Common Position (EC) No 8/2005 of 29 November 2004 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 Regulations (EEC) No 2913/92 establishing the Community Customs Code
Date: 2004-11-29
Institutions: Council of the European Union
Subjects: carriage of goods, customs formalities, customs regulations, customs territory (EU), external border of the EU, information technology, simplification of formalities

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COMMON POSITION (EC) No 8/2005

adopted by the Council on 29 November 2004

with a view to adopting Regulation (EC) No …/2005 of the European Parliament and of the
Council of … amending Council Regulation (EEC) No 2913/92 establishing the Community
Customs Code

(2005/C 38 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Articles 26, 95, 133 and 135 thereof,

application of such criteria and requirements. The estab-
lishment of a risk management framework common to
all Member States should not prevent the Member States
from controlling goods by spot-checks.

Having regard to the proposal from the Commission,

(3)

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

Regulation (EEC) No 2913/92 (3) lays down the rules for
the customs treatment of goods that are imported or to
be exported.

It is necessary to establish an equivalent level of protec-
tion in customs controls for goods brought into or out
of the customs territory of the Community. In order to
achieve this objective,
it is necessary to establish an
equivalent level of customs controls in the Community
and to ensure a harmonised application of customs
controls by the Member States, which have principal
responsibility for applying these controls. Such controls
should be based upon commonly agreed standards and
risk criteria for the selection of goods and economic
operators in order to minimise the risks to the Com-
munity and its citizens and to the Community's trading
partners. Member States and the Commission should
therefore introduce a Community-wide risk management
framework to support a common approach so that prio-
rities are set effectively and resources are allocated effi-
ciently with the aim of maintaining a proper balance
between customs controls and the facilitation of legiti-
mate trade. Such a framework should also provide for
common criteria and harmonised requirements
for
authorised economic operators and ensure a harmonised

(1) OJ C 110, 30.4.2004, p. 72.
(2) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E,
30.4.2004), Council Common Position of 29 November 2004 and
position of the European Parliament of … (not yet published in the
Official Journal).

(3) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by the

2003 Act of Accession.

(4)

(5)

Member States should grant
the status of authorised
economic operator to any economic operator that meets
common criteria relating to the operators' control
systems, financial solvency and compliance record. The
status of authorised economic operator, once granted by
one Member State, should be recognised by the other
Member States, but does not confer the right to benefit
automatically in the other Member States from simplifi-
cations provided for in the customs rules. However, the
other Member States should allow the use of simplifica-
tions by authorised economic operators provided they
meet all the specific requirements for use of the particu-
lar simplifications. In considering a request to use simpli-
fications, the other Member States need not repeat the
evaluation of the operator's control systems, financial
solvency or compliance record, which will already have
been completed by the Member State that granted the
operator the status of authorised economic operator, but
should ensure that any other specific requirements for
use of the particular simplification are met. The use of
simplifications in other Member States may also be coor-
dinated by agreement between the customs authorities
concerned.

Simplifications under the customs rules should continue
to be without prejudice to customs controls as defined
within the Community Customs Code, notably relating
to safety and security. Such controls are the responsi-
bility of the customs authorities and, while the status of
authorised economic operator should be recognised by
those authorities as a factor during risk analysis and in
the granting of any facilitation to the economic operator
with regard to controls relating to safety and security,
the right to control should remain.

Risk-related information on import and export goods
should be shared between the competent authorities of
the Member States and the Commission. To this end, a
common, secure system should be set up, enabling the
competent authorities to access, transfer and exchange
this information in a timely and effective manner. Such
information may also be shared with third countries
where an international agreement provides for this.

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(6)

(7)

and of

The conditions under which information provided by
economic operators to customs may be disclosed to
other authorities
in the same Member State, other
Member States, to the Commission, or to authorities in
third countries should be specified. For this purpose, it
should be clearly indicated that Directive 95/46/EC of
the European Parliament
the Council of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (1) and Regulation (EC) No 45/
2001 of the European Parliament and of the Council of
18 December 2000 on the protection of
individuals
with regard to the processing of personal data by the
Community institutions and bodies and on the free
movement of such data (2) apply to the processing of
personal data by the competent authorities as well as by
any other authority receiving data pursuant to the Com-
munity Customs Code.

In order to allow for appropriate risk-based controls, it
is necessary to establish the requirement of pre-arrival or
pre-departure information for all goods brought into or
out of the customs territory of the Community, except
for goods passing through by air or ship without a stop
within this territory. Such information should be avail-
able before the goods are brought into or out of the
time
customs territory of
frames and rules may be set according to the type of
goods, of transport or of economic operator or where
international agreements provide for special security
arrangements. In order to avoid security loopholes, this
requirement should also be introduced with regard to
goods brought into or out of a free zone.

the Community. Different

(8)

Regulation (EEC) No 2913/92 should therefore be
amended accordingly,

HAVE ADOPTED THIS REGULATION

Article 1

4b.

4c.

4d.

“Customs office of
import” means the customs
office designated by the customs authorities in
accordance with the customs rules where the
formalities for assigning goods brought into the
customs territory of the Community to a customs-
approved treatment or use, including appropriate
risk-based controls, are to be carried out;

“Customs office of export” means the customs
office designated by the customs authorities in
accordance with the customs rules where the
formalities
the
customs territory of the Community to a customs-
approved treatment or use, including appropriate
risk-based controls are to be completed;

assigning

leaving

goods

for

“Customs office of exit” means the customs office
designated by the customs authorities in accord-
ance with the customs rules to which goods must
be presented before they leave the customs terri-
tory of the Community and at which they will be
subject
relating to the
formalities, and appropriate
completion of exit
risk-based controls.’;

to customs

controls

— point 14 shall be replaced by the following:

exit,

entry,

‘14. “Customs controls” means specific acts performed
by the customs authorities in order to ensure the
correct application of customs rules and other
legislation governing the
transit,
transfer and end-use of goods moved between the
customs territory of
the Community and third
countries and the presence of goods that do not
have Community status; such acts may include
examining goods, verifying declaration data and
the existence and authenticity of electronic or
written documents, examining the accounts of
undertakings and other records, inspecting means
of transport, inspecting luggage and other goods
carried by or on persons and carrying out official
inquiries and other similar acts.’;

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

1. Article 4 shall be amended as follows:

— the following points shall be added

— the following points shall be inserted:

‘4a. “Customs office of entry” means the customs
office designated by the customs authorities in
accordance with the customs rules to which goods
brought into the customs territory of the Com-
munity must be conveyed without delay and at
which they will be subject to appropriate risk-
based entry controls;

‘25. “Risk” means the likelihood of an event occurring,
in connection with the entry, exit, transit, transfer
and end-use of goods moved between the customs
territory of the Community and third countries
and the presence of goods that do not have Com-
munity status, which

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(2) OJ L 8, 12.1.2001, p. 1.

— prevents the correct application of Community

or national measures or

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— compromises the financial

interests of

the

Community and its Member States or

The committee procedure shall be used to determine the
rules:

— poses a threat to the Community's security
and safety, to public health, to the environ-
ment or to consumers.

26. “Risk management” means the systematic identifi-
cation of risk and implementation of all measures
necessary for
limiting exposure to risk. This
includes activities such as collecting data and
information,
risk,
prescribing and taking action and regular moni-
toring and review of the process and its outcomes,
based on international, Community and national
sources and strategies.’;

analysing

assessing

and

— for granting the

status of

authorised economic

operator

— for granting authorisations for the use of simplifica-

tions

— laying down which customs authority is competent to

grant such status and authorisations

— for the type and extent of facilitations that may be
granted in respect of customs controls relating to
security and safety, taking into account the rules for
common risk management

— for consultation with, and provision of information to,

2. the following section and Article shall be inserted:

other customs authorities;

‘ S e c t i o n 1 A

Authorised economic operators

Article 5a

1.
Customs authorities, if necessary following consulta-
tion with other competent authorities, shall grant, subject
to the criteria provided for in paragraph 2, the status of
“authorised economic operator” to any economic operator
established in the customs territory of the Community.

An authorised economic operator shall benefit from facili-
tations with regard to customs controls relating to security
and safety and/or from simplifications provided for under
the customs rules.

The status of authorised economic operator shall, subject
to the rules and conditions laid down in paragraph 2, be
recognised by the customs authorities in all Member
States, without prejudice to customs controls. Customs
authorities shall, on the basis of the recognition of the
status of authorised economic operator and provided that
the requirements relating to a specific type of simplifica-
tion provided for in Community customs legislation are
fulfilled, authorise the operator to benefit from that simpli-
fication.

The criteria for granting the status of authorised

2.
economic operator shall include:

— an appropriate record of compliance with customs

requirements

and the conditions under which:

— an authorisation may be limited to one or more

Member States

— the status of authorised economic operator may be

suspended or withdrawn; and

— the requirement of being established in the Community
may be waived for specific categories of authorised
economic operator, taking into account, in particular,
international agreements.’;

3. Article 13 shall be replaced by the following:

‘Article 13

Customs authorities may,

in accordance with the
1.
conditions laid down by the provisions in force, carry out
all
the controls they deem necessary to ensure that
customs rules and other legislation governing the entry,
exit, transit, transfer and end-use of goods moved between
the customs territory of the Community and third coun-
tries and the presence of goods that do not have Com-
munity status are correctly applied. Customs controls for
the purpose of the correct application of Community legis-
lation may be carried out in a third country where an
international agreement provides for this.

2.
Customs controls, other than spot-checks, shall be
based on risk analysis using automated data-processing
techniques, with the purpose of identifying and quantifying
the risks and developing the necessary measures to assess
the risks, on the basis of criteria developed at national,
Community and, where available, international level.

The committee procedure shall be used for determining a
common risk management framework, and for establishing
common criteria and priority control areas.

— a satisfactory system of managing commercial and,
transport records, which allows

where appropriate,
appropriate customs controls

Member States, in cooperation with the Commission, shall
establish a computer system for the implementation of risk
management.

— where appropriate, proven financial solvency and

— where applicable, appropriate security and safety stan-

dards.

3. Where controls are performed by authorities other
than the customs authorities,
shall be
performed in close coordination with the customs authori-
ties, wherever possible at the same time and place.

such controls

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4.
In the context of the controls provided for in this
Article, customs and other competent authorities, such as
veterinary and police authorities, may communicate data
received, in connection with the entry, exit, transit, transfer
and end-use of goods moved between the customs territory
of the Community and third countries and the presence of
goods that do not have Community status, between them-
selves and to the customs authorities of the Member States
and to the Commission where this is required for the
purposes of minimising risk.

the European Parliament and of

Communication of confidential data to the customs admin-
istrations and other bodies (e.g. security agencies) of third
countries shall be allowed only in the framework of an
international agreement and provided that the data protec-
tion provisions in force, in particular Directive 95/46/EC
of
the Council of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of
such data (*) and Regulation (EC) No
45/2001 of the European Parliament and of the Council of
18 December 2000 on the protection of individuals with
regard to the processing of personal data by the Com-
munity institutions and bodies and on the free movement
of such data (**) are respected.;

(*) OJ L 281, 23.11.1995, p. 31. Directive as amended by
Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003,
p. 1).

(**) OJ L 8, 12.1.2001, p. 1.’

4. Article 15 shall be replaced by the following:

‘Article 15

All information which is by nature confidential or which is
provided on a confidential basis shall be covered by the
duty of professional secrecy. It shall not be disclosed by
the competent authorities without the express permission
of the person or authority providing it. The communica-
tion of information shall, however, be permitted where the
competent authorities are obliged to do so pursuant to the
provisions in force, particularly in connection with legal
proceedings. Any disclosure or communication of informa-
fully comply with prevailing data protection
tion shall
in particular Directive 95/46/EC and Regu-
provisions,
lation (EC) No 45/2001.’;

5. In Article 16 'control by the customs authorities' shall be

replaced by ‘customs controls’;

6. The following Articles shall be inserted under Chapter 1 of

Title III:

‘Article 36a

Goods brought

1.
the
Community shall be covered by a summary declaration,

into the customs territory of

with the exception of goods carried on means of transport
only passing through the territorial waters or the airspace
of the customs territory without a stop within this terri-
tory.

The summary declaration shall be lodged at

2.
customs office of entry.

the

Customs authorities may allow the summary declaration to
be lodged at another customs office, provided that this
office immediately communicates or makes available elec-
tronically the necessary particulars to the customs office of
entry.

Customs authorities may accept, instead of the lodging of
the summary declaration, the lodging of a notification and
access to the summary declaration data in the economic
operator's computer system.

3.
The summary declaration shall be lodged before the
goods are brought into the customs territory of the Com-
munity.

4.

The committee procedure shall be used to establish:

— the time limit by which the summary declaration shall
into the

be lodged before the goods are brought
customs territory of the Community

— the rules for exceptions from, and variations to, the

time limit referred to in the first indent and

— the conditions under which the requirement
summary declaration may be waived or adapted,

for a

in accordance with the specific circumstances and for par-
ticular types of goods traffic, modes of
transport and
economic operators and where international agreements
provide for special security arrangements.

Article 36b

1.
The committee procedure shall be used to establish a
common data set and format for the summary declaration,
containing the particulars necessary for risk analysis and
the proper application of customs controls, primarily for
security and safety purposes, using, where appropriate,
international standards and commercial practices.

2.
The summary declaration shall be made using a data
processing technique. Commercial, port or transport infor-
mation may be used, provided that it contains the neces-
sary particulars.

Customs authorities may accept paper-based summary
declarations in exceptional circumstances, provided that
they apply the same level of risk management as that
applied to summary declarations made using a data proces-
sing technique.

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3.
The summary declaration shall be lodged by the
person who brings the goods, or who assumes responsi-
bility for the carriage of the goods into the customs terri-
tory of the Community.

4.
Notwithstanding the obligation of the person referred
to in paragraph 3, the summary declaration may be lodged
instead by:

8. Article 38(5) shall be replaced by the following:

territory of

Paragraphs 1 to 4 and Articles 36a to 36c and 39 to
‘5.
53 shall not apply to goods which temporarily leave the
customs
the Community while moving
between two points in that territory by sea or air, provided
that
the carriage is effected by a direct route and by
regular air or shipping services without a stop outside the
customs territory of the Community.’;

(a) the person in whose name the person referred to in

paragraph 3 acts; or

9. Article 40 shall be replaced by the following:

(b) any person who is able to present the goods in ques-
tion or to have them presented to the competent
customs authority; or

‘Article 40

(c) a representative of one of the persons referred to in

paragraph 3 or points (a) or (b).

The person referred to in paragraphs 3 and 4 shall,
5.
at his request, be authorised to amend one or more parti-
culars of the summary declaration after it has been lodged.
However, no amendment
the
customs authorities:

shall be possible after

(a) have informed the person who lodged the summary
declaration that they intend to examine the goods; or

Goods entering the customs territory of the Community
shall be presented to customs by the person who brings
them into that territory or, if appropriate, by the person
who assumes responsibility for carriage of
the goods
following such entry, with the exception of goods carried
on means of transport only passing through the territorial
waters or the airspace of the customs territory of the Com-
munity without a stop within this territory. The person
presenting the goods
shall make a reference to the
summary declaration or customs declaration previously
lodged in respect of the goods.’;

(b) have established that the particulars in questions are

presented to customs’;

incorrect; or

10. In Title III, Chapter 3 shall be retitled ‘Unloading of goods

(c) have allowed the removal of the goods.

Article 36c

1.
The customs office of entry may waive the lodging of
a summary declaration in respect of goods for which,
before expiry of the time limit referred to in Article 36a(3)
or (4), a customs declaration is lodged. In such case, the
customs declaration shall contain at least the particulars
necessary for a summary declaration and, until such time
as the former is accepted in accordance with Article 63, it
shall have the status of a summary declaration.

Customs authorities may allow the customs declaration to
be lodged at a customs office of import different from the
customs office of entry, provided that this office immedi-
ately communicates or makes available electronically the
necessary particulars to the customs office of entry.

2. Where the customs declaration is lodged other than
by use of data processing technique, the customs authori-
ties shall apply the same level of risk management to the
data as that applied to summary declarations made using a
data processing technique.’;

11. Articles 43 to 45 shall be deleted;

12. Article 170(2) shall be replaced by the following:

Goods shall be presented to the customs authorities

‘2.
and undergo the prescribed customs formalities where:

(a) they have been placed under a customs procedure
which is discharged when they enter a free zone or
free warehouse; however, where the customs proce-
dure in question permits exemption from the obliga-
tion to present goods, such presentation shall not be
required;

(b) they have been placed in a free zone or free warehouse
on the basis of a decision to grant repayment or remis-
sion of import duties;

(c) they qualify for the measures referred to in Article

166(b);

(d) they enter a free zone or free warehouse directly from
outside the customs territory of the Community.’;

13. Article 176(2) shall be replaced by the following:

7.

in Article 37(1) ‘control by the customs authority’ shall be
replaced by ‘customs controls’ and in Article 38(3) ‘the
control of the customs authority of’ shall be replaced by
‘customs controls by’;

‘2. Where goods are transhipped within a free zone, the
the
records relating to the operation shall be kept at
disposal of the customs authorities. The short-term storage
of goods in connection with such transhipment shall be
considered to be an integral part of the operation.

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For goods brought into a free zone directly from outside
the customs territory of the Community or out of a free
zone directly leaving the customs territory of the Com-
munity, a summary declaration shall be lodged in accord-
ance with Articles 36a to 36c or 182a to 182d, as appro-
priate.’;

14. Article 181 shall be replaced by the following:

‘Article 181

The customs authorities shall satisfy themselves that the
rules governing exportation, outward processing, re-expor-
tation, suspensive procedures or the internal transit proce-
dure, as well as the provisions of Title V, are respected
where goods are to leave the customs territory of the Com-
munity from a free zone or free warehouse.’;

15.

in Article 182(3), first sentence, the words ‘Re-exportation
or’ shall be deleted;

shall be lodged at the customs office of export before the
goods are to be brought out of the customs territory of the
Community.

2. Where the customs office of export is different from
the customs office of exit, the customs office of export
shall immediately communicate or make available electro-
nically the necessary particulars to the customs office of
exit.

3.
The customs declaration shall contain at least the
particulars necessary for the summary declaration referred
to in Article 182d(1).

4. Where the customs declaration is made other than
by use of a data processing technique, the customs authori-
ties shall apply the same level of risk management to the
data as that applied to declarations made using a data
processing technique.

16. under Title V (Goods leaving the customs territory of the

Community) the following Articles shall be inserted:

Article 182c

‘Article 182a

1.
Goods leaving the customs territory of the Com-
munity, with the exception of goods carried on means of
transport only passing through the territorial waters or the
airspace of the customs territory without a stop within this
territory, shall be covered either by a customs declaration
or, where a customs declaration is not
required, a
summary declaration.

2.

The committee procedure shall be used to establish:

— the time limit by which the customs declaration or a
summary declaration shall be lodged at the customs
office of export before the goods are brought out of
the customs territory of the Community

— the rules for exceptions from and variations to the

time limit referred to above

— the conditions under which the requirement

for a

summary declaration may be waived or adapted and

— the cases in which and the conditions under which
goods leaving the customs territory of the Community
are not subject to either a customs declaration or a
summary declaration,

in accordance with the specific circumstances and for par-
ticular types of goods traffic, modes of
transport and
economic operators and where international agreements
provide for special security arrangements.

1. Where goods leaving the customs territory of the
Community are not assigned to a customs approved treat-
ment or use for which a customs declaration is required, a
summary declaration shall be lodged at the customs office
of exit before the goods are to be brought out of the
customs territory of the Community.

2.
Customs authorities may allow the summary declara-
tion to be lodged at another customs office, provided that
this office immediately communicates or makes available
electronically the necessary particulars to the customs
office of exit.

Customs authorities may accept,

the
3.
lodging of a summary declaration, the lodging of a notifi-
cation and access to the summary declaration data in the
operator's computer system.

instead of

Article 182d

1.
The committee procedure shall be used to establish a
common data set and format for the summary declaration,
containing the particulars necessary for risk analysis and
the proper application of customs controls, primarily for
security and safety purposes, using, where appropriate,
international standards and commercial practices.

2.
The summary declaration shall be made using a data-
processing technique. Commercial, port or transport infor-
mation may be used, provided that it contains the neces-
sary particulars.

Article 182b

1. Where goods leaving the customs territory of the
Community are assigned to a customs approved treatment
or use for the purpose of which a customs declaration is
required under the customs rules, this customs declaration

Customs authorities may accept paper-based summary
declarations in exceptional circumstances, provided that
they apply the same level of risk management as that
applied to summary declarations made using a data proces-
sing technique.

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3.

The summary declaration shall be lodged by:

Article 2

(a) the person who brings the goods, or who assumes
responsibility for the carriage of the goods, out of the
customs territory of the Community; or

(b) any person who is able to present the goods in ques-
tion or to have them presented to the competent
customs authority; or

(c) a representative of one of the persons referred to in

points (a) or (b).

4.
The person referred to in paragraph 3 shall, at his
request, be authorised to amend one or more particulars of
it has been lodged.
the
the
However, no amendment
customs authorities:

summary declaration after

shall be possible after

(a) have informed the person who lodged the summary
declaration that they intend to examine the goods; or

(b) have established that the particulars in questions are

incorrect; or

(c) have allowed the removal of the goods.’

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

Article 5a(2), Article 13(2) 2nd subparagraph, Article 36a(4),
Article 36b(1), Article 182a(2) and Article 182d(1) shall be
applicable from........... (*).

All other provisions shall be applicable once the implementing
provisions on the basis of the Articles referred to in the second
subparagraph have entered into force. However, electronic
declaration and automated systems for the implementation of
risk management and for the electronic exchange of data
between customs offices of entry, import, export and exit, as
stipulated in Articles 13, 36a, 36b, 36c, 182b, 182c and 182d,
shall be in place three years after these Articles have become
applicable.

Not later than two years after these Articles have become
applicable, the Commission shall evaluate any request from
Member States for an extension of
the three-year period
referred to in the third subparagraph for electronic declaration
and automated systems for the implementation of risk manage-
ment and for the electronic exchange of data between customs
offices. The Commission shall submit a report to the European
Parliament and to the Council and propose, where appropriate,
an extension of the three-year period referred to in the third
subparagraph.

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

Done at Brussels, …

For the European Parliament

The President

…

For the Council

The President

…

(*) the date of entry into force of this Regulation.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 25 July 2003, the Commission submitted to the Council the abovementioned proposal, which is
based on Articles 26, 95, 133 and 135 of the Treaty.

The Economic and Social Committee delivered its Opinion on 26 February 2004 (1).

The European Parliament delivered its Opinion at first reading on 20 April 2004 (2), adopting 26
amendments to the proposal. The Commission has accepted the majority of them, but is unable to
accept six of the proposed amendments.

The Commission presented to the Council on 4 May 2004 an amended proposal on the above subject.

On 29 November 2004, the Council adopted its common position in accordance with Article 251(2)
of the Treaty.

II. OBJECTIVE

The objective of the proposed Regulation is to establish, on the basis of commonly agreed standards
and risk criteria, an equivalent level of protection in customs controls for goods entering and leaving
the Community. This should be achieved by introducing a system of pre-arrival and pre-departure
declarations, while enhancing the use of information technology.

III. COMMON POSITION

1. GENERAL

In its common position, the Council broadly supports the proposal's objective, which is to improve
the security of trade-flows into and out of the Community by introducing appropriate risk-based
controls and by using an improved system of data communication and information sharing.

2. EP AMENDMENTS

The Council took the following positions on the amendments adopted by the European Parliament:

— The Council has accepted Amendments 1, 3, 4, 7 and 11 to 23 and 26,

— Amendment 2: the Council considers that a reference to customs controls on goods leaving the

Community should be inserted into the text (cf. common position on Amendment 24),

— the Council has not accepted the modifications proposed in Amendment 5, and prefers the text
in the proposal of the Commission. However, the Council can accept the suggested insertion of
a reference to international agreements in that recital,

— Amendment 6 dealing with the definitions of different types of customs offices has not been
accepted by the Council since it lacks some essential elements such as the reference to the desig-
nation by the customs authorities in accordance with the customs rules and the reference to
risk-based controls at different types of customs offices,

— Amendment 8: The Council prefers to specify the types of movements of goods to which the
present rules apply. This should be done in line with the text used in the proposed definition
of‘customs control’. The reference to ‘the entry, exit, transit, transfer and end-use of goods’ should
therefore be used in the definition of ‘risk’ as well as in Article 13 (Amendment 10). The
Council has accepted the deletion of the definition of ‘authorised economic operator’ given that
this concept has been inserted in the new Article 5a (Amendment 9),

(1) OJ C 110 of 30.4.2004, p. 72.
(2) OJ C 104 E, 30.4.2004.

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— Amendment 9: The Council welcomes the amendment on the ‘authorised economic operator’
and considers the new Article 5a as one of the key elements of the draft Regulation. However,
in its common position, the Council has refined the concept of the ‘authorised economic
operator’ by introducing a differentiation between the recognition of the status of ‘authorised
economic operator’ by Member States other than the Member State which initially granted that
status and the authorisation for such operators to benefit from simplifications provided for in
the customs rules. Through this differentiation, Member States would not have to repeat evalua-
tions on the status of ‘authorised economic operator’ already carried out in the originating
Member State but would nevertheless be able to examine whether an operator fulfilled the
criteria linked to a specific type of simplification provided for in the customs rules. In addition,
the Council has inserted a reference to ‘financial solvency’ as one of the criteria for accreditation
as an ‘authorised economic operator’ in Article 5a(2). Finally, the Council has adapted the rules
and conditions to be laid down by the Committee procedure in line with the modifications on
the concept of ‘authorised economic operator’.

— Amendment 10: the Council has not accepted this amendment. In its common position, the
Council restricted the exchange of information between authorities in one Member State and
customs authorities in another Member State or the Commission to cases where this is required
for the purposes of minimising risk as defined in Article 4 No 25,

— Amendment 24: the deletion of the proposed Article 182b, providing for the establishment of
the detailed rules to be laid down in relation to summary declarations for export, has not been
accepted by the Council. The system of pre-departure declaration should not only apply in
those cases where the exporter is obliged by the third country to provide security-related infor-
mation but apply as part of a general system of security-related advance information,

— Amendment 25, deleting the references to Articles 182a and 182b and thereby suppressing the
necessity for a summary declaration for goods leaving the EU customs territory from a free
zone, has been rejected by the Council since it considers that this could result in security loop-
holes in the system of pre-departure declarations.

3. New elements introduced by the Council

In addition to the items on which the European Parliament has delivered its Opinion and on which
the Council common position is reflected above, the Council inserted two recitals clarifying its
approach relating to the recognition of authorised economic operators and the simplifications
granted to them (new recitals 3 and 4).

IV. CONCLUSION

The Council's common position is in line with the objective of the proposed Regulation, which is to
improve the security-management concept for the EU's external borders, in particular by introducing
risk-based controls and extensive use of information technology. In addition,
it strikes a balance
between the aim of strengthening security by better-targeted border-controls and the additional admin-
istrative burden for economic operators created by the obligation to deliver advance information to
enable such controls. As also suggested in the Opinion by the European Parliament, the Council opted
for the introduction of an increased possibility for economic operators to benefit from simplifications
provided for under the customs rules if, at the same time, they fulfil the necessary requirements.
However, the Council supports the proposal of the Commission in upholding the symmetry between
controls for imports into and exports from the Community.