WRITTEN QUESTION E-2689/96 by Florus Wijsenbeek (ELDR) to the Commission (15 October 1996)

Subject: Transferring the power to recover duty

If it is not known where an offence or irregularity has occurred, as a consequence of which import duty becomes payable, and the Member State of departure, in accordance with the legal fiction of Article 378(3) of the Regulation implementing the Community Customs Code, has proceeded to calculate, enter into the records and communicate the customs debt pursuant to Article 217 and Article 221 of the Community Customs Code (CCC), does this constitute 'recovery' pursuant to the provisions of the abovementioned Article 378(3)?

If the debtor has been granted the facility in Article 224 of the CCC (deferment of payment), does this affect the answer to the previous question?

If the power to recover duty is transferred to the Member State where the irregularity has actually occurred, should the proceedings instituted by that Member State take place both in the territory where the duty is levied and in the territory where it is recovered, in accordance with legislation in force in the latter?

Can the Commission indicate whether, and to what extent, the transfer of this power to recover duty and the recovery proceedings to be instituted by the recipient Member State are accompanied by sufficient guarantees of the legal certainty of the debtor in general and in all circumstances, and in particular there is a guarantee of appeal to an independent body pursuant to Article 243(1) of the CCC?

Answer given by Mr Monti on behalf of the Commission (15 November 1996)

If the place of the offence cannot be established, the Member State to which the office of departure belongs in which the T1 declaration was registered must levy the duties and other charges relating to the goods concerned, in accordance with Article 378(1) and (2) of Regulation (EEC) No 2454/93 laying down provisions for the implementation of the Community Customs Code. ((OJ L 253, 11.10.1993. )) This means it must calculate, enter in the accounts and communicate the customs debt to the principal within 11 months of the date of the declaration. This does, therefore, constitute recovery proceedings.

In some cases, the place where the debt is actually incurred is not ascertained until later, albeit within the three year deadline from the date of registration of the T1 declaration, by which time the amounts in question have already been paid to the Member State of departure, pursuant to Article 378(1) and (2) of the abovementioned Regulation. In this case Article 378(3) of the said Regulation lays down that the Member State in which the offence was actually committed should levy the duties and other charges relating to the goods concerned, in accordance with national provisions, with the exception of those already levied as Community own resources by the Member State to which the office of departure belonged.

The reason for this is the existence of a tax liability, alongside the customs duty, in the Member State in which the offence occurred. It does not, however, lead to double taxation since, as soon as proof of post-clearance recovery is provided, the duties and other charges initially charged, with the exception of those levied as own resources, are reimbursed by the Member State of departure. The possibility of deferred payment provided for in Article 224 of the Community Customs Code does not affect these arrangements.

Furthermore, since each recovery action is considered as a decision by the customs authorities, the person concerned enjoys full legal protection and the right to a two-stage appeal under, inter alia, Article 243 of the Community Customs Code.