WRITTEN QUESTION E-2705/96 by Florus Wijsenbeek (ELDR) to the Commission (15 October 1996)

Subject: Notification of irregularity

1. Does the Commission share the view that the notification pursuant to Article 379 of the Regulation implementing the Community Customs Code must satisfy minimum requirements in order to safeguard the interests which the provisions of that article seek to protect?

2. Is the requirement that the notification must be made in writing a minimum requirement and, if not, does not protection of the debtor merit having written notification made a minimum requirement?

3. If a notification is not sent to the principal within the set period of eleven months, what effect, if any, will this have?

4. Is the Commission aware of the fact that the Dutch Minister of Finance takes the view that the abovementioned period of eleven months is a statutory limit, i.e. that failing to comply with the period is an obstacle to initiating proceedings to recover the import duty payable?

5. Is the Commission aware of the fact that in practice this position is ignored by the Dutch customs authority, in that the latter initiate recovery proceedings regardless of whether the period has been exceeded or even whether a notification has been sent?

6. Given the difference of opinion between the Dutch Minister of Finance and the Dutch customs authorities, and the legal uncertainty that may arise from this, does the Commission not feel there is every reason to enact additional legislation to guarantee legal certainty which would specify that a notification must be made in writing and within eleven months, and that failure to comply with this requirement is an obstacle to initiating recovery proceedings?

Answer given by Mr Monti on behalf of the Commission (25 November 1996)

1. The main aim of the notification pursuant to Article 379 of the Regulation laying down certain provisions implementing the Community Customs Code ((Commission Regulation (EEC) No 2454/93, 2.7.1993 (OJ L 253, 11.10.1993). )) is to enable the principal of a transit operation, where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, to furnish proof of the regularity of the transit operation, where appropriate, within three months, and thus to avoid recovery of the duties and charges involved, or proof of the place where the offence or irregularity was committed, in order to take account in particular of the difference between the tax systems of Member States. The eleven-month time limit is the maximum time by which any procedure for investigating irregularities must in principle have been completed by the customs administrations concerned. The Commission shares the Honourable Member's view that an act such as the notification concerned must satisfy minimum requirements in order to enable the addressee of the notification to furnish the said proof where necessary.

2. Therefore, and since it must also necessarily indicate the time limit of three months, the notification must be made in writing.

3. Article 379(1) of the Code's implementing provisions effectively requires the office of departure to notify the principal 'as soon as possible and in any case before the end of the eleventh month' following the transit declaration. Failure by a Member State to meet this obligation in any case amounts to a failure to meet its Community obligations. However, the effects of this failure with regard to the principal must be assessed in the light of the general provisions on customs debt and recovery as laid down by the Community Customs Code itself ((Council Regulation (EEC) No 2913/92, 12.10.1992 (OJ L 302, 19.10.1992). )). Not only does Article 233 of the Code not include absence of notification or exceeding the notification period among the situations which may extinguish the customs debt, but Article 221(3) of the Code sets the normal prescription period for that debt at three years. At the expiry of that period, the customs authorities are therefore obliged under Articles 217 ff. of the Code to recover the amount of the customs debt resulting from non-compliance with the obligations linked with the transit arrangements. On the other hand, even in the event of belated notification, Article 379(2) of the Code's implementing provisions is applicable; it gives the principal three months to prove the regularity of the operation or the place of the irregularity.

4. - 5. Any differences of interpretation on this matter between the Dutch Minister of Finance and the Dutch Customs Authorities are a matter of relations within the Dutch administration, as the Commission's role, under the supervision of the Court of Justice, is solely to ensure the proper application of the provisions of the Treaty and the provisions deriving from it.

6. The Commission nevertheless regards it as essential, as part of the current overall reform of transit arrangements, to clarify the way in which the general customs provisions of the Code and the rules specific to transit must mesh with each other. It is in that context that the procedure for notifying the principal will have to be reconsidered.