CELEX: 51976PC0127
Language: en
Date: 1976-04-02
Title: Proposal for a COUNCIL DIRECTIVE on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (76) 127
Vol. 1976/0040
 ---pagebreak--- Disclaimer
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
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 ---pagebreak--- COMMISSION QJ? THE MJROPEABI CQMM30MI1ES
                                COM(76)127 final
                                Brussels , 2 April 1976
                      Proposal for a
                     COUNCIL DIRECTIVE
        on the harmonization of provisions laid
        down by law , regulation or administrative
        action relating to customs debt
        ( sumbitted to the Council by the Commission )
 ---pagebreak---                                   E^lamtory mémorandum
|            The import duties and export duties to which goods may "be liable
  pursuant to the Community regulations in force ( Common Customs Tariff f
  agricultural levies , etc ,,) are duties which apply to the goods themselves .
  However , it is the responsfbi.lit. 7 of the person liable for payment of these
  duties to pay them and , subject to the application of the Community pro­
  visions governing deferred payment cf import or export duties , the goods
  subject to such duties can be released by the competent authorities only
  if the duties have been paid by ih'-t person.
             A number of legal situations therefore give rise to an obliga­
  tion on the part of a natural or legal person to pay the import duties
  or export duties applying to goods liable to such duties . This obligation
  to pay , which takes the form of a debt to the Public Treasuiy , is referred
  to in this proposal for a directive , as it is moreover in the legislation
  of certain Member States , as " customs debt ".
             The legal situations giving rise to this customs debt are
  as follows :                                        . _
             a) at importation ( article 2) :
                ( i ) the entering of third country goods into free circulation
  in the customs , territory of the Community , in compliance with the customs
  procedure laid down for this purpose ;
                ( ii ) the introduction into the customs territory of the
  Community of third country goods in violation of the rules on the customs
  treatment of goods ( smuggling) :
                                                             ' ♦/
 ---pagebreak---                (iii) the,- 'removal - pf - goods from customs control , or failure
to comply with the various obligations concerning the use of such goods
 (handling, processing operations , etc.,) which result either from the <
customs- regime under which these goods have "been placed (warehouse , inward
processing , temporary importation, etc.,) or from their being placed
in temporary storage in accordance with Article 5 of the " Council Direc­
tive of 30 July I968 on the harmonization of the provisions laid down by
law, regulation or administrative action relating to :
1 , customs treatment of goods entering the customs territory of the
Community – 2, temporary storage of such goods ( l ) ;
      ~        ( iv) failure within the time-limits fixed to use for the purposes
intended goods v:hich were put into free circulation with total or partial
relief from import duties because they were intended for particular pur­
poses , or the use of goods for purposes other than those intended,
              (b) at exportation (Article 5) *
                 ( i ) the departure of goods liable to duties at exportation
from the geographical territory of the Community ;
                 ( ii ) use of the goods for a purpose other than that for which
they were entitled to leave the geographical territory of the Ccaiwunity
with total or partial relief from duties at exportation (the cuiiount
of the export levy varying according to the area to which the goods are
exported)*                                                  -         ,  . .   .
        •    . The establishment of. the time at which the customs debt resulting
from these various situations is created is of considerable importance
because this data has a direct effect on the extent of the liabi­
lity towards the Public Treasury of the person liable for payment . For,
example , until such time as the customs debt is created, damage and loss
 (breakage , evaporation, drying, etc,,) which may be suffered by the goods ,
must normally be taken into consideration in the determination of the ele­
ments . of taxation of the said goods (nature , quantity, value , etc,,).
 ( 1 ) J0 ffo L 194 of 6,8,1968 , p. 13
 ---pagebreak--- On the other hand, once this customs debt 13 created , tho consequences
of this same damage or loss must normally be borne by the person liable
for payment .
           It is therefore important that the time when the customs debt
is created should be clearly specified solhat all the Community 's impor­
ters and exporters receive identical treatment# -
           The choice of Community regulations in this field is a matter
for agreement , since a number of solutions are possible ( for example ,
at importation , it would be possible to adopt the time when the goods
cross the external frontier of the Community , or the time when the entry
of the goods for free circulation is accepted or when the competent
authorities release the goods into free circulation ). Since the duties
at importation or at exportation in force in tie Community are of an •
essentially economic nature , the Commission considers that the time when
the customs debt is created should be :
           (i) at importation, at the closest possible time to the moment
when the good3 are actually integrated into the economy of the Community ;
           ( ii ) at exportation , at the closest possible time to the moment
when the goods actually leave the geographical territory of the Community*
           The ideal situation would naturally be to make the time when
the customs debt is created coincide in all cases with the time referred
to above , which actually justifies the application of the duties at impor­
tation or at exportation. Account must be taken however of the various
                                                      ♦/• • i
 ---pagebreak---   legal situations listed above which give rise to the customs debt , some
  of which do not permit a very exact determination of the timevhon the
. goods are actually integrated into the Community economy or actually
  leave the Community, It is therefore, necessary , in order to have simple
  and definite rules in this matter , to adapt the principle adopted to the
  various legal situations giving rise to a customs debt .
              Consequently , this proposal for a directive contains the
  following provisions :
            . ( a) at importation (Article 3 ) S '
                   (i) where third country goods are integrated into the.
  Community economy by being put into free circulation , the moment at
  which the customs debt is created shall be the time when the competent
  authorities accepi the entry of the goods for free circulation ( or any
  other act having the same effect in law as such acceptance). Of the
  various official acts involved in the customs procedure for the entry
  of goods for free circulation, acceptance of the entry is , the only one
  which has a clear date which cannot be contested } adoption of this timo
  therefore offers the maximum advantages from a practical viewpoint .
                   (ii) in other cases , the customs debt shall be deemed
  to be created when the legal situation creating the customs debt actually
  arises.
              (b) at exportation (Article 6 ) :
                   ( i ) when goods leave the geographical territory of the
  Community following a customs declaration for their exportation out of
  that territory , the customs debt shall be deemed to be created, for the
  same reasons as those set out in the first paragraph of (a) above , when
  the competent authorities accept that declaration ( or any other act
  having the same effect in law as such acceptance).
 ---pagebreak---                                         - 5 -
              ( ii ) in the other cases , the time when the customs debt is
 created shall in principle be when the goods are used for a purpose other
 than that for which they were entitled to leave the geographical terri­
 tory of the Community with total or partial relief from duties at expor­
 tation. However , since this time is often difficult to establish by the
 competent authorities , it should be replaced , where appropriate , by the
moment of expiry of the time-limit fixed for the production of proof
 that the goods have actually been used for the purpose which gave entitle­
ment to such relief.
              In order to avoid the creation of customs debt relating to
 goods which are not actually integrated into the Community economy or
are not actually exported from the geographical territory of the Community ,
there are qualifications to these provisions of principle ( see Articles
4 and 8). These qualifications take account of the various circumstances
relating to the goods , the effect of which is to render economically
■unjustified the application of duties at importation or at exportation
 (withdrawal or cancellation of the entry of the goods for free circula­
tion , destruction of the goods because of unforeseen circumstances or force
majeure before the goods have been cleared from customs , etc.).
              Lastly , this proposal for a directive defines the moment from
which the competent authorities can require the payment by the person
liable of the amount of the customs debt (Article 7)»           adopting for
this purpose the time when the amount of the duties at importation or at
 exportation to be collected are entered into the accounts , this proposal
 ensures complete accordance with the provisions of the Council Directive
 of 4 March 19 69 on the harmonization of provisions laid do™ by law , regu­
 lation or administrative action for deferred payment of customs duties ,
 cliarges having equivalent effect and agricultural levies ( l ) , which the
 Commission has recently proposed to replace by a new text which would also
 apply to duties at exportation ( 2)j under the Council directive of 4 March
 1969 the time-limit for payment is calculated from the date on which the
 amounts due are entered in the accounts of the authority responsibl®
 for collection thereof.
  (1 ) OJ 17o L 58 , 8.3.1969 , p. 14
 ( 2) OJ Eo C 19C , 29 . S. 1975 , p. 6
 ---pagebreak---             The implementation of the provisions of this proposal for a
  directive will not only provide a "better guarantee of equal treatment
  for Community importers ( or 'exporters) , whatever the Member State in
  which they are resident , but' will also make it possible to clarify the
• conditions for determining the own    resources accruing to the Communities *
  budget ; the amount of these own resources is established when the.
  amount of Hie customs debt to, be paid by the person liable is entered
  into the accounts .
            Since it is based on Article 100 of the ESC Treaty , this     >
  proposal for a Directive requires the Opinions of the European Parliament
  and of the Economic and Social Committee ,            •
 ---pagebreak---                           Proposal for a Council Directive
                   on the harmonization of provisions laid dovrii "by­
                 law, regulation or adnini st rat ive action relating to
                                    customs debt
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic Community ,
and in particular Articles 43 and 100 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 ,
                                                  •         •-              . r
Whereas the Community is based upon a customs union -j                  " ' '" '
Whereas , subject , to tile transitional jieasuree provided fo£ ifr* Chapter' I••
Of Part Pour of the Aot of Acaofiaion{         th» eetnbliBhtnent of the^GUKtorfts-'
union is governed isainly by Chapter . 1 of.Titlo I of Part fcio of the TPfcatyj
unercas that Ch&ptcr contains a, series of specific provisions dealing in
particular^ triti ths abolivioa of curjtoma duties betwoaj Member Statesj tho
establishment aad proyrcseivo isityoOaiotion of a. Cotsnon Customs Tizritt anit.
t.a3 aT-tonomOivs alteration or su.®p^nr;ioii of the duties tlior^jun^erj
                                                                   •/ • • #
(1 ) OJ ITo L 72 , 27.3,1972 , p.14
 ---pagebreak---    VJhereas , while Article 27 provides "that before the end of the first stage -
  I. nubor States chall , la cso far as aay bo nsocssaFy * ta-ce steps to
   approximate their provisions laid down by law , regulation or administrative
   action in respect of customs matters , it <? oos not enpotrer the
   institutions of the Community to 'jiy£<e   binding provisions in that field ;
   whereas , however , a thorough survey           undertaken jointly with Member
   States has shown the need in certain fields to establish ^ *>y binding acts of the
   Community ,      . measures essential for the introduction of cuctoms legisla­
   tion , which will ensure uniform application of the duties - on imports or
  escorts between the CojacHaity and third countries j ;..„t : -        -
   VJhereas the .amount of the duties to v'tich importa or' cr-ports fj-e subject
   to uprler provisioas i:a force oust be          by ©, natum! 09 lentil. person, on
   rdiotv there is an obligation to pay the said amount , t'fcich is hereinafter
 ■ refcr?»3d to as "customs debt "?
. Wioreas- time of creation of the cus'Soa:; debt itself helps to determine- ••
       r-iany    cases certain criteria on which the taxation of the goods: depends ,
   in particular . their nature , quantity and taxable value } whereas it is
   therefore necessary to establish common rules for determining ■fche time
   at which the customs - debt ■ is created, not - only in order to ensure uniform
   application , of. the Community provisions in force on imports^ and esfpo£"te t
   but also to obtain a greater fle^ee o:? uniformity in determining the         -
   funds accruing to iho tuftget of the Cor.s«mltles }
   VJhereas the timo of tlu creation tho custoras debt .must be defined in
   the light of the essentially economic nature of the duties ©a imports
   and carport05
                                                                 •/ • • •
 ---pagebreak--- Whereas the moment the customs debt is created on imports in terms of the
conditions under which the goods liable to import duties are integrated into
the economy of the Community should be defined ; whereas , to this end , reference
should be made in particular , according to the circumstances , either to the
provisions governing the entry into free circulation in the customs territory
of the Community of goods from third countries , or to the obligations
resulting from the provisions of the Council Directive of 30 July 19^8 on
harmonization of the provisions laid doxra. bjr law , regulation or administrative
action relating to^s
1 . Customs treatment of goods entering the customs territory of the Community ,
2. Temporary storage of such goods - hereinafter referred to as the "Directive
on the customs treatment of goods" - or to the obligations relating to the
customs control or the utilization of the goods applicable by virtue of the
use . of the customs regime . tinder which the said . goods are placeds
Whereas it is appropriate to define the moment when the customs debt is
created on exports in terms of the conditions under 'which the goods liable
to duties on exportation leave the ge<.'graphical territory of the Community;
whereas it is therefore necessary to draw a distinction between the goods
in question which are or are not the subject of a customs declaration with
a view to their exportation and , where appropriate , those goods which are or
are not actually used for the purpose shown in that declaration ;
Whereas it is necessary to fix the moment the' payment of the amount of the
customs debt can be called for by the competent authorities and to specify
in what circumstances the customs debt may not arise or may be settled ;
whereas , except where the customs debt is paid or the application of periods
of limitation is in accordance with the provisions in force , the reasons for
this settlement must be based on determining whether the goods have not in
fact been used for the economic purpose which justified the application of
import or export duties .
                                                                        • /• * m
( 1 ) CJ lío L 194, 6.8.1968 , p. 13.
 ---pagebreak--- HAS ADOPTED THIS DIRECTIVE !
                              Article 1
1,     This Directive determines the rulos which must be incorporated in
       the provisions laid down "by law, regulation or administrative action
       in Member States , in respect of the creation , . liability for payment ?
       and settlement of the customs debt /.
2»     For the purpose of this Directive , the following definitions shall
       apply *
        (a) customs debt
            moans the obligation on & natural or legal person to
          ' pay the amount of the import or export duties which apply
            under orarant legislation , to goods liable to such duties j
     , .(b) import duties . .
            robajQS .  customs duties and charges having equivalent effect ,
            and agricultural levies and other import charges laid down .,
            under the common agricultural policy or under the specific
            arrangements set out in        Article 235 of the Treaty applying
            to oortain goods proihiOo^l "by the processing of agricultural
            products ;
 ---pagebreak---                                         - 4- -
      ( c) export duties            : ;
           means        agricultural , levies and other ejcport charges laid
           down under the common -agri cultural policy or under the specific
           arrangements got cut in ■ Article 235 of the Treaty applying to
            certain goods produced by the processing of agricultural products 5
      (d) entry in the accounts
           means        the official act by which the amount of the import or
            export duties to be r^ccmared^by        catapet^nt- axL-thoritiea- iB' duly
           determined.
                                     TITLE I
    !                         Creation of the customs debt       . .
                           A. Customs debt on imports
                                     Article 2 ..
                                                      * .
A customs debt on imports ;       - shall be created by :
      (a) the placing of goods liable to import duties into fre0
           circulation in the customs territory of the Community ;
      (b) the introduction into the customs territory of the Community
           of goods liable to import duties in violation of the provi­
           sions, adopted in implementation of Article 2 of the Directive
           on the customs treatment of goods .
           Any goods coming from 'a free zone , "within the meaning of
  /              ■    •                                    1 •
           Article 1.(2 ) of the Council Directive of 4 March 1969.
                                                             0/ ♦ O •
 ---pagebreak--- t                                         - 5 -
                  on the harmonisition of provisions laid do™ "by law , regulation
                  or administrative action relating to froe .cones ( l) } situated
                  in the customs territory of- $he.' Community shall .be treated
                 in the same way as goods introduced into , the customs territory
           ■     of the Community.'            ■,
         ( c) the removal of goods liable to import duties :
                  either from the cruGtoms control' imposed "by the customs
               > regime to uhioh.. they have "been subjected or by theil* being
                 placed in temporary storage ;
                  or , frcm the obligations concerning the use of suoh goods
                  imposed by the said customs regime or by their being placed
                  in temporary storage.
                  Where the export         of compensating products derived from
                 the processing of goods ~of the same kind, quality and charac­
                 teristics as tlibse of the' 'imported goods , as authorized under
                                     \ . 7
                  an inward processing operation on the basis of equivalence
                 under      to Article 24 of the Council Directive of 4 March 19^9
                  on the harmonigation of provisions laid down by law, regulation
                  or administrative action in respect of inward processing ( 2) ,
                  does not take place , this shall be deemed to be a removal
                from the obligations concerning the lise of goods placed under
                inward processing arrangements .
         ( d) the failure to use for the intended purposes within the
             :    time–limit set " " goods "put into free circulation vxhioh
                 benefit from total or partial relief ftom import duties because
               - of their intended use for particular purposes , or their use
                  for purposes other than . those intended.
                  The destruction of the goods before their actual      use for
                  the intended purposes shall be deemed •to be a use
                  for. purposes other than those intended.
  ___                                                                 •/•••
  (1) OJ Ko L 58 , 8.3.1969 , P. 11
  ( 2) CJ Ho L 53 , S^.info - p, x
 ---pagebreak---                                         - 6 -
                                    Art "- ol e 3
Tne tine of creation of a customs &ebtT or imports shall -b&~ deemed-
to be
(a) in those cases governed by Article 2 ( a) , the time when the            ■
        competent authorities accept the entry of the goods for free circu­
        lation or any other act having the same " effect in law as such accep­
       tance , under current legislation !
(b) in those cases governed by Article 2 (b) , the . time - °f introduction
        of the goods into the customs territory cf the Community ;
( c) in those cases governed by Article 2 ( c), the time of          the removal
        of the goods from the customs control imposed by
             the regime under which they have been placed or by their being
        placed in temporary storage ;
( d) in those cases governed by Article 2 ( d) :
        ( i ) if the use of the goods for purposes other than those for
              which total or partial relief from import duties was'-
           .  provided is carried out with the authorization of the competent
              authorities , the time of         such authorization !
      ( ii) in all other oasest the time of the expiry of the tim^-limit eet for
              the use of the goods for their intended purposes , or , where
              appropriate , the time when the goods are first used for purposes
    .         other than those for which total or partial relief from import
              duties \7as provided ,
                                                                         !
 ---pagebreak---                                    Article 4
  ITo customs dobt on importation shall "be detued to be orost „<1 wl-c:* t\a
  person concerned proves to the satisfaction of the competent authorities
  that the non-compliance with the obligations arises from }
   ( i ) either the provisions adopted in application of Article 2 of the
         Council Directive on the customs treatment of goods ,
( ii ) or the use of the customs procedure under which the goods have
         been plaoea ,
iii ) or the temporary -storage of goods ,
   - jhioli results from the destruction or irretrievable loss of the goods by
- reason      of the nature of the goods themselves or because of unforeseen
  circumstances or force majeure0
                         B. Customs debt  on exportation
                                   Article 5
  A customs debt - on exportation shall be created by :
   (a) goods liable to duties on exportation leaving the geographical
         territory of the Community as defined for the purpose of applying
         such export duties :
   (b) failure to use goods for the purpose for which they were allowed'
         to, leave the geographical territory of the Gomraunity , within the
         meaning of paragraph (a) above , with total or partial relief from
         export duti©£)»
 ---pagebreak---                                          - 8 -
                                       Article 6 . -    ■- 1 > . •
The time of creation of a customs debt 6n exportation shall '^e deen^d
4.         #
 (a) in those cases governed by Article 5 (a) *
       ( i ) if the goods in question are the subject of a customs declaration
             with a view to t.ieir exportation outside the geographical
             territory of the Community , the time when the competent authori­
             ties accept that declaration or any other act having the same
             effect inilaw as such acceptance , in accordance with the provi­
             sions in force ;
    ( ii ) if the goods in question have not been the subject of the customs
             declaration referred to above , the time when the goods hav® in 1-
             effect left the geographical territory of the Community}
 (b) in those cases governed by Article 5 . (*>) . *
       ( i) if the change of use to which the goods are put is carried out .
             with the authorization of the competent authorities, the time when
             that authorisation ig given :       -
     ( ii) in other cases , the time when the goods are used for a purpose
             other than that for which they were allowed to leave the geographi­
             cal territory of the Community with total or partial relief from
             export duties^ . " .     . or , where the competent authorities are
             unable to determine that time , the time of expiry of the time-
             limit set for the production of proof that the goods have actually
             been used for the purpose which t entitled them to 'that relief# • -
                                      TITLE II
                        Liability for payment of the amount
                                  of the customs debt
                                       Article 7
Without prejudice to the time-limits for payment which              the debiter
may be allowed under the provisions in force, the amount of the
                    χ
import or export duties whioh constitutes tho customs              . *■ v
debt shall be liable for payment to the competent authorities from the
ti.r.e w.ien the said cuti en are entered into the accounts .
 ---pagebreak--- However , when a customs debt results from tixe failure of the debitor
to fulfil 'his customs obligations , " Immediate payment • of, the amount of :
   J       Ci'o cr ei.pcro duties shall be requrrecl .
                                   TITLE III
           ..           >   Settlement of the customs debt
                                   Article 8
A customs debt shall be settled t
(a) by the payment of the amount of the import OP export duties
      applying- to the goods In question?
(b) by prescription             '  • depending on the relevant provisions in force.
In addition -
(a) the customs debt on importation shall be settled, up to the
      amount which corresponds to the quantity of goods concerned t
      (i ) when the declaration of entry of the goods in free circulation
              is t for a reason admissible -under the regulations in foroe ,
              cancelled or rendered invalid by the competent - authorities , or
              when the latter authorise the declarant to withdraw 9,ry such
              declaration and to replace.it by an entry to another customs regime
      ( ii)when the goods deolsred to be in free-Circulation are, before their
              release from customs charge , destroyed on the order of or with
              the authorisation of the competent authorities \
     (iii)when the person concerned proves to the satisfaction of the
              competent authorities that the goods declared to "be in free
              circulation were destroyed or irretrievably lost before their
              release from customs charge as a result of the very nature of
              the goods cr of unforeseen circumstances or force ffissSeuroj
 ---pagebreak---                                        - 10 -
( iv) when the person concerned, proves to the satisfaction of tho competent
        authorities , that the goods put into free circulation with the
        benefit of total or partial relief from import duties because of
        their use for a particular purpose , were , before being so used ,
        destroyed as a result of unforeseen circumstances or force majeure ,
        or ree-xporfced or destroyed with the agreement f and under the control
        of the cor.ipet.eiit atxtkoyities ;
(v) when the person concerned proves , to the satisfaction of the competent
        avdhonl-iesy xhr,t the fac'5 whj.oh caused the non-execution of the
        oblivions Loosed . 'fey the cjwst
        which the goods wer ? placed , or iiapoatd by their being placed in
        temporary storage r/orsisls      of :
            either       the expor^a-j.ou of the goods concerned out of the
            customs tercdlory of the Community or their introduction into
            a free zone ,
            or        the despatch of the goods concerned , to another Member
            State vjhere they have been treated in accordance with their
            legal status «
 the customs debt on exportation shall be settled in respect of the
 anoxia t corresponding to the quantity of goods concerned :
  ( i ) when the export declaration is , for a reason admissible under the
        reflations in farce , cancelled or rendered Invalid by the                '
        cci.pa--3r.it authorities |
 4ii)when the person concerned provides evidenoe , to the satisfaction
        of the oca pot ©nt authorities , the-t the good! 3 declared for e-zporta–
        tiou were &c/i allowed to learve the geographical territory of the
        CoaBVjjiity.
                                                                 «/•••
 ---pagebreak---                                       TITLE IV
                 Provisions a pyl i cable to trade "between Member State s
                                      Article 9
To the extent tnat goods meeting the requirements of the provisions of
Articles 9 ajad- 10 ( l ) of the Treaty are liable to duties on importation and
exportation when they are the subject <?f trade between Member States , the
provisions of Articles 2 to 8 of this Directive shall applyr iimrtatis       ~ -
mutandis , in respect of the creation of the customs debt resulting from this
situation , liability for payment and the settlement /thereof.
                                      TITLE V
                                 Final provisions
                                      Article 10
The provisions of this Directive shall apply without prejudice to the
provisions in force in the Member States by virtue of which the goods consti­
tute security    for      the import or export duties to which they are liable
and as such may be subject to eeizure or confiscation.
                                      Article 11
 Member States shall , not later than 1 January 1977 » bring into force the
measures necessary to comply with this Directive .
                                      Article 12
Each Member State shall inform the Commission of the provisions which it
adopts in order to comply with this Directive.
The Commission shall forward such information to the other Member States ,
 ---pagebreak---                                  - 12 -
                              ' Article 13
This Directive is addressed to the Member States .
                            ι
                                           Done  at Brussels ,
                -                          For the Council