COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(89) 590 final - SYN 25 
Brussels,13 december 1989 
Re-examined proposal for a 
COUNCIL REGULATION (EEC) 
on the security to be given to ensure payment of a 
customs debt 
(presented by the Commission pursuant to Article 149.2(d) 
of the EEC Treaty) 
EXPLANATORY MEMORANDUM 
I. Common position and the position of the European Parliament 
On 14 June 1989 the Council adopted a common position concerning the proposal for 
a Regulation on the security to be given to ensure payment of a customs debt 
(C0M(82)861-SYN 25). This common position was amended by Fsrliament as follows. 
1) Amendment No 1 
In order to make it clear whict» bodies are generally exempt from providing 
security, Parliament proposes the insertion of a definition of "public 
authority" (new point (ga) in Article 1(2)). 
2) Amendment No 2 
This amendment increases to ECU 1 000 the amount below which security may be 
waived. 
3) Amendment No 3 
Parliament proposes a rewording of Article 9 to specify how the provisions 
concerning freedom to provide services affect the authorization of guarantors, 
4) Amendment No 4 
Parliament considers that the provision allowing the customs authority in 
certain cases to refuse to accept the type of security proposed should be 
deleted (second subparagraph of Article 10(1)). 
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5) Amendment No 5 
Parliament also considers that the types of security which may be accepted 
alongside those expressly referred to should be defined at Community level 
(first subparagraph of Article 10(2)). 
6) Amendment No 6 
Finally, Parliament wishes to require the customs authorities to state the 
reasons for their decisions in certain cases. 
II. The Commission's position 
For the reasons outlined below, the Commission accepts the third, fifth and 
sixth amendments and rejects the others (see annex). 
1) Amendment No 1 
The proposal to define "public authority", which the Commission accepted after 
its first reading of Parliament's recommendation, is no longer deemed appropriate. 
This is because, apart from the risk of creating a precedent, the definition 
in question does not solve the problems inherent in the borderline cases which 
might arise when interpreting this expression. Although it is clear that the 
State administration must be exempted from the requirement to put up a 
security, and equally that State-owned firms (Fiat, Volkswagen) cannot be so 
exempted, a whole grey area exists in which the matter is not easy to settle 
(postal services, railways, airlines, universities, research institutes). 
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It is thought that the best solution would be to delegate to the designated 
committee the task of examining difficulties of interpretation and solving 
them, where appropriate, by means of implementing provisions. 
This solution does not compromise the Regulation's uniform application, and is 
a flexible means of striking a balance between the interests of public 
authorities and thee of firms competing on the marketplace. 
2) Amendment No 2 
Increasing to ECU 1 000 the threshold below which a security may be waived 
appears to present too many risks for own resources. Since, in the case of an 
optional security, the customs authorities can in any case exempt the debtor, 
the de minimis rule in fact applies to the compulsory security, i.e. to cases 
where there is a higher risk (e.g. transit procedure, or cases in which payment 
is deferred until after the goods have been placed at the disposal of firms). 
3) Amendment No 3 
The wording proposed by Parliament is clearer. It matches that of a proposal 
presented by the Commission to the Council in the context of the Community 
transit procedure (0J No C 51, 28.2.89, p. 6). 
4) Amendment No 4 
In certain cases, the authorities cannot operate rationally if the choice 
between a cash payment and a guarantor is left to firms. Where payment is 
deferred, for example, a cash payment is not appropriate if such deferment is 
granted for continuous operations cocnerning the release of goods for free 
circulation, which might also be combined with simplified procedures. 
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5) Amendment No 5 
The Commission agrees with Parliament's view that transferring powers from the 
Member States to the Commission would be a better way of ensuring equal 
treatment throughout the Community. The Commission is thus ready at this stage 
to take on this new responsibility. 
6) Amendment No 6 
The Commission had intended that the matter of requiring reasons for decisions 
to be stated should be dealt with in the context of the Community Customs Code. 
It is also to support Parliament's proposal for the introduction of such a 
requirement in this Regulation. 
Re-examined proposal for a 
COUNCIL REGULATION (EEC) 
on the security to be given to ensure 
payment of a customs debt 
Common position of the Council Re-examined proposal 
Preamble and recitals unchanged in relation to 
the common position 
Articles 1 to 8 unchanged in relation to 
the common position of the Council 
Article 9 Article 9 
The guarantor shall undertake to pay 
jointly and severally with the debtor 
the secured amount of a customs debt 
which falls to be paid. The guarantor 
must: The guarantor shall undertake to pay 
jointly and severally with the debtor 
the secured amount of a customs debt 
which falls to be paid. The guarantor 
must be: 
- have his normal residence or an 
establishment in the Community, 
and 
- subject to the provisions 
concerning freedom to provide 
services, have been approved "by 
the customs authority of the 
Member State in which the security 
is given. Such approval may be 
subject, amont other things, to 
the condition that the guarantor 
be a person whose main ÔT 
secondary professional activities 
relate to the provision of such' 
services. 
Article 10 - a credit institution licensed 
according to Article 3 of Council 
Directive 77/780/EEC, or 
- an insurance undertaking authorized 
for the class of suretyship insurance 
according to Articles 6 and 7 of 
Council Directive 73/239/EEC, or 
- any other natural or legal third 
person established in the Community 
and approved by the Member State in 
which the guarantee is provided. 
Article 10 
aragraph 1 unchanged in relation.to the common position of the Council 
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Common position of the Council Re-examined proposal 
2. The customs authority may, where the 
provisions in force so allow, accept 
types of security other than those 
referred to in Article 7 where they 
provide equivalent assurance that the 
customs debt will be paid. 2. The customs authority may, where the 
provisions adopted in accordance with 
Article 15(2) so allow, accept types 
of security other than those referred 
to in Article 7 where they provide 
equivalent assurance that the customs 
debt will be paid. 
Second subparagraph of paragraph 2 unchanged 
in relation to the common position of the Council 
Article 11 unchanged in relation to the common position of the Council 
Article 11 a 
In exercising its discretion under 
Articles 2, 3 and 11, the customs 
authority shall, upon request from the 
customs debtor, supply reasons in 
writing for its decision. 
Articles 12 to 19 unchanged 
in relation to the common position of the Council 
ANNEX 
Amendments of Parliament not incorporated into the re-examined 
proposal 
Common position of the Council Amendments of Parliament 
Article 1(2)(ga) (new) 
(ga) "public authority" shall mean 
any governmental body, endowed with 
statutory powers within the organiza-
tion of the State. 
Article 2(5) Article 2(5) 
5. The customs authority may waive the 
requirement for provision of 
security where the amount of the 
customs debt in question does not 
exceed ECU 500. 5. The customs authority may waive the 
requirement for provision of security 
where the amount of the customs debt in 
question does not exceed ECU 1 000. 
Second subparagraph of Article 10(1) 
However, the customs authority may 
refuse to accept the type of 
security proposed where it is 
incompatible with the proper 
functioning of the customs 
procedure concerned. Second subparagraph of Article 10(1) 
Deleted • 
ISSN 0254-1475 
COM(89) 590 final 
DOCUMENTS 
EN 02 
Catalogue number : CB-CQ-&9-549-EN-C 
ISBN 92-77-55206-9 
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