WRITTEN QUESTION E-3142/96 by Florus Wijsenbeek (ELDR) to the Commission (22 November 1996)

Subject: The concept of 'irregularity' in customs transport

1. Does the Commission share the view that the concept of 'offence or irregularity' in Article 378 of the Regulation implementing the Community Customs Code should be interpreted solely in the context of the provisions of Articles 203 and 204 of the Community Customs Code and should therefore be deemed to relate to the actual fact leading to the withdrawal of goods from customs supervision or non-fulfilment of the obligations arising from application of the relevant customs rules?

2. Can such offences or irregularities consist of offences or irregularities which are not derived directly from customs legislation as such (e.g. the provisions of Article 96 of the Code or of Article 356(1) of the Regulation implementing the Code)?

3. If the answer to the previous question is necessarily 'yes', can such offences and irregularities consist of the mere preparation of a set of actions aimed at non-discharge of a customs document, without any proof that this non-discharge will actually be manifested or implemented by virtue of the fact that the goods are withdrawn from customs supervision, for example by removing the means of identification applied by the customs and marketing the goods?

4. If the answer to the previous question is necessarily 'yes' and the irregularity is therefore deemed to have taken place before, or immediately after, departure, is it then the Commission's view that a document presented at the customs office of departure and complying with the provisions of Article 96 of the Code must necessarily be deemed to have been properly discharged?

Answer given by Mr Monti on behalf of the Commission (10 January 1997)

1. Under the transit procedure, a customs debt on importation may be incurred either through the removal of goods from customs supervision (Article 203 of the Community Customs Code, or CCC) or, failing such removal, through non-fulfilment of the obligations entered into under the procedure (Article 204, CCC). The place where the customs debt is incurred is determined pursuant to Article 215 of the CCC. Without prejudice to the latter provision, and given that the transit procedure suspends both duties and charges, Article 378 of the provisions implementing the CCC lays down a rule, specific to transit, to determine the place where the duties and other charges shall be levied in the event of non-presentation at the office of destination and when the place of the offence or irregularity giving rise to the debt cannot be established. Furthermore, this concept of offence or irregularity is defined in an administrative arrangement as an act that may give rise to a legal claim.

Given that Article 378 of the provisions implementing the Community Customs Code only applies in the event of the consignment not being presented, and that this failure implies its removal at an earlier date, the concept of offence or irregularity specified therein relates only as regards the customs debt to the situations provided for in Article 203 of the CCC.

2. Given the objective of Article 378 of the provisions implementing the CCC, i.e. to establish the place where the debt is to be collected, an offence or irregularity falling within the terms of that Article refers to any act that gives rise to such debt and to the action for its recovery.

Therefore, this concept covers failure to comply with obligations derived directly from customs legislation (such as those laid down in Article 96 of the CCC or Article 356(1) of the provisions implementing it) only in so far as such non-compliance in itself engenders debt.

Regardless of the objective laid down in Article 378, this interpretation does not deprive the Member States of the right, indeed, the obligation, by virtue of their national law, to impose sanctions to deal with any offence or irregularity committed, but which does not result in the incurrence of a debt in the course of a transit operation.

3. The preparation of a number of actions aimed at the non-discharge of a customs document can be considered an 'offence or irregularity' within the meaning of Article 378 of the provisions implementing the CCC only where such actions give rise to debt, without prejudice to any punitive measures prescribed at national level.

4. A transit operation, on completion of which the T document is presented at the office of destination, cannot be considered correctly discharged if an offence or irregularity within the terms of Article 378 of the provisions implementing the CCC occurred immediately after the goods left the office of departure. In any case, an offence or irregularity committed before the departure of the goods cannot, by definition, be caught by these provisions.