EN Official Journal of the European Union C 94/1

OPINION No 1/2014

(pursuant to Article 325(4) TFEU)

on the proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters

2014/C 94/01

THE COURT OF AUDITORS OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 325(4) thereof,

Having regard to the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (1),

Having regard to the request for an opinion addressed to the Court of Auditors by the European Parliament on 19 December 2013,

HAS ADOPTED THE FOLLOWING OPINION:

INTRODUCTION

1. The objective pursued by the draft regulation is the sound application of Union legislation in the fields of customs and agriculture, providing in particular the Commission but also the Member States’ customs and other authorities with more effective mechanisms to assist it in preventing, investigating and prosecuting operations that are in breach of customs and agricultural legislation. To that end the proposal: (a) seeks to improve the fight against customs-related fraud and, in particular, cases of misdeclaration of origin, misdescription of goods and misuse of the transit system (2), by: (i) establishing a central database of container movements (3), imports, exports and transit-related data; (ii) clarifying the legal basis for sharing customs-related data between the Commission and the Member States; (b) empowers the Commission to obtain directly from private sector companies the documents supporting import and export declarations, with a view to accelerating customs-related investigation procedures and thus reducing the number that are time-barred after three years (4); (c) clarifies three other issues in the existing Regulation (5), in that it: (i) opens up the possibility of restricting visibility in databases to selected users; (ii) streamlines data protection supervision; (iii) removes legal uncertainty as to the admissibility of information obtained through mutual assistance as evidence in national criminal proceedings.

2. The Court has examined the Commission proposal in the light of the results of its audit work.

GENERAL REMARKS

3. The Court considers that the proposal will contribute to achieving the objectives pursued by the regulation, subject to some specific remarks which are referred to in paragraphs 5 to 8. Furthermore, the proposal to amend Article 18b and the directory provided for in Articles 18a and 18g of the draft Regulation addresses concerns expressed in paragraphs 9 and 10 of the Court’s opinion No 3/2007 (6), issued on the last occasion that this Regulation was amended. The Court also considers useful the clarification in Article 12 that information obtained through mutual cooperation may constitute admissible evidence in criminal proceedings in Member States. For these reasons, the Court welcomes the Commission’s proposal.

4. As the European Data Protection Supervisor is the competent authority for questions relating to data protection supervision and will have to be consulted accordingly by the Commission, the Court does not address that matter in the present opinion.

SPECIFIC REMARKS

5. Articles 18a and 18g of the proposal set out the arrangements by which the Commission will establish and analyse a directory of data received from public or private service providers active in the international supply chain and share this data with the Member States’ authorities. Articles 18a(6) and 18g(3) limit access to this directory to certain Commission departments and national authorities and make the transfer of data to other institutions subject to specific conditions. However, these provisions of secondary law cannot restrict the Court’s audit powers established through primary law, namely Article 287(3) TFEU. Whilst, strictly speaking, it is not necessary to make reference to the audit powers of the Court in the amended Regulation (EC) No 515/97, it would nonetheless be useful to point out in the relevant Articles that those provisions are ‘without prejudice to the Court of Auditor’s right of access to documents and information under Article 287(3) TFEU’. This would ensure that all parties involved in the implementation of the Regulation are aware of the audit powers of the Court and that these cannot be made subject to restrictive conditions. For the same reason, a reference to the Court of Auditors in Article 29, concerning access to the Customs Information System, would be useful.

6. Articles 18c to 18f set out the arrangements by which the Commission will obtain and process information about container movements into, inside and out of the customs territory of the Union. This information will be provided by public and private service providers, in effect the shipping companies. The World Shipping Council (WSC), which represents approximately 90 % of the global liner vessel capacity (7), was consulted as part of preparing the legislative proposal. This procedure gives a degree of assurance that the proposal is practicable and will not result in unreasonable costs for shipping companies (8).

7. The Court notes that there is no provision in the draft legislation for any verification of the completeness, reliability and timeliness of the data provided by the shipping companies. Furthermore, no resources are set aside in the legislative financial statement for such a procedure. Completeness, reliability and timeliness of the data are risks that need to be addressed, having due regard to the cost of any controls put in place.

8. Article 18h of the proposed Regulation empowers the Commission (OLAF) to obtain directly from economic operators documents supporting import and export declarations when these are required for investigations. The aim is to speed up OLAF investigations and thus to reduce the risk of time-barring. The Court considers that this measure is appropriate. However, in the interest of sincere and effective cooperation between the Commission and the Member States, it would be appropriate to provide in this Article: (a) that the Commission should inform the national authorities of the Member States concerned about any requests made to economic operators; and (b) that the Commission may request assistance from the competent national authorities to obtain documents, particularly where economic operators do not comply immediately with its request.

This opinion was adopted by Chamber CEAD, headed by Mr Igors LUDBORŽS, Member of the Court of Auditors, in Luxembourg at its meeting of 25 February 2014. For the Court of Auditors Vítor Manuel da SILVA CALDEIRA President

(1) COM(2013) 796 final of 25 November 2013.

(2) See paragraph 3.3.1 of the impact assessment that accompanied the Commission’s legislative proposal (Commission Staff Working Document SWD(2013) 483 final of 25 November 2013).

(3) Known in the shipping industry as Container Status Messages (CSMs).

(4) See paragraph 3.3.2.1 of the impact assessment that accompanied the Commission’s legislative proposal (Commission Staff Working Document SWD(2013) 483 final of 25 November 2013).

(5) Ibid, paragraph 3.3.2.2.

(6) OJ C 101, 4.5.2007, p. 4.

(7) See paragraph 2.4.2 of the impact assessment that accompanied the Commission’s legislative proposal (Commission Staff Working Document SWD(2013) 483 final of 25 November 2013).

(8) Ibid, page 27. This approach is based on the experience of the WSC in implementing similar requirements of the authorities of the United States of America.