Commission Regulation (EC) No 1335/2003 of 25 July 2003 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (Text with EEA relevance)
Date: 2003-07-25
Institutions: European Commission
Subjects: customs territory (EU), customs union, legal code, simplification of formalities

L 187/16

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Official Journal of the European Union

26.7.2003

COMMISSION REGULATION (EC) No 1335/2003

of 25 July 2003

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

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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 2700/2000 of the
European Parliament and of the Council (2), and in particular
Article 247 and Article 247a thereof,

Whereas:

(1)

(2)

(3)

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.

Given that under Article 8 of Council Decision 2000/
597/EC, Euratom of 29 September 2000 on the system
the European Communities' own resources (3)
of
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.

in order

However,
to ensure uniform treatment of
traders and protect the financial interests of the Commu-
nities, the obligation to transmit dossiers to the Commis-
sion for a decision should remain where Member States
the decision should be favourable and
consider that
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 agricul-
tural matters (4), or (c) the amount of duties involved is
EUR 500 000 or more.

(1) OJ L 302, 19.10.1992, p. 1.
(2) OJ L 311, 12.12.2000, p. 17.
(3) OJ L 253, 7.10.2000, p. 42.
(4) OJ L 82, 22.3.1997, p. 1.

(4)

(5)

(6)

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.

Commission Regulation (EEC) No 2454/93 (5), as last
amended by Regulation (EC) No 881/2003 (6), should
therefore be amended accordingly.

The Customs Code Committee did not hand down an
opinion within the time limit set by its Chairman. The
Commission therefore sent the Council a proposal on
the measures concerned. As the Council did not adopt a
decision before expiry of the time limit laid down in
Article 6(5) of Council Decision 1999/468/EC of 28
June 1999 laying down the procedures for the exercise
of
implementing powers conferred on the Commis-
sion (7), it is therefore up to the Commission to adopt
the said measures,

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) subparagraph (c) is deleted;

(5) OJ L 253, 11.10.1993, p. 1.
(6) OJ L 134, 29.5.2003, p. 1.
(7) OJ L 184, 17.7.1999, p. 23.

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(c) the following two paragraphs are added:

‘Where a request is submitted for repayment or remis-
sion 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.

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 provi-
sions have been applied:

— Article 869(a),

— Article 236 of the Code in conjunction with Article
the Code, where no communication is

220(2)(b) of
required under paragraph 2,

— Article 869(b), where no communication is required

under paragraph 2.

2.
Each Member State shall communicate to the Commis-
sion 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
the Code in conjunction with Article
Article 236 of
220(2)(b) of
the Code or of Article 869(b) have been
applied, giving a short summary of each case. This commu-
nication shall be forwarded during the first and third quar-
ters 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

1.
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,

— 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 matters (*) 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.

However, the cases referred to in paragraph 1 shall

2.
not be transmitted where:

— 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.

3.
The dossier submitted to the Commission shall contain
all the information required for full consideration. It shall
the
include detailed information on the behaviour of
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

4.
inform the Member State concerned accordingly.

Should it be found that the information supplied by
5.
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.

the following situations occurs the
6. Where one of
Commission shall
to the customs
return the dossier
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,

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— the existence of a customs debt has not been established,

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.

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

Article 874

Article 872

The Member State concerned shall be notified of the deci-
sion 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 send to the Member States a copy of
the dossier referred to in Article 871(3) within 15 days of
the date on which it received that dossier.

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

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.

Article 875

(*) OJ L 82, 22.3.1997, p. 1.’

3. Articles 873 to 875 are replaced by the following:

‘Article 873

After consulting a group of experts composed of representa-
tives of all Member States, meeting within the framework of
the Committee to consider
the
Commission shall decide whether the circumstances under
consideration are such that the duties in question need not
be entered in the accounts.

the case in question,

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 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.’

4. Article 899 is replaced by the following text:

‘Article 899

1. Where the decision-making customs authority estab-
lishes
remission
repayment or
submitted to it under Article 239(2) of the Code:

that an application for

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

2.
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 circum-
stances in which no deception or obvious negligence may
be attributed to the person concerned.

Where Article 905(2), second indent,
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.

is applicable,

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For the purposes of Article 239(1) of the Code and of
3.
this Article, “the person concerned” shall mean the person
or persons referred to in Article 878(1) or their representa-
tives, and any other person who was involved with the
completion of the customs formalities relating to the goods
the
concerned or gave the instructions necessary for
completion of these formalities.

For the purposes of applying paragraphs 1 and 2 the
4.
Member States shall give each other mutual assistance, parti-
cularly 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:

— the amount for which the person concerned may be
liable in respect of one or more import or export opera-
tions 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.

However, the cases referred to in paragraph 1 shall

2.
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,

‘Article 904a

— the Commission is already considering a case involving

comparable issues of fact and of law.

1. 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.

2.
Each Member State shall communicate to the Commis-
sion 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 to
repay or remit duties during the preceding half-year.’

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 negli-
gence 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,

— the circumstances of the case are related to the findings
of a Community investigation carried out under Regula-
tion (EC) No 515/97, or under any other Community
legislation or any agreement concluded by the Commu-
nity with countries or groups of countries in which
provision is made for carrying out such Community
investigations, or

The dossier submitted to the Commission shall contain
3.
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

4.
inform the Member State concerned accordingly.

5.
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.

the following situations occurs the
6. Where one of
Commission shall
to the customs
return the dossier
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,

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— the existence of a customs debt has not been established,

— new information relating to the dossier and of a nature
to alter substantially 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 15 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 representa-
tives of all Member States, meeting within the framework of
the Committee to consider
the
Commission shall decide whether or not the situation which
has been considered justifies repayment or remission.

the case in question,

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.

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 repay-
ment or remission shall be notified of the extension.

to reach its decision,

in
Where the Commission conducts investigations itself
order
the nine months shall be
extended by the time necessary to complete the investiga-
tions. 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 investi-
gations 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.
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 deci-
sions it has adopted in order to help customs authorities to
reach decisions on cases involving comparable issues of fact
and law.

2.
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 para-
graph 1.

3. 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 day following its
publication in the Official Journal of the European Union.

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

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

Done at Brussels, 25 July 2003.

For the Commission

Frederik BOLKESTEIN

Member of the Commission