Proposal for a Council Regulation amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code
Date: 2003-03-14
Institutions: European Commission
Subjects: CCT duties, EU law - national law, customs regulations, export, import, own resources

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.03.2003
COM(2003)115 final

Proposal for a

COUNCIL REGULATION

amending Regulation (EEC) No 2454/93 laying down provisions for the implementation
of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code

(presented by the Commission)

EXPLANATORY MEMORANDUM

Articles  220(2)(b)  and  239  of  Council  Regulation  (EEC)  No  2913/92  of  12  October  1992
establishing  the  Community  Customs  Code  lay  down  that  in  certain  cases  import  or  export
duties  shall  not  be  subsequently  entered  in  the  accounts  or  may  be  repaid  or  remitted  for
reasons of equity.

The  corresponding  implementing  provisions  of  these  two  Articles  are  Articles  868  to  876a
and Articles 877 to 912 respectively of Commission Regulation (EEC) No 2454/93 of 2 July
1993  laying  down  provisions  for  the  implementation  of  Council  Regulation  (EEC)  No
2913/92.  The  current  version  of  these  implementing  provisions  provides  for  a  division  of
responsibility  between  the  Member  States  and  the  Commission  according  to  the  amount  of
duties  at  stake.  Except  in  specific  cases,  the  Member  States  alone  may  not  decide  to  waive
post-clearance entry of duties owing, or to repay or remit duties, where these are equal to or
above a threshold of EUR 50 000.

Given  that  the  Member  States  are  primarily  responsible  for  collecting  traditional  own
resources, the provisions in question should be revised so that it is up to the authorities of the
Member  States  alone  to  decide  whether  or  not  import  or  export  duties  should  be  entered
subsequently  in  the  accounts  or  whether  they  should  be  repaid  or  remitted.  The  above
threshold should accordingly be substantially increased, bringing it up to EUR 500 000.

However, in order to ensure uniform treatment of traders and protection of the Community's
financial interests, the obligation to forward cases to the Commission for decision should be
maintained,  irrespective of the  amount concerned, where  the  Member  States  consider  that  a
favourable decision should be adopted and where those decisions are based on an active error
or  deficiency  on  the  part  of  the  Commission  or  where  the  circumstances  of  the  case  are
connected  to  Community  investigations  conducted  in  the  context  of  mutual  assistance  to
ensure the correct application of the customs and agricultural legislation.

This obligation  to forward a case is not,  however, necessary if the  Commission  has  already
adopted  a  decision  in  a  case  concerning  comparable  issues  of  fact  and  law,  as  the  Member
State  can  base  their  final  decision  on  the  Commission's  most  recent  decision  that  is
comparable in fact and law.

It is therefore proposed to amend Commission Regulation (EEC) No 2454/93 accordingly. As
the Customs Code Committee has not delivered an opinion on the draft Regulation presented
by  the  Commission,  it  is  up  to  the  Council,  in  accordance  with  the  provisions  of  Council
Decision  No  1999/468  EC  of  28  June  1999  laying  down  the  procedures  for  the  exercise  of
implementing powers conferred on the Commission, to adopt the necessary provisions. This is
the purpose of this proposal for a Council Regulation.

2

Proposal for a

COUNCIL REGULATION

amending Regulation (EEC) No 2454/93 laying down provisions for the implementation
of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community  Customs  Code,1  as  last  amended  by  Regulation  (EC)  No  2700/20002,  and  in
particular Article 247 and Article 247a thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

Articles  220(2)(b)  and  239  of  Council  Regulation  (EEC)  No  2913/92  of
12 October 1992 establishing the Community Customs Code lay down that in certain
cases import or export duties shall not be subsequently entered in the accounts or may
be repaid or a remitted for reasons of equity.

Given  that  under  Article  8  of  Council  Decision  2000/597/EC,  Euratom  of
29 September 2000  on  the  system  of  the  European  Communities’  own  resources  the
Member  States  are  primarily  responsible  for  collecting  traditional  own  resources,  it
should  therefore  primarily  be  up  to  the  authorities  of  the  Member  States  to  decide
whether  or not  import  duties  or  export  duties,  should  be  entered  subsequently  in  the
accounts  under  Article  220(2)(b)  of  Regulation  (EEC)  No 2913/92  or  repaid  or
remitted under Article 239 of that Regulation.

1

2

OJ L 302, 19.10.1992, p. 1.
OJ L 311, 12.12.2000, p. 17.

3

                                                
(3)

However,  in  order  to  ensure  uniform  treatment  of  traders  and  protect  the  financial
interests of the Communities, the obligation to transmit dossiers to the Commission for
a  decision  should  remain  where  Member  States  consider  that  the  decision  should  be
favourable  and  either  (a)  an  active  error  or  failing  on  the  part  of  the  Commission  is
cited, or (b) the circumstances of the case are connected to Community investigations
carried  out  under  Council  Regulation  (EC)  No  515/97  of  13  March  1997  on  mutual
assistance  between  the  administrative  authorities  of  the  Member  States  and
cooperation between the latter and the Commission to ensure the correct application of
the law on customs and agricultural matters,3 or (c) the amount of duties involved is
EUR 500 000 or more.

(4)

However, there need be no such obligation to transmit the dossier if the Commission
has already adopted  a  decision on  a  case  comparable in  fact  and  law,  since  Member
States can then base their own final decision on the most recent Commission decision
comparable in fact and law.

Regulation (EEC) No 2454/93 should therefore be amended accordingly.

(6)

In the absence of an opinion of the Customs Code Committee on the draft Regulation
submitted  by  the  Commission,  the  Council  is  required  to  adopt  the  necessary
provisions,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 2454/93 is amended as follows:

1)

Article 869 is amended as follows:

a)

subparagraph (b) is replaced by the following:

“b) in cases in which they consider that the conditions laid down in Article 220(2)(b)
of the Code are fulfilled, except those in which the dossier must be transmitted to the
Commission pursuant to Article 871. However, where Article 871(2), second indent,
is applicable, the customs authorities may not adopt a decision waiving entry in the
accounts of the duties in question until the end of a procedure initiated in accordance
with Articles 871 to 876.”

b)

c)

subparagraph (c) is deleted.

The following two paragraphs are added:

“Where a request is submitted for repayment or  remission  under Article 236 of the
Code in conjunction with Article 220(2)(b) of the Code, subparagraph (b) of the first
paragraph of this Article and Articles 871 to 876 shall apply mutatis mutandis.

3

OJ L 82, 22.3.1997, p. 1.

4

                                                
For the purposes of applying the above paragraphs the Member States shall give each
other  mutual  assistance, particularly where  an  error  by the  customs  authorities  of  a
Member State other than the one responsible for taking the decision is concerned.”

2)

Articles 870 to 872 are replaced by the following:

"Article 870

1.

Each Member State shall hold at the disposal of the Commission a list of the cases in
which the following provisions have been applied:

2.

1.

– 

– 

– 

Article 869(a);

Article  236  of  the  Code  in  conjunction  with  Article  220(2)(b)  of  the  Code,
where no communication is required under paragraph 2;

Article 869(b), where no communication is required under paragraph 2.

Each  Member  State  shall  communicate  to  the  Commission  a  list  of  the  cases  in
which  the  amount  not  collected  from  the  operator  concerned  in  respect  of  one  or
more import or export operations but in consequence of a single error is more than
EUR  50  000,  and  the  provisions  of  Article  236  of  the  Code  in  conjunction  with
Article 220(2)(b) of the Code or of Article 869(b) have been applied, giving a short
summary of each case. This communication shall be forwarded during the first and
third  quarters  of  each  year  for  all  cases  in  which  it  was  decided  not  to  enter  the
uncollected duties in the accounts during the preceding half-year.

Article 871

The customs authority shall transmit the case to the Commission to be settled under
the procedure laid down in Articles 872 to 876 where it considers that the conditions
laid down in Article 220(2)(b) of the Code are fulfilled and:

– 

– 

– 

it considers that the Commission has committed an error within the meaning of
Article 220(2)(b) of the Code, or

the  circumstances  of  the  case  are  related  to  the  findings  of  a  Community
investigation  carried  out  under  Council  Regulation  (EC)  No  515/97  of  13
March 1997 on mutual assistance between the administrative authorities of the
Member  States  and  cooperation  between  the  latter  and  the  Commission  to
ensure the correct application of the law on customs and  agricultural matters4
or under any other Community legislation or any agreement concluded by the
Community  with  a  country  or  group  of  countries  in  which  provision  is  made
for carrying out such Community investigations, or

the  amount    not  collected  from  the  operator  concerned  in  respect  of  one  or
more  import  or  export  operations  but  in  consequence  of  a  single  error  is
EUR 500 000 or more.

4

OJ L 82, 22.3.1997, p. 1.

5

                                                
2.

However, the cases referred to in paragraph 1 shall not be transmitted where:

3.

4.

5.

6. 

– 

– 

the Commission has already adopted a decision under the procedure provided
for in Articles 872 to 876 on a case involving comparable issues of fact and of
law;

the Commission is already considering  a  case involving  comparable issues of
fact and of law.

The dossier submitted to the Commission shall contain all the  information required
for  full  consideration.  It  shall  include  detailed  information  on  the  behaviour  of  the
operator concerned, and in particular on his professional experience, good faith and
diligence.  This  assessment  shall  be  accompanied  by  all  information  that  may
demonstrate  that  the  operator  acted  in  good  faith.  The  dossier  shall  also  include  a
statement, signed by the applicant for repayment or remission, certifying that he has
read  the  dossier  and  either  stating  that  he  has  nothing  to  add  or  listing  all  the
additional information that he considers should be included.

As  soon  as  it  receives  the  dossier  the  Commission  shall  inform  the  Member  State
concerned accordingly.

Should  it  be  found  that  the  information  supplied  by  the  Member  State  is  not
sufficient to enable a decision to be taken on the case concerned in full knowledge of
the facts, the Commission may request that additional information be supplied.

Where one of the following situations occurs the Commission shall return the dossier
to the customs authority and the procedure referred to in Articles 872 to 876 shall be
deemed never to have been initiated:

– 

– 

– 

– 

– 

the dossier  shows  that  there  is  a  disagreement  between  the  customs  authority
that  has  transmitted  the  dossier  and  the  person  who  signed  the  statement
referred to in paragraph 3 as regards the account of the facts,

the dossier is obviously incomplete since it contains nothing that would justify
its consideration by the Commission,

under paragraphs 1 and 2, the dossier should not be transmitted,

the existence of a customs debt has not been established,

new information relating to the dossier and of a nature to substantially alter its
presentation  of  the  facts  or  legal  assessment  has  been  transmitted  by  the
customs authority to the Commission while it is considering the dossier.

Article 872

The Commission shall send to the Member States a copy of the dossier referred to in
Article 871(3) within fifteen days of the date on which it received that dossier.

Consideration  of  the  case  in  question  shall  be  included  as  soon  as  possible  on  the
agenda of a meeting of the group of experts provided for in Article 873."

6

3)

Articles 873 to 875 are replaced by the following:

"Article 873

After  consulting  a  group  of  experts  composed  of  representatives  of  all  Member
States,  meeting  within  the  framework  of  the  Committee  to  consider  the  case  in
question, 
the  circumstances  under
consideration are such that the duties in question need not be entered in the accounts.

the  Commission  shall  decide  whether 

That  decision  shall  be  taken  within  nine  months  of  the  date  on  which  the  dossier
referred  to  in  Article  871(3)  is  received  by  the  Commission.  However,  where  the
declaration or  detailed assessment of  the  operator's  behaviour  referred  to  in  Article
871(3) is not included in the dossier, the nine months shall be counted only from the
date of receipt of these documents by the Commission. The Commission shall notify
the customs authority and the person concerned accordingly.

Where the Commission has found it necessary to ask for additional information from
the Member State in order to reach its decision, the nine months shall be extended by
a  period  equivalent  to  that  between  the  date  the  Commission  sent  the  request  for
additional  information  and  the  date  it  received  that  information.  The  Commission
shall notify the person concerned of the extension of the procedure.

Where the Commission conducts investigations itself in order to reach a decision, the
nine months shall be extended by the time necessary to complete the investigations.
Such  an  extension  shall  not  exceed  nine  months.  The  Commission  shall  notify  the
customs authority and the person concerned of the dates on which investigations are
opened and closed.

Where  the  Commission  has  notified  the  person  concerned  of  its  objections  in
accordance  with  Article  872a,  the  period  of  nine  months  shall  be  extended  by  one
month.

Article 874

The Member State concerned shall be notified of the decision referred to in Article
873 as soon as possible and in any event within one month of the expiry of the period
specified in that Article.

The  Commission  shall  notify  the  Member  States  of  the  decisions  it  has  adopted  in
order  to  help  customs  authorities  to  reach  decisions  in  situations  involving
comparable issues of fact and law.

Article 875

Where  it  is  established  by  the  decision  referred  to  in  Article  873  that  the
circumstances  under  consideration  are  such  that  the  duties  in  question  need  not  be
entered in the accounts, the Commission may specify the conditions under which the
Member  States  may  refrain  from  post-clearance  entry  in  the  account  in  cases
involving comparable issues of fact and of law."

7

4)

Article 899 is replaced by the following text:

"Article 899

1.

Where  the  decision-making  customs  authority  establishes  that  an  application  for
repayment or remission submitted to it under Article 239(2) of the Code:

2.

3.

4.

1.

2.

– 

– 

is  based  on  grounds  corresponding  to  one  of  the  circumstances  referred  to  in
Articles  900  to  903,  and  that  these  do  not  result  from  deception  or  obvious
negligence  on  the  part  of  the  person  concerned,  it  shall  repay  or  remit  the
amount of import or export duties concerned;

is  based  on  grounds  corresponding  to  one  of  the  circumstances  referred  to  in
Article 904, it shall  not  repay or  remit  the  amount  of  import  or  export  duties
concerned.

In  other  cases,  except  those  in  which  the  dossier  must  be  submitted  to  the
Commission  pursuant  to  Article  905,  the  decision-making  customs  authority  shall
itself  decide  to  grant  repayment  or  remission  of  the  import  or  export  duties  where
there  is  a  special  situation  resulting  from  circumstances  in  which  no  deception  or
obvious negligence may be attributed to the person concerned.

Where Article 905(2), second indent, is applicable, the customs authorities may not
decide to authorise repayment or remission of the duties in question until the end of a
procedure initiated in accordance with Articles 906 to 909.

For  the  purposes  of  Article  239(1)  of  the  Code  and  of  this  Article,  “the  person
concerned”  shall  mean  the  person  or  persons  referred  to  in  Article  878(1)  or  their
representatives, and any other person who was involved with the completion of the
customs  formalities  relating  to  the  goods  concerned  or  gave  the  instructions
necessary for the completion of these formalities.

For the purposes of applying paragraphs 1 and 2 the Member States shall give each
other  mutual  assistance, particularly where  an  error  by the  customs  authorities  of  a
Member State other than that responsible for taking the decision is concerned."

5)

The following Article is inserted after Article 904:

"Article 904a

When  no  communication  is  required  under  paragraph  2,  each  Member  State  shall
hold at the disposal of the Commission the list of the cases in which Article 899(2)
was applied.

Each  Member  State  shall  communicate  to  the  Commission  a  list  of  the  cases  in
which  it  has  applied  the  provisions  of  Article  899(2)  and  the  amount  repaid  or
remitted in respect of one or more import or export operations but in consequence of
a single special situation is more than EUR 50 000, giving a short summary of each
case.  This  communication  shall  be  forwarded  during  the  first  and  third  quarters  of
each  year  for  all  cases  in  which  it  was  decided  repay  or  remit  duties  during  the
preceding half-year.”

8

6)

Articles 905 and 906 are replaced by:

"Article 905

1.

Where the application for repayment or remission submitted under Article 239(2) of
the  Code  is  supported  by  evidence  which  might  constitute  a  special  situation
resulting  from  circumstances  in  which  no  deception  or  obvious  negligence  may  be
attributed to the person concerned, the Member State to which the decision-making
customs  authority  belongs  shall  transmit  the  case  to  the  Commission  to  be  settled
under the procedure laid down in Articles 906 to 909 where:

– 

– 

– 

the authority considers that a special situation is the result of the Commission
failing in its obligations or,

the  circumstances  of  the  case  are  related  to  the  findings  of  a  Community
investigation  carried  out  under  Council  Regulation  (EC)  No  515/97  of  13
March 1997 on mutual assistance between the administrative authorities of the
Member  States  and  cooperation  between  the  latter  and  the  Commission  to
ensure the correct application of the law on customs and agricultural matters5,
or under any other Community legislation or any agreement concluded by the
Community with countries or groups of countries in which provision is made
for carrying out such Community investigations, or

the amount for which the person concerned may be liable in respect of one or
more  import  or  export  operations  but  in  consequence  of  a  single  special
situation is EUR 500 000 or more.

The  term  ‘the  person  concerned’  shall  be  interpreted  in  the  same  way  as  in
Article 899.

2.

However, the cases referred to in paragraph 1 shall not be transmitted where:

– 

– 

the Commission has already adopted a decision under the procedure provided
for in Articles 906 to 909 on a case involving comparable issues of fact and of
law;

the Commission is already considering  a  case involving  comparable issues of
fact and of law.

3.

The dossier submitted to the Commission shall contain all the  information required
for  full  consideration.  It  shall  include  detailed  information  on  the  behaviour  of  the
operator concerned, and in particular on his professional experience, good faith and
diligence.  This  assessment  shall  be  accompanied  by  all  information  that  may
demonstrate  that  the  operator  acted  in  good  faith.  The  dossier  shall  also  include  a
statement, signed by the applicant for repayment or remission, certifying that he has
read  the  dossier  and  either  stating  that  he  has  nothing  to  add  or  listing  all  the
additional information that he considers should be included.

5

OJ L 82, 22.3.1997, p. 1.

9

                                                
4.

5.

6.

As  soon  as  it  receives  the  dossier  the  Commission  shall  inform  the  Member  State
concerned accordingly.

Should  it  be  found  that  the  information  supplied  by  the  Member  State  is  not
sufficient to enable a decision to be taken on the case concerned in full knowledge of
the facts, the Commission may request that additional information be supplied.

Where one of the following situations occurs the Commission shall return the dossier
to the customs authority and the procedure referred to in Articles 906 to 909 shall be
deemed never to have been initiated:

– 

– 

– 

– 

– 

the dossier  shows  that  there  is  a  disagreement  between  the  customs  authority
that  has  transmitted  the  dossier  and  the  person  who  signed  the  statement
referred to in paragraph 3 as regards the account of the facts,

the dossier is obviously incomplete since it contains nothing that would justify
its consideration by the Commission,

under paragraphs 1 and 2, the dossier should not be transmitted,

the existence of a customs debt has not been established,

new information relating to the dossier and of a nature to substantially alter its
presentation  of  the  facts  or  legal  assessment  has  been  transmitted  by  the
customs authority to the Commission while it is considering the dossier.

Article 906

The Commission shall forward to the Member States a copy of the dossier referred to
in Article 905(3) within fifteen days of the date on which it received that dossier.

Consideration  of  the  case  in  question  shall  be  included  as  soon  as  possible  on  the
agenda of a meeting of the group of experts provided for in Article 907."

7)

Articles 907 and 908 are replaced by:

"Article 907

After  consulting  a  group  of  experts  composed  of  representatives  of  all  Member
States,  meeting  within  the  framework  of  the  Committee  to  consider  the  case  in
question, the Commission shall decide  whether or not the situation which has been
considered justifies repayment or remission.

That  decision  shall  be  taken  within  nine  months  of  the  date  on  which  the  case
referred  to  in  Article  905(3)  is  received  by  the  Commission.  However,  where  the
declaration or  detailed assessment of  the  operator's  behaviour  referred  to  in  Article
905(3) is not included in the dossier, the nine months shall be counted only from the
date  of  receipt  of  these  documents  by  the  Commission.  The  customs  authority  and
the person applying for repayment or remission shall be notified accordingly.

10

Where the Commission has found it necessary to ask for additional information from
the Member State in order to reach its decision, the nine months shall be extended by
a  period  equivalent  to  that  between  the  date  the  Commission  sent  the  request  for
additional information and the date it received that information. The person applying
for repayment or remission shall be notified of the extension.

Where the Commission conducts investigations itself in  order to reach its decision,
the  nine  months  shall  be  extended  by  the  time  necessary  to  complete  the
investigations.  Such  an  extension  shall  not  exceed  nine  months.  The  customs
authority and the person applying for repayment or remission shall be notified of the
dates on which investigations are opened and closed.

Where the Commission has notified the person applying for repayment or remission
of its objections in accordance with Article 906a, the period of nine months shall be
extended by one month.

Article 908

1.

2.

3.

The Member State concerned shall be notified of the decision referred to in Article
907 as soon as possible and in any event within one month of the expiry of the period
specified in that Article.

The  Commission  shall  notify  the  Member  States  of  the  decisions  it  has  adopted  in
order  to  help customs  authorities to reach decisions  on  cases  involving  comparable
issues of fact and law.

The decision-making authority shall decide whether to grant or refuse the application
made  to  it  on  the  basis  of  the  Commission's  decision  notified  in  accordance  with
paragraph 1.

Where  it  is  established  by  the  decision  referred  to  in  Article  907  that  the
circumstances  under  consideration  justify  repayment  or  remission,  the  Commission
may specify the conditions under which the Member States may repay or remit duties
in cases involving comparable issues of fact and of law.”

Article 2

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

Article  1  shall  apply  from  1  July  2003  to  all  cases  not  sent  to  the  Commission  for
decision before that date.

Done at Brussels, […]

For the Council
The President

11