COMMON POSITION (EC) No 53/98 adopted by the Council on 24 September 1998 with a view to adopting European Parliament and Council Regulation (EC) No .../98, of ... amending Regulation (EEC) No 2913/92 with regard to the external transit procedure
Date: 1998-09-24
Institutions: Council of the European Union
Subjects: Union transit, customs cooperation, customs debt, customs regulations, export (EU)

30.10.98

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Official  Journal  of  the  European  Communities

C 333/65

COMMON  POSITION  (EC)  No  53/98

adopted  by  the  Council  on  24  September  1998

with  a  view  to  adopting  European  Parliament  and  Council  Regulation  (EC)  No  . . ./98,  of  . . .
amending  Regulation  (EEC)  No  2913/92  with  regard  to  the  external  transit  procedure

(98/C 333/06)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF
THE  EUROPEAN  UNION,

Having  regard  to  the  Treaty  establishing  the  European
Economic  Community,  and  in  particular  Articles  28,
100a  and  113  thereof,

Having  regard  to  the  proposal  from  the  Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty (3),

(1) Whereas the external transit procedure as governed
by  Council  Regulation  (EEC)  No  2913/92  of
12  October  1992  establishing  the  Community
Customs  Code (4)  is  primarily  designed  to  facilitate
trade  in  non-Community  goods  in  the  Community
customs  territory;  whereas  the  need  for  recourse  to
that procedure for the export of Community goods
must  be  evaluated  in  relation  to  very  different
situations;  whereas  it  is  necessary,  in  any  case,  to
prevent  products  covered  by  or  benefiting  from
export  measures  from  either  evading  or  benefiting
unjustifiably  from  such  measures,  by  ensuring  that
the  Community  customs  legislation  taken  as  a
whole  guarantees  control  and  monitoring  at  least
the  external
equivalent 
that  offered  by 
Community  transit  procedure;  whereas, 
if  the
possibility  to  use  this  procedure  in  some  of  those
such
situations 
situations  should  be  a  matter  for  the  committee
procedure;

is  maintained,  definition  of 

to 

(1) OJ  C  337,  7.11.1997,  p.  52.
(2) OJ  C  73,  9.3.1998,  p.  17.
(3) Opinion  of  the  European  Parliament  of  13  May  1998
(OJ  C  167,  1.6.1998),  Council  Common  Position  of
24 September 1998 and European Parliament Decision of . . .
(not  yet  published  in  the  Official  Journal).

(4) OJ  L  302,  19.10.1992,  p.  1.  Regulation  as  last  amended  by
Regulation  (EC)  No  82/97  (OJ  L  17,  21.1.1997,  p.  1).

(2) Whereas  it  is  necessary  to  define  the  way  in  which
the  customs  authorities  discharge  the  procedure,  in
relation  to  the  place,  the  time  and  the  conditions
under  which  this  procedure  ends,  in  order  to
establish  more  clearly  the  scope  and  limits  of  the
obligations  of  the  holder  of  the  external  transit
procedure  and  to  ensure  that,  in  the  absence  of
the
information  capable  of  establishing 
procedure  has  ended,  the  holder  remains  fully
liable;

that 

(3) Whereas  it  is  necessary  for  the  rules  for  the
guarantee  in  transit  to  be  better  defined,  including
recourse to the different forms of guarantee and the
cases for a guarantee waiver, in particular following
amendment  of  the  scope  of  maritime  transit;
whereas,  to  ensure  an  adequate  protection  of  the
financial  interests  of  the  Member  States  and  the
Community  without  imposing  a  disproportionate
burden on users, this guarantee and the calculation
of its amount must be based both on the reliability
of the operator and the risks attached to the goods;
whereas  a  more 
logical  and  better  structured
presentation  of  the  provisions  is  desirable  with
regard  to  the  guarantee  in  transit;

involving 

arrangements 

(4) Whereas,  in  order  to  safeguard  the  revenue  of  the
European  Community  and  of  the  Member  States
and  to  curb  fraudulent  practices  in  the  transit
graduated
procedure, 
measures  for  application  of  the  comprehensive
guarantee are advisable; whereas in the first place a
ban  on  reducing  the  comprehensive  guarantee  may
be  considered  where  there  is  an  increased  risk  of
fraud  and  loss  of  revenue  is  therefore  to  be  feared;
whereas  where  it  is  established  that  especially
critical exceptional situations exist, which may arise
in  particular  from  the  activities  of  organised  crime,
it  should  instead  also  be  possible  temporarily  to
prohibit  the  application  of  the  comprehensive
guarantee  itself;  whereas  account  should  be  taken
in  the  application  of  these  graduated  measures  of
the  particular  situation  of  the  economic  operators
who  meet  specific  criteria  to  be  determined;
whereas,  where  an  individual  guarantee  has  to  be
provided  instead  of  the  comprehensive  guarantee,
the  burdens  entailed  for  operators  should  be

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reduced  by  means  of 
simplification;

the  greatest  possible

HAVE  ADOPTED  THIS  REGULATION:

(5) Whereas 

by 

States 

the  Member 

the  Community 

the  simplified  procedures  having  an
exclusively  national,  bilateral  or  multilateral  scope
introduced 
under
Article  97(2)  of  the  Community  Customs  Code,
hereafter  referred  to  as  ‘the  Code’,  vary  greatly  in
nature  and  may  in  some  cases  conflict  with  the
proper  application  of 
transit
procedures  and  the  need  for  equal  treatment  of
economic  operators;  whereas,  without  calling  into
question  the  benefits  this  system  offers  to  these
operators,  a  communication  to  the  Commission  of
the  simplified  procedures 
introduced  by  each
Member  State  on  this  basis  must  be  provided  for,
in  order  to  ensure  the  transparency  of  these
measures  and  to  evaluate  their  compatibility  with
the 
transit
rules  which  govern  Community 
procedures  and  in  particular  the  guarantee;

(6) Whereas  security  systems  for  Community  transit
procedures  cover  both  customs  debt  and  other
charges  which  may  be  incurred  in  respect  of  the
goods,  and  constitute  a  special  case  since  the
procedures  are  international  in  nature  and  the  sum
required  needs  to  be  tailored  to  an  extent  to  the
risks  and  to  the  principal’s  reliability;  whereas,
therefore,  there  is  a  need  to  adapt  in  consequence
Article  192  of  the  Code;

(7) Whereas  under  the  current  wording  of  Article  215
of  the  Code  it  is  possible  to  determine  where  the
customs  debt  is  incurred,  but  it  does  not  indicate
that  this  place  determines  the  authority  responsible
for  the  entry  into  the  accounts  of  the  debt;
whereas,  moreover,  where  a  customs  procedure  is
not  discharged,  the  rule  for  determining  that  place
must be amended to reflect the need to establish, as
far  as  possible,  the  place  where  the  events  from
which  the  customs  debt  arises  actually  occurred;

(8) Whereas simplification and clarification of the rules
for  the  benefit  of  both  operators  and  customs
officials  form  an  essential  part  of  the  action  plan
for  customs  transit  in  Europe;  whereas  these  rules
must  also  be  applied  to  the  provisions  determined
in  accordance  with  the  committee  procedure;

(9) Whereas this amendment of the code together with
the  corresponding  amendments  to  its  implementing
provisions  must  be  such  as  to  facilitate  the
introduction  in  due  course  of  a  new  computerised
system  of  transit  for  the  benefit  of  both  the  public
interests  at  stake 
transit  operations  and
economic  operators,

in 

Article  1

Regulation  (EEC)  No  2913/92  is  hereby  amended  as
follows:

1. Article  91(1)(b)  shall  be  replaced  by  the  following:

‘(b) Community  goods, 

cases  and  under
in 
conditions  determined  in  accordance  with  the
committee  procedure, 
to  prevent
products  covered  by  or  benefiting  from  export
measures,  from  either  evading  or  benefiting
unjustifiably  from  such  measures.’;

in  order 

2. Article  92  shall  be  replaced  by  the  following:

‘Article  92

1.
The external transit procedure shall end and the
obligations of the holder shall be met when the goods
placed  under 
the  required
the  procedure  and 
documents  are  produced  at  the  customs  office  of
destination  in  accordance  with  the  provisions  of  the
procedure  in  question.

2.
The  customs  authorities  shall  discharge  the
procedure when they are in a position to establish, on
the basis of a comparison of the data available to the
office of departure and those available to the customs
office  of  destination,  that  the  procedure  has  ended
correctly.’;

3. Article  94  shall  be  replaced  by  the  following:

‘Article  94

1.
The principal shall provide a guarantee in order
to  ensure  payment  of  any  customs  debt  or  other
charges  which  may  be  incurred  in  respect  of  the
goods.

2.

The  guarantee  shall  be  either:

(a) an  individual  guarantee  covering  a  single  transit

operation;  or

(b) a comprehensive guarantee covering a number of
transit  operations  where  the  principal  has  been
authorised  to  use  such  a  guarantee  by  the
customs  authorities  of  the  Member  State  where
he  is  established.

The  authorisation  referred  to  in  paragraph  2(b)

3.
shall  be  granted  only  to  persons  who:

(a) are  established  in  the  Community,

(b) are 

regular  users  of  Community 

transit
procedures  or  who  are  known  to  the  customs
authorities  to  have  the  capacity  to  fulfil  their
obligations  in  relation  to  these  procedures,  and

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(c) have  not  committed  serious  or  repeated  offences

against  customs  or  tax  laws.

4.
Persons who satisfy the customs authorities that
they  meet  higher  standards  of  reliability  may  be
authorised  to  use  a  comprehensive  guarantee  for  a
reduced  amount  or  to  have  a  guarantee  waiver.  The
additional  criteria 
shall
include:

this  authorisation 

for 

(a)

the  correct  use  of 
procedures  during  a  given  period,

the  Community 

transit

(b) cooperation  with  the  customs  authorities,  and

(c)

in  respect  of  the  guarantee  waiver,  a  good
financial  standing  which  is  sufficient  to  fulfil  the
commitments  of  the  said  persons.

The  detailed  rules  for  authorisations  granted  under
this paragraph shall be determined in accordance with
the  Committee  procedure.

The  guarantee  waiver  authorised  in  accordance
5.
with  paragraph  4  shall  not  apply  to  external
Community transit operations involving goods which,
as  determined  in  accordance  with  the  Committee
procedure,  are  considered  to  present  increased  risks.

In 

line  with 

6.
the  principles  underlying
paragraph 4, recourse to the comprehensive guarantee
for  a  reduced  amount  may,  in  the  case  of  external
Community  transit,  be  temporarily  prohibited  by  the
Committee  procedure  as  an  exceptional  measure  in
special circumstances.

In 

line  with 

the  principles  underlying
7.
paragraph 4, recourse to the comprehensive guarantee
may,  in  the  case  of  external  Community  transit,  be
temporarily  prohibited  by  the  Committee  procedure
in  respect  of  goods  which,  under  the  comprehensive
guarantee,  have  been  identified  as  being  subject  to
large-scale fraud.’;

The cases in which the furnishing of a guarantee
2.
in  respect  of  the  carrriage  of  goods  on  waterways
other than those referred to in paragraph 1(b) may be
waived  shall  be  determined  in  accordance  with  the
Committee  procedure.’;

5. Article  97  shall  be  replaced  by  the  following:

‘Article  97

1.
The  detailed  rules  for  the  operation  of  the
procedure  and  the  exemptions  shall  be  determined  in
accordance  with  the  committee  procedure.

Provided 

2.
Community  measures 
guaranteed:

that 

the 
applying 

implementation 
to 

goods 

of
is

(a) Member  States  have  the  right,  by  bilateral  or
multilateral  arrangement,  to  establish  between
themselves  simplified  procedures  consistent  with
criteria  to  be  set  according  to  the  circumstances
and  applying  to  certain  types  of  goods  traffic  or
specific  undertakings;

(b) each  Member  State  shall  have  the  right  to
establish 
certain
simplified  procedures 
circumstances  for  goods  not  required  to  move  in
the  territory  of  another  Member  State.

in 

Simplified 

3.
paragraph  2 
Commission.’;

procedures 

shall  be 

established 
communicated 

under
the

to 

6.

In  Article  192(1),  the  introductory  sentence  shall  be
replaced  by  the  following:

‘1. Where customs legislation makes it compulsory
for security to be provided, and subject to the specific
provisions  laid  down  for  transit  in  accordance  with
the  committee  procedure,  the  customs  authorities
shall  fix  the  amount  of  such  security  at  a  level  equal
to:’;

7. Article  215  shall  be  replaced  by  the  following:

4. Article  95  shall  be  replaced  by  the  following:

‘Article  215

‘Article  95

Except 

in  cases 

1.
necessary 
in  accordance  with 
procedure,  no  guarantee  need  be  furnished  for:

to  be  determined  where
committee
the 

(a)

journeys  by  air;

(b)

the carriage of goods on the Rhine and the Rhine
waterways;

(c) carriage  by pipeline;

(d) operations  carried  out  by  the  railway  companies

of  the  Member  States.

1.

A  customs  debt  shall  be  incurred:

— at  the  place  where  the  events  from  which  it  arises

occur,

— if  it  is  not  possible  to  determine  that  place,  at  the
place  where  the  customs  authorities  conclude  that
the  goods  are  in  a  situation  in  which  a  customs
debt  is  incurred,

— if  the  goods  have  been  entered  for  a  customs
procedure which has not been discharged, and the
place  cannot  be  determined  pursuant  to  the  first
or  second 
time
determined, if appropriate, in accordance with the
Committee  procedure,  at  the  place  where  the
goods  were  either  placed  under  the  procedure
the
concerned 

indent  within  a  period  of 

introduced 

or  were 

into 

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Community 
procedure.

customs 

territory 

under 

that

2. Where  the  information  available  to  the  customs
authorities enables them to establish that the customs
debt  was  already  incurred  when  the  goods  were  in
another  place  at  an  earlier  date,  the  customs  debt
shall  be  deemed  to  have  been  incurred  at  the  place
which may be established as the location of the goods
at  the  earliest  time  when  existence  of  the  customs
debt  may  be  established.

The 

customs  authorities 

in
3.
Article  217(1)  are  those  of  the  Member  State  where
the  customs  debt  is  incurred  or  is  deemed  to  have
been  incurred  in  accordance  with  this  Article’.

referred 

to 

Article  2

This  Regulation  shall  enter  into  force  on  the  third  day
following  its  publication  in  the  Official  Journal  of  the
European  Communities.

This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  all  Member  States.

Done  at  . . .

For  the  European  Parliament

The  President

For  the  Council

The  President

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STATEMENT  OF  THE  COUNCIL’S  REASONS

I.

INTRODUCTION

1. On  29  September  1997,  the  Commission  submitted  a  proposal,  based  on  Articles  28,
100a  and  113  of  the  EC  Treaty,  amending  Regulation  (EEC)  No  2913/92  establishing
the  Community  Customs  Code  (transit) (1).

2. The  European  Parliament  and  the  Economic  and  Social  Committee  gave  their  opinions

on  13  May  1998  and  10  and  11  December  1997  respectively (2).

3. On  24  September  1998,  the  Council  adopted  its  Common  Position  in  accordance  with

Article  189b  of  the  Treaty.

II. OBJECTIVE

The  Commission  proposal  forms  part  of  the  reform  of  transit  procedures  and  follows  the
Commission’s  action  plan  for  transit  in  Europe,  which  was  drawn  up  partly  in  response  to
the findings of the European Parliament’s temporary committee of enquiry into Community
transit  procedures.  The  amendment  to  the  Community  Customs  Code  is  only  part  of  a
wider reform, the bulk of which will consist in the overhaul of the implementing provisions
of the Code, the revision of the Convention on Common Transit concluded with the EFTA
and  Visegrad  countries,  the  computerisation  of  transit  procedures  and  operational
improvements  to  procedures.

III. ANALYSIS  OF  THE  COMMON  POSITION

1. The Council has been examining the proposal since the end of 1997 and has amended it
fairly  substantially.  Essentially,  the  amendments  correspond  very  closely  to  the
amendments  submitted  by  the  European  Parliament  and  the  amended  proposal
subsequently  submitted  by  the  Commission.

2. With  regard  to  Amendment  1  (accepted  by  the  Commission),  the  Council  did  not
consider  this  new  recital  necessary,  since  it  was  general  in  scope  and  therefore  did  not
apply  specifically  and  exclusively  to  transit  decisions.

3. With  regard  to  Amendment  2  (accepted  by  the  Commission),  the  Council  followed  the
Parliament’s  amendment  to  a  very  large  extent;  only  editorial  amendments  have  been
made  to  the  new  text  of  Article  91(1)(b).

4. With  regard  to  Amendment  3,  which  was  not  included  in  the  amended  Commission
proposal,  the  Council  has  followed  the  Parliament’s  approach  and  introduced  a  new
paragraph  2  in  Article  92  which  defines  the  discharge  of  the  external  transit  procedure
and  involves  the  office  of  departure  and  the  office  of  destination.

5. With  regard  to  Amendment  4,  which  was  included  in  the  amended  Commission
proposal,  the  Council  has  very  largely  accepted  the  text  of  the  new  Article  94,  as
amended  by  the  Parliament.  The  changes  made  by  the  Council  to  that  amendment  are
essentially editorial in the case of paragraphs 1, 2, 3 and 4; however, paragraphs 3 and
4 contain more detailed provisions which, via the committee procedure, will improve the
targeting  of  undertakings  which  can  benefit  from  the  comprehensive  guarantee  system,
possibly  for  a  reduced  amount  or  with  a  guarantee  waiver.  These  additional  details  are
also  based  on  the  amendment  proposed  by  Parliament  in  its  paragraph  6.

(1) OJ  C  337,  7.11.1997,  p.  52.
(2) OJ  C  37,  1.3.1998,  p.  17.

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New  provisions  have  been  entered  in  paragraphs  5,  6  and  7.

Paragraph  5  deals  with  the  fact  that  the  guarantee  waiver  cannot  be  granted  for  goods
which,  as  determined  by  the  Committee  procedure,  are  considered  to  present  increased
risks.

Paragraph  6  opens  up  the  possibility,  in  exceptional  circumstances,  of  temporarily
prohibiting,  by  the  committee  procedure,  any  reduction 
in  the  comprehensive
guarantee.

In  the  case  of  sensitive  goods  which  in  the  past  have  been  the  subject  of  major  fraud,
paragraph  7  makes  it  possible  to  prohibit  temporarily  the  use  of  the  comprehensive
guarantee  and  hence  require  an  individual  guarantee.

This  grading  of  the  measures  concerning  the  use  of  the  comprehensive  guarantee  is
explained  in  a  new  third  recital  for  the  Regulation.  The  recital  explains  both  the
progressive nature of the measures which can be taken and how they should be applied
with  reference  to  the  principles  set  out  in  Article  94(4),  namely,  taking  account  of  the
particular  situation  of  certain  commercial  operators  who  comply  with  criteria  to  be
determined. This recital also lays down the principle of having simplified administrative
procedures  for  operators  from  whom  an  individual  guarantee  is  temporarily  required.

6. With  regard  to  Amendment  5,  accepted  by  the  Commission,  the  Council  has  followed
Parliament’s  opinion  very  precisely,  subject  to  a  purely  editorial  change  to  the  new
paragraph  2.

7. With  regard  to  Amendment  6,  accepted  by  the  Commission,  the  Council  has  similarly

followed  Parliament’s  opinion  in  leaving  Article  96  unchanged.

8. With  regard  to  Amendment  7,  which  was  not  included  by  the  Commission  in  its
amended proposal, the Council has very precisely followed Parliament’s amendment for
the new paragraphs 1, 2 and 4. However, the Council has not adopted the Parliament’s
amendment  which  would  have  introduced  a  new  paragraph  3,  in  view  of  the  limited
scope of bilateral and multilateral arrangements as regards simplified procedures, which,
moreover,  must  in  any  case  be  communicated  to  the  Commission.

Finally,  attention  should  be  drawn  to  the  amendments  made  by  the  Council  to
Article 192(1) and Article 215 of the Code, which in substance largely match the initial
Commission  proposal;  these  points  had  not  been  amended  by  the  Parliament.

IV. CONCLUSION

The  Council  considers  that  the  Common  Position  adopted  with  a  view  to  adopting  this
Regulation  on  transit  meets  the  objectives  as  described  in  Section  II,  in  particular  as  an
important  instrument  in  the  fight  against  fraud.

With  these  objectives  in  mind,  the  Council  has  adopted  the  major  part  of  the  European
Parliament’s amendments.