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 (presented by the Commission pursuant to Article 149(3) of the EEC Treaty)

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                               COM ( 88 ) 839 final - SYN 20
                                               Brussels , 15 December 1988
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                            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
                ( presented by the Commission pursuant to
                      Article 149(3 ) of the EEC Treaty )
 ---pagebreak---                                     - /\ SL-
                              Explanatory memorandum
Following the entry into force of the Single European Act ( 1 ) and in the
perspective of the establishment of the internal market by the end of 1992 ,
the Commission has reconsidered its position with regard to the opinion
given by the European Parliament , at its January 1984 part session ( 2 ), on
the proposal for a Council Regulation on the information provided by the
customs authorities of the Member States concerning the classification of
goods in the customs nomenclature ( 3 ). The Commission finds that the
establishment of the large market without any customs controls at the
Community 's internal frontiers makes it necessary to increase the
efficiency of the customs intervention with regard to trade in goods with
third countries . To this end the Commission considers it appropriate to
amend for the second time its initial proposal .
The proposed amendments are essentially intended to provide for a
Community-wide validity as from 1 January 1993 of binding tariff
information , for increased cooperation between the Member States and the
Commission in this field , and for a Community procedure enabling measures
implementing the common rules laid down by this Regulation to be adopted
within appropriate periods . The introduction of Community-wide validity of
binding tariff information corresponds to a request made by the European
Parliament .
Furthermore , the Commission has amended its proposal in order to take
account of the entry into force of the Single European Act and of Council
Regulation ( EEC ) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the common customs tariff ( 4 ).
The proposal is presented as a complete text comprising the original
proposal and all amendments in order to facilitate its examination . The
proposal therefore replaces the original proposal and the amendment
subsequently submitted concerning that proposal .
(1) OJ No  L 169 , 29.6.1987 , p. 1
(2) OJ No  C 46 , 20.2.1984 , p. 142
(3) OJ No  C 256 , 8.10.1981 , p. 10
(4) OJ No  L 256 , 7.9.1987 , p. 1
 ---pagebreak---                                       - лЪ--
                                     Amended proposai
                                          for a
                                    Council Régulation
                on the information provided by the customs authorities
                  of the Member States concerning the classification
                           of goods in the customs nomenclature
                     ( amendment made under the third paragraph of
                              Article 149 of the EEC Treaty )
  THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
  Having regard to the Treaty establishing the European Economic Community ,
  and in particular Article 100A thereof ,
  Having regard to the proposal from the Commission ( 1 ),
| In cooperation with the European Parliament (2),
  Having regard to the opinion of the Economic and Social Committee ( 3 ),
  Whereas the conditions under which traders are able to obtain from the
  customs authorities information on the interpretation or practical
  application of Community customs rules differ appreciably in the various
  Member States ; whereas the legal effect of such information also varies
  considerably , depending on the Member State in which it is provided ;
  Whereas this situation results in considerable distortions of treatment
  between traders in the Community , depending on the Member State in which
  they operate ; whereas such distortions of treatment are incompatible with
  the proper functioning of the customs union and also with the achievement
  of the internal market provided for in Article 8a of the Treaty , since it
  is necessary to guarantee , as far as possible , equal treatment of traders
  within that market ;
  ( 1 ) OCJ No C 256 , 8.10.1981 , p. 10
  ( 2 ) 00 No C 81 , 22.3.1984 , p. 7 and decision of
  ( 3 ) 00 No C 64 , 15.3.1982 , p. 13
 ---pagebreak---                                      - 2 -
Whereas it appears necessary , in order to ensure a measure of legal
certainty for traders when carrying on their activities , to facilitate the
work of the customs services themselves and secure more uniform application
of Community customs law , to establish rules which oblige customs
authorities to provide information which is binding on the administration
under certain well defined conditions ;
Whereas the Council has already accepted the principle of the provision of
information which is binding on the administration in Regulation ( EEC ) No
1697/79 of 24 July 1979 on the post-clearance recovery of import duties or
export duties which have not been required of the person liable for payment
on goods entered for a customs procedure involving the obligation to pay
such duties ( 1 ) ;
Whereas , in view of the scale of structural adjustments which would be
required in most of the customs administrations of the Member States by the
establishement of rules of general application regarding the provision of
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 information concerning the classification of goods in the
customs nomenclature ; whereas this is the most important and most useful
category of information for traders because of the highly technical nature
of the Common Customs Tariff and the Community nomenclatures derived from
it ;
Whereas it is necessary to specify precisely the procedure to be followed
in order to enable information 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 from 1 January 1993 the
administrations of all Member States ; whereas it is also necessary to lay
down the conditions governing the use of such information by the holder ;
( 1 ) OJ No L 197 , 3.8.1979 , p.l
 ---pagebreak---                                         - 3 -
Whereas information provided in accordance with the procedure laid down can
bind the administration only in 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 deriving from that
classification which apply at the time of completion of the customs
formalities relating to those goods ;
Whereas on grounds of sound administration , it is necessary to establish a
time limit after which the information provided can no longer be relied
upon by the 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 conditions under which the information provided
ceases to bind the administration before the expiry of that time limit , as
a result of the adoption of Community measures amending the existing law ;
Whereas it is necessary to lay down provisions concerning the communication
to the Commission of all binding tariff information provided by the
competent authorities of the Member States and concerning the cooperation
between the latter and the Commission ;
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 measures implementing these rules to be adopted within
appropriate periods ,
HAS ADOPTED THIS REGULATION :
                                      Article 1
1 . This Régulation lays down :
    ( a ) the conditions under which information concerning the classification
          of goods in the customs nomenclature , hereinafter referred to as
          " tariff information ", may be obtained from the competent customs
          authorities of the Member States ;
    ( b ) the legal effect of such information .
 ---pagebreak---                                      - 4 -
2 . For the purposes of this Regulation , " customs nomenclature" means :
    - the combined nomenclature ;
    - the TARIC nomenclature and any other nomenclature which is wholly or
      partly based on the combined nomenclature or which adds any
      subdivisions to it , and which is established by specific Community
      provisions with a view to the application of tariff or other measures
      relating to trade in goods .
                                    TITLE I
                               General provisions
                                   Article 2
1 . Any natural or legal person may apply to the competent customs
    authorities for tariff information .
2 . Tariff information shall be provided to the   applicant free of charge .
    However , where expenditure is incurred as a  result of analysing , or
    obtaining an expert 's report on any samples  sent to the competent
    customs authority and returning them to the   applicant , such expenditure
    may be charged to the latter .
                                   Article 3
1 . Where the conditions laid down in Articles 4 to 8 are fulfilled , the
    tariff information provided by the competent customs authority shall be
    binding on the administration of the Member State in question and shall
    constitute binding tariff information within the meaning of this
    Regulation .
2 . From 1 January 1993 , such binding tariff information shall become
    binding on the administrations of all Member States and shall remain
    binding under the same conditions as those laid down by this Regulation
    with regard to the legal effects of the binding tariff information in
    the Member State which provided it .
 ---pagebreak---                                         - 5
                                       TITLE II
                 Procedure for obtaining binding tariff information
                                     Article 4
1 . Application for binding tariff information shall be made in writing to
    the competent customs authority of a Member State in which such
    information is to be used or to the competent customs authority of the
    Member State where the applicant is established .
    The competent administration in each Member State shall determine the
    form and procedure for drawing up the application referred to in the
    preceding subparagraph and shall designate the authority to which it
    must be submitted .
2 . The competent administration in each Member State may limit the number
    of goods which may be covered by a single application .
                                     Article 5
1 . Applications for binding tariff information shall include , inter alia ,
    the following particulars :
    ( a ) the name and address of the applicant . Where the application is
          submitted by a natural or legal person acting on behalf of another
          person , the name and address of the latter shall also be shown on
          the application ,
    ( b ) the particulars , including , where appropriate , the use to which the
          goods are to be put , which are necessary to enable the competent
          customs authority to reach a decision .
          Where classification of the goods in the customs nomenclature
          depends on the level of certain substances in the goods in guestion ,
          that level and , where appropriate , the methods of analysis used for
          determining it shall be notified to the competent customs authority .
 ---pagebreak---                                       - 6
    ( c ) Where an application for binding tariff information has been
          submitted in respect of identical goods in another Member State , the
          references relating to that application together with the
          classification determined in that Member State , where appropriate .
2 . The competent administration in each Member State may also stipulate
    that applications for binding tariff information shall indicate the
    customs office or offices at which the customs formalities relating to
    the goods in question are expected to be carried out .
3 . Requests for binding tariff information must , where appropriate , be
    accompanied by representative samples of the goods or , where samples
    cannot be taken because of the nature of the goods , by photographs ,
    plans , catalogues and such other technical documents as may assist the
    competent customs authority to determine the classification of the goods
    in the Customs nomenclature .
    Documents enclosed with the applications shall , where appropriate , be
    accompanied by a translation into the official language or one of the
    official languages of the Member State concerned .
4 . Where the applicant wishes to obtain the classification of goods in one
    of the nomenclatures referred to in Article 1 ( 2 ) second indent , the
    application for binding information shall make express mention of the
    nomenclature in question .
                                    Article 6
Where the competent customs authority to which an application for binding
tariff information has been submitted considers that the application does
not contain all the particulars needed to enable it to reach a decision , it
shall invite the applicant to furnish the missing particulars , indicating
that the application cannot be considered as it stands .
 ---pagebreak---                                        - 7 -
                                     Artide 7
Where a Member State to whose customs authority an application for binding
tariff information is made considers it necessary for the purpose of
ensuring unform interpretation of the Customs Nomenclature under the best
conditions , it shall take the measures necessary to submit the matter for
examination by the Nomenclature Committee in accordance with Article 8 of
Council Regulation ( EEC ) No 2658/87 .
                                     Article 8
1 . Binding tariff information must be notified to the applicant in writing
    and must contain , inter alia , the following particulars :
    ( a ) the references relating to the application for information ;
    ( b ) a precise description of the goods in question to enable them to be
          accurately identified at the time of the customs formalities ;
    ( c ) the levels of certain substances in the goods , where such indication
          is necessary to enable the goods to be classified in the customs
          nomenclature , together with the methods of analysis on which the
          information is based ;
    ( d ) the classification of the goods in the customs nomenclature ;
    ( e ) the name and address of the person entitled to rely upon such
          information , hereinafter referred to as the " holder " ;
    ( f ) the date on which the information was supplied .
 ---pagebreak---                                       - 8 -
2 . Where the competent administration of the Member State in which the
    binding tariff information is to be used requires the applicant to
    indicate the customs office or offices in which he intends to complete
    the customs formalities relating to the goods in question , those offices
    must be indicated in the binding tariff information . In the absence of
    such requirement , the binding tariff information may be used in any
    customs office of the Member State in which it was supplied which is
    empowered to complete the customs formalities relating to the goods in
    question .
3 . Where a binding tariff information has become binding on the
    administrations of all Member 5tates in accordance with Article 3(2 ), it
    may be used in any customs office of the Member States empowered to
    complete the customs formalities relating to the goods in question .
    However , a Member State may notify the holder in writing that the
    binding tariff information may only be used at certain customs offices
    indicated in the notification .
                                    Article 9
1 . A copy of the notification to the applicant of a binding tariff
    information must be communicated to the Commission at the same time as
    it is sent to the applicant .
2 . Where a Member State so requests , the Commission shall inform it of
    notifications received concerning specific goods or group of goods .
 ---pagebreak---                                       9
3. The communications may be in writing or in electronic form .
4. Any information communicated pursuant to this Article to Member States
   or to the Commission shall be covered by the obligation of professional
   secrecy to the extent necessary to protect the applicant 's commercial
   secrets .
                                  TITLE III
                 Legal effect of binding tariff information
                                 Article 10
1. Binding tariff information may be invoked only by the holder thereof ,
   his sucessors or beneficiaries or by a person acting on their behalf . It
   shall be presented at the customs service at the time of completion of
   the customs formalities relating to the goods in respect of which the
   holder intends to rely upon such information .
2. The holder of binding information may rely upon it in respect of
   particular goods only where it is established to the satisfaction of the
   customs service that the gods in question conform in all respects to
   those described in the information presented .
   At the time of customs clearance , the customs service may carry out
   any check or examination which it deems useful in order to satisfy
   itself that the goods presented are in fact those in respect of which
   the information has been given .
 ---pagebreak---                                                   - 10 -
     ( ех ол V. Ac)                             Article 11
              1 . Binding tariff information shall be binding on the administration only
                  in respect of the classification of goods in the customs nomenclature .
                  It shall be without prejudice to the rate or amount of import or export
                  duties or other Community provisions which may be applied to the goods
                  in question by virtue of that classification .
              2 . Binding tariff information shall have effect only in regard to goods in
                  respect of which the customs formalities are completed after the date on
                  which such information is provided by the competent customs authority .
              3 . Binding tariff information shall be devoid of effect where it is
                  established that it was provided on the basis of inaccurate or
                  incomplete data .
                                                Article 12
( çx d/\V.
              Where binding tariff information indicates the customs office or offices at
              which it may be used , it shall be binding on the administration only where
              the customs formalities relating to the goods in question are completed at
              one of those offices .
              The customs authority which provided the binding tariff information may ,
              however , authorize its use at other customs offices , on condition that
              prior application therefore is made by the holder .
                                                Article 13
  (vx CJAV
              Without prejudice to the provisions of Articles 14 and 13 , binding tariff
              information may not be relied upon after a period of six years from the
              date on which it was provided .
 ---pagebreak---                                                         11
                                                    Article 14
 (<* euV. As)
              Where , as a result of the adoption of :
                  a regulation amending the customs nomenclature , or
                  a regulation determining or affecting the classification of goods in the
                  customs nomenclature
              binding tariff information previously supplied is not in conformity with
              Community law as thus established , such information shall cease to be
              binding on the administration from the date of entry into force of the
              regulation in question .
                                                    Article 15
( tv Ofi V. >iv )
              1 . In addition to the cases referred to in Article 14 , tariff informa
                                                                                 information
                  shall also cease to be binding on the administration where such
                  information is no longer compatible with the interpretation of the
                  customs nomenclaure as a result of :
                  ( a ) the adoption of any one of the following Community tariff measures
                        ( published in part C of the Official Journal of the European
                        Communities ) :
                        - amendment of the Explanatory Notes of the combined nomenclature ;
                        - adoption of a Community classification slip ;
                        - agreement reached in the Nomenclature Committee on the
                           classification of goods , recorded in the minutes of the meeting at
                           which it was reached ;
                        or ,
                  ( b ) the transposition into Community law of the following international
                        tariff measures :
                        - amendment of the Explanatory Notes to the Harmonized System
                           Nomenclature ;
                        - a classification opinion of the Customs Cooperation Council ;
                        or
                  ( c ) a judgment of the Court of Justice contrary to binding tariff
                        information supplied .
 ---pagebreak---                                      - 12 -
2 . Without prejudice to the provisions of paragraph 3 , the date on which
    the administration ceases to be bound by binding tariff information ,
    pursuant to paragraph 1 , shall be the date on which the holder is
    informed that that information is not in conformity with one of the
    tariff measures referred to in paragraph 1 .
    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 :
    - in the case of a tariff measure referred to in paragraph 1(a ), by a
      Communication from the Commission published in the Official Journal of
      the European Communities or , where the administration considers it
      necessary , by individual notification to the various holders of the
      binding information affected by the tariff measure adopted ;
    - in the case of a tariff measure referred to in paragraph 1(b ), at the
      option of the administration , either by a notice of general
      application published , where appropriate , in an official national
      publication or by individual notification to the various holders of
      the binding tariff information affected by the tariff measure adopted .
3 . In the case of products in respect of which an import or export licence
    or advance-fixing certificate is submitted when the customs formalities
    are completed , the binding tariff information which ceases to be binding
    on the administration pursuant to paragraph 1 may continue to be relied
    on by the holder of the information during the remainder of the period
    of validity of that licence or certificate .
    In other cases , the binding tariff information which ceases to be
    binding on the administration pursuant to paragraph 1 may continue to be
    relied upon by the holder thereof for a period of six months from the
    date on which he is notified of its non-conformity , as provided in
    paragraph 2 , where it is established to the satisfaction of the customs
    service that the holder concluded , on the basis of the binding tariff
    information supplied to him and prior to the date of adoption of the
    tariff measure in questions
 ---pagebreak---                                        - 13
    ( a ) where such information is relied upon for the import of goods :
          - a binding contract for the purchase of the goods in question , from
            a supplier established in a non-member country ; or ,
          - a binding contract for the sale of the goods in question , in an
            unaltered state or after processing , to a customer established in
            the Community .
    ( b ) where such information is relied upon for the export of goods :
          - a binding contract for the sale of the goods in question to a
            customer established in a non-member country ; or ,
          - a binding contract for the purchase of the goods in question from
            a supplier established in the Community .
4 . The application under the conditions laid down in paragraph 3 of the
    classification given in the binding tariff information shall have effect
    only in regard to :
    - the determination of the import or export duties or the calculation of
        export refunds and any other amounts granted on imports or exports
        within the framework of the common agricultural policy ; and
    - the use of import or export licences or advance fixing certificates
        which were already in existence on the date on which the information
       was provided to the holder under the conditions provided for in
        paragraph 2 and which are submitted at the time of completion of the
        formalities with a view to the acceptance of the customs declaration
        for the goods in question , on condition that such licences or
       certificates were issued on the basis of the said binding tariff
        information .
 ---pagebreak---                                                - 14 -
       5.    In exceptional cases where there is a risk that the working of
             arrangements set up within framework of 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 136 /66 ( 1 ) and
             in the corresponding articles of the other regulations on the common
             organization of the markets , to derogate from the provisions of
             paragraph 3 .
                                             Article 16
       Upon the adoption of one of the tariff measures referred to in Article 14
       or Article 13(1 ), Member States shall take the necessary steps to ensure
       that binding tariff information provided by the competent customs
       authorities is in conformity with the measures in question ".
       The provisions of the preceding paragraph shall apply even where a specific
       date is laid down for the entry into force of the tariff measure in
       question .
                                             Article 17
( tfdr . A s)
       Where the competent customs authority amends binding tariff information for
       a reason
       a   reason other than those referred to in Article 14 and 13(1 ), the
       information originally supplied shall cease to be binding on the authority
       from the date on which such amendment is notified to the holder .
       The provisions of Article 15(3 ) shall , however , also apply .
        ( 1 ) 03 No 172 , 30.9.1966 , p. 3025/66
 ---pagebreak---                                          15
                                      TITLE IV
                                  Final provisions
                                     Article 18
1 . The Nomenclature Committee provided for in Article 7 of Council
    Regulation ( EEC ) No 2658 /87 may examine any question concerning the
    application of this Regulation which is raised by its chairman , either
    on his own initiative or at the request of a Member State .
2 . The provisions required for applying this Regulation shall be adopted in
    accordance with the procedure laid down in Article 10 of Regulation
    ( EEC ) No 2658 /87 .
                                     Article 19
This Regulation shall enter into force twelve months from the date of its
adoption .
This Regulation shall be binding in its entirety and directly applicable in
all Member States .
Done at Brussels                               For the Council
                                               The President