CELEX: 52013PC0884
Language: en
Date: 2013-12-13
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the Union legal framework for customs infringements and sanctions

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		52013PC0884
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the Union legal framework for customs infringements and sanctions /* COM/2013/0884 final - 2013/0432 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
1.1.        General context
Despite the fact that
customs legislation is fully harmonised, its enforcement, which ensures
compliance with the customs rules and the lawful imposition of sanctions, lies
within the ambit of Member States' national law. Consequently, customs
legislation enforcement follows 28 different sets of legal rules and different
administrative or legal traditions. This means that Member States can impose
sanctions that seem appropriate to them as penalties for infringements of
certain obligations stemming from the harmonised Union customs legislation. 
Such sanctions differ in
nature and severity according to the Member State that is competent for it.
Namely, they are of different types (e.g. fines, imprisonment, confiscation of
goods, temporal or permanent disqualification from the practice of industrial
or commercial activities), irrespective their nature, and even when assuming
the same type and nature, like for instance a fine, have different
levels/ranges from Member State to Member State.
An overview of the situation
regarding Member States' customs infringements and sanctions systems took place
through a Project Group established, on a voluntary basis, by the Commission
with 24 Member States[1],
under the Customs 2013 Program. This Project Group analysed the 24 national
regimes for customs infringements and related sanctions and reported back to
the Commission. Several substantial differences were noted:
Table 1 – Differences in Member States'
customs sanctioning systems
 The nature of national sanctions for customs infringements || 16 out of 24 Member States provide for both criminal and non-criminal sanctions. 8 out of 24 Member States only have criminal sanctions. 
 Financial thresholds to distinguish between criminal and non-criminal infringements and sanctions || Member States whose systems foresee both criminal and non-criminal infringements and sanctions have different financial thresholds to decide on the nature of the customs infringement – whether criminal or non-criminal- and therefore the nature of the customs sanction. Thus the financial thresholds vary between 266 EUR and 50 000 EUR. 
 Member States' requirements to establish the economic operator's liability for the customs infringement || 11 out of 24 Member States consider that an economic operator is liable for certain customs infringements whenever there is a customs law breach, irrespective of the presence of intent, negligence or elements of careless or reckless behaviour (strict liability infringements). 13 out of 24 Member States cannot sanction an economic operator for a customs infringement without the presence of intent, negligence or elements of careless or reckless behaviour. 
 Time limits: -to initiate a customs sanction procedure -to impose a customs sanction -to execute the customs sanction || The large majority of Member States have time limits to initiate a sanction procedure, to impose a customs sanction and to execute it. These time limits vary from 1 to 30 years. 1 out of 24 Member States does not employ any time limit at all – it can initiate the sanction procedure or impose a sanction at any time. 
 Legal Persons' liability || An economic operator who is a legal person can be held liable for a customs infringement in 15 out of 24 Member States. In 9 out of 24 Member States legal persons cannot be held liable for infringements. 
 Settlement || Settlement refers to any procedure within the legal or administrative system of a Member State that allows the authorities to agree with an offender to settle the matter of a customs infringement as an alternative to initiating or completing customs sanction procedures. 15 out of 24 Member States have this procedure for customs infringements. 
(Source: Report from
the Project Group on Customs Penalties – Annex 1B of Impact Assessment for a
legislative act laying down a Union legal framework on customs infringements
and sanctions)
These differences in
infringements to the customs legislation and sanctions have implications at
several levels:
- from an international
point of view, the different sanctioning systems existing in the Member States
raise some concerns in certain WTO Member States regarding the compliance of
the European Union with its international obligations in this field;
- within the European Union,
the different enforcement of customs legislation makes the effective management
of the customs union harder, as the same non-compliant behaviour may be treated
in very different ways in each Member State as the previous table shows;
- for the economic
operators, the differences in the treatment of infringements of Union customs
legislation have an impact on the level playing field which should be inherent
to the Internal Market, thus providing an advantage for those who breach the
law in a Member State with lenient legislation for customs sanctions. This
situation also has an impact on the access to customs simplifications and
facilitations or to the process of being granted the AEO status as the
criterion referring to compliance with customs legislation and the absence of
serious infringements as a condition for obtaining the AEO status, is
interpreted in a different way by national legislations.
In order to tackle those
problems, the proposal sets a common legal framework for the treatment of
customs infringements and sanctions, bridging the gap between different legal
regimes through a common platform of rules and thus contributing to an equal
treatment between economic operators in the EU, as well as the effective
protection of the Union's financial interests and law enforcement in the field
of customs.
1.2.        Legal context
Customs legislation
referring to the trade in goods between the customs territory of the Union and third countries is completely harmonised and has been assembled in a Community
Customs Code (CCC)[2] 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 or MCC)[3], now recast and repealed by Regulation (EU) No 952/2013 of the
European Parliament and of the Council of 9 October 2013 laying down the Union
Customs Code (UCC)[4], aiming at the adaptation of customs legislation to the electronic
environment of customs and trade, to promote further the harmonisation and
uniform application of customs legislation, and to provide Union economic
operators with the appropriate tools for developing their activities in a
global business environment.
This harmonised customs
legislation needs to be strengthened with common rules regarding its
enforcement. The need to take some steps in this direction has already been
pointed out by the European Parliament in two reports[5], one
from 2008 and another from 2011, calling for harmonisation in this field.
All this efforts are
supported on the general obligation foreseen by the Treaty[6] for Member States to "take any appropriate measure, general
or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union". This obligation includes sanctions, without differentiating between those
of a criminal and non- criminal nature.
More specifically the
Modernised Customs Code and the Union Customs Code include for the first time a
provision[7] concerning administrative customs penalties. 
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
2.1.        Consultation with
interested parties
Four consultation tools were
used, none of them being public consultations (given
the specific and technical nature of customs infringements and sanctions), and,
following the request of the stakeholders, with a confidential treatment of the
responses.
–          A questionnaire
was addressed to the customs administrations of Member States concerning their
national customs infringements and penalties systems and answers from 24 Member
States were collected as has been previously stated in this memorandum. The
comparison of the data gathered showed the relevant differences among the
customs sanctioning systems of the Member States.
–          A High Level
Seminar on Compliance and Compliance Risk Management with the participation of
customs administrations from all Member States and Candidate Countries and
representatives of economic operators was held in Copenhagen on 20-21 March
2012, where the issue of customs offences and penalties was acknowledged as an
element of a "compliance" scheme, and an issue to be further
explored.
–          A first
stakeholder consultation with DG TAXUD's consultative body on customs issues
(the Trade Contact Group (TCG)) was carried out. The TCG includes Union-level
representatives of 45 European trade associations, including SMEs, involved in
customs related activities. As a response to this consultation, the majority of
the associations present at the meeting expressed their overall agreement on
the relevance of DG TAXUD's initiative for their business activities.
–          A second
stakeholder consultation was carried out through another questionnaire, and was
sent to SMEs through the Enterprise Europe Network, concerning the effects that
the different infringements and sanctions systems in force in different Member
States in the area of customs legislation have on the commercial activity of
companies dealing with import/export activities.
2.2.        Impact Assessment
The Commission conducted an
impact assessment of policy alternatives (available at:…). Four policy options
were analysed: A – baseline scenario; B – a modification of the legislation
within the Union legal framework in force; C – a legislative measure on the
approximation of the types of customs infringements and non-criminal sanctions
and D – two separate legislative measures aiming at approximation of customs
infringements and non-criminal sanctions on the one hand and criminal customs
infringements and sanctions on the other hand.
After considering the
possible options, the impact assessment concludes that a legislative measure
that would identify customs obligations to which special protection should be
given through the establishment of non-criminal sanctions for any breaches of
them (option C), is to be preferred. 
The resubmission of the
impact assessment received a positive opinion of the Impact Assessment Board on
14 June 2013.
3.           LEGAL ELEMENTS OF THE
PROPOSAL
3.1.        The legal basis
The proposal is based on
Article 33 of the Treaty on the Functioning of the European Union (TFEU).
Article 33 TFEU states that
customs cooperation between Member States and between the latter and the
Commission should be strengthened within the scope of the application of the
Treaties.
According to the Code, a
decision taken by a Member State is applied in all other Member States and
therefore requires consultation between the authorities to enhance its uniform
application.
Likewise the introduction of
certain facilitations and simplifications in the Union customs legislation and
the AEOs access to them, is a strong reason to further strengthen the
cooperation between Member States. In particular the assessment of the criteria
required to be granted the AEO status and in particular the criterion related
to the absence of any serious infringement or repeated infringement by the AEO
requires comparable sanctioning systems throughout the EU in order to ensure a
level playing field between economic operators.
Therefore the approximation
of customs infringements and sanctions shall not only require customs
cooperation between Member States but also shall contribute to the correct and
uniform application and enforcement of the Union customs legislation.
3.2.        Subsidiarity,
proportionality and the respect for fundamental rights
The approximation of customs
infringements and non-criminal sanctions shall be seen as integral part of
secondary law that the Union may adopt with a view to strengthening the
cooperation between the customs authorities of the Member States and between
the Member States and the Commission in its role of implementing the
legislation of the customs union, being an area of Union exclusive competence.
Union action in that area does not therefore deserve being assessed with regard
to the principle of subsidiarity laid down in Article 5(3) of the Treaty on
European Union. 
However, even if
subsidiarity would have to be considered, although in the specific case we are
in a fully harmonised policy area (customs union) with fully harmonised rules,
whose effective implementation determines the very existence of the customs
union, only the Union is in a position to meet the
objectives of this directive also because of the fact of the important
disparity in national legislations. 
In accordance with the
principle of proportionality, as set out in Article 5(4) of the Treaty on
European Union, this proposal does not go beyond what is necessary to achieve
that objective. The content of this proposal is in line with the requirements
enshrined in the European Charter of Fundamental Rights. Particularly, certain
provisions under the chapter of procedural rules have been inserted in line
with the principle of the right to good administration and fair trial, but also
in the light of the principle ne bis in idem.
3.3.        Choice of instruments
This proposal for an approximation of national laws in the area of
customs cooperation in the Union, will take the form of a Directive which
Member States will have to transpose in their national legislation.
3.4.        Specific provisions
The proposal addresses
infringements linked to the obligations stemming from the Union Customs Code.
To do so, it includes a common list of different infringements (strict
liability, committed with negligence and committed with intent) breaching the
rules of the Union Customs Code and as such encompasses all possible situations
that persons may face in that respect when dealing with customs authorities.
The proposal considers as infringement not only the complete performance of the
behaviours listed in the proposal but also its intentional attempt.
In parallel to those
conducts, this proposal also establishes a common scale of effective
proportionate and dissuasive sanctions linked to the infringements and relevant
circumstances that should be taken into account by the competent authorities
from Member States when determining the type and level of sanctions for customs
infringements which contribute to the adaptation of the sanction to the
specific situation. The combination of the scale of the sanctions along with
the relevant circumstances permits to establish several levels of severity in
order to respect the principle of proportionality of the sanctions. Moreover,
the proposal defines certain cases where a behaviour falling in the categories
defined as strict liability infringements by this proposal shall not be
considered as such when they are due to an error on the part of the competent
customs authorities.
The proposal refers to the
liability of persons playing a relevant role in the commission of customs infringements
with intent, stating an
equivalent treatment to that of the persons committing the infringement to those inciting, aiding or abetting these
infringements. It refers, as well, to the liability of legal persons, as customs
infringements can also result from conducts attributable to legal persons.
Finally the proposal
includes some necessary procedural provisions in order to avoid overlap of
sanctions for the same facts and persons. In particular it concerns the time
limit within the competent authorities must initiate the procedure against the
person responsible of the infringement, the possibility of suspending the
sanctioning proceeding in those cases where criminal proceedings are being carried
out with regard to the same facts and the territorial competence by defining
which Member State is considered competent to deal with the case when the
infringement involves more than one Member State.
The implementation of those
articles in the national legislation of Member States will ensure a homogeneous
treatment of economic operators regardless the Member State where they fulfil
their customs formalities and commercial operations. It will also ensure the
compliance with the international obligations stemming from the Kyoto
Convention. 
4.           BUDGETARY IMPLICATION 
The proposal will not have
an impact on human resources and on the European Union budget and is therefore
not accompanied by the financial statement foreseen under Article 31 of the
Financial Regulation (Regulation (EC, Euratom) No 966/2012 of the European
Parliament and of the Council of 25 October 2012 on the financial rules
applicable to the general budget of the Union and repealing Council Regulation
(EC, Euratom) No 1605/2002).
This proposal has no
budgetary implications for the Union.
5.           EXPLANATORY DOCUMENTS
It is important for the
Commission to ensure the correct transposition of the Directive to national
legislation. In order to achieve this and given the different structure of the national
legal orders, Member States should communicate the exact reference to the
national provisions and how it transposes each specific provision of the
Directive. This does not go beyond what is necessary for the Commission to
ensure that the Directive's main aim, an effective implementation and enforcement
of Union customs legislation in the customs union, is achieved.
2013/0432 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on the Union legal framework for customs
infringements and sanctions 
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 33 thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)       Provisions in the field of
the customs union are harmonised by Union law. However, their enforcement lies within
the scope of Member States' national law.
(2)       Consequently, customs
infringements and sanctions follow 28 different sets of legal rules. As a
result of that, a breach of Union customs legislation is not treated the same way
throughout the Union and the sanctions that may be imposed in each case differ
in nature and severity depending on the Member State that is imposing the
sanction.
(3)       That disparity of Member
States' legal systems affects not only the optimal management of the customs
union, but also prevents that a level playing field is achieved for economic
operators in the customs union because it has an impact on their access to
customs simplifications and facilitations.
(4)       Regulation
(EC) No 952/2013 of the European Parliament and of the Council[8] (hereinafter referred to as “the Code”) has been conceived for a
multinational electronic environment where there is real time communication
between customs authorities and where a decision taken by a Member State is applied in all the other Member States. That legal framework therefore requires
a harmonised enforcement. The Code also includes a provision requiring Member
States to provide for effective, dissuasive and proportionate sanctions.
(5)       The
legal framework for the enforcement of Union customs legislation provided for
in this Directive is consistent with the legislation in force regarding the
safeguarding of the financial interests of the Union[9].
The customs infringements covered by the framework established by this
Directive include customs infringements that have an impact on those financial
interests while not falling under the scope of the legislation safeguarding them
by means of criminal law and customs infringements that do not have an impact
on the financial interests of the Union at all. 
(6)       A list
of behaviour which should be considered as infringing Union customs legislation
and give rise to sanctions should be established. Those customs infringements should
be fully based on the obligations stemming from the customs legislation with
direct references to the Code. This Directive does not
determine whether Member States should apply administrative or criminal law
sanctions in respect of those customs infringements.
(7)       The
first category of behaviour should include customs infringements based on
strict liability, which does not require any element of fault, considering the
objective nature of the obligations involved and the fact that the persons
responsible to fulfil them cannot ignore their existence and binding character.
(8)       The
second and third category of behaviour should include customs infringements
committed by negligence or intentionally, respectively, where that subjective
element has to be established for liability to arise.
(9)       Inciting
or aiding and abetting a behaviour being a customs infringement committed
intentionally and attempt to commit certain customs infringements intentionally
should be considered customs infringements.
(10)     In order
to ensure legal certainty, it should be provided that any act or omission
resulting from an error on the part of the customs authorities should not be
considered a customs infringement.
(11)     Member
States should ensure that liability can arise for legal persons as well as
natural persons for the same customs infringement where the customs
infringement has been committed for the benefit of a legal person.
(12)     In order to approximate the
national sanctioning systems of the Member States, scales of sanctions should
be established reflecting the different categories of the customs infringements
and their seriousness. For the purpose of imposing effective, proportionate and
dissuasive sanctions, Member States should also ensure that their competent
authorities take into account specific aggravating or mitigating circumstances when
determining the type and level of sanctions to be applied.
(13)     The limitation period for
proceedings concerning a customs infringement should be fixed at four years
from the day on which the customs infringement was committed or, in case of
continuous or repeated infringements, where the behaviour constituting that
infringement ceases. Member States should ensure that the limitation period is
interrupted by an act relating to investigations or legal proceedings
concerning the customs infringement. Member States may lay down cases where
that period is suspended. The initiation or continuation of these proceedings
should be precluded after an expiry period of eight years, while the limitation
period for the enforcement of a sanction should be of three years.
(14)     A suspension of administrative
proceedings concerning customs infringements should be provided for where
criminal proceedings have been initiated against the same person in connection
with the same facts. The continuation of the administrative proceedings after
the completion of the criminal proceedings should be possible only in strict
conformity with the ne bis in idem principle.
(15)     In order to avoid positive
conflicts of jurisdiction, rules should be laid down to determine which of the
Member States with jurisdiction should examine the case.
(16)     This Directive should
provide for the cooperation between Member States and the Commission to ensure
effective action against customs infringements.
(17)     In order to facilitate the
investigation of customs infringements, the competent authorities should be
allowed to temporarily seize any goods, means of transport or any other
instrument used in committing the infringement.
(18)     In accordance with the
Joint Political Declaration of Member States and the Commission of 28 September
2011 on explanatory documents[10],
Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified.
(19)     Since this Directive aims
to provide for a list of customs infringements common to all Member States and for
the basis for effective, dissuasive and proportionate sanctions to be imposed
by Member States in the area of the customs union, which is fully harmonised,
those objectives cannot be sufficiently achieved by the Member States based on
their different legal traditions, but can rather, by reason of the scale and
effect, be better achieved at Union level, the Union may adopt measures in
accordance with the principle of subsidiarity, as set out in Article 5 of the
Treaty on the European Union. In accordance with the principle of
proportionality, as set out in that Article, this Directive does not go beyond
what is necessary to achieve those objectives.
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject matter and scope
1.           This
Directive establishes a framework concerning the infringements of Union customs
legislation and provides for sanctions for those infringements.
2.           This Directive applies to
the violation of the obligations laid down in Regulation (EU) No 952/2013 of
the European Parliament and of the Council of 9 October 2013, laying down the
Union Customs Code (hereinafter referred to as ‘the Code’) and of identical
obligations laid down in other parts of the Union customs legislation as
defined in Article 5(2) of the Code.
Article 2
Customs infringements and sanctions
Member States shall lay down
rules on sanctions in respect of the customs infringements set out in Articles 3
to 6.
Article 3
Strict liability customs infringements
Member States shall ensure
that the following acts or omissions constitute customs infringements
irrespective of any element of fault:
(a)         
failure of the person lodging a customs
declaration, temporary storage declaration, entry summary declaration, exit
summary declaration, re-export declaration or re-export notification to ensure
the accuracy and completeness of the information given in the declaration,
notification or application in accordance with Article 15(2)(a) of the Code;
(b)         
failure of the person lodging a customs
declaration, temporary storage declaration, entry summary declaration, exit
summary declaration, re-export declaration or re-export notification to ensure
the authenticity, accuracy and validity of any supporting document in
accordance with Article 15(2)(b) of the Code;
(c)         
failure of the person to lodge an entry summary
declaration in accordance with Article 127 of the Code, a notification of
arrival of a sea going vessel or of an aircraft in accordance with Article 133 of the Code, a temporary storage
declaration in accordance with
Article 145 of the Code, a customs declaration in accordance with Article 158
of the Code, a notification of activities in free zones
in accordance with Article 244(2) of the Code, a pre-departure
declaration in accordance with Article 263 of the Code, a re-export declaration in accordance with Article 270 of the Code,
an exit summary declaration in
accordance with Article 271 of the Code or a re-export notification in accordance with Article 274 of the Code;
(d)        
failure of an economic operator to keep the
documents and information related to the accomplishment of customs formalities
by any accessible means for the period of time required by customs legislation in
accordance with Article 51 of the Code;
(e)         
removal of goods brought into the customs
territory of the Union from customs supervision without the permission of the
customs authorities, contrary to the first and second sub-paragraphs of Article
134(1) of the Code;
(f)          
removal of goods from customs supervision, contrary
to the fourth sub-paragraph of Article 134(1) and Articles 158(3) and 242 of the Code;
(g)         
failure of a person bringing goods into the
customs territory of the Union to comply with the obligations relating to the
conveyance of the goods in the appropriate place in accordance with Article 135(1)
of the Code, or to inform customs
authorities when the obligations cannot be complied with in accordance with
Article 137(1) and (2) of the
Code;
(h)         
failure of a person bringing goods into a free
zone, where the free zone adjoins the land frontier between a Member State and
a third country, to bring those goods directly into that free zone without
passing through another part of the customs territory of the Union in
accordance with Article 135(2) of the Code;
(i)           
failure of the declarant for temporary storage
or for a customs procedure to provide documents to the customs authorities
where Union legislation so requires or where necessary for customs controls in
accordance with Article 145(2) and Article 163(2) of the Code;
(j)           
failure of the economic operator responsible for
non-Union goods which are in temporary storage to place those goods under a
customs procedure or to re-export them within the time limit in accordance with
Article 149 of the Code;
(k)         
failure of the declarant for a customs procedure
to have in their possession and at the disposal of the customs authorities, at
the time when the customs declaration or a supplementary declaration is lodged,
the supporting documents required for the application of the procedure in
question in accordance with Article 163(1) and the second subparagraph of
Article 167(1) of the Code;
(l)           
failure of the declarant for a customs procedure,
in the case of a simplified declaration pursuant to Article 166 of the Code or
of an entry into the declarant’s records pursuant to Article 182 of the Code, to
lodge a supplementary declaration at the competent customs office and within
the specific time-limit in accordance with Article 167(1) of the Code; 
(m)       
removal or destruction of means of
identification affixed by customs authorities in goods, packaging or means of
transport without prior authorisation granted by the customs authorities in
accordance with Article 192(2) of the Code;
(n)         
failure of the holder of the inward processing
procedure to discharge a customs procedure within the time limit specified in
accordance with Article 257 of the Code;
(o)         
failure of the holder of the outward processing
procedure to export the defective goods within the time limit in accordance
with Article 262 of the Code;
(p)         
construction of a building in a free zone without
the approval of the customs authorities in accordance with Article 244(1) of
the Code;
(q)         
non-payment of import or export duties by the
person liable to pay within the period prescribed in accordance with Article
108 of the Code.
Article 4
Customs
infringements committed by negligence
Member States shall ensure
that the following acts or omissions constitute customs infringements where
committed by negligence:
(a)         
failure of the economic operator responsible for
non-Union goods which are in temporary storage to place those goods under a
customs procedure or to re-export them within the time limit in accordance with
Article 149 of the Code;
(b)         
failure of the economic operator to provide customs
authorities with all the assistance necessary for the completion of the customs
formalities or controls in accordance with Article 15(1) of the Code;
(c)         
failure of the holder of a decision relating to
the application of customs legislation to comply with the obligations resulting
from that decision in accordance with Article 23(1) of the Code;
(d)        
failure of the holder of a decision relating to
the application of customs legislation to inform the customs authorities
without delay of any factor arising after the decision was taken by those
authorities which influences its continuation or content in accordance with Article
23(2) of the Code;
(e)         
failure of the economic operator to present the
goods brought into the customs territory of the Union to the customs
authorities in accordance with Article 139 of the Code;
(f)          
failure of the holder of the Union transit
procedure to present the goods intact at the customs office of destination
within the prescribed time limit in accordance with Article 233(1)(a) of the
Code;
(g)         
failure of the economic operator to present the
goods brought into a free zone to customs in accordance with Article 245 of the
Code;
(h)         
failure of the economic operator to present the
goods to be taken out of the customs territory of the Union to customs on exit
in accordance with Article 267(2) of the Code;
(i)           
unloading or trans-shipping of goods from the
means of transport carrying them without authorisation granted by the customs
authorities or in places not designated or approved by those authorities in
accordance with Article 140 of the Code;
(j)           
storage of goods in temporary storage facilities
or customs warehouses without authorisation granted by the customs authorities
in accordance with Articles 147 and 148;
(k)         
failure of the holder of the authorisation or the
holder of the procedure to fulfil the obligations arising from the storage of
goods covered by the customs warehousing procedure in accordance with points
(a) and (b) of Article 242(1) of the Code.
Article 5
Customs infringements committed intentionally
Member States shall ensure
that the following acts or omissions constitute customs infringements where
committed intentionally:
(a)         
providing customs authorities with false
information or documents required by those authorities in accordance with
Articles 15 or 163 of the Code;
(b)         
the use of false statements or any other
irregular means by an economic operator in order to obtain an authorisation
from the customs authorities:
(i)      to become an authorised economic operator
in accordance with Article 38 of the Code,
(ii)     to make use of a simplified
declaration in accordance with Article 166 of the Code, 
(iii)    to make use of other customs
simplifications in accordance with Articles 177, 179, 182, 185 of the Code,
(iv)    to place the goods under special
procedures in accordance with Article 211 of the Code;
(c)         
introduction or exit of goods into or from the
customs territory of the Union without presenting them to customs authorities
in accordance with Articles 139, 245, or Article 267(2) of the Code;
(d)        
failure of the holder of a decision relating to
the application of customs legislation to comply with the obligations resulting
from that decision in accordance with Article 23(1) of the Code; 
(e)         
failure of the holder of a decision relating to
the application of customs legislation to inform the customs authorities
without delay of any factor arising after the decision was taken by those
authorities which influences its continuation or content in accordance with
Article 23(2) of the Code; 
(f)          
processing of goods in a customs warehouse
without an authorisation granted by the customs authorities in accordance with Article
241 of the Code;
(g)         
acquiring or holding goods involved in one of
the customs infringements set out in point (f) of Article 4 and point (c) of
this Article.
Article 6
Incitement, Aiding, Abetting and Attempt
1.           Member States shall take
the necessary measures to ensure that inciting or aiding and abetting an act or
omission referred to in Article 5 is a customs infringement. 
2.           Member States shall take
the necessary measures to ensure that an attempt to commit an act or omission referred
to in points (b) or (c) of Article 5 is a customs infringement.
Article 7
Error on the part of the customs authorities
The acts or omissions
referred to in Articles 3 to 6 do not constitute customs infringements where they
occur as a result of an error on the part of the customs authorities.
Article 8 
Liability of legal persons
1.           Member States shall ensure
that legal persons are held liable for customs infringements committed for
their benefit by any person, acting either individually or as part of an organ
of the legal person, and having a leading position within the legal person,
based on any of the following: 
(a)         
a power of representation of the legal person;
(b)         
an authority to take decisions on behalf of the
legal person;
(c)         
an authority to exercise control within the
legal person. 
2.           Member States shall also ensure
that legal persons are held liable where the lack of supervision or control by
a person referred to in paragraph 1 has made possible the commission of a
customs infringement for the benefit of that legal person by a person under the
authority of the person referred to in paragraph 1. 
3.           Liability of a legal
person under paragraphs 1 and 2 shall be without prejudice to the liability of
natural persons who have committed the customs infringement.
Article 9
Sanctions for customs infringements referred to in Article 3
Member States shall ensure
that effective, proportionate and dissuasive sanctions are imposed for the
customs infringements referred to in Article 3 within the following limits:
(a)         
where the customs infringement relates to specific
goods, a pecuniary fine from 1 % up to 5 % of the value of the goods;

(b)         
where the customs infringement is not related to
specific goods, a pecuniary fine from EUR 150 up to EUR 7 500.
Article 10
Sanctions
for customs infringements referred to in Article 4
Member States shall ensure
that effective, proportionate and dissuasive sanctions are imposed for the
customs infringements referred to in Article 4 within the following limits:
(a)         
where the customs infringement relates to specific
goods, a pecuniary fine up to 15 % of the value of the goods; 
(b)         
where the customs infringement is not related to
specific goods, a pecuniary fine up to EUR 22 500.
Article 11
Sanctions
for customs infringements referred to in Article 5 and 6
Member States shall ensure
that effective, proportionate and dissuasive sanctions are imposed for the
customs infringements referred to in Articles 5 and 6 within the following limits:
(a)         
where the customs infringement relates to specific
goods, a pecuniary fine up to 30 % of the value of the goods; 
(b)         
where the customs infringement is not related to
specific goods, a pecuniary fine up to EUR 45 000.
Article 12
Effective application of sanctions and exercise of powers to impose sanctions
by competent authorities 
Member States shall ensure that
when determining the type and the level of sanctions for the customs
infringements referred to in Articles 3 to 6, the competent authorities shall
take into account all relevant circumstances, including, where appropriate:
(a)         
the seriousness and the duration of the infringement;
(b)         
the fact that the person responsible for the infringement
is an authorized economic operator;
(c)         
the amount of the evaded import or export duty;
(d)        
the fact that the goods involved are subject to the
prohibitions or restrictions referred to in the second sentence of Article
134(1) of the Code and in Article 267(3)(e) of the Code or pose a risk to public
security;
(e)         
the level of cooperation of the person
responsible for the infringement with the competent authority;
(f)          
previous infringements by the person responsible
for the infringement. 
Article 13
Limitation
1.           Member States shall ensure
that the limitation period for proceedings concerning a customs infringement referred
to in Articles 3 to 6 is four years and starts to run on the day on which the
customs infringement was committed.
2.           Member States shall ensure
that, in the case of continuous or repeated customs infringements, the limitation
period starts to run on the day on which the act or omission constituting the
customs infringement ceases.
3.           Member States shall ensure
that the limitation period is interrupted by any act of the competent
authority, notified to the person in question, relating to an investigation or
legal proceedings concerning the same customs infringement. The limitation period
shall start to run on the day of the interrupting act.
4.           Member States shall ensure
that the initiation or continuation of any proceedings concerning a customs
infringement referred to in Articles 3 to 6 is precluded after the expiry of a period
of eight years from the day referred to in paragraph 1 or 2.
5.           Member States shall ensure
that the limitation period for the enforcement of a decision imposing a
sanction is three years. That period shall start to run on the day on which that
decision becomes final.
6.           Member States shall lay
down the cases where the limitation periods set out in paragraphs 1, 4 and 5
are suspended.
Article 14
Suspension of the proceedings
1.           Member States shall ensure
that administrative proceedings concerning a customs infringement referred to
in Articles 3 to 6 are suspended where criminal proceedings have been initiated
against the same person in connection with the same facts.
2.           Member States shall ensure
that the suspended administrative proceedings concerning a customs infringement
referred to in Articles 3 to 6 are discontinued where the criminal proceedings referred
to in paragraph 1 have finally been disposed of. In other cases, the suspended administrative
proceedings concerning a customs infringement referred to in Articles 3 to 6 may
be resumed. 
Article 15
Jurisdiction
1.           Member States shall ensure
that they exercise jurisdiction over the customs infringements referred to in
Articles 3 to 6 in accordance with any of the following criteria:
(a)         
the customs infringement is committed in whole
or in part within the territory of that Member State; 
(b)         
the person committing the customs infringement
is a national of that Member State;
(c)         
the goods related to the customs infringement are
present in the territory of that Member State.
2.           Member States shall ensure
that in case more than one Member State claims jurisdiction over the same customs
infringement, the Member State in which criminal proceedings are pending against the same person in
connection with the same facts exercises jurisdiction. Where jurisdiction
cannot be determined pursuant to the first subparagraph, Member States shall
ensure that the Member State whose competent authority first initiates the
proceedings concerning the customs infringement against the same person in
connection with the same facts exercises jurisdiction. 
Article 16
Cooperation between Member States
Member States shall
co-operate and exchange any information necessary for the proceedings concerning
an act or omission constituting a customs infringement referred to in Articles
3 to 6, in particular in case more than one Member State has started
proceedings against the same person in connection with the same facts.
Article 17
Seizure
Member States shall ensure
that the competent authorities have the possibility to temporarily seize any
goods, means of transport and any other instrument used in committing the customs
infringements referred to in Articles 3 to 6.
Article 18
Reporting by the Commission and review
The Commission shall, by [1
May 2019], submit a report on the application of this Directive to the European
Parliament and the Council, assessing the extent to which the Member States
have taken the necessary measures to comply with this Directive.
Article 19
Transposition
1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [1 May 2017] at the latest. They shall forthwith
communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.
2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.
Article 20
Entry into force
This Directive shall enter
into force on the twentieth day following that of its publication in the Official
Journal of the European Union.
Article 21
Addressees
This
Directive is addressed to the Member States.
Done at Brussels,
For the European Parliament                        For
the Council
The President                                                 The
President
[1]               Austria, Belgium, Bulgaria, Cyprus, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain and United Kingdom.
[2]               The Community Customs Code, established by Council
Regulation (EEC) 2913/92 of 12 October 1992 and applied from 1 January 1994, in
OJ L 302, 19.10.1992, p. 1: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1992R2913:20070101:EN:PDF

[3]               Regulation (EC) No 450/2008 of the European
Parliament and of the Council of 23 April 2008 laying down the Community
Customs Code (Modernised Customs Code), in OJ L145, 4.6.2008, p.1: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:145:0001:0064:EN:PDF

[4]               Regulation No 952/2013 of the European Parliament and
of the Council of 9 October 2013 laying down the Union Customs Code (recast) in
OL L 269, 10.10.2013, p. 1 (corrigendum in OJ L 287, 29.10.2013, p. 90): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:269:0001:0101:EN:PDF

[5]               Report from the Committee on International Trade on
implementing trade policy through efficient import and export rules and
procedures (2007/2256(INI)). Rapporteur: Jean-Pierre Audy and Report from the
Committee in the Internal Market and Consumer Protection on modernisation of
customs (2011/2083(INI)). Rapporteur: Matteo Salvini
[6]               Article 4.3 of TEU
[7]               Article 21 MCC, becoming Article 42 UCC.
[8]               Regulation (EU) No 952/2013 of the European
Parliament and of the Council of 9 October 2013 laying down the Union Customs
Code (OJ L 269, 10.10.2013, p. 1).
[9]               Proposal for a Directive of the European Parliament
and of the Council on the fight against fraud to the Union's financial
interests by means of criminal law (COM(2012)363).
[10]             OJ C 369, 17.12.2011, p. 14.