CELEX: 51988PC0839
Language: en
Date: 1988-12-15
Title: AMENDED PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE INFORMATION PROVIDED BY THE CUSTOMS AUTHORITIES OF THE MEMBER STATES CONCERNING THE CLASSIFICATION OF GOODS IN THE CUSTOMS NOMENCLATURE

3. 2. 89                                 Official Journal of the European Communities                              No C 28/11
              Amended proposal for a Council Regulation (EEC) on the information provided by the customs
              authorities of the Member States concerning the classification of goods in the customs nomen-
                                                            clature (')
                                                  COM(88) 839 final — SYN 20
              (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 21 December
                                                               1988)
                                                          (89/C 28/11)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                             administration in Regulation (EEC) No 1697/79 of 24
                                                                     July 1979 on the post-clearance recovery of import or
                                                                     export duties which have not been required of the person
Having regard to the Treaty establishing the European                liable for payment on goods entered for a customs
Economic Community, and in particular Article 100 A                  procedure involving the obligation to pay such duties ( s );
thereof,
                                                                     Whereas, in view of the scale of structural adjustments
Having regard to the proposal from the Commission (2),               which would be required in most of the customs admin-
                                                                     istrations of the Member States by the establishement of
                                                                     rules of general application regarding the provision of
In cooperation with the European Parliament (3),                     information which is binding on the administration, it
                                                                     appears desirable, however, at the present time, to limit
                                                                     the scope of the Community rules to be adopted to
Having regard to the opinion of the Economic and
                                                                     information concerning the classification of goods in the
Social Committee (4),
                                                                     customs nomenclature; whereas this is the most
                                                                     important and most useful category of information for
Whereas the conditions under which traders are able to               traders because of the highly technical nature of the
obtain from the customs authorities information on the               Common Customs Tariff and the Community nomen-
interpretation or practical application of Community                 clatures derived from it;
customs rules differ appreciably in the various Member
States; whereas the legal effect of such information also            Whereas it is necessary to specify precisely the procedure
varies considerably, depending on the Member State in                to be followed in order to enable information provided
which it is provided;                                                by a customs authority of a Member State concerning
                                                                     the classification of goods in the customs nomenclature
                                                                     to bind the administration of that Member State and
Whereas this situation results in considerable distortions           from 1 January 1993 the administrations of all Member
of treatment between traders in the Community,                       States; whereas it is also necessary to lay down the
depending on the Member State in which they operate;                 conditions governing the use of such information by the
whereas such distortions of treatment are incompatible               holder;
with the proper functioning of the customs union and
also with the achievement of the internal market
                                                                     Whereas information provided in accordance with the
provided for in Article 8 a of the Treaty, since it is
                                                                     procedure laid down can bind the administration only in
necessary to guarantee, as far as possible, equal
treatment of traders within that market;                             respect of the classification of the goods in question in
                                                                     the customs nomenclature; whereas such information
                                                                     cannot affect the rate of duty or any other measure
Whereas it appears necessary, in order to ensure a                   deriving from that classification which apply at the time
measure of legal certainty for traders when carrying on              of completion of the customs formalities relating to those
their activities, to facilitate the work of the customs              goods;
services themselves and secure more uniform application
of Community customs law, to establish rules which                   Whereas on grounds of sound administration, it is
oblige customs authorities to provide information which              necessary to establish a time limit after which the infor-
is binding on the administration under certain well                  mation provided can no longer be relied upon by the
defined conditions;                                                  holder thereof; whereas, however, the time limit laid
                                                                     down must correspond to the realities of international
                                                                     trade; whereas it is also necessary to lay down the
Whereas the Council has already accepted the principle               conditions under which the information provided ceases
of the provision of information which is binding on the              to bind the administration before the expiry of that time
                                                                     limit, as a result of the adoption of Community measures
                                                                     amending the existing law;
0)  OJ No  C  256, 8. 10. 1981, p. 10.
O   OJ No  C  256, 8. 10. 1981, p. 10.
(3) OJ No  C  81, 22. 3. 1984, p. 7, and decision of
(4) OJ No  C  64, 15. 3. 1982, p. 13.                                O OJ No L 197, 3. 8. 1979, p. 1.
 ---pagebreak--- No C 28/12                             Official Journal of the European Communities                                   3. 2. 89
Whereas it is necessary to lay down provisions                   2.     From 1 January 1993, such binding tariff infor-
concerning the communication to the Commission of all            mation shall become binding on the administrations of
binding tariff information provided by the competent             all Member States and shall remain binding under the
authorities of the Member States and concerning the              same conditions as those laid down by this Regulation
cooperation between the latter and the Commission;               with regard to the legal effects of the binding tariff
                                                                 information in the Member State which provided it.
Whereas uniform application of the common rules laid
down by this Regulation must be ensured and to that
end a Community procedure must be provided enabling                                        TITLE II
measures implementing these rules to be adopted within
appropriate periods,                                                 Procedure for obtaining binding tariff information
                                                                                           Article 4
HAS ADOPTED THIS REGULATION:
                                                                  1.    Application for binding tariff information shall be
                                                                 made in writing to the competent customs authority of a
                          Article 1                              Member State in which such information is to be used or
1.    This Regulation lays down:                                 to the competent customs authority of the Member State
                                                                 where the applicant is established.
(a) the conditions under which information concerning
    the classification of goods in the customs nomen-            The competent administration in each Member State
    clature, hereinafter referred to as 'tariff information',    shall determine the form and procedure for drawing up
    may be obtained from the competent customs auth-             the application referred to in the preceding subparagraph
    orities of the Member States;                                and shall designate the authority to which it must be
                                                                 submitted.
(b) the legal effect of such information.
                                                                 2.     The competent administration in each Member
2.    For the purposes of this Regulation,          'customs     State may limit the number of goods which may be
nomenclature' means:                                             covered by a single application.
— the combined nomenclature,
                                                                                           Article 5
— the Taric nomenclature and any other nomenclature               1.    Applications for binding tariff information shall
    which is wholly or partly based on the combined              include, inter alia, the following particulars:
    nomenclature or which adds any subdivisions to it,
    and which is established by specific Community               (a) the name and address of the applicant. Where the
    provisions with a view to the application of tariff or            application is submitted by a natural or legal person
    other measures relating to trade in goods.                        acting on behalf of another person, the name and
                                                                      address of the latter shall also be shown on the
                                                                      application;
                          TITLE I
                                                                 (b) the particulars, including, where appropriate, the use
                     General provisions                               to which the goods are to be put, which are
                                                                      necessary to enable the competent customs authority
                          Article 2                                   to reach a decision;
1.    Any natural or legal person may apply to the                    where classification of the goods in the customs
competent customs authorities for tariff information.                 nomenclature depends on the level of certain
                                                                      substances in the goods in question, that level and,
2.    Tariff information shall be provided to the                     where appropriate, the methods of analysis used for
applicant free of charge. However, where expenditure is               determining it shall be notified to the competent
incurred as a result of analysing, or obtaining an expert's           customs authority;
report on any samples sent to the competent customs
authority and returning them to the applicant, such              (c) where an application for binding tariff information
expenditure may be charged to the latter.                             has been submitted in respect of identical goods in
                                                                      another Member State, the references relating to that
                                                                      application    together     with   the     classification
                          Article 3                                   determined in that Member State, where appropriate.
1.    Where the conditions laid down in Articles 4 to 8
are fulfilled, the tariff information provided by the            2.    The competent administration in each Member
competent customs authority shall be binding on the              State may also stipulate that applications for binding
administration of the Member State in question and shall         tariff information shall indicate the customs office or
constitute binding tariff information within the meaning         offices at which the customs formalities relating to the
of this Regulation.                                              goods in question are expected to be carried out.
 ---pagebreak---  3. 2. 89                               Official Journal of the European Communities                             No C 28/13
 3. Requests for binding tariff information must, where            office or offices in which he intends to complete the
 appropriate, be accompanied by representative samples             customs formalities relating to the goods in question,
 of the goods or, where samples cannot be taken because            those offices must be indicated in the binding tariff
 of the nature of the goods, by photographs, plans, cata-          information. In the absence of such requirement, the
 logues and other such technical documents as may assist           binding tariff information may be used in any customs
 the competent customs authority to determine the classi-          office of the Member State in which it was supplied
 fication of the goods in the customs nomenclature.               which is empowered to complete the customs formalities
 Documents enclosed with the applications shall, where             relating to the goods in question.
 appropriate, be accompanied by a translation into the
 official language or one of the official languages of the
 Member State concerned.                                           3. Where a binding tariff information has become
                                                                   binding on the administrations of all Member States in
 4. Where the applicant wishes to obtain the classifi-             accordance with Article 3 (2), it may be used in any
cation of goods in one of the nomenclatures referred to            customs office of the Member States empowered to
in Article 1 (2) second indent, the application for binding        complete the customs formalities relating to the goods in
information shall make express mention of the nomen-               question. However, a Member State may notify the
clature in question.                                               holder in writing that the binding tariff information may
                                                                   only be used at certain customs offices indicated in the
                            Article 6                              notification.
Where the competent customs authority to which
application for binding tariff information has been
submitted considers that the application does not contain                                    Article 9
all the particulars needed to enable it to reach a decision,       1. A copy of the notification to the applicant of
it shall invite the applicant to furnish the missing              binding tariff information must be communicated to the
particulars, indicating that the application cannot be             Commission at the same time as it is sent to the
considered as it stands.                                           applicant.
                            Article 7
Where a Member State to whose customs authority an                2. Where a Member State so requests, the
application for binding tariff information is made                Commission shall inform it of notifications received
considers it necessary for the purpose of ensuring                concerning specific goods or group of goods.
uniform interpretation of the customs nomenclature
under the best conditions, it shall take the measures
necessary to submit the matter for examination by the             3. The communications may be in writing or in elec-
Nomenclature Committee in accordance with Article 8               tronic form.
of Council Regulation (EEC) No 2658/87.
                            Article 8                             4. Any information communicated pursuant to this
                                                                  Article to Member States or to the Commission shall be
 1. Binding tariff information must be notified to the            covered by the obligation of professional secrecy to the
applicant in writing and must contain, inter alia, the            extent necessary to protect the applicant's commercial
following particulars:                                            secrets.
(a) the references relating to the application for infor-
      mation;
(b) a precise description of the goods in question to                                       TITLE III
      enable them to be accurately identified at the time of
      the customs formalities;                                              Legal effect of binding tariff information
(c) the levels of certain substances in the goods, where
      such indication is necessary to enable the goods to be                                Article 10
      classified in the customs nomenclature, together with
      the methods of analysis on which the information is         1. Binding tariff information may be invoked only by
     based;                                                       the holder thereof, his sucessors or beneficiaries or by a
                                                                  person acting on their behalf. It shall be presented at the
(d) the classification of the goods in the customs nomen-         customs service at the time of completion of the customs
     clature;                                                     formalities relating to the goods in respect of which the
(e) the name and address of the person entitled to rely           holder intends to rely upon such information.
     upon such information, hereinafter referred to as the
     'holder';
(f) the date on which the information was supplied.               2. The holder of binding information may rely upon it
                                                                  in respect of particular goods only where it is established
2. Where the competent administration of the                      to the satisfaction of the customs service that the goods
Member State in which the binding tariff information is           in question conform in all respects to those described in
to be used requires the applicant to indicate the customs         the information presented.
 ---pagebreak---  No C 28/14                             Official Journal of the European Communities                                  3. 2. 89
At the time of customs clearance, the customs service              administration where such information is no longer
 may carry out any check or examination which it deems            compatible with the interpretation of the customs
 useful in order to satisfy itself that the goods presented       nomenclature as a result of:
 are in fact those in respect of which the information has
 been given.                                                       (a) the adoption of any one of the following Community
                                                                        tariff measures (published in part C of the Official
                                                                        Journal of the European Communities):
                          Article 11
                                                                        — amendment of the Explanatory Notes of the
 1. Binding tariff information shall be binding on the                       combined nomenclature,
 administration only in respect of the classification of
goods in the customs nomenclature. It shall be without                  — adoption of a Community classification slip,
prejudice to the rate or amount of import or export                     — agreement reached in the Nomenclature
duties or other Community provisions which may be                            Committee on the classification of goods,
applied to the goods in question by virtue of that classifi-                 recorded in the minutes of the meeting at which
cation.                                                                      it was reached,
2. Binding tariff information shall have effect only in                 or,
regard to goods in respect of which the customs
                                                                  (b) the transposition into Community law of the
formalities are completed after the date on which such
                                                                        following international tariff measures:
information is provided by the competent customs
authority.                                                              — amendment of the Explanatory Notes to the
                                                                             Harmonized System Nomenclature,
3. Binding tariff information shall be devoid of effect                 — a classification opinion of the Customs
where it is established that it was provided on the basis                    Cooperation Council,
of inaccurate or incomplete data.
                                                                        or
                          Article 12                              (c) a judgment of the Court of Justice contrary to
Where binding tariff information indicates the customs                  binding tariff information supplied.
office or offices at which it may be used, it shall be
binding on the administration only where the customs              2. Without prejudice to the provisions of paragraph 3,
formalities relating to the goods in question are                 the date on which the administration ceases to be bound
completed at one of those offices.                                by binding tariff information, pursuant to paragraph 1,
                                                                  shall be the date on which the holder is informed that
The customs authority which provided the binding tariff           that information is not in conformity with one of the
information may, however, authorize its use at other              tariff measures referred to in paragraph 1.
customs offices, on condition that prior application
therefor is made by the holder.                                   Holders of binding tariff information shall be informed
                                                                  that the latter is not in conformity with one of the tariff
                                                                  measures referred to in paragraph 1:
                          Article 13
                                                                  — in the case of a tariff measure referred to in
Without prejudice to the provisions of Articles 14 and                 paragraph 1 (a), by a Communication from the
 15, binding tariff information may not be relied upon                 Commission published in the Official Journal of the
after a period of six years from the date on which it was              European Communities or, where the administration
provided.                                                              considers it necessary, by individual notification to
                                                                       the various holders of the binding information
                          Article 14                                   affected by the tariff measure adopted,
Where, as a result of the adoption of:                            — in the case of a tariff measure referred to in
— a regulation amending the customs nomenclature, or                   paragraph 1 (b), at the option of the administration,
                                                                       either by a notice of general application published,
— a regulation determining or affecting the classifi-                  where appropriate, in an official national publication
     cation of goods in the customs nomenclature,                      or by individual notification to the various holders of
                                                                       the binding tariff information affected by the tariff
binding tariff information previously supplied is not in               measure adopted.
conformity with Community law as thus established,
such information shall cease to be binding on the admin-          3. In the case of products in respect of which an
istration from the date of entry into force of the regu-          import or export licence or advance-fixing certificate is
lation in question.                                               submitted when the customs formalities are completed,
                                                                  the binding tariff information which ceases to be binding
                         Article 15                               on the administration pursuant to paragraph 1 may
                                                                  continue to be relied on by the holder of the information
1. In addition to the cases referred to in Article 14,            during the remainder of the period of validity of that
tariff information shall also cease to be binding on the          licence or certificate.
 ---pagebreak---  3. 2. 89                             Official Journal of the European Communities                           No C 28/15
In other cases, the binding tariff information which             136/66 (l) and in the corresponding articles of the other
ceases to be binding on the administration pursuant to          regulations on the common organization of the markets,
paragraph 1 may continue to be relied upon by the               to derogate from the provisions of paragraph 3.
holder thereof for a period of six months from the date
on which he is notified of its non-conformity, as                                        Article 16
provided in paragraph 2, where it is established to the
satisfaction of the customs service that the holder             Upon the adoption of one of the tariff measures referred
concluded, on the basis of the binding tariff information       to in Articles 14 or 15 (1), Member States shall take the
supplied to him and prior to the date of adoption of the        necessary steps to ensure that binding tariff information
tariff measure in question:                                     provided by the competent customs authorities is in
                                                                conformity with the measures in question.
(a) where such information is relied upon for the import
      of goods:                                                 The provisions of the preceding paragraph shall apply
      — a binding contract for the purchase of the goods        even where a specific date is laid down for the entry into
          in question, from a supplier established in a         force of the tariff measure in question.
          non-member country, or,
      — a binding contract for the sale of the goods in                                  Article 17
          question, in an unaltered state or after              Where the competent customs authority amends binding
          processing, to a customer established in the          tariff information for a reason other than those referred
          Community.                                            to in Articles 14 and 15 (1), the information originally
(b) where such information is relied upon for the export        supplied shall cease to be binding on the authority from
      of goods:                                                 the date on which such amendment is notified to the
                                                                holder.
      — a binding contract for the sale of the goods in
          question to a customer established in a               The provisions of Article 15 (3) shall, however, also
          non-member country, or,                               apply.
      — a binding contract for the purchase of the goods
          in question from a supplier established in the
          Community.                                                                     TITLE IV
4. The application under the conditions laid down in                                  Final provisions
paragraph 3 of the classification given in the binding
tariff information shall have effect only in regard to:                                  Article 18
— the determination of the import or export duties or            1. The Nomenclature Committee provided for in
     the calculation of export refunds and any other            Article 7 of Council Regulation (EEC) No 2658/87 may
     amounts granted on imports or exports within the           examine any question concerning the application of this
     framework of the common agricultural policy, and           Regulation which is raised by its chairman, either on his
                                                                own initiative or at the request of a Member State.
— the use of import or export licences or advance-fixing
     certificates which were already in existence on the        2. The provisions required for applying this Regu-
     date on which the information was provided to the          lation shall be adopted in accordance with the procedure
     holder under the conditions provided for in                laid down in Article 10 of Regulation (EEC) No
     paragraph 2 and which are submitted at the time of         2658/87.
     completion of the formalities with a view to the
     acceptance of the customs declaration for the goods                                 Article 19
     in question, on condition that such licences or
     certificates were issued on the basis of the said          This Regulation shall enter into force 12 months from
     binding tariff information.                                the date of its adoption.
5. In exceptional cases where there is a risk that the          This Regulation shall be binding in its entirety and
working of arrangements set up within the framework of          directly applicable in all Member States.
the common agricultural policy may be jeopardized, the
decision may be taken, in accordance with the procedure
laid down in Article 38 of Regulation (EEC) No                  (') OJ No 172, 30. 9. 1966, p. 3025/66.