COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the Union legal framework for customs infringements and sanctions
Date: 2013-12-13
Institutions: European Commission
Subjects: administrative offence, administrative procedure, administrative sanction, customs cooperation, customs fraud, customs harmonisation, customs inspection













EUR-Lex - 52013SC0513 - EN











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52013SC0513

COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the Union legal framework for customs infringements and sanctions /* SWD/2013/0513 final */









COMMISSION STAFF WORKING DOCUMENT
EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT
Accompanying the document
Proposal for a Directive of the
European Parliament and of the Council
on the Union legal framework for
customs infringements and sanctions
1.           THE
PROBLEM
Customs legislation referring to the trade in
goods between the customs territory of the Union and third countries is
completely harmonized and has been assembled in a Community Customs Code (CCC)
since 1992. A major overhaul of this Code was carried out in Regulation (EC) No
450/2008 of the European Parliament and of the Council of April 2008 laying
down the Community Customs Code (Modernised Customs Code), now to be recast as
"Union Customs Code" (UCC), aiming at the adaptation of customs
legislation to the electronic environment of customs and trade, to promote
further the harmonization and uniform application of customs legislation, and
to provide Union economic operators with the appropriate tools for developing
their activity in a global business context.
However, despite the fact that customs
legislation is fully harmonised, its enforcement, which ensures the compliance
with the customs rules and the lawful imposition of sanctions, lies within
Member States' national legislation. Consequently, customs legislation
enforcement obeys to 27 different legal sets of sanctioning rules and different
administrative or judicial traditions. This means that infringements to certain
obligations stemming from the harmonised EU customs legislation are punished by
sanctions which differ by nature and severity according to the Member States
that is competent for it. 
The effective management of the Customs Union,
the achievement of a levelled playing field for economic operators acting in
the Internal Market and the appropriate implementation of certain Union
policies (environmental, agricultural, etc.) depend to a great extent on the homogeneous
enforcement of the customs legislation by the Member States. Today, this
implementation relies in a complex structure of 27 different legal orders and
administrative or judicial traditions. 
At international level this has in the past
created some issues concerning the compliance of the Union with WTO rules with
regard to the uniform implementation of customs rules.
Moreover, common implementation and enforcement
of customs legislation is important with regard to the equal treatment between
economic operators. This has a practical impact on the access of customs
simplifications through the Authorised Economic Operator status and equivalent
simplifications, as they highly depend on the “compliance” profile of the
economic operator. If this profile is different only because of national
customs legislation, the equal access to these simplifications may be
jeopardised.
2.           WHO
IS AFFECTED BY THE IDENTIFIED PROBLEM?
The Union economic operators who deal with
customs in their daily business are the main affected by the existence of 27 different
systems enforcing Union customs law. They are the ones confronted with the lack
of legal certainty that arises from the differences on Member States’ legal
systems concerning the treatment that is given to Union customs law
infringements.
The Member States' customs administrations might
be prevented from” acting as if they were one” because of the absence of a Union
approach regarding the treatment of customs infringements and sanctions. This
difference is able to create a lack of confidence between these customs administrations
3.           SUBSIDIARITY
As far as the Union has exclusive competence,
the principle of subsidiarity does not apply in accordance with Article 5(3)
TEU.
In case a legislative action in the criminal
field is proposed, following the results of the impact assessment, it will fall
under Article 83 (2) of the TFEU. As this article concerns a shared competence
(according to Article 4(2) (j) of the TFEU), special attention must be given to
the subsidiarity principle, according to which the Union should only legislate
when the scale or effects of the proposed measure can be better achieved at
Union level. . Since the aim of the action proposed is the approximation of
customs sanctioning legislation throughout the Member States, only the Union is in a position to develop it through binding legislation. Moreover, in the specific
case we are in a fully harmonised policy area (customs union) with fully
harmonised rules, whose effective implementation determines the mere existence
of the customs union.
4.           OBJECTIVES
The general objective of this initiative
is to ensure the effective
implementation and law enforcement in the Union customs union. In particular,
the initiative has the following specific objectives:
(1)         
Ensure further compliance with the Union's international obligations.
(2)         
Provide for a Union framework for uniform
enforcement of customs legislation in terms of infringements and sanctions.
(3)         
Enhance the level playing field for economic
operators in the customs Union.
The specific objectives listed under (2) and
(3) above require the attainment of the following operational objectives:
·              
Uniformity regarding the elements that trigger a
sanction across the Customs Union (ensure that the same type of behaviour which
constitutes a breach of one or more customs rules, qualifies for the same type
of infringement).
·              
Achieve a common scale of sanctions per type of
infringement across EU Member States.
·              
Reduce costs and obstacles associated with the
existence of different customs infringements and sanctions regimes for
companies to engage in customs formalities in other Member States.
5.           POLICY
OPTIONS
Policy option A
– Baseline scenario (do nothing) 
In the current situation, Union customs
legislation is completely harmonized. However, each Member State has its own Union customs sanctioning system. Member States will continue to ensure the
enforcement of customs obligations through national rules and the AEO
guidelines will provide some guidance on interpretation of the criteria
allowing the access to the AEO status but without any binding effect.
Policy option B
– A legislative measure within the EU legal framework in force 
In this option the Commission would propose
amending the Union customs legislation in force through:
·              
the enumeration of the types of administrative
(non-criminal) sanction,
·              
an extended definition of the criterion of
'record of compliance with customs requirements' to be fulfilled by persons
applying for an AEO status and/or various customs simplifications
Policy option C –
A legislative measure on the approximation of the types of customs infringements
and non-criminal sanctions 
This legislative measure would set a common
nomenclature of non-criminal customs infringements based on the obligations
from customs Union legislation and a list of sanctions within a common scale
related to each particular infringement.
Policy Option D –
Two separate legislative measures aiming at approximation of both criminal and non-criminal
customs infringements and sanctions.
This option would go further than Option C to
the extent that it would comprise both Option C's legislative measure as well
as another legislative measure for the approximation of customs offences and
penalties in the criminal field, thus expending the scope of action. Therefore,
it would encompass all possible customs infringements and offences and would
provide for an approximation of both non-criminal and criminal sanctions. 
Discarded option
– "soft law" scenario: To issue guidelines on the interpretation of
customs compliance concept 
The guidelines on AEO
have been issued in April 2012 and are part of the implementing measures of the
current customs legislation. Therefore they became part of the baseline
scenario and this is the reason why this option has been finally discarded.
6.           ASESSMENT
OF IMPACTS
6.1.        Policy
option A – Baseline Scenario
Each Member State would continue to have its own
system for sanctioning customs infringements. The differences in customs law
enforcement throughout the customs territory of the Union would not be reduced
and the risk of limitation for economic operators' equal treatment irrespective
of the Member State where they are established would continue to be a reality.
6.2.        Policy
option B – A modification of the current legislation within the EU legal
framework in force
The differences among Member States’
sanctioning customs systems would be mitigated as non-criminal sanctions for
customs infringements would be the same throughout the Union. Likewise the
limitations on economic operators’ equal treatment in acceding customs
simplifications would also tend to be much more attenuated because the
qualification of "serious and repeated infringements of customs
rules", as well as "infringements of negligible importance", as
elements of the "record of compliance with customs requirements",
would no longer be left to the Member States but rather defined at Union level.
Nevertheless, the decision on which type of behaviour are considered to be infringements
to customs legislation and be sanctioned with the non-criminal customs
sanctions would still remain in the competence of the Member States thus still
differentiating the treatment of economic operators depending on the competent
Member State, which means that with this option not all the identified problems
would be addressed (international obligations, implementation of other
policies, etc.).
6.3.        Policy
Option C – A legislative measure on the approximation of the types of customs
non-criminal infringements and sanctions
This option would ensure common and simpler
legislation, (insofar the main obligations and list of infringements will be
common and the type and scale of customs sanctions will also be common) easier
implementation by Member States and improved enforcement of customs law. A
further clarification of the “proportionality” of the sanction will be achieved
in the sense that a series of infringements will be sanctioned by non-criminal
sanctions.
The timely collection of revenue (own
resources) will be improved as direct result of the preceding (infringement
detection) also because of the improved compliance rates in declarations, as
the risk of loopholes created by divergent national legislation will be
limited.
Union's compliance with
obligations under WTO would be enhanced with the existence of a legal
instrument where a common range of sanctions for violation of EU customs rules
would be established.
Equal treatment of the economic operators with
regard to their access to the AEO status and to customs simplifications will be
ensured because there would be fewer differences between the Member States with
regard to the treatment of serious infringements. In this way the
interpretation of the “compliance with customs legislation” criterion will be
more uniform.
6.4.        Policy
Option D – Two separate legislative measures aiming at approximation of
non-criminal infringements and sanctions on one side and criminal offences and
penalties on the other side
This option builds, partially, on the previous
one, thus maintaining all the benefits already outlined for Option C to which
can be added the advantage of having an EU action in the two sanctioning
fields: the non-criminal and the criminal.
However, if Union action is required, the Union
legislator needs to decide whether criminal sanctions are necessary or whether
common administrative sanctions are sufficient. The legal basis for the legislative measure in the criminal field
-Article 83(2) TFEU - builds on the notion of criminal law as an ultima
ratio tool. As such, criminal law proposals based on this legal article
will be usually addressing areas where non-criminal Union sanction regimes
already exist At this stage and in this particular case, we are in an area
where no sanctions at all have yet been established at EU level. Therefore,
there is not enough evidence for the conclusion that criminal law is necessary.
Moreover, the recent proposal on a directive of the EP and the Council on the
protection of the Union's financial interests by criminal law[1] partially covers some
of the customs infringements having an impact on the collection of own
resources. Consequently the right time to assess whether a legislative action
is needed for customs infringements in the criminal field will be after the
legislative measure in the noncriminal field is in place and after the
application of the directive on the protection of the Union's financial
interests by criminal law.
7.           COMPARATIVE
ASESSMENT OF OPTIONS
The table below has been drawn in order to show
the effectiveness of each option, thus contributing to the analysis of the most
preferred one
 Options || Economic impacts || Environmental impacts || Additional administrative costs for Member States || Policy Coherence || Fundamental Rights || Overall Assessment 
 A || 0 || 0 || 0 || 0 || 0 || 0 
 B || + || + || ++ || 0 || 0 || + 
 C || +++ || ++ || ++ || +++ || ++ || +++ 
 D || ++ || ++ || + || + || ++ || ++ 
Magnitude of impact
as compared with the baseline scenario (the baseline is indicated as 0): 0, no
expected change from that of baseline scenario; + to +++, expected positive
effect which intensity is reflected by the number of pluses.
8.           MONITORING
AND EVALUATION
·              
The Member States
will provide the Commission with answers to the
same cases presented in the Project Group on customs penalties in order to
evaluate the effectiveness of this initiative. In addition, Member States will
provide some information on how they are dealing with the compliance record of
economic operators when granting access to customs simplifications and the AEO
status, and other general data as for example regarding the number of
declarations lodged, the number of sanctions imposed and their average amount.
·              
The economic operators
will reply to a questionnaire including the
same questions than the second questionnaire used to produce this report and
some additional questions to evaluate how this initiative may have impacted in
potential improvements of competitiveness. 
[1]               COM (2012)363/3