Common Position (EC) No 31/2000 of 25 May 2000 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code
Date: 2000-05-25
Institutions: Council of the European Union
Subjects: EU customs procedure, common customs tariff, customs debt, customs drawback, customs formalities, customs regulations

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 31/2000

adopted by the Council on 25 May 2000

with a view to adopting Regulation (EC) No 31/2000 of the European Parliament and of the
Council of … amending Council Regulation (EEC) No 2913/92 establishing the Community
Customs Code

(2000/C 208/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(2)

Having regard to the Treaty establishing the European Com-
munity, and in particular Articles 26, 95 and 133 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 251 of the Treaty (3),

Whereas:

(1) Article 253(4) of Council Regulation (EEC) No 2913/92
of 12 October 1992 establishing the Community Cus-
toms Code (4), provides that, before 1 January 1998, the
Council is, on the basis of a Commission report, which
may be accompanied by proposals, to review the Code
with a view to making such adaptations as may appear
necessary, taking into account in particular the achieve-
ment of the internal market.

(1) OJ C 228, 21.7.1998, p. 8.
(2) OJ C 101, 12.4.1999, p. 6.
(3) Opinion of the European Parliament of 12 March 1999 (OJ
C 175, 21.6.1999, p. 420), Council common position of 25 May
2000 and decision of the European Parliament 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 955/1999 of the European Parliament and of
the Council (OJ L 119, 7.5.1999, p. 1).

Every revision of the Code must, without instituting
any barriers to international trade, be regarded as an
opportunity to introduce instruments and procedures to
prevent fraud, the prevention of fraud being one of the
best ways of saving taxpayers’ money as underlined in
the Council’s conclusions of 19 May 1998.

(3) Account should be taken of the Council resolution of
25 October 1996 on the simplification and rationalis-
ation of the Community’s customs regulations and pro-
cedures (5).

(4) The powers of

the different authorities to establish
exchange rates following the introduction of the euro
have not yet been decided.

(5)

(6)

(7)

Provision should be made for the possibility of customs
declarations lodged by means of a data-processing tech-
nique not being accompanied by certain documents.

In order to make it easier to take advantage of the
arrangements for inward processing, processing under
customs control and temporary importation, the rules
should be made more flexible.

It is appropriate to make provision, in accordance with
the committee procedure, for additional cases in which
charges due under outward-processing arrangements are
calculated taking the cost of processing operations as a
basis.

(5) OJ C 332, 17.11.1996, p. 1.

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(8)

(9)

In some free zones it may be appropriate to permit
completion of the formalities attaching to the customs
warehousing procedure and the carrying-out of customs
checks by the customs authorities according to that
procedure.

In certain circumstances, the benefit of favourable tariff
treatment granted by reason of the nature or end-use of
goods and of differential charges under the outward-
processing procedure should also be available where a
customs debt is incurred for reasons other than the
release of goods into free circulation.

HAVE ADOPTED THIS REGULATION:

Article 1

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

1.

In Article 4, point 24 shall be replaced by the following:

‘24. Committee procedure means either the procedure
in
referred to in Articles 247 and 247a, or
Articles 248 and 248a.’

(10) The provisions relating to the place where a customs debt
is incurred should include special rules for particular
cases where the sum involved is below a given threshold.

2.

In Article 35, the first paragraph shall be replaced by the
following:

(11) It is necessary, for the particular case of preferential
arrangements, to define the concepts of error by the
customs authorities and of the good faith of the person
liable for payment. The person liable for payment should
not be held responsible for a malfunction of the system
due to an error made by the authorities of a third country.
The issue of an incorrect certificate by such authorities
should not, however, be considered an error if
the
certificate is based on an application which contains
incorrect information. The incorrect nature of the infor-
mation provided by the exporter in his application must
be assessed on the basis of all the factual elements which
are contained in that application. The person liable
for payment can plead his good faith where he can
demonstrate that he has taken due care, except when a
notice stating that there are grounds for doubt has
been published in the Official
Journal of the European
Communities.

(12) The Community’s financial interests and the rights of the
person liable for payment should be protected against
unduly lengthy legal proceedings.

(13) Provision should be made for suspending the obligation
to pay a customs debt incurred where goods have been
removed from customs supervision and there is more
than one debtor, so as to allow customs authorities to
initiate recovery proceedings against one particular
debtor, taking priority over other debtors.

‘Where factors used to determine the customs value of
goods are expressed in a currency other than that of the
Member State where the valuation is made, the rate of
exchange to be used shall be that duly published by the
authorities competent in the matter.’

3.

In Article 77, the current text becomes paragraph 1 and
the following paragraph shall be added:

‘2.
Where the customs declaration is made by means
of a data-processing technique, the customs authorities
may allow accompanying documents referred to in
Article 62(2) not to be lodged with the declaration. In
this case the documents shall be kept at the customs
authorities’ disposal.’

4.

Article 115(4) shall be replaced by the following:

‘4.
Measures aimed at prohibiting, imposing certain
conditions for, or facilitating recourse to paragraph 1
may be adopted in accordance with the committee
procedure.’

5.

The following sentence shall be added to Article 117(c):

‘The cases in which the economic conditions are deemed
to have been fulfilled may be determined in accordance
with the committee procedure.’

6.

Article 124 shall be replaced by the following:

(14) The measures necessary for the implementation of Regu-
lation (EEC) No 2913/92 should be adopted in accord-
ance with Council Decision 1999/468/EC of 28 June
1999 laying down the procedures for the exercise of
implementing powers conferred on the Commission (1).

‘Article 124

1.
The drawback system may be used for all goods.
It shall not, however, be usable where, at the time the
declaration of release for free circulation is accepted:

(15) Regulation (EEC) No 2913/92 should therefore be

amended accordingly,

— the import goods are subject to quantitative import

restrictions,

(1) OJ L 184, 17.7.1999, p. 23.

— a tariff measure within quotas is applied to the

import goods,

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— the import goods are subject to presentation of
an import or export licence or certificate in the
framework of the common agricultural policy, or

— an export refund or tax has been set

for the

compensating products.

Moreover, no reimbursement of import duties
2.
under the drawback system shall be possible if, at
the time the export declaration for the compensating
products is accepted, these products are subject
to
presentation of an import or export licence or certificate
in the framework of the common agricultural policy or
an export refund or tax has been set for them.

11. Article 167(3) shall be replaced by the following:

Free zones with the exception of those designated
‘3.
in accordance with Article 168a, shall be enclosed. The
Member States shall define the entry and exit points of
each free zone or free warehouse.’

12. Article 168(1) shall be replaced by the following:

‘1.
The perimeter and the entry and exit points of
free zones, except the free zones designated in accord-
ance with Article 168a, and of free warehouses shall be
subject to supervision by the customs authorities.’

Derogations from paragraphs 1 and 2 may be
3.
laid down in accordance with the committee procedure.’

13.

7.

Article 131 shall be replaced by the following:

‘Article 131

The cases in and specific conditions upon which the
procedure for processing under customs control may
be used shall be determined in accordance with the
committee procedure.’

8.

In Article 133(e), the following sentence shall be added:

‘The cases in which the economic conditions are deemed
to have been fulfilled may be determined in accordance
with the committee procedure.’

9.

Article 142 shall be replaced by the following:

following Article

The
inserted between
Article 168 and heading B (Placing of goods in free
zones or free warehouses):

shall be

‘Article 168a

1.
The customs authorities may designate free zones
in which customs checks and formalities shall be carried
out and the provisions concerning customs debt applied
in accordance with the requirements of the customs
warehousing procedure.

Articles 170, 176 and 180 shall not apply to the free
zones thus designated.

2.
References to free zones in Articles 37, 38 and
205 shall not apply to free zones referred to in
paragraph 1.’

‘Article 142

14. Article 212a shall be replaced by the following:

Use of the temporary importation procedure with
1.
partial relief from import duties shall be granted in
respect of goods which are not covered by the provisions
adopted in accordance with Article 141 or which are
covered by such provisions but do not fulfil all the
conditions laid down therein for the grant of temporary
importation with total relief.

2.
The list of goods in respect of which the tempor-
from
ary importation procedure with partial relief
import duties may not be used and the conditions
subject to which the procedure may be used shall be
determined in accordance with the committee pro-
cedure.’

10.

The following paragraph shall be added to Article 153:

‘By way of derogation from Article 151, the committee
procedure may be used to determine the cases in and
specific conditions upon which goods may be released
for free circulation following an outward-processing
operation, with the cost of the processing operation
being taken as the basis for assessment for the purpose
of applying the customs tariff of the European Com-
munities.’

‘Article 212a

Where customs legislation provides for favourable tariff
treatment of goods by reason of their nature or end-use
or for relief or total or partial exemption from import
or export duties pursuant to Articles 21, 82, 145 or
184 to 187, such favourable tariff treatment, relief or
exemption shall also apply in cases where a customs
debt is incurred pursuant to Articles 202 to 205, 210 or
211, on condition that the behaviour of the person
concerned involves neither fraudulent dealing nor obvi-
ous negligence and he produces evidence that the other
conditions for the application of favourable treatment,
relief or exemption have been satisfied.’

15.

The following paragraph shall be added to Article 215:

‘4.
If a customs authority finds that a customs debt
has been incurred under Article 202 in another Member
State and the amount of
is lower than
EUR 5 000, the debt shall be deemed to have been
incurred in the Member State where the finding was
made.’

that debt

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16. Article 220(2)(b) shall be replaced by the following:

or

‘(b)

the amount of duty legally owed was not entered
in the accounts as a result of an error on the
part of the customs authorities which could not
reasonably have been detected by the person liable
for payment, the latter for his part having acted in
good faith and complied with all the provisions laid
down by the legislation in force as regards the
customs declaration.

Where the preferential status of the goods is estab-
lished on the basis of a system of administrative
cooperation involving the authorities of a third
country, the issue of a certificate by those auth-
orities, should it prove to be incorrect, shall consti-
tute an error which could not reasonably have
the first
been detected within the meaning of
subparagraph.

The issue of an incorrect certificate shall not,
however, constitute an error where the certificate is
based on an incorrect account of the facts provided
by the exporter, except where, in particular, it is
evident that the issuing authorities were aware or
should have been aware that the goods did not
satisfy the conditions laid down for entitlement to
the preferential treatment.

The person liable may plead good faith when he can
demonstrate that, during the period of the trading
operations concerned, he has taken due care to
ensure that all the conditions for the preferential
treatment have been fulfilled.

The person liable may not, however, plead good
faith if the European Commission has published a
notice in the Official Journal of the European Communi-
ties, stating that there are grounds for doubt concern-
ing the proper application of
the preferential
arrangements by the beneficiary country.’

17. Article 221(3) shall be replaced by the following para-

graphs:

‘3.
Communication to the debtor shall not take
place after the expiry of a period of three years from the
date on which the customs debt was incurred. This
period shall be suspended from the time an appeal
within the meaning of Article 243 is lodged, for the
duration of the appeal proceedings.

4.
Where the customs debt is the result of an act
which, at the time it was committed, was liable to give
rise to criminal court proceedings, the amount may,
under the conditions set out in the provisions in force,
be communicated to the debtor after the expiry of the
three-year period referred to in paragraph 3.’

18. Article 222(2) shall be replaced by the following:

‘2.
The cases and conditions in which the debtor’s
obligation to pay duty shall be suspended may also
be provided for in accordance with the committee
procedure:

— where an application for remission of duty is made

in accordance with Article 236, 238 or 239,

— where goods are seized with a view to subsequent
confiscation in accordance with the second indent
of point (c) or with point (d) of Article 233,

or

— where the customs debt was

incurred under

Article 203 and there is more than one debtor.’

19. Articles 247, 248 and 249 shall be replaced by the

following:

‘Article 247

The measures necessary for the implementation of this
Regulation, including implementation of the Regulation
referred to in Article 184, except
for Title VIII and
subject
to Articles 9 and 10 of Regulation (EEC)
No 2658/87 (*) and to Article 248 of this Regulation
shall be adopted in accordance with the regulatory
procedure referred to in Article 247a(2) in compliance
with the international commitments entered into by the
Community.

Article 247a

1.
The Commission shall be assisted by a Customs
Code Committee (hereinafter referred to as “the Com-
mittee”).

2.
Where reference is made to this paragraph,
Articles 5 and 7 of Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months.

3.

The Committee shall adopt its Rules of Procedure.

Article 248

The measures necessary for implementing Articles 11,
12 and 21 shall be adopted in accordance with the
management procedure referred to in Article 248a(2).

Article 248a

The Commission shall be assisted by a Customs
1.
Code Committee, hereinafter referred to as “the Com-
mittee”.

Where reference is made to this paragraph,

2.
Articles 4 and 7 of Decision 1999/468/EC shall apply.

The period laid down in Article 4(3) of Decision
1999/468/EC shall be set at three months.

3.

The Committee shall adopt its Rules of Procedure.

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Article 249

The Committee may examine any question concerning
customs legislation which is raised by its chairman,
either on his own initiative or at the request of a Member
State’s representative.

(*) OJ L 256, 7.9.1987, p. 1.’

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

Done at ...

Article 2

For the European Parliament

For the Council

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

The President

The President

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1.

2.

3.

4.

the Commission submitted a proposal (1), based on Articles 26 (ex
On 12 June 1998,
Article 28), 95 (ex Article 100a) and 133 (ex Article 113) of the Treaty, amending Council
Regulation (EEC) No 2913/92 establishing the Community Customs Code.

The European Parliament and the Economic and Social Committee delivered their opinions on
12 March 1999 (2) and 27 January 1999 (3) respectively.

In the light of these opinions, the Commission forwarded on 3 June 1999 an amended
proposal (4) in accordance with Article 250(2) of the Treaty.

At its meeting on 25 May 2000, the Council adopted its common position in accordance with
Article 251 of the Treaty.

II. OBJECTIVE

5.

The Commission proposal is the second part of a fundamental revision of the Community
Customs Code which came into force in 1994; the first part, concerning the reform of external
transit, was adopted in April 1999.

This proposal is primarily intended to introduce into the Customs Code amendments that take
account of the need to facilitate trade by simplifying customs rules and procedures and, at the
same time, to introduce legal instruments to prevent and combat fraud while giving economic
operators greater security.

III. ANALYSIS OF THE COMMON POSITION

6.

The Council adopted the European Parliament’s Amendment 1 deleting the text proposed by
the Commission for the second subparagraph of Article 5(2). The Council did not adopt
Parliament’s Amendment 15 modifying Article 13. This amendment, also rejected by the
Commission, provided for the customs authorities to adopt control measures. The Council
considers that the introduction of control measures falls within the domain of fighting fraud
which must be dealt with outside the Community Customs Code.

7.

The Council adopted Parliament’s Amendment 2, aimed at deleting the new paragraph 3 from
Article 62, as this had in any case been accepted by the Commission in its amended proposal.

8. With regard to Amendments 3 and 14 concerning customs declarations by electronic means,
the Council very largely adopted the substance of Parliament’s amendment, which modified
Article 77 by adding new subparagraphs. However, the Council did not maintain the second
subparagraph proposed by Parliament as it thought that stipulating in the text that the
‘documents shall be kept at [customs] authorities’ disposal’ was sufficient to guarantee the
possibility of a subsequent verification of undertakings which have been authorised to use this
form of declaration and which have, under the general provisions of Articles 14 and 16 of the
Code, an obligation to keep the documents.

(1) OJ C 228, 21.7.1998, p. 8.
(2) OJ C 175, 21.6.1999, p. 420.
(3) OJ C 101, 12.4.1999, p. 6.
(4) Not yet published in the Official Journal.

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9. With regard to Amendments 4, 5, 6, 7 and 8, aimed at deleting the provisions proposed by the
Commission concerning the introduction, into the following Articles, of a committee procedure,
the Council,

— as regards Amendment 4 concerning Article 115(4), accepted the new paragraph 4 as set

out in the Commission’s amended proposal, following Parliament’s opinion,

— as regards Amendment 5 concerning Article 117(c) and Amendment 7 concerning
Article 133, adopted the texts as initially proposed by the Commission, as these changes
were in line with the objective of simplifying the rules in force,

— as regards Amendment 6 concerning Article 118(4), endorsed Parliament’s text, which

had moreover been included in the Commission’s amended proposal,

— as regards Amendment 8 concerning Article 152, thought it advisable to adopt the
Commission’s initial proposal in substance but to transfer its content to Article 153.

10. With regard to Amendment 13, which refers to the modification of Article 220(2)(b) concerning
the problem of the ‘good faith’ of economic operators (a problem which constituted a very
serious stumbling block in the process of revising the Code), the Council presented a new text
which very largely adopts the approach followed by Parliament’s amendment. However, the
wording used supplements Parliament’s approach by providing for a more precise definition of
the terms ‘error’, of the customs authorities and ‘good faith’ of the person liable; both terms
appear in the first subparagraph of Article 220(2)(b).

11. As regards Amendment 10 concerning Article 221(3), the Council did not follow the European
Parliament, which wished to delete this paragraph, and adopted a new text providing for three
years to be kept as the time limit for communication to the debtor of the amount of duty.

12. As regards Amendment 11 concerning the entry into force of the Regulation, the Council
adopted the usual wording linking entry into force to the publication of the texts in the Official
Journal of the European Communities.

13.

In addition to the amendments made following the European Parliament’s opinion, the Council
has made a number of adjustments to the texts in the Commission’s proposal, most of which
are of an essentially technical nature. These amendments relate to the following points:

— the recitals have been adapted to take account of the enacting terms of the act,

— point 1: the current text of the second subparagraph of Article 5(2) of the Code remains

unchanged, as the wording proposed by the Commission was not accepted,

— point 3: Article 49(1) of the Code remains unchanged, as the text proposed by the

Commission was not accepted,

— point 8:

the new Article 124 departs slightly from the wording proposed by the
Commission and has been amended with a view to clarifying the provisions applicable in
the drawback system. These new provisions introduce the possibility of derogation
through the committee procedure,

— point 9: the second indent of Article 128(1) remains unchanged, as the Commission

proposal was not accepted,

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— point 13: Article 144 of the Code remains unchanged, as the Commission’s proposal was

not accepted,

— points 16, 17 and 18: a new text has been adopted with regard to ‘free zones’; these
amendments are to the first sentence of Article 167(3), Article 168(1) and the wording of
the new Article 168a,

— point 19: the new Article 212a corresponds to the Commission’s proposal but also adds a

reference to Article 82 of the Code,

— point 20: the new paragraph 4 has been added to Article 215 (1), thus following the
Commission’s proposal; on the other hand, the Council has not adopted the part of the
Commission proposal seeking to add a new paragraph relating to the place where the debt
was incurred in certain specific situations, as such an addition could cause difficulties in
the parallel application of customs rules on the one hand, and of rules currently applicable
with regard to taxation on the other,

— point 21: Article 220(1) of the Code remains unchanged, as the Commission’s proposal

that two new subparagraphs be added was not accepted,

— point 22: Article 221 was amended by making provision for

— a new text for paragraph 3 corresponding to the Commission’s proposal but
maintaining the three-year time limit stipulated in the current text of the Code,

— the addition of a new paragraph 4; this new text corresponds in substance to the
the paragraph 4 proposed by the

paragraph 5 proposed by the Commission;
Commission was not accepted,

— point 23: the new paragraph 2 of Article 222 corresponds to the Commission’s proposal,
but with the deletion of the last indent which referred to the second subparagraph of
Article 220(1).

(1) The text of Article 215 was amended in connection with the reform of the external transit procedure (Regulation
(EC) No 955/1999 of the European Parliament and of the Council of 13 April 1999 (OJ L 119, 7.5.1999, p. 1)).