CELEX: 51977PC0192
Language: en
Date: 1977-05-25
Title: Proposal for a Council regulation Laying down conditions for the post clearance collection of import duties or export duties, which have been underpaid on goods entered for a customs procedure involving the obligation to pay such duties (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (77) 192
Vol. 1977/0076
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 ---pagebreak--- COMMISSION 03? THE EUROPEAN COMMUNITIES
                                              COM(77)192 final
                                              Brussels , 25 May 1977
                            Proposal for a Council regulation
                    Laying down conditions for the post clearance
                      collection of import duties or export duties ,
                    which have been underpaid on goods entered for
                      a customs procedure involving the obligation
                                   to pay such duties
                    ( submitted to the Council by the Commission )
   COM( 77 ) 192 final
 ---pagebreak---                                  EXPLANATORY KEHCRAMOUH
              On 30 December 1975 ,, the Cormission : le1d before the . Council a
prcoos^l for a regulation on the repayment or remission of import duties or
export duties ( 1 ) . This 'proposal prcvicies , - in particular-^ for the correction
of errors cor^iitted by the competent authorities' in establishing the amount
of duties payable by persons Liable for payment , in such a way that they 're
required to pay only what is legally due .
              If the amount of import duties or export duties calculated by the
authorities nay prove to be higher than the amount legally due ,, the converse
situation may also arise , either as a result of a purely material error ( e.g.
an error of calculation ) or as a result of a basic error in determining the
information ( nature , value , quantity , origin , end-use , etc -) to be used in
calculating the imoort duties or export duties payable on the goods in quest 1
              Such situations occur more frequently nowadays , since clearance
procedures are becoming increasingly rapid and simple , in order that goods
may be released from customs control as quickly as possible . Therefore , it is
often several months after goods have been cleared . for free circulation or
for export fr oft - the Community that verification marie by the authorities shows
that the' amount of import duties or export duties daisied from the . person
liable for pc/ 'went was less than was legally due .
              The- import duties or export duties applied by .the Community are •
ess&ntlally economic in nature and failure to collect them under the condi­
tions laid down by Community legislation is automatically damaging to the
Community economy . The authorities must therefore fcs allowed to carry cut
the post clearance collection of import duties or exoort duties which , for
whatever reason , wore not claimed from the person liable for payment or for
which the full amount legally due was not claimed . Furthermore , this facility
( vhich to some extent balances the facilities provided for the clearance of
goods ) has teen incorporated, though under different conditions , in the laws
of all ilember States .
                                                            0••/O O •
< 1 ) cf . C0H(75 ) 6c<5 final of ?.3 December 1975 .
 ---pagebreak---                                            - 2 -
               Of - course , the post clearance collection of import duties or export
 duties impairs to some degree the certainty which persons liable for payment
 have the right to expect from official acts with pecuniary consequences . It is
 therefore aporopriate to limit the possible sccpe of action cf the competent
 authorities in this field by ' laying down reasonable time limits .
                By way of principle , and so as to ensure perfect balance between
 the obligations on Member States tc keep for a period of time the supporting
 documents concerning established entitlements and the making available of own
 Resources ( 1 ) and their ability to undertake the post clearance collection of
 amounts not charged , the Commission proposes that the same time limit should
 be applied in both cases . It is on the basis of these supporting documents
  that the customs authorities regularly carry out investigations leading to
the discovery of amounts unpaid , and it would not be fair to require Member
States , under the own resources arrangements , to transfer to the Communities'
budget sums established under these conditions when their own authorities
had no right whatsoever to claim such sums from persons Liable for payment .
                However , this principle must be qualified es follows :
 ( a ) First of all , this restriction on action by the competent authorities
        should not apply where , at the time of customs clearance of the goods ,
        the authorities have been unable to determine the exact amount of import
        duties or export duties owing to fraudulent action by the person liable
       for payment . In such cases , the common law provisions relating to undue
       payments in force in each of the Member States should be applied .
  ( b ) Conversely , where the amount of duties originally calculated is based
         on, information determined by the competent authorities themselves or
      - expressly recognized by them as complying with that declared , no action
         for collection should be taken against the person liable for payment ,
         where it is proved that the latter had acted in good faith and had complied
         in all respects with the rules in force for completing his customs declara­
         tion . Such a situation would arise , for example , from a decision taken
         by the authorities regarding the tariff classification cf goods and with
         which the person liable for payment has complied . It would also arise
  from a decision taken by the authorities regarding the tariff description
         of a product cn the basis of their own analysis or regarding any other in­
         formation ( value , origin , quantity ) which their officers had expressly
         recognized as complying with that declared by the person liable for
         payment . In such cases , the person 's confidence in the decisions taken
         by the authorities is particularly justifiable and it would be unjust
       to require him to bear the consequences of an error committed by these
         authorities .
  ( 1 ) CT . Article 3 of Council Regulation ( EEC / Eurstom / ECSC ) No 2/ 71 cf
         2 Janauray 1971 implementing the Decision of 21 April 1970 on the
         replacement of financial contributions from Member1 States by the
         Communities' own resources *
 ---pagebreak---                 Furthermore , it would not seem justifiable to allow import duties
  or expert duties collected after slecran'ce to benefit from the facilities
   laic' down in the Council Directive of 4 ;; nrch 'i 969 on the' harmonization of
  provisions laid down" by law, regulation or administrative action for deferred
■ peyr.snt of customs duties , charges having equivalent effect end -:gri cultural
  levies ( 1 ), which the Commissi on lies recently proposed to replace by a new
  text covering , in. rddition , expert duties < 2 ). Neither technical res sons ( to
  facilitate customs clearance ) nor economic reasons ( to allow the importer a
  period in which to resell the inoorted goods before paying -, tho duties on them )
  rrs justified in this special cc.se of the post clearance collection of import
  dutie : or export duties .
                However , it should be possible to charge interest on arrears in
  respect of amounts collected after clearance, except where the non-collection
  of the- amount leaally due can be ascribed to an error made by the authorities .
                Triis regulation will have the effect of :
                - eliminating any distortion in treatment among importers of pro­
  ducts from non-mer.ber countries ( and anons Cosanunity exporters of products
  to thesi countries ) and
                - defining orecisely the conditions in which -Member States may
  revise - entitlements established regarding the Communities' own resources
  Pursuant to Article c of Council regulation ( TEC / Euratcri/ ECSC) No 2 / 71 of
  ?. January 1971 , thereby providing bettor control over own resources .
                As this proposal for a regulation is designed mainly to harmonize
  the existing provisions in all the Heuiber States ( and are often stricter in
  many respects ), its issosct on budget revenue should be no less favourable
  than the application of existing national regulations in this field . However ,
 precise details of its impact cannot be yiven owing to the lack of centralized
  information in the Member States regarding' the application of these rules and
  regulations .
                This proposal for a regulation is based on Articles A3 and 2Z5 of
  the Treaty establishing the European Economic Community , and its adoption
  would represent a farther step towards customs union . The Opinion of the
  European I'erliair.ent is required . In view of its subject matter , the Commission
  feels, that the Economic and Social Committee should also be asked : for its
  Opinion .
  ( 1 ) O.J. No L 58 of P. 3.1969 , p. 14
  ( £ ) O.J. fo C 198 of    9.6.1975 , p. 6
 ---pagebreak---                                   Pre lininary draft
                                        of a
                        • Proposal for a Council Regulation
                Laying down conditions for the post clearance
                 collection of import duties or export duties
                which have been underpaid on goods entered for
                 a customs procedure involving the obligation
                                to pay such duties
THE COUNCIL OF THE EUROPEAN COW-iUNITIES ,
Having regard to the Treaty establishing the European Economic Community, and
in particular Articles 43 and 225 thereof ,
Having regard to the proposal from the Commission ,
Having regard to the Opinion of the European Parliament ,
Having regard to the Opinion of the Economic and Social Committee ,
Whereas the amount of the import or export duties which the person liable
for payment has been required to pay on goods which have been the subject
of a declaration for a customs procedure irvplving the obligation to pay
such duties may prove to be lower than the amount which was legally due ,
either as a result of an error of calculation or copying on the part of the
competent authorities , or because those authorities used inaccurate or in­
complete information , particularly as regards the nature , quantity, value ,
origin or. end-use of the goods in question ; whereas , because of the essen­
tially economic nature of the . import duties or export duties in force in the
Community, the failure to collect the correct duties has prejudicial conse­
quences for the Community economy ; whereas it is therefore justified to permit
the competent authorities to undertake the recovery of the duties remaining
due , when they establish subsequently that such an error has been made ;
 ---pagebreak---                                              - ? -
  I'hereas the post clearance collection of import duties or export duties in­
  volves some degree of prejudice to the certainty which persons liable for
 payment have the right to expect from official sets with pecuniary consequences ;
  whereas - it is therefore appropriate to limit the possible scooe of action of
 the competent authorities in tin's field by fixing a time-limit after which the
 original payment of the import duties or export duties must be considered as
 definitive ; whereas this restriction on action by the competent authorities
  cannot apply . where at ths time of the customs clearance of the goods the autho­
 rities have been unable , on account of fraudulent action , to determine the exact
 amount of the import duties or export duties ; whereas , however , the taking of
 action for post clearance collection is under no circumstances justified where
 the criminal calculation of import duties or expert duties has been established
 on the basis of information determined by the competent authorities themselves
 or expressly recognized by them as complying with that declared by the person
  liable for payment , when the latter hbd acted in good faith and had complied- '---j
in all respects with the rules in force for completing his customs declaration ;
                                                   ν
 Whereas there is no technical or economic reason to grant , in respect of the
 amounts of imocrt duties or export duties to be collected after clearance , the
 facilities provided for in the Council Directive on the     harmonization of pro­
 visions laid down by law, regulation or administrative action concerning deferred
 payment of import duties or export duties ( 1 ); whereas , however , amounts subse­
 quently collected by the competent authorities should be exempt from interest
 on overdue payments , when the non-collection of the " amounts " of 'inorf duties' or ex­
 port duties legally due is attributable to an error on - the part of these
  authcritirs ;
 '-'hereas it does not appear to bo worthwhile to undertake the post clearance
 collection of amounts of 5 units of 'account or less ;
                                                               •• m/m m m
  ( 1 ) O.J. No C 198 , 29 . S. 1975 , p . ó .
 ---pagebreak--- Whereas post clearance collection : of the arnounts of import duties or export
duties , payment, of which ins pot -bean required of the person liable for payrent
when the go<»ds were cleared - from customs , presupposes n revision of the 'esta­
blished entit lerient of own resources within the meaning of Article 2 ( 2 ) of
Council .regulation .( SECy Euraton,. ECSC ) No 2/ 71 of 2 January 1971 implementing
the Decision of- ?1 April - 1970 on the replacement of financial contributions from
Member States by the Communities * own resources ( 1 ); whereas the establishment
of precise Community provisions in this respect allows better control of these
own resources ;
whereas the provisions of this Regulation are concerned with post clearance
collection of the different import duties and export duties whether they result
fror. the application of the common agricultural policy or from the application
of the provisions of the Treaty relating to the customs union ; whereas , as far
as this second aspect is concerned , the provisions of the Treaty do not confer
on the institutions , of the Communities the pow^r to- adept binding provisions
in respect of the subsequent recovery of import duties or export duties ; whereas
it therefore appears to be necessary to base the provisions of this Regulation
       on Article 235 ,.                                          '        .  '
HAS ADOPTED THIS REGULATION :                          '   '
( 1 ) O.J. No L 3 , 5.1.1971 , p. 1 .
 ---pagebreak---                                       Artie 1.0 1
1 . This ::eguUticn shall, determine the conditions under which the coirnetent
    Authorities shall undertake post clearance ccl lection of the amount ot
    iroort duties or export duties for which , for whatever reason , payment
    has not been required of the person liable for payment on goods declared
    for a customs procedure involving the obligation to pay such duties .
2 . For the purposes of this Regulation :
    a ) I report duties means customs duties end charges having equivalent effect
             and     agricultural levies and other import charges laid tiovjn within
        the framework of tho common agricultural policy , or of specific arrange­
        ments applicable , pursuant to Article 235 of the Treaty , to certain goods
        resulting from the processing of agricultural products .
    ^ fxi-' 01"* duties rceans agricultural levies and ether export charges laid
        cown within the framework of the common agricultural policy , or c-f spe­
        cific arrangements applicable , pursuant to Article t.35 of the Treaty , to
        certain goods resulting from the processing of agricultural products .
    c ) Entry in the account ., , means the official act by uhich the amount of the
        import duties or exoort duties to bo collected by the competent authori­
        ties is duly dotorri.ineci .                              :
                                     article ? •
'"hen the competent authorities find that all or part of the amount of import
duties or export duties legally due on goods entered for a customs procedure
-involving the obligation to pay sych duties , has not been required of the
person liable for payment , they shall take action to recover the duties not
collected . This action must be taken within a period          expiring on 31
December of the third year following that during which yas effected the entry - i
the account      of the amounts of the import duties or export duties originally
 calculated , or , where there is no entry in the account , <jliring which •
    the customs debt relating tc the goods in question , originated .
 ---pagebreak---                                    Article 3
            Where it is determiner1 that fraudulent action caused the competent
authorities to be unable to determine the exact amount of the imnort duties
or export duties legally due on the goods in ouestion / the period laid down
in Article ?. shall not apnly .
            Under these circumstances / the competent authorities shall take
action for collection in accordance with the provisions in force in this
resnect in the riemfc -er States .
                                   Article 4
            The action on post clearance collection shall be taken by the
competent authorities , subject to the relevant provisions in fnrce ,
against the natural or legal persons responsible , whether in 3 principal
or in a subsidiary capacity , for the payment of the import duties or
export duties on the goods in question , or aoainst their leaal successors .
                                   Arti ele 5
1.          Mo action may be initiated by the competent authorities for
    post clearance collection where the amount of the import duties or
    export duties although subsequently found to be lower than the amount
    which was legally due , has been calculated, on the basis of information
   determined by the competent authorities themselves or recognized by
    them as being in accordance with their requirements , where it is
    established that the declarant had acted in good faith and had complied
    with all the provisions laid down in the rules in force concerning his
    declaration . .
            The above paragraph shall not apply in ths case of material or
    copying errors affecting the amount of inport duties or export duties
     legally due .
2.          For the purposes of the first subparagraph of paragraph 1 , elements
    of taxation shall be considered to be recognized by the competent
    authorities as being in accordance with their requirements , where ,
    after having been checked by then , either on the basis of documents
    accompanying the declaration , or on the basis of a physical examination
    of the goods , they are the subject in the declaration itself of an
    express indication by the said authorities which formally confirms the
    details of that declaration as regards the elements of taxation .
          . u here the physical examination concerns only part of the goods ,
    recognition by ths competent authorities that the declaration is in
    accordance with their requirements , shall be limited to the part
    effectively examined .
 ---pagebreak---                                            Article (
               The provisions adoptee! for the aoplication of the Council Directive
 of ........ on the h'rinoni zation of provisions Laid down by Isw, regulation
 or administrative fiction concerning deferred peyaent of import duties or ex­
 port duties ( 1 ) shall net apply in respect of the amounts to be collected
under Article 2 .
                                           Article ?
               '.'here the non-collection of ths anounts of import duties or export
 duties Legally due is attributable to rn error insde by the corpetent authori­
 ties ^ no interest on overdue payments shall be charged on post clearance col­
 lection .
                                           Article o
               No action shall be tc?ken for the post clearance collection of import
 duties or export duties when the amount involved is less than 5 units of
 account .
               Her'ber States nay round up or down the amount resulting fron
the conversion into their national currency of the figure given in the above
subparagraph .
                                           Article 9
               Trrs Regulation shall enter into force three months following the
 date of its publication in the Official Journal of the European Communities .
               This Regulation shall be binding in its entirety and directly appli­
 cable in all Meciber States .
                                                Done at .Brussels
                                                For the Council
                                                The President
 ( 1 ) O . J. No C 19S, 29 . r . 1975 , p. 6 .