CELEX: 51989PC0590
Language: en
Date: 1989-12-13
Title: RE-EXAMINED PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE SECURITY TO BE GIVEN TO ENSURE PAYMENT OF A CUSTOMS DEBT ( PRESENTED BY THE COMMISSION PURSUANT TO ARTICLE 149.2 ( D ) OF THE EEC TREATY )

COMMISSION OF THE EUROPEAN COMMUNITIES
                                        C0M(89) 590 final - SYN 25
                                         Brussels,13 december 1989
                     Re-examined proposal for a
                       COUNCIL REGULATION (EEC)
         on the security to be given to ensure payment of a
                             customs debt
     (presented by the   Commission pursuant to Article 149.2(d)
                          of the EEC Treaty)
 ---pagebreak---                                EXPLANATORY MEMORANDUM
I. Common position and the position of the European Parliament
   On 14 June 1989 the Council adopted a common position concerning the proposal for
   a Regulation on the security to be given to ensure payment of a customs debt
   (C0M(82)861-SYN 25).  This  common position was amended by Fsrliament as follows.
   1) Amendment No 1
      In order to make it clear whict» bodies are generally exempt from providing
      security, Parliament proposes the insertion of a definition of "public
      authority" (new point (ga) in Article 1(2)).
   2) Amendment No 2
      This amendment increases to ECU 1 000 the amount below which security may be
      waived.
   3) Amendment No 3
      Parliament proposes a rewording of Article 9 to specify how the provisions
      concerning freedom to provide services affect the authorization of guarantors,
   4) Amendment No 4
      Parliament considers that the provision allowing the customs authority in
      certain cases to refuse to accept the type of security proposed should be
      deleted (second subparagraph of Article 10(1)).
 ---pagebreak---                                          - 2 -
    5) Amendment No 5
       Parliament also considers that the types of security which may be accepted
       alongside those expressly referred to should be defined at Community level
        (first subparagraph of Article 10(2)).
    6) Amendment No 6
       Finally, Parliament wishes to require the customs authorities to state the
       reasons for their decisions in certain cases.
II. The Commission's position
    For the reasons outlined below, the Commission accepts the third, fifth   and
    sixth amendments and rejects the others (see annex).
    1) Amendment No 1
       The proposal to define "public authority", which the Commission accepted after
       its first reading of Parliament's recommendation, is no longer deemed appropriate.
       This is because, apart from the risk of creating a precedent, the definition
       in question does not solve the problems inherent in the borderline cases which
       might arise when interpreting this expression.  Although it is clear that the
       State administration must be exempted from the requirement to put up a
       security, and equally that State-owned firms (Fiat, Volkswagen) cannot be so
       exempted, a whole grey area exists in which the matter is not easy to settle
       (postal services, railways, airlines, universities, research institutes).
 ---pagebreak---                                     - 3 -
   It is thought that the best solution would be to delegate to the designated
   committee the task of examining difficulties of interpretation and solving
   them, where appropriate, by means of implementing provisions.
   This solution does not compromise the Regulation's uniform application, and is
   a flexible means of striking a balance between the interests of public
   authorities and thee of firms competing on the marketplace.
2) Amendment No 2
   Increasing to ECU 1 000 the threshold below which a security may be waived
   appears to present too many risks for own resources.   Since, in the case of an
   optional security, the customs authorities can in any case exempt the debtor,
   the de minimis rule in fact applies to the compulsory security, i.e. to cases
   where there is a higher risk (e.g. transit procedure, or cases in which payment
   is deferred until after the goods have been placed at the disposal of firms).
3) Amendment No 3
   The wording proposed by Parliament is clearer.   It matches that of a proposal
   presented by the Commission to the Council in the context of the Community
   transit procedure (0J No C 51, 28.2.89, p. 6 ) .
4) Amendment No 4
   In certain cases, the authorities cannot operate rationally if the choice
   between a cash payment and a guarantor is left to firms.   Where payment is
   deferred, for example, a cash payment is not appropriate if such deferment is
   granted for continuous operations cocnerning the release of goods for free
   circulation, which might also be combined with simplified procedures.
 ---pagebreak---                                     - 4 -
5) Amendment No 5
   The Commission agrees with Parliament's view that transferring powers from the
   Member States to the Commission would be a better way of ensuring equal
   treatment throughout the Community.  The Commission is thus ready at this stage
   to take on this new responsibility.
6) Amendment No 6
   The Commission had intended that the matter of requiring reasons for decisions
   to be stated should be dealt with in the context of the Community Customs Code.
   It is also to support Parliament's proposal for the introduction of such a
   requirement in this Regulation.
 ---pagebreak---                                 Re-examined proposal for a
                                  COUNCIL REGULATION (EEC)
                          on the security to be given to ensure
                                 payment of a customs debt
Common position of the Council                     Re-examined proposal
                     Preamble and recitals unchanged in relation to
                                    the common position
                        Articles 1 to 8 unchanged in relation to
                            the common position of the Council
      Article 9                                              Article 9
The guarantor shall undertake to pay               The guarantor shall undertake to pay
jointly and severally with the debtor              jointly and severally with the debtor
the secured amount of a customs debt               the secured amount of a customs debt
which falls to be paid.   The guarantor            which falls to be paid.  The guarantor
must:                                              must be:
- have his normal residence or an                  - a credit institution licensed
  establishment in the Community,                    according to Article 3 of Council
  and                                                Directive 77/780/EEC, or
- subject to the provisions                        - an insurance undertaking authorized
  concerning freedom to provide                      for the class of suretyship insurance
  services, have been approved "by                   according to Articles 6 and 7 of
  the customs authority of the                       Council Directive 73/239/EEC, or
  Member State in which the security
  is given. Such approval may be                   - any other natural or legal third
  subject, amont other things, to                    person established in the Community
  the condition that the guarantor                   and approved by the Member State in
  be a person whose main ÔT                          which the guarantee is provided.
  secondary professional activities
  relate to the provision of such'
  services.
       Article 10                                            Article 10
                           aragraph 1 unchanged in relation.to
                           the common position of the Council
 ---pagebreak---                                               - 2 -
   Common position of the Council                     Re-examined proposal
2. The customs authority may, where the           2. The customs authority may, where the
   provisions in force so allow, accept              provisions adopted in accordance with
   types of security other than those                Article 15(2) so allow, accept types
   referred to in Article 7 where they               of security other than those referred
   provide equivalent assurance that the             to in Article 7 where they provide
   customs debt will be paid.                        equivalent assurance that the customs
                                                     debt will be paid.
                         Second subparagraph of paragraph 2 unchanged
                      in relation to the common position of the Council
           Article 11 unchanged in relation to the common position of the Council
                                                            Article 11 a
                                                     In exercising its discretion under
                                                     Articles 2, 3 and 11, the customs
                                                     authority shall, upon request from the
                                                     customs debtor, supply reasons in
                                                     writing for its decision.
                                 Articles 12 to 19 unchanged
                      in relation to the common position of the Council
 ---pagebreak---                                                                        ANNEX
           Amendments of Parliament not incorporated into the re-examined
                                       proposal
   Common position of the Council                   Amendments of Parliament
                                                    Article 1(2)(ga) (new)
                                                    (ga) "public authority" shall mean
                                                    any governmental body, endowed with
                                                    statutory powers within the organiza-
                                                    tion of the State.
          Article 2(5)                                        Article 2(5)
5. The customs authority may waive the          5. The customs authority may waive the
   requirement for provision of                    requirement for provision of security
   security where the amount of the                where the amount of the customs debt in
   customs debt in question does not               question does not exceed ECU 1 000.
   exceed ECU 500.
   Second subparagraph of Article 10(1)          Second subparagraph of Article 10(1)
   However, the customs authority may            Deleted •
   refuse to accept the type of
   security proposed where it is
   incompatible with the proper
   functioning of the customs
   procedure concerned.
 ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(89) 590 final
                                                      DOCUMENTS
EN                                                                              02
                                 Catalogue number : CB-CQ-&9-549-EN-C
                                                             ISBN 92-77-55206-9
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