CELEX: 51980PC0860
Language: en
Date: 1981-01-09
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE DEFINITION OF THE CUSTOMS TERRITORY OF THE COMMUNITY

No C 33/2                            Official Journal of the European Communities                               14.2.81
                                                            II
                                                    (Preparatory Acts)
                                              COMMISSION
              Proposal for a Council Directive on the harmonization of provisions laid down by law,
             regulation or administrative action concerning the exercise of the right of appeal in
                                               respect of customs matters
                           (Submitted by the Commission to the Council on 29 January 1981)
THE COUNCIL OF THE EUROPEAN                                     certain areas, by binding Community Acts, the
COMMUNITIES,                                                    measures necessary to establish customs rules which
                                                                would ensure uniform application of import duties or
Having regard to the Treaty establishing the                    export duties imposed on goods being traded between
European Economic Community, and in particular                  the Community and non-member countries;
Articles 43 and 100 thereof,
                                                                Whereas Community law on customs matters covers
Having regard to the proposal from the Commission,              more generally all of the provisions relating to impor-
                                                                tation, exportation, transit and storage of goods
Having regard to the opinion of the European Par-               which are the subject of trade between the Member
liament,                                                        States as well as between the latter and third
                                                                countries; whereas these provisions may arise either
                                                                from the establishment of the customs union in the
Having regard to the opinion of the Economic and                proper sense or from the establishment of the
Social Committee,                                               common agricultural policy;
Whereas the Community is based upon a customs
                                                                Whereas Community customs rules are normally
union;                                                          applied by means of individual decisions taken by the
                                                                competent authorities of the Member States;
Whereas the establishment of that customs union is
governed in the main by Title I, Chapter 1 of Part              Whereas, in so far as those individual decisions may
Two of the Treaty; whereas this Chapter contains a              not comply with Community customs rules, they shall
series of specific provisions dealing in particular with        be of such a nature as to affect adversely the rights of
the elimination of customs duties between Member                the persons concerned; whereas there is therefore
States, the establishment and progressive introduction          good reason for enabling those persons to exercise, in
of the Common Customs Tariff and the autonomous                 specific circumstances, the right to appeal against
alteration or suspension of that Tariff;                        such decisions;
Whereas, while Article 27 of the Treaty provides that           Whereas the exercise of the right of appeal is
Member States shall, before the end of the first stage          important for the correct and uniform implementation
in so far as may be necessary, take steps to                    of Community customs rules throughout the
approximate their provisions laid down by law, regu-            Community and for the elimination of differences in
lation or administrative action relating to customs             the treatment of traders who reside there;
matters, the said Article does not however empower
institutions of the Communities to lay down
mandatory provisions in that field; whereas, however,           Whereas there are considerable discrepancies in the
a thorough examination undertaken jointly with                  provisions in force in the Member States concerning
Member States has shown the need to lay down in                 the right of natural or legal persons to appeal against
 ---pagebreak---  14.2.81                           Official Journal of the European Communities                             No C 33/3
 customs authorities' decisions which affect their             paragraph 2 (a), to enter an appeal for the annulment
 rights; whereas this is particularly so with regard to        or amendment of that decision, and the appeal
 the time limits within which the right must be                procedure to be followed.
 exercised, the kind of authorities empowered to
 decide on appeals, the respective jurisdiction of
 administrative authorities and judicial institutions          2.     For the purposes of this Directive:
 called upon to decide on appeals and, above all, with         (a) law on customs matters means all customs and
 regard to the consequences of the exercise of the                  agricultural provisions on the importation, expor-
 right of appeal on the implementation of the disputed              tation, transit and storage of goods forming the
decision; whereas it is necessary therefore, in order to            subject-matter of trade between the Member
ensure that those persons benefit as equally as                     States and between the latter and non-member
possible from a correct application of Community                    countries, including both Community provisions
customs rules, to lay down at Community level the                   and national provisions adopted for the purpose
conditions for exercising the right of appeal;                     of implementing them;
Whereas, in accordance with the principles generally           (b) decision means any act by which a customs
observed in most Member States and recommended                     authority gives a ruling in a particular case and
by the Customs Cooperation Council, it seems appro-                which has direct effect on one or more known or
priate to provide that an appeal be lodged initially               ascertainable persons;
with the customs authority itself and subsequently            (c) customs authority means any authority competent
with an authority independent of the customs                       to apply customs rules within the meaning of
authority; whereas, in order to ensure uniform                     subparagraph (a), even where the authority is not
application     throughout       the    Community      of          part of the customs administration;
Community customs rules under the most favourable
conditions, it is important that the independent              (d) person means a natural or a legal person;
authority be empowered to refer matters to the Court
                                                              (e) appellant means the person who           lodges  the
of Justice of the European Communities pursuant to
                                                                   appeal.
Article 177 of the Treaty;
Whereas, although precise provisions can be laid
down with regard to the appeal procedure in its initial                                 Article 2 .
stage, as Community law stands at present, the
organization of the appeal procedure in its second             1.    Any person whose rights may be encroached
stage should be left to the discretion of the Member          upon by a decision regarding the application of law
States;                                                       on customs matters is entitled to apply for the
                                                              decision to be annulled or amended.
Whereas this Directive does not prevent the parties
concerned from taking any other action open to them           2.     Any person who has requested a decision from
under Community customs rules against certain                 the competent authority and has not obtained a ruling
decisions of Member States' competent authorities;            on that request is also entitled to apply for a decision
                                                              regarding the application of law on customs matters.
Whereas, in cases where the customs authority has
the exclusive power of assessing the factual circum-          This appeal may be lodged upon expiry of a time
stances on which it founds its decision, it can be left       limit laid down in each Member State, which may not
to the Member States to choose between the                    be longer than three months, without prejudice to the
procedure laid down in this Directive and a different         right of the customs authority competent to take the
appeal procedure,                                             requested decision to exceed this time limit, where
                                                              there is good reason for doing so, provided that it
                                                              notifies the appellant of the extension in advance and
                                                              states the grounds on which it is based, as well as the
HAS ADOPTED THIS DIRECTIVE:                                   new time limit which it needs to decide on the
                                                              request.
                         Article 1                            3.     The right of appeal referred to in paragraphs 1
                                                              and 2 may be exercised:
 1.    This Directive sets out the rules which must be         (i) initially, before the customs authority designated
included in the provisions laid down by law, regu-                 for this purpose;
lation or administrative action in the Member States
concerning the right of persons affected by a decision        (ii) subsequently, before the authority referred to in
applying law on customs matters as defined in                      Article 12 (1).
 ---pagebreak--- No C 33/4                              Official Journal of the European Communities                              14.2.81
                          TITLE I                               As soon as the abovementioned authority receives the
                                                                request, it shall forward it to the customs authority
    Initial stage of the exercise of the right to appeal        which is competent to give a ruling if it has not itself
                                                                been designated as such.
                          Article 3                             2.    The written request referred to in paragraph 1
                                                                must contain all points of fact or law adduced by the
                                                                appellant in support of his appeal.
Articles 4 to 11 set out the rules to be followed for
the exercise of the right of appeal in its initial stage.       However, provided that he mentions it in his appeal,
                                                                the appellant may supply further evidence within a
                                                                time limit prescribed by the customs authority which
                          Article 4                             is competent to give a ruling on the appeal. If further
                                                                evidence is not submitted within this time limit, the
                                                                said authority shall give a ruling on the basis of the
The person entitled to lodge an appeal shall retain             evidence available to it.
this right even where he has previously accepted all or
part of the decision of the customs authority.
                                                                                          Article 7
That person may appoint another person to represent
him in all matters relating to the lodging of the
                                                                The lodging of          an appeal shall not cause
appeal and the implementation of the procedure
                                                                implementation of        the disputed decision to be
relating thereto.
                                                                suspended.
                                                                The customs authority may, however, suspend
                          Article 5                             enforcement of this decision in whole or in part if it
                                                                has good reason to believe that the disputed decision
1.     An appeal shall be lodged within two months of           is inconsistent with the customs rules. Suspension of
notification of the decision of the customs authority.          enforcement may, where appropriate, be subject to
                                                                the lodging of a security.
2.     The time limit laid down in paragraph 1 shall be
extended to six months where the person entitled to
                                                                                          Article 8
lodge an appeal:
(a) is not the person to whom one decision was                  The customs authority which is competent to give a
     notified; in this case the time limit runs from the        ruling on the appeal shall conduct such investigations
     date of notification of the decision to the person         as may be necessary to enable it to give its decision
     for whom it is intended;                                   and may, if it deems it appropriate, submit the case to
                                                                experts who are independent of the customs authority
(b) was not informed or was misinformed, as to his              with a view to obtaining their opinion.
     right to appeal, by the customs authority which
     took the decision.                                         The appellant shall be required to assist the said
                                                                authority in its investigation of the facts and shall in
3.     In the cases referred to in Article 2 (2) the            particular supply, within the time limits specified by
appeal must be lodged within six months of the date             the authority, any information or documents at his
of expiry of the period referred to in the second               disposal which the latter considers necessary to enable
subparagraph of this paragraph.                                 it to assess the situation correctly.
4.     The time limits specified in the preceding                                          Article 9
 paragraphs may be extended only if the appellant
 shows that he has been prevented from lodging an               The appellant may withdraw his appeal until such
 appeal within the specified time limits as a result of an       time as a decision has been taken on it. Notice of
 unavoidable accident or force majeure.                          withrawal must be given in writing.
                                                                                          Article 10
                           Article 6
                                                                 1.    The customs authority competent to give a
 1.    An appeal shall be lodged by means of a written           ruling on the appeal shall give its decision in writing.
 request addressed to the customs authority which
 took the decision or which was requested to take the            The decision may impo'se greater constraints on the
 decision, or to any other customs authority                     appellant than those contained in the decision which
 designated by the Member State concerned.                       was the subject-matter of the appeal.
 ---pagebreak---  14.2.81                           Official Journal of the European Communities                             No C 33/5
 2.    The appellant shall be notified of the decision                decision at any time to the competent judicial
 and of the grounds on which it is based. Where the                   authority, in accordance with the provisions of
 decision goes against the appellant, the authority                   those laws;
referred to in paragraph 1 shall inform him of the
 opportunity available to him of initiating the second         (ii) the right of Member States, where the second
stage of his right of appeal.                                         stage of the right of appeal must be exercised
                                                                      before a specialized body, to provide that, in
                                                                      certain cases, an appeal must be lodged directly
                        Article 11
                                                                      with the said authority;
There shall be no charge for lodging an appeal.               (iii) the right conferred by Italian law on persons
Whatever the result of the appeal, there shall be no                  whose appeal has been rejected by the customs
reimbursement of any expenses incurred either by the                  authority to refer the matter to the Head of
appellant or by the customs authorities when an                       State pursuant to that law.
appeal is examined.
                                                                                          Article 14
                        TITLE II
                                                              Where the law on customs matters grants to the
    Second stage of the exercise of the right of appeal       customs authorities the exclusive power to assess the
                                                              factual circumstances on which they found their
                        Article 12                            decisions, the detailed rules for exercising the right of
                                                              appeal against such decisions may be different from
1.     Where an appeal which has been lodged with a           those laid down in this Directive.
customs authority is rejected in whole or in part, the
appellant must be able to introduce a fresh appeal                                        Article 15
before an authority which is independent of the
customs authority and which is empowered by virtue            An application for repayment or remission of import
of .its structure to refer the matter to the Court of         or export duties submitted to a customs office
Justice of the European Communities pursuant to               pursuant to Council Regulation (EEC) No 1430/79
Article 177 of the Treaty.                                    of 2 July 1979 (') shall not constitute the lodging of
                                                              an appeal for the purposes of this Directive.
The independent authority referred to in the
preceding subparagraph may be a judicial authority
or a specialized body, depending on the provisions in                                     Article 16
force in the Member States.
                                                              This Directive shall not apply to appeals lodged with
                                                              a view to the annulment or revision of a decision
2.     For the purposes of paragraph 1, an appeal
                                                              taken by customs authorities on the basis of rules
lodged with the customs authority shall be deemed to
                                                              governing criminal matters.
have been rejected where no decision has been taken
on it upon expiry of a time limit to be laid down in
each Member State which shall not exceed six                                              Article 17
months, without prejudice to the right of that
authority to exceed the time limit, where there is            Member States shall bring into force the provisions
good reason for doing so, proveded that it notifies           necessary to comply with this Directive not later than
the appellant beforehand and sets out the grounds on          1 January 1983.
which the extension is based, as well as the new time
limit which it needs to decide on his appeal.                                             Article 18
                        TITLE III                             Each Member State shall inform the Commission of
                                                              the provisions it adopts for the implementation of this
                     Final provisions                         Directive.
                                                              The Commission shall forward this information to the
                        Article 13                            other Member States.
This Directive shall not prejudice:                                                       Article 19
  (i) the right conferred by the laws of the Member
      States on any person who considers himself              This Directive is addressed to the Member States.
      adversely affected by a decision regarding the
      application of the customs rules to refer that          ( ' ) O J N o L 175, 12.7. 1979, p. 1.