in the Member States.

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

Article 25

Suspension of implementation

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

2. By way of derogation from paragraph 1, where irreparable damage may be caused to the person who lodged the appeal, the customs authorities shall suspend implementation of the disputed decision, in whole or in part.

The customs authorities may suspend implementation of the disputed decision, in whole or in part, where they have good reason to suspect that it is inconsistent with the customs legislation.

3. 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 such a guarantee would be likely to cause the debtor serious economic or social difficulties.

The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of the first subparagraph of this paragraph.

Article 26

Decision on the appeal

Article 17 shall apply with regard to decisions by the customs authorities on appeals.

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

Section 7

Control of goods

Article 27

Customs controls

1. The customs authorities may carry out all of the controls they deem necessary to ensure the correct application of customs legislation and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and other territories, and the presence of non-Community goods.

Those controls, hereinafter "customs controls", may consist in examining goods, verifying declaration data and the existence and authenticity of electronic or written documents, examining the accounts of undertakings and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons.

Customs controls may be carried out outside the customs territory of the Community where an international agreement provides for this.

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

Member States, in co-operation with the Commission, shall develop, maintain and employ an electronic system for the implementation of risk management, by 30 June 2009 at the latest.

3. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the following:

(a) rules for a common risk management framework;

(b) rules for establishing common criteria and priority control areas;

(c) rules governing the exchange of risk information and analysis between customs administrations.

Article 28

Co-operation between authorities

1. Where, in respect of the same goods, controls other than customs controls are performed by competent authorities other than the customs authorities, such controls shall be performed in close co-operation with the customs authorities, wherever possible at the same time and place (one-stop-shop).

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, exchange data received, in the context of the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and other territories, and the presence of non-Community goods, with each other, with the customs authorities of other Member States and with the Commission.

Article 29

Post-release verification

The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the summary or customs declaration, inspect the commercial documents and data relating to the operations in respect of the goods in question or to subsequent commercial operations involving those goods.

Such inspections may be carried out at the premises of the declarant 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 that document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be presented.

Article 30

Exceptions

1. No customs controls or formalities shall be carried out in respect of either of the following:

(a) the cabin and hold baggage of persons taking an intra-Community flight;

(b) the baggage of persons making an intra-Community sea crossing.

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

(a) the security and safety checks carried out on baggage by the authorities of the Member States, port or airport authorities or carriers;

(b) checks linked to prohibitions or restrictions laid down by the Member States, provided that such prohibitions or restrictions are compatible with the Treaty.

Section 8

Keeping of documents and other information; fees and costs

Article 31

Keeping of documents and other information

1. The person concerned shall keep the documents and information referred to in Article 9(1) for the purposes of customs controls, for the period laid down in the provisions in force and for at least three calendar years, irrespective of the medium used.

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 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 73(4), where a customs control carried out by the customs authorities 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 shall be kept for three years beyond the time limit provided for in paragraph 1 of this Article.

Where an appeal has been lodged, the documents must be kept until the procedure is terminated.

Article 32

Fees and costs

1. No fees shall be charged by customs authorities for the performance of customs controls.

However, the customs authorities may charge fees or recover costs where specific services are rendered or in respect of any other application of the customs legislation.

2. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of the second subparagraph of paragraph 1 and, in particular, the following:

(a) attendance, where requested, by customs staff 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 21 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 that 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.

CHAPTER 3

CURRENCY CONVERSION, TIME LIMITS AND SIMPLIFICATION

Article 33

Currency conversion

1. Where the conversion of currency is necessary for one of the following reasons, the rate of exchange applicable shall be that published, or made available on the Internet, by the competent authorities:

(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, value thresholds and the amount of import or export duties.

The rate of exchange shall reflect, as effectively as possible, the current value of the converted currency in terms of the currency of the Member State.

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 once a year.

3. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of paragraphs 1 and 2 of this Article.

Article 34

Time limits

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

2. The rules applicable to periods, dates and time limits set out in Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits [14] shall apply to time limits set within the customs legislation, except where other specific provisions apply.

Article 35

Simplification

1. The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures laying down in which cases, and under which conditions, the application of this Code may be simplified.

2. Simplified procedures to be defined in accordance with the procedure referred to in Article 194(3) shall be applied to Community goods moving between a national territory referred to in Article 3(3) of Directive 77/388/EEC and another part of the Community customs territory.

3. Subject to approval by the Commission acting in accordance with the procedure referred to in Article 194(3), a Member State may apply simplified procedures to Community goods as referred to in paragraph 2 and moving exclusively within its territory, and correspondingly two or more Member States may mutually agree upon simplified procedures to be applied to such goods moving between them.

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 36

Common Customs Tariff

1. Import and export duties 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 according to 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 [15];

(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 import 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 import 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 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.

Article 37

Tariff classification of goods

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.

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.

The subheading or further subdivision determined in accordance with the first or the second paragraph shall be used for the purpose of applying the measures attached to that subheading.

CHAPTER 2

ORIGIN OF GOODS

Section 1

Non-preferential origin

Article 38

Scope

Articles 39, 40 and 41 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 points (d) and (e) of Article 36(2);

(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 39

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 40

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 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 41

Implementing measures

The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of Articles 39 and 40.

Section 2

Preferential origin

Article 42

Preferential origin of goods

1. In order to benefit from the measures referred to in points (d) or (e) of Article 36(2) or from non-tariff preferential measures, goods shall comply with the rules on preferential origin referred to in paragraphs 2, 3 and 4 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 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 procedure referred to in Article 194(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, contained in Protocol 2 to the Act of Accession of Spain and Portugal, the Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the rules on preferential origin.

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. When negotiating on behalf of the Community the agreements referred to in paragraph 2, or when submitting a proposal with a view to laying down, by a regulation adopted under Article 251 or under Article 187 of the Treaty, the rules referred to in paragraphs 3, 4 and 5, the Commission shall take account in particular of the following:

(a) the commitments and obligations accepted in relation to international agreements;

(b) the need to define criteria relating to the origin status of products which are tailored to the features of each product, ensuring that the economic benefit of the preferential measures is reserved for countries, territories or groups of countries or territories in respect of which these measures were agreed or adopted;

(c) the level of development and degree of industrialisation of the countries, territories or groups of countries or territories in respect of which the preferential measures were agreed or adopted;

(d) the regional integration objectives underlying some of the preferential systems in question, by the laying down of appropriate cumulation rules;

(e) the need to lay down rules which are simple to understand and to apply, so that the operators of the countries, territories or groups of countries or territories in respect of which the preferential measures were agreed or adopted may use those preferential measures effectively, and which must be compatible with the aim of facilitating trade.

The Commission shall make provision for appropriate monitoring measures, to prevent or punish any abuse or circumvention of the preferential measures.

7. The Commission shall, in accordance with the procedure referred to in Article 194(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 43

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 44 to 47.

Article 44

Transaction value

1. The customs value of imported goods shall be 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 paragraph 4, hereinafter "transaction value".

The price actually paid or payable is the total payment made or to be made by the buyer to or 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 by the buyer to the seller, or by the buyer to a third party to satisfy an obligation of the seller. The payment need not necessarily take the form of a transfer of money. Payment may be made by way of letters of credit or negotiable instrument and may be made directly or indirectly.

2. 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 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 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 paragraph 4;

(d) the buyer and seller are not related, or, where the buyer and seller are related, the transaction value is acceptable for customs purposes under paragraph 3.

3. For the purposes of point (d) of paragraph 2, the fact that the buyer and the seller are related shall not in itself be sufficient grounds for regarding the transaction value as unacceptable. The circumstances surrounding the sale shall, where necessary, be examined and the transaction value shall be accepted provided that the relationship did not influence the price.

If, in the light of information provided by the declarant or otherwise, the customs authorities have grounds for considering that the relationship influenced the price, they shall notify the declarant of their grounds and he shall be given a reasonable opportunity to respond.

4. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down 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.

Article 45

Secondary methods of customs valuation

1. Where the customs value cannot be determined under Article 44, it shall be determined by proceeding sequentially from point (a) to point (d) of paragraph 2 of this Article, until the first point under which the customs value 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, consisting of the sum of the following:

(i) the cost or value of materials and manufacture or other processing employed in producing the imported goods;

(ii) an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the customs territory of the Community;

(iii) the cost or value of transport of the imported goods to the place of introduction into the customs territory of the Community, of loading and handling charges associated with that transport and of insurance of the goods.

3. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down any further conditions and rules for the application of paragraph 2 of this Article.

Article 46

Fall back method

Where the customs value of imported goods cannot be determined under Articles 44 or 45, it shall be determined, on the basis of data available in the customs territory of 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 the General Agreement on Tariffs and Trade;

(c) this Chapter.

However, none of the following may be used to determine a customs value under the first paragraph:

(a) the selling price in the customs territory of the Community of goods produced in that territory;

(b) a system which provides for the acceptance for customs purposes of the higher of two alternative values;

(c) the price of goods on the domestic market of the country of exportation;

(d) the cost of production, other than computed values which have been determined for identical or similar goods in accordance with point (d) of Article 45(2);

(e) prices for export to a country not forming part of the customs territory of the Community;

(f) minimum customs values;

(g) arbitrary or fictitious values.

Article 47

Implementing measures

The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the rules for the 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.

TITLE III

CUSTOMS DEBT AND GUARANTEES

CHAPTER 1

INCURRENCE OF A CUSTOMS DEBT

Section 1

General provisions

Article 48

Customs debt

Duty on import or export shall be payable in respect of specific goods under the Common Customs Tariff, and the amount payable shall constitute the customs debt.

Section 2

Customs debt on importation

Article 49

Release for free circulation, temporary admission

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

(a) release for free circulation;

(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 for the declaration shall also be a debtor, if he knew, or ought reasonably to have known, that such information was false.

Article 50

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 these products, through either of the following:

(a) the acceptance of the re-export notification relating to the products in question, obtained under inward processing;

(b) the acceptance of the declaration relating to the goods placed under the inward processing procedure in the case of prior exportation of the processed products in question.

2. Where a customs debt is incurred pursuant to point (a) of paragraph 1, the amount of the import duties 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 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 49 (2) and (3) shall apply. However, in the case of non-Community goods as referred to in Article 188, the debtor shall be the person who lodges the re-export notification and, in the event of indirect representation, the person on whose behalf the notification is lodged.

Article 51

Customs debt incurred through non-compliance

1. In cases other than those referred to in Articles 49 and 50, a customs debt on importation shall be incurred through non-compliance with either 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, or for the movement, processing, storage, use or disposal of goods within that territory;

(b) 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 the goods are placed under the customs procedure or declared for that purpose 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 point (a) 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.

In cases referred to under point (b) 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 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 52

Deduction of duties already paid

1. Where a customs debt is incurred, pursuant to Article 51(1), in respect of goods released for free circulation at a reduced rate of import duty on account of their end-use, the amount paid when the goods were released for free circulation shall be deducted from the amount of 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 51(1), in respect of goods placed under temporary admission with partial relief from import duties, the amount paid under partial relief shall be deducted from the amount of the customs debt.

Section 3

Customs debt on exportation

Article 53

Export declaration

1. A customs debt on exportation shall be incurred through the placing of goods liable to export duties under the export 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 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 54

Customs debt incurred through non-compliance

1. In cases other than those referred to in Article 53, and if the goods are 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, movement or disposal 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. Where goods liable to export duties leave the customs territory of the Community without a customs declaration, the debtor shall be any of the following:

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

(b) 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. Where a customs debt arises as a consequence of failure 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, the debtor shall be any of the following:

(a) the declarant;

(b) in the event of indirect representation, the person on whose behalf the declaration is made.

Section 4

Provisions common to customs debts incurred on importation and exportation

Article 55

Prohibitions and restrictions

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.

However, no customs debt shall be incurred on the unlawful introduction into the customs territory of the Community of counterfeit currency or of narcotic drugs and psychotropic substances which do not enter into the economic circuit strictly supervised by the competent authorities with a view to their use for medical and scientific purposes.

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 56

Several debtors

Where several persons are liable for payment of one customs debt, they shall each be liable for the totality of the debt.

However, priority in the first instance shall be given to the recovery of the customs debt from the importer or exporter of record.

Where one or more of those persons have deliberately infringed the customs legislation, priority shall be given to recovery of the customs debt from those persons.

Article 57

General rules for calculation of the amount of 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.

3. Where customs legislation provides for a favourable tariff treatment of goods, relief or total or partial exemption from import or export duties, pursuant to points (d) to (g) of Article 36(2), Articles 136 to 140, 177 and 180 to 183, such favourable tariff treatment, relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 51 or 54, on condition that the behaviour of the person concerned involves no fraudulent dealing.

Article 58

Special rules for calculation of the amount of 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 these costs is provided by the declarant.

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

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 such debt shall, at the request of the declarant, be determined on the basis of the tariff classification, customs value, nature and origin of the goods placed under the inward processing procedure at the time of acceptance of the declaration relating to these goods.

Article 59

Implementing measures

The Commission may, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the following:

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

(b) further special rules for specific procedures.

The Commission may, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by supplementing it by laying down derogations from Articles 57 and 58.

Article 60

Place where the customs debt is incurred

1. A customs debt shall be incurred at the place where the customs declaration referred to in Articles 49 and 53 is lodged or, pursuant to Article 128(3), is deemed to have been 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 Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down the period of time referred to in the first subparagraph of this paragraph.

3. Where the information available to the customs authorities enables them to establish that the customs debt may have been incurred in several places, the customs debt shall be deemed to have been incurred at the place where it was first incurred.

4. If a customs authority establishes that a customs debt has been incurred under point (a) of Article 51(1) in another Member State and the amount of that debt is lower than 100000euro, the debt shall be deemed to have been incurred in the Member State where the finding was made.

CHAPTER 2

GUARANTEE FOR A POTENTIAL OR EXISTING CUSTOMS DEBT

Article 61

General provisions

1. This Chapter shall apply to guarantees both for customs debts which have been incurred and for those which may be incurred, unless it is otherwise specified.

2. Customs authorities may require the debtor to provide a guarantee in order to ensure payment of a customs debt and of other charges, in particular VAT and excise duty as provided for under VAT and excise provisions in force.

3. Where the customs authorities require a guarantee to be provided, it shall be required from the debtor or the person who may become liable for that debt.

4. The customs authorities shall require only one guarantee to be provided in respect of specific goods or a specific declaration.

The guarantee provided for a specific declaration shall apply to the customs debt in respect of all goods covered by or released against that declaration, whether or not that declaration is correct.

5. The customs authorities shall permit the guarantee to be provided by a person other than the person from whom it is required.

6. At the request of the person referred to in paragraphs 3 or 5 of this Article, the customs authorities may, in accordance with Article 67(1) and (2), authorize the provision of a comprehensive guarantee to cover the customs debt in respect of two or more operations, declarations or procedures.

7. No guarantee shall be required from States, regional and local government authorities or other bodies governed by public law, in respect of the activities in which they engage as public authorities.

The Commission shall, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by supplementing it by laying down other cases in which no guarantee is to be required or a reduced guarantee is to be required.

8. The customs authorities may waive the requirement for provision of a guarantee where the amount to be secured does not exceed the statistical threshold for declarations laid down in accordance with Article 12 of Council Regulation (EC) No 1172/95 of 22 May 1995 on the statistics relating to the trading of goods by the Community and its Member States with non-member countries [16].

9. A guarantee accepted or authorized by the customs authorities shall be valid throughout the customs territory of the Community, for the purposes for which it is given.

The Commission shall, in accordance with the procedure referred to in Article 194(3), adopt measures amending non-essential elements of this Regulation by supplementing it by laying down exceptions to the first subparagraph of this paragraph.

Article 62

Compulsory guarantee

1. Where it is compulsory for a guarantee to be provided, and subject to the rules adopted pursuant to paragraph 3, the customs authorities shall fix the amount of such guarantee at a level equal to the precise amount of the customs debt in question where that amount can be established with certainty at the time when the guarantee is required.

Where it is not possible to establish the precise amount of the customs debt, the amount of the guarantee shall be fixed as the maximum amount, as estimated by the customs authorities, of the customs debt which has been or may be incurred.

2. Without prejudice to Article 67, where a comprehensive guarantee is provided for customs debts which vary in amount over time, the amount of such guarantee shall be set at a level enabling the customs debts in question to be covered at all times.

3. The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures for the implementation of paragraph 1 of this Article.

Article 63

Optional guarantee

Where the provision of a guarantee is optional, such guarantee shall in any case be required by the customs authorities if they consider that a customs debt is not certain to be paid within the prescribed period. Its amount shall be fixed by those authorities so as not to exceed the level referred to in Article 62.

The Commission shall, in accordance with the procedure referred to in Article 194(2), adopt measures laying down when a guarantee is optional.

Article 64

Provision of a guarantee

1. A guarantee may be provided in one of the following ways

(a) by a cash deposit or by any other means of payment recognized by the customs authorities as being equivalent to a cash deposit, made in euro or in the currency of the Member State in which the guarantee is required;

(b) by an undertaking given by a guarantor;

(c) by another form of guarantee which provides equivalent assurance that the customs debt will be