Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Regulation (EC) amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code'
Date: 1999-01-27
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU law, customs regulations, legal code, simplification of formalities

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Official Journal of the European Communities

12.4.1999

Opinion of the Economic and Social Committee on the ‘Proposal for a European Parliament
and Council Regulation (EC) amending Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code’(1)

(1999/C 101/02)

On 3 July 1998 the Council, acting in accordance with Article 100a of the Treaty establishing
the European Community, asked the Economic and Social Committee for an opinion on the
above-mentioned proposal.

The Section for Single Market, Production and Consumption, which was instructed to prepare
the Committee’s work on this matter, adopted its opinion on 9 December 1998. The rapporteur
was Mr Giesecke.

The Committee adopted the opinion set out below at its 360th plenary session (meeting of
27 January 1999) by 73 votes to five, with one abstention.

1.

Introduction

1.1.
In 1992 the EEC reached agreement, after decades
of endeavour, on the establishment of a Community
Customs Code (CCC), as the basic instrument under-
lying Community customs provisions. The CCC is
regarded as a well-balanced compromise between differ-
ent concepts and philosophies and it is often readily
taken as an example by countries establishing modern
framework legislation in this field.

1.2.
The CCC involved not only the harmonization
of a number of approaches, some of which differed
markedly from others; it brought about, above all, a
higher level of transparency and considerable simplifi-
cation. As a result the CCC provided the basis for
several Community policies, particularly in the areas of
trade and indirect taxation. The procedures defined in
the CCC also apply to agriculture.

As the initial regulation establishing the CCC (2)
1.3.
called on the Commission to submit, by the end of 1997,
a report on the adjustments which needed to be made,
particularly in respect of the internal market.

1.4.
Following this intermediate report and the first
changes made as a result of the GATT-Uruguay Round,
and also as a result of a growing incidence of fraud, the
Commission is now putting forward proposals for
modernization; these proposals are based in particular
on the ambitious Customs 2000 action programme (3)
and bring about the desired simplification.

1.5.
In addition to introducing a degree of simplifi-
cation, the chief features of the current proposals are:
greater flexibility, an improved procedure for recovering
duties, and the bringing of the provisions on customs
representation into line with the requirements of the
internal market.

The extensive CCC implementing provisions (4)
1.6.
were formulated in the final phase of the completion of

(1) OJ C 108, 7.4.1998, p. 39-41; OJ C 228, 21.7.1998, p. 8.
(2) OJ L 302, 19.10.1992, ESC opinion: OJ C 60/91, p. 5.
(3) OJ C 301, 13.11.1995, p. 5.
(4) OJ L 253, 11.10.1993; OJ L 17, 21.1.1997.

the internal market under considerable time pressure.
These implementing provisions require further qualitat-
ive revision and ongoing updating to take account
of current developments. Continuous efforts will be
required in this wide-ranging area in order to tackle issues
such as transit procedures (5) and customs procedures of
economic importance.

The Council had approved the breakdown of
1.7.
these extensive legal provisions between the two regulat-
ory levels (basic regulation and implementing provisions)
and granted the Commission considerable powers in
this field, whilst at the same time ensuring that the
Member States had their say and by providing for a
Committee procedure.

2. Commission proposal for a regulation

2.1.
The essential aims of the modernized Community
Customs Code are (a) to ensure equal application of all
customs provisions throughout a unified customs area
(also the objective of the Customs 2000 action pro-
gramme), and (b) to protect the financial interests of the
Community and the relevant operator.

The latter objective is served, in particular, by
2.1.1.
the reform of the Community transit procedure, designed
to combat organized fraud, and the reform of the
preferential tariff arrangements, mismanagement of
which has taken on alarming dimensions in some fields.

2.2.
The Commission is seeking to bring about
greater flexibility in the CCC, in addition to a further
simplification of its provisions. With this aim in view
and in the light of the fact that the rules governing
customs debt are regarded as too rigid, the Commission
proposes that a balance be struck between the interests
involved.

2.3.
A new type of free zone with special supervision
rules is to be recognized; this measure is designed to
meet further wishes expressed by Community traders.

(5) OJ C 355, 21.11.1997, p. 72.

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2.4.
The existing customs procedures with economic
impact are to be simplified in a comparable way to the
simplification of the Community transit procedure; this
will involve making parts of the CCC more flexible.

2.5.
A number of other changes to the CCC provisions
dealing with customs formalities are designed to take
account of the growing computerization of customs
clearance.

2.6.
A number of other proposals put forward by the
Commission seek to increase the effectiveness of the
recovery procedure, particularly by extending the pre-
scription period in cases where an irregularity is sus-
pected.

2.7.
In some Member States it is customary for
customs formalities to be carried out by intermediaries.
In this context the Commission proposes that, with
effect from 1 January 2002, only indirect representation
may be reserved for customs agents.

3. General observations

3.1.
The amendments set out in the proposal for a
regulation serve both to bring the uniform EU customs
provisions into line with current developments and to
underscore the fact that these provisions meet the
requirements of the new millennium. The Committee
welcomes this.

3.2.
The Committee highlights the need for the
codified customs provisions to be continuously reviewed,
at given intervals, to ensure that they are in line with
economic reality. Modern customs provisions have a
lasting influence on the extent to which all Community
traders are able to participate in international trade.
These customs provisions therefore need to be constantly
reviewed to ensure that they meet the requirements of
Community traders. As a customs law is constantly
evolving, it is vital for the provisions in this field to be
monitored at clearly defined intervals.

3.3.
The Committee recognizes that moves towards
liberalizing customs checks — designed to benefit honest
economic players and to take account of the increasing
volume of trade — have to be backed up by sensible
supervisory systems, geared to the level of risk, in order
to provide safeguards. The operational activities of (a)
the Unit on Coordination of Fraud Prevention (UCLAF)
or (b) the planned independent bureau and the measures
proposed in the Customs 2000 action programme should
play a special role in this context.

4. Specific comments

The sequence of comments set out below mirrors the
order in which the points are set out in the proposal for
a regulation.

4.1. Changes to the provisions governing represen-

tation (Article 5(2), second subparagraph)

4.1.1.
The Committee supports the proposed amend-
ment as the freedom to provide services, which is one of
the four basic freedoms of the economic union, must be
unreservedly guaranteed in all sectors.

4.1.2. When the Community Customs Code was
drawn up in 1992 account had to be taken of a total of
twelve national bodies of customs law. The differing
aims of these national provisions had to be incorporated
into a version which was acceptable to all Member
States. For this reason, the provision whereby customs
agents were allowed to act as direct representatives was
taken over from Member States in which it had been a
statutory right for many years.

4.1.3.
In the case of direct representation, the risk in
respect of customs law lies exclusively with the party
being represented; this being the case, the latter party
must be given complete freedom to choose his representa-
tive. The fact that an agent is officially recognized must
not be the deciding factor.

The proposed transitional period extending to
4.1.4.
1 January 2002 would appear to be a highly advisable
measure as it provides the parties concerned with
the requisite amount of time to make the necessary
adjustments within the proposed three-year period. The
Member States should, however, be entitled to authorize
direct representation by any party,
irrespective of
whether they are officially recognized as declarants, as
soon as the amendment comes into force, i.e. with effect
from 1 January 1999.

4.1.5.
In the context of the freedom to provide
services, the Committee is also very critical of the
maintenance of the special status of customs agents in
respect of indirect representation, even though this is
only to constitute an option. Article 64 of the CCC
stipulates that customs declarants have to be resident in
the EU, thus ensuring that accounts are available for
inspection; such representatives regularly operate in
the EU. Whether or not representatives may assume
responsibility for a customs debt must — as is the case
also with debts in respect of national taxes, such as
turnover tax on imports or excise duties — be based on
whether or not a representative is trustworthy. It should
be sufficient, in this respect, for the national customs
administrations concerned to carry out a risk analysis.

4.2. Rate of exchange to be used for the calculation of
the customs value of goods (first paragraph of
Article 35)

4.2.1.
The introduction of the euro on 1 January 1999
and the attendant implementation of the third stage of
economic and monetary union should mean that there
will be no further significant variations in the rates of
exchange published in the individual Member States.
The Committee assumes that the national currencies
of the four Member States not participating in the
introduction of the euro will be closely linked to the
euro exchange rate.

The European Central Bank will set euro exchange rates
in respect of national currencies during the transitional
period, involving parallel use of the euro and national
currencies, which comes to an end on 1 January 2002.
The European Central Bank (ECB) and the Council of
Ministers jointly laid down binding exchange rates on
31 December 1998. The exchange rates were sub-
sequently published, in the form of an EC Regulation,
in the Official Journal on 31 December 1998. This
Regulation came into force on 1 January 1999.

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4.2.2. However, difficulties are likely to arise in
connection with currency conversion for the purposes
of customs value declarations during the transitional
period since some member governments have let it be
known that they are to switch to the use of the euro for
internal customs purposes only on the final day of the
transitional period.

4.3. Deadlines in respect of summary declarations

[Article 49(1)]

4.3.1.
The establishment of a close, concrete link
between the goods which are covered by a summary
declaration and the person making the declaration is
fundamentally in line with practical reality. As the goods
are regularly entrusted — also for temporary safekeeping
— to the person making the declaration in the subsequent
course of the customs procedure, the fact that this
person is also to be obliged to present the summary
declaration is both advisable and in line with practical
reality. The Committee would, however, point out that
in the case of the submission of a summary declaration
following completion of the transit procedure, a distinc-
tion must continue to be drawn between the person
acting as principal in respect of the transit procedure
and the person making the summary declaration.

In the event of different persons being involved
4.3.2.
in other than the abovementioned cases, a practical
solution may also be achieved through the representation
arrangements set out in Article 5.

4.4. Supporting documents in respect of customs dec-
larations (new paragraph 3 to be added to
Article 62)

A number of Member States already make
4.4.1.
provision for declarations to be made electronically and
most of the others are likely to follow suit. The
Committee therefore welcomes the proposed exemption
from the need to submit supporting documents, such as
bills or proof of entitlement to preference — cf. in this
context Articles 218 to 221 of the CCC implementing
regulation. This exemption is an essential prerequisite
for the electronic processing of declarations. In the
interests of all the parties involved, the Committee does
however take the view that the exemption should not
be applied to electronic processing in cases where there
is a well-founded doubt or where it is suspected that
supporting documents have been falsified (1). In the case
of sensitive imports, such as food products and live
animals or plants, it is likely that an exemption from
the need to submit the necessary import documentation
— such as certificates showing that products are fit for
consumption, medical certificates or import licences —
can only be able to be achieved by virtue of bilateral
agreements on a case by case basis.

4.4.2. Where enterprises make customs declarations
electronically, the response from customs adminis-
trations also takes the form of a standardized electronic

(1) The Committee would, by way of example, draw attention
in this context to the large number of certificates of origin
in respect of textiles (Form A) improperly issued in
Bangladesh which led to the subsequent levying of a
considerable amount of import duties in the EU.

data exchange (UN/EDIFACT). The speed of response to
electronic customs declarations, which mainly depends
upon how quickly the various customs authorities are
able to react, was hampered by the general obligation
to submit
laid down in
Article 62(2) of the Code. Such an obligation would
detract from the advantages provided by electronic data
exchange.

supporting documents

4.4.3.
The conditions governing such an agreement
have still to be specified in the implementing provisions.
These provisions should stipulate that undertakings may
store supporting documentation not just in the form of
hard copies but also electronically e.g. in the form of
CD-ROMs, diskettes or microfiches.

The time limits for storing such supporting
4.4.4.
documentation should, in the Committee’s view, be
along the lines of the storage time limits for customs
documents laid down elsewhere in the CCC (cf. see
Articles 14 to 17).

4.5.

Inward processing of compensating products
[Article 115(4)]

4.5.1.
The possibility of taking compensating prod-
ucts out of the customs regime in respect of freedom of
movement, placing them in the inward processing regime
and subsequently processing and exporting the products
before equivalent primary products have been imported
is authorised only in cases where duties are suspended.
Restrictions on the use of this alternative procedure
have now been set out in Article 569(2) in connection
with Annex 78 of the CCC implementing regulation (2),
in respect of a number of agricultural products. The
Committee welcomes the Commission’s stated intention
of making this special provision more flexible by
amending Annex 78. The Committee assumes that the
proposed change will also have a positive effect on the
implementing provisions, rather than merely introducing
restrictions.

4.6. Conditions for authorization of inward processing

(Article 117c) (3)

4.6.1. When deciding whether to authorize inward
processing, account should always be taken of the need

(2) OJ L 253, 11.10.1993.
(3) The Commission organized a ‘Matthäus Seminar’

in
Bordeaux, France, from 27 to 30 September 1998, which
addressed the economic conditions in respect of inward
processing. The great majority of the business representa-
tives present were in favour of regarding the economic
conditions in respect of the inward processing of industrial
products as being fulfilled on a permanent basis. In
view of the special procedures applicable to agricultural
products, however, the economic conditions should in this
case be examined as a matter of principle. The special
conditions in respect of agriculture — involving, for
example, export refunds in respect of particular products
— should, in the view of the economic players, not be
applied to the industrial sector.

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to protect the fundamental interests of EU producers.
When carrying out such an examination, there is a need
to weigh up the export interests of the processing
industry in relation to the need to protect the supply
industry which produces products for processing which
are comparable to the imported products but which are
in principle protected by customs duties. Such an
appraisal requires a thorough economic knowledge in
respect of the EU as a whole. It is therefore frequently
very difficult for local customs offices to weigh up these
two interests.

The authorities and the business world would
4.6.2.
be greatly helped by the establishment of an industrial-
product list specifying the cases in which the economic
conditions are deemed not to have been met (a negative
list), together with an agricultural-product list specifying
the cases in which the economic conditions have been
met (positive list).

4.6.3.
The Committee does, however, also welcome
the proposed amendment with a view to uniform
implementation of the law in all Member States. The
Committee assumes that the proposed establishment of
a list of clear-cut cases would not disadvantage the
industry concerned.

4.7. Time-limits for the exporting of goods placed
procedure

processing

inward

under
[Article 118(4)]

the

The Committee takes the view that

4.7.1.
is
advisable to establish specific time-limits for the re-
exporting of such goods provided that such time-limits
are in line with the economic requirements of processing
enterprises. The establishment of such time-limits could
make it possible to bring about uniform application of
the law in the individual Member States.

it

4.7.2.
The Committee nevertheless considers that it
is vitally necessary to permit derogations from the
re-exporting time-limit, laid down in accordance with
the Committee procedure, in well-founded exceptional
thereby making it possible to comply with
cases,
economic interests in particular individual cases (flexible
time-limits for well-founded exceptional cases).

4.8. Drawback system in relation to inward processing

(Article 124)

4.8.1.
The Committee regards the proposed amend-
ments as appropriate, particularly in view of the fact
that a number of agricultural products are at present
ineligible for draw-back. Products eligible for refunds
will probably continue to be exempted from this
provision.

4.8.2.
In the interests of achieving legal transparency
for all the parties involved, the cases in which only the
suspensive arrangement may be applied must be clearly
and unambiguously specified under the committee pro-
cedure.

4.9. Suspension/repayment of import duty under the

drawback system [Article 128(1)]

4.9.1.
Under the proposed amendment import duties
paid on goods placed under the inward processing
procedure may no longer be refunded simply because
compensating products are placed under the transit
procedure. In connection with the restructuring of
customs procedures having economic importance, goods
may no longer be separately placed under the transit
procedure once the inward processing procedure has
been concluded; compensating products covered by
inward processing authorizations may, however, be
exported. This step represents a major simplification
for enterprises and it is therefore welcomed by the
Committee.

The Committee does, however, believe that it
4.9.2.
should also be possible to transfer any product from
one customs process due to a new, successive process
due once the initial process due has been concluded.
This is the only way to ensure that undertakings are in
a position to respond in an appropriate way to all the
requirements of their customers. This is not likely to
result in a decline in receipts from duties.

4.10. Processing under customs control (Article 131)

4.10.1.
proposed rewording of this article.

The Committee has no reservations over the

4.11. Conditions for granting authorization for pro-

cessing under customs control [Article 133(e)]

The economic requirements should be so
4.11.1.
defined as to (a) make the legal requirements transparent,
and (b) achieve uniform application of the legal pro-
visions. Given that action to promote the procedure for
processing under customs control will also serve to
safeguard jobs in the EU, the economic requirements
should be geared to practical requirements.

4.11.2.
The establishment of a uniform definition
would, in the Committee’s view, make it easier to weigh
up the respective interests of enterprises involved in
importing goods for processing and the interests of
producers of similar products in the individual Member
States, which need to be protected.

4.12. Partial relief from import duties under the tem-
porary importation procedure (Article 142)

4.12.1.
The proposed amendment brings the two
temporarily
alternative arrangements in respect of
imported goods into line with each other. The Com-
mittee welcomes this.

The Committee takes the view that the ques-
4.12.2.
tion of the ownership of temporarily imported goods
should not be a crucial factor in determining whether
they may be placed under the procedure in question.
The only decisive factor should be the customs status of
the goods. This amendment would not appear to
jeopardize economic interests.

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4.13. Time to be taken into account when assessing
the duty applicable to goods placed under the
temporary importation procedure (Article 144)

4.13.1.
The deletion of the existing Article 144(1) gives
priority to the provisions of Article 214 in determining the
assessment bases for customs debts arising in respect
of goods placed under the temporary importation
procedure with total relief from import duties. This
amendment appears to be in line with practical require-
ments and is therefore endorsed.

4.13.2.
Since customs duties should be levied only
once in respect of a given product, the new version of
Article 114 stipulates that, in the case of goods placed
under the temporary importation procedure with partial
relief from import duties, the duties payable for the
period of importation — 3 % per calendar month or
fraction of a month — shall be deducted from the overall
duty payable. This amendment helps clarify the situation
and is therefore welcomed.

4.14. Repairs free of charge (Article 152)

4.14.1.
In the Committee’s view, the proposed amend-
ment to Article 152 constitutes a clear transfer of power
from the Council to the Commission. The Committee
rejects this transfer of power.

4.14.2.
Article 152 regulates exemption from customs
duties of goods, originally imported from outside the
EU and subsequently released for free circulation, which
are exported temporarily to enable repairs to be carried
out free of charge. This possibility of exporting goods
outside the EU for repairs free of charge and subsequently
re-importing the repaired goods without having to pay
duty must not be relegated to the status of an option in
the CCC implementing provisions (‘the Committee
procedure may be used to determine the cases’).

4.14.3.
Any failure fully to implement this principle
would result in the application, in such cases, of the
principle set out in Article 151 whereby duties are
calculated using the differential method. The Committee
takes the view that, bearing this fact in mind, the
economic need for the proposed provision should be
given greater priority.

4.15. Deletion of Article 153 (repairs subject to pay-

ment)

4.15.1.
above, the Committee rejects the proposed deletion.

For the reasons already set under point 4.14

4.15.2.
Article 153, too, provides for an exemption
from levying customs duties using the differential method
(Article 151) in favour of levying duties on the basis of
added value, in accordance with the amount of the
repair costs. This provision, which is important to many
enterprises, must not be called into question by the
possible inclusion of an optional provision in the CCC
implementing regulation.

4.16. Establishment of free zones (Article 167)

In its study on the operation of free zones in
4.16.1.
the EU, the Commission pointed out that a number of

different types of free zones existed in the individual
Member States. Whereas the ‘old style’ free zones were
always enclosed and could only be entered at fixed
points where customs offices had been established, the
‘new style’ free zones are not enclosed. In the latter free
zones, customs controls take the form — as they do in
the provisions governing customs warehouses — of
customs declarations in respect of the individual non-EU
goods.

As there are many more free zones of this type than ‘old
style’ free zones, which are defined by law by the
Member States, a responsibility for authorizing the
former type of free zones is vested in the customs
authorities. The Committee welcomes the abolition of
separate legal procedures for the establishment of these
free zones as this will considerably simplify matters for
all the parties involved.

4.16.2.
Customs controls in respect of the ‘new style’
non-enclosed free zones, may be carried out through the
submission of customs declarations in respect of non-EU
products. This makes it possible for local customs
authorities to respond in a flexible way should traders
wish to use this procedure. Bearing in mind that the
establishment of such free zones is important to a number
of sectors, the Committee welcomes the proposed
amendment.

4.17. Supervision of free zones (Article 168)

4.17.1.
As it will in future be possible to maintain or
set up both of the types of free zones described in point
4.16 above, the enclosed zones will require customs
supervision through the establishment of customs posts
at the points of entry and exit. EU products in free
zones will also be subject to customs supervision. The
Committee takes the view that this supervision is a
necessary requirement.

4.18.

Insertion of Article 168(a)
special free zones)

(establishment of

4.18.1.
In the case of the ‘new style’ free zones
described in point 4.16 above, customs checks take the
form of declarations in respect of the non-EU products
brought into or taken out of the free zone. Responsibility
for supervising these operations lies with the customs
office responsible for the locality in which the free zone
is established. In the Committee’s view, this alternative
arrangement is a ‘business friendly’ way to implement
the necessary supervision.

4.18.2.
Article 170 (‘presentation of goods which are
to be transferred to a free zone’), Article 176 (‘keeping
of stock records’) and Article 180 (‘issuing of certificates
testifying the customs status of goods’) can be applied
only to enclosed free zones. The non-applicability of
these articles to non-enclosed free zones, as stipulated
in the second sentence of the proposed Article 168(a),
should be regarded as a consequence of the above-
mentioned considerations.

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4.19. Exemption from customs duties in spite of irregu-

larities [Article 212(a)]

The proposed amendment serves to underline
4.19.1.
the view held by the Council since 1 January 1997 that
the application of the normal rate of customs duty
cannot be regarded as the appropriate sanction for
infringements of customs provisions. The proposed
amendment protects, above all, parties dealing with the
customs authorities in good faith (1).

4.20. Place at which a customs debt

is incurred

[Article 215 (5) and (6)]

4.20.1.
The proposed new paragraphs to be added to
Article 215 serve to make the CCC more transparent
and to clearly identify the Member State in which the
customs debt is to be deemed to have been incurred.
The proposed additions to the provisions are to be
welcomed, insofar as they concern the place at which a
customs debt is deemed to have been incurred.

The proposed additional paragraph 5 adds
4.20.2.
weight to the drive to achieve ‘lean’ administration
and efficient administrative procedures. Unnecessary
transfers of responsibility between Member States’
authorities for customs debts below the set threshold of
ECU 5 000 are to be avoided.

4.20.2.1.
This provision must not, however, lead to
disputes between Member State administrations over
which administration is to receive payments covering
administrative costs in respect of 10 % of customs
revenue, or to receipt of these payments serving as a
criterion for whether administrations are to take action.

In addition to the simple issue of

4.20.2.2.
the
calculation of customs duties, attention also has to be
paid here to the issue of the recovery of national taxes,
in particular VAT on imports. To avoid conflicting
provisions, national VAT laws make use of customs
provisions to determine where taxes are due. The
proposed new measure must not therefore bring about
unreasonable additional expenditure in respect of the
collection of VAT involving, for example, requests for
tax office reference numbers in other Member States.
The Committee takes the view that the proposed
amendment makes it necessary to make adjustments to
the sixth VAT Directive (77/388/EEC) and the Directives
governing excise duties.

4.20.3.
The proposed new paragraph 6 determines
the Member State in which a customs debt is deemed to
have been incurred in cases where the simplified customs
declaration is presented in Member State A and the
supplementary declaration is lodged in a different
Member State B. This is, in the Committee’s view, a
very sensible provision. Normally, in accordance with
CCC Article 201(1), a customs debt is incurred at the
time of acceptance of the simplified customs declaration
in Member State A. The two Member States concerned
must agree amongst themselves, on a case-by-case basis,
on the further action to be taken to settle payments
involving the simplified procedure; these agreements
should take the form of an administrative agreement.

Since the supplementary declaration should generally be
submitted in the Member State in which the party
making the declaration has its registered office, the
administrative authorities in the latter Member State
have the appropriate accounting facilities to enable the
processes involved to be checked and settled.

4.20.3.1.
The national taxation aspect, defined in
point 4.20.2.2 above, should also be taken into account
in this context. VAT provisions should be laid down in
parallel with the customs provisions. In the light of the
expenses incurred, the administrations involved should
hammer out an agreement on the apportionment of
administrative charges in respect of
the payments
received.

4.21. Subsequent entry in the accounts [Article 220(1)]

4.21.1.
The entry in the accounts of sums which have
not been finally settled flies in the face of current practice
in the EU on the basis of Article 220. The proposed
additional provisions do,
in the Committee’s view,
constitute a perfectly appropriate means of combating
cases of fraud. High priority should, however, also be
attached to protecting the confidence of those who
collaborate honestly with the customs authorities. This
view was echoed by the Council in its conclusions in
respect of the communication from the Commission on
the administration of
the customs preference pro-
visions (2).

4.21.2. With a view to making a distinction between
measures to combat fraud, on the one hand, and a need
to maintain the necessary degree of confidence on the
other hand, Article 220 of the Community Customs
Code should be supplemented by a further paragraph
stipulating that there should also be no subsequent entry
in the accounts in cases where the duly established duty
payable has not been entered into the accounts because
of the failure on the part of the exporting state or a
Member State to provide adequate documentation. This
waiver should not apply in cases where the party liable
for the customs debt has been aware of this shortcoming.

4.21.3.
The Committee believes that the proposed
additional provision should apply only in cases where
fraud has been established. The proposed new third
sub-paragraph does not conclusively define this restric-
ted field of application. The Committee therefore calls
upon the Commission to provide a clearer definition of
the field of application. The Committee believes that
there is a need to make it abundantly clear that the
proposed sub-paragraph shall apply only in the case of
fraud and not in cases where good faith needs to be
protected.

4.22. Communication of the amount of duty entered

in the accounts [Article 221(3) and (5)]

Article 221 sets out the provisions governing the com-
munication to the debtor of an amount of duty entered
into the accounts. The form which this communication
is to take cannot be definitively set out in the Community
Customs Code in view of the differences in the Member
States’ framework laws on taxation.

(1) See the ESC opinion published in OJ C 174, 17.6.1996,

point 2.4, p. 14.

(2) Council document No 8428/98, 11.5.1998.

C 101/12

EN

Official Journal of the European Communities

12.4.1999

endorses

The Committee

4.22.1.
the proposed
reduction from three years to two, of the time-limit for
communicating the amount of duty entered in the
accounts. This would mean that decisions in respect of
debtors would come into force more quickly.

4.22.2.
The proposed suspension of the deadline in
cases where appeals have been lodged does, in the
Committee’s view, provide an appropriate means of (a)
enabling traders to have decisions corrected and (b)
enabling the customs authorities to review their original
decision in an appropriate way, bearing in mind new
factors, once a decision has been taken in respect of an
appeal.

4.22.3.
This provision is, in the Committee’s view, in
line with the principles of fair taxation and uniform
application of the law. The Committee does, however,
have considerable reservations as to whether Com-
munity traders will readily be able to recognize that a
given communication of a customs debt involves differ-
ent expiry dates. Such ‘mixed’ communications should
be divided up; the bundling together of communications
involving the same expiry dates would promote clarity
and transparency and therefore be preferable.

The principle set out

4.22.4.
in the proposed
Article 221(3) is based on the assumption that the
deadline for determining the amount due will be
extended in the event of it being ascertained that the
customs provisions have been infringed. This possibility
is provided for in the Community Customs Code. In the
absence of a uniform provision throughout the EU, this
possibility is backed up by national tax laws, under
which deadlines may be extended in the event of taxes
being reduced as a result of negligence or in the event of
fraudulent tax evasion.

4.23. Time limit for payment of the amount of duty

[Article 222(2)]

Article 222(2) provides for different time limits, in a
number of specially mentioned cases, for the payment
of amounts of duty which have been communicated.

Brussels, 27 January 1999.

4.23.1.
It is proposed that the first alternative set out
in Article 222(2) be retained; this alternative provides
for the obligation to pay to be suspended in four
cases defined in Article 876 of the CCC implementing
regulation. The purpose of this provision is to prevent
the payment of import duties which will in all probability
have to be refunded.

4.23.2.
The proposed new third alternative concerns
the time limits for paying duties in the case of goods
removed from customs supervision. Particularly in
connection with the reform of the transit procedure,
parties liable for the payment of customs debts should,
in the event of a breach of the transit provisions, be
liable to pay the resultant duties on a pro rata basis
geared to the extent of their involvement of these
breaches. The Committee calls upon the Commission
to set out an appropriate scale in the implementing
provisions to the CCC.

4.23.3.
Inclusion of the proposed fourth alternative
is a consequence of the amendment described in point
4.21 above.

5. Database

In the interests of improved transparency in this field,
the Commission is currently establishing a data base (at
the Office for Official Publications of the European
Communities) which is to provide all users with access
to an annually updated version of the CCC, together
with the implementing provisions, on payment of a fee.
The Committee welcomes the availability of a constantly
updated version of the customs provisions in several
languages which will be readily available to anyone via
the Internet. It does, however, deplore the fact that a
charge will be made for accessing data via the Internet.
Free access to updated customs provisions is an
important instrument, with a view to the completion of
the internal market.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI