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 )
Date: 1989-12-13
Institutions: European Commission
Subjects: Union transit, customs document

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)). 

-  2 -

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). 

- 3 -

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. 

- 4 -

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 

The guarantor  shall  undertake to pay 

jointly and severally with the debtor 

jointly and severally with the debtor 

the secured amount of a customs debt 

the secured amount of a customs debt 

which  falls to be paid.  The guarantor 

which  falls to be paid.  The guarantor 

must: 

must be: 

-  have his normal  residence or an 
establishment in the Community, 
and 

-  a credit  institution licensed 

according  to Article 3 of Council 
Directive  77/780/EEC, or 

-  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. 

-  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 

Article 10 

aragraph  1 unchanged  in relation.to 
the common position of the Council 

-  2 -

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 

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. 

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) 

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. 

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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