16.12.2006   

EN

Official Journal of the European Union

C 309/22

1.1

One of the priorities of the Community customs action programme (Customs 2007), adopted by the Council in 2002, was a complete overhaul of the current customs Code [Council Regulation (EEC) No 2913/92], which has become outdated following developments in the markets and technology, the adoption of various Treaties and, above all, successive EU enlargements.

1.2

The idea of a completely modernised code was prompted by the fact that the old Code — which is still in force — ‘has not kept pace with either the radical changes to the environment in which international trade is conducted … or with the changing focus of customs work’. The proposal in question is in line with Community policy — particularly with the principles of the internal market and consumer protection, and with the Lisbon Strategy — and forms the basis for further measures to streamline customs systems and procedures and to bring rules into line with common standards governing Member States' IT systems as they are drawn up.

1.2.1

The Commission believes that this raft of measures will make it possible to incorporate the Council's eGovernment and ‘better regulation’ initiatives, and to achieve a number of specific objectives, including increased security and safety at external borders, reduced risk of fraud and, lastly, greater consistency with other Community policies, particularly fiscal policy.

1.3

The new Code must be seen in the context of the Lisbon Strategy, which seeks to make Europe ‘a more attractive place to invest and work’; it is also in line with the Commission's proposals, approved by the Council in December 2003, to create a simple, paperless environment. Moreover, another vehicle for the Council's policy is the parallel Proposal for a decision on a paperless environment for customs and trade [COM(2005) 609 of 30 November 2005], on which the EESC will draw up a separate opinion.

1.4

The new elements introduced by the new Code are not just a matter of form or updating rules; the changing focus of customs policy is much more important. Over the past 20 years, the role of customs has gradually been shifting away from the collection of duties towards much greater focus on application of non-tariff measures, in particular those related to security and safety, controlling illegal immigration, combating fraud, money-laundering, narcotic drug trafficking, sanitary measures, health, the environment and consumer protection, as well as the collection of VAT and excise duties. The Commission document does not explicitly mention under security and safety a secondary element which is certainly part of customs' role — the valuable assistance they provide in combating arms trafficking and terrorism. In this context, there is a gap in the plans for IT systems, on which the EESC comments in point 3.1.3.1 below.

1.5

Another new element is the introduction of computerised procedures. The current Code provides for these procedures — and they are widely adopted in almost all Member States — but they are optional both for national customs and for users. The new Code, however, makes them compulsory; this is necessary to eliminate the need for paper — the aim of the parallel initiative described in point 1.3 above.

1.6

The Code has been drawn up in line with Commission policy and with due regard for the procedures laid down in the areas of feasibility, transparency and impact assessment. The EESC is pleased to note that the civil society sectors concerned have been consulted and are largely in favour; it agrees with the Commission regarding respect for the legal bases and for the subsidiarity and proportionality principles, but reserves the right to comment on the impact assessment at a later date.

1.7

The Commission has looked at four different approaches to the issue, opting in the end for a solution which provides for closer cooperation between national customs' IT systems, on the grounds of the need to comply with the subsidiarity principle and Member States' clear reluctance to accept a solution based on a centralised European system. The EESC notes that this decision was unavoidable but points out that the latter option would have provided a more reliable, simpler and less burdensome solution for users. The subsidiarity principle would then have been devolved at European level rather than national level.

2.1

In February 2005, the EESC commented on a Proposal for a Regulation of the European Parliament and of the Council amending the Customs Code (1), which, even then, proposed innovations concerning a paperless environment and integrated management of external borders. The EESC is pleased to note that the principles enshrined in that proposal, on which its comments had been broadly positive, have also been included in the present proposal and converted into specific provisions which, once again, in general, it can accept.

2.2

The raft of new provisions is evidence of greater focus on operators' rights and needs, taking into account, where necessary, any damages that may result from the procedures. Both the streamlining of legislation and the concentration of customs procedures — which are being reduced from the current 13 to three: import, export and special procedures — are evidence of this approach. Moreover, in the drafting process, two-thirds of the articles of the present Code are amended, merged or transferred to the implementing provisions, with the result that the number of articles falls from 258 to 200.

2.2.1

The EESC congratulates the Commission on its sensitive, laborious work, in which it has respected the general principles of the internal market and shown great respect for operators' rights and needs. Incidentally, however, it notes that the lack of an implementing regulation — which the Commission does, moreover, have the power to draw up — leaves room for some uncertainty for the moment as regards a number of provisions: it therefore calls for a new implementing regulation to be drawn up and adopted without delay.

3.1.1

Article 3 lists the national territories making up the Community customs territory. It does not call for any particular comment, apart from the uncertainty raised by paragraph 3, which states: ‘Certain provisions of the customs legislation may apply outside the customs territory of the Community within the framework of legislation governing specific fields or of international conventions’. Legal certainty does not allow a law to mention ‘certain provisions’ without specifying in the same text or an appendix which provisions are referred to. From a legal point of view — and also for reasons of transparency — it needs to be clearly specified in detail which territories and legislation are being referred to. All too often, the public — and experts, too — fail to notice exemptions and derogations granted on various occasions in various different ways: these exemptions and derogations are often genuine distortions of competition, and they are not always temporary.

3.1.2

Generally speaking, the exchange and protection of data (Articles 5, 6 and 7) do not call for any particular comment, as the proposed legislation is in line with the normal protection provided by public administrations for people's privacy and business confidentiality. The EESC particularly welcomes the provisions in Article 8, which require customs authorities to provide information on the application of customs legislation, and to further transparency by making legislation, administrative rulings and application forms available on line to operators free of charge.

3.1.2.1

The first paragraph of Article 5 warrants particular attention. It requires electronic data processing techniques to be adopted for all exchanges of data, documents, decisions and notifications between economic operators and customs authorities. This provision, which is wholly appropriate where businesses and professional operators are concerned, could cause difficulties where the importer (or, more rarely, the exporter) is a private individual and not necessarily an ‘economic operator’. The problem is anything but minor, at a time when the amount of on-line and catalogue purchases of goods in countries outside the EU is growing exponentially. The EESC notes that the matter is currently being discussed under the comitology procedure and suggests that private individuals be explicitly included among those permitted under Article 93 to submit summary declarations. The provisions of Article 94, granting customs authorities the possibility of accepting paper-based import summary declarations although only in exceptional circumstances, should also be amended. Alternatively, or in addition, the possibility could be explored of extending to private individuals the right to submit the occasional simplified declarations — again paper-based — provided for in Article 127.

3.1.2.2

On a more general note, although still on the subject of electronic data processing techniques, the EESC points out the high costs of the new integrated data processing system; these costs have to be borne within a short period of time, while a substantial part of the benefits (particularly where quality is concerned) will only become apparent in the medium to long term. Some Member States already seem to be concerned at both the costs that will have to be borne and the obligation to respect the timeframes for implementing the new systems; others — particularly those which are most advanced in terms of computerisation — feel that it would be costly to change recently introduced systems to come into line with the joint system. The EESC acknowledges these concerns, which the Commission must not ignore. However, it believes that the benefit to Europe of having an efficient, modern customs system is worth some individual sacrifices, which could perhaps be alleviated by assistance in specific cases of documented need.

3.1.3

Article 10 requires Member States to cooperate with the Commission ‘with a view to developing, maintaining and employing an electronic system for the common registration and maintenance of records’ of all operators and authorisations granted. Any uncertainty regarding the nature and operation of the system is cleared up in Article 194: each Member State is to maintain its own electronic data processing system, ensuring interoperability with the systems of the other Member States in accordance with rules and standards established by the Commission, assisted by the Customs Code Committee. The system is scheduled to enter into force on 30 June 2009. The EESC believes that a system based on national databases exchanging — once interoperability is ensured — information and updates may well prove difficult to manage, as well as costly. Above all, it is somewhat unlikely that a system of this kind could actually become operational within the specified timeframe. The Commission's impact assessment estimated the additional cost of implementing the system at EUR 40-50 million per year, a figure which various experts feel to be over-optimistic.

3.1.3.1

Moreover, there is a clear, crucial shortcoming in the system planned, or at least in the mission statement: there is no specific provision for access to the electronic data processing systems of authorities combating terrorism and organised crime, with, of course, due regard for the rules protecting privacy and production activities. The EESC has repeatedly highlighted this aspect, on a number of occasions. The Council has for years been stressing the need for cooperation between the different authorities — criminal and financial police, customs, secret services, Olaf and Europol, but, regrettably, without significant results thus far.

3.1.4

Article 11 raises a particular concern. It stipulates that customs representatives can ‘perform the acts and formalities laid down in the customs legislation’, appointed by an operator and acting in the operator's name and on their behalf (direct representation) or on their own behalf (indirect representation). Paragraph 2 requires customs representatives to be established within the Community customs territory, but nothing further. Moreover, the EESC notes that the Commission states in its Explanatory Memorandum that ‘The rules on representatives have been changed, with former restrictions being withdrawn’; these were incompatible with a computerised environment and with the principles of the single market. The inference is that customs representatives have a single authorisation (Community passport) enabling them to operate throughout Community territory in the name of any operator, wherever the operator may be established. This article needs to be made more explicit; a separate regulation could lay down procedures for creating a register or list etc. along the lines of the arrangements for authorised economic operators, discussed in point 3.1.5 below.

3.1.5

Another figure of interest is the authorised economic operator (Articles 4 and 13 to 16). In practice, this is a business (more often than an individual) which can guarantee that it is responsible, solvent and professional to a sufficiently high degree to be accredited by Member States' customs authorities as having the right to a certain number of facilitations in the area of controls and procedures. The Commission reserves the right to specify, on the basis of Article 196, the procedures for granting the status of authorised economic operator. The EESC takes note of these provisions, which are clearly intended to facilitate international trade and the creation of an environment conducive to trade, but it also notes that a great deal will depend on the conditions for granting this status and the rules for preventing any abuse thereof. Moreover, it is not clear whether authorised economic operators will be granted a ‘European passport’.

3.1.6

Article 22 marks a decisive step towards harmonising customs regimes, by requiring Member States — albeit in fairly loose terms — to adopt administrative and criminal penalties for failure to comply with Community customs legislation. The EESC agrees, of course, on the need to achieve harmonised rules on this sensitive issue, but it remains to be seen how receptive Member States will be to endeavours to lay down rules or guidelines on criminal matters, which are an area where resistance or, at least, reservations, are to be expected.

3.1.7

Articles 24, 25 and 26 deal with appeals against administrative decisions (Article 23 excludes decisions taken by a judicial authority), laying down a two-stage procedure. The first step is appeal before the customs authorities and the second appeal before a higher, judicial or other authority. In the case of penalties a general principle similar to the estoppel principle applies, except where the customs authorities consider that ‘irreparable damage’ may be caused to the person who lodged the appeal; the EESC is pleased to note this indication of concern for the needs of the citizen.

3.1.8

Article 27 lays down the — clearly necessary — possibility for customs authorities to carry out controls of all kinds (physical, administrative, accounting and statistical). It also provides for an electronic risk management system to be implemented, ‘with the purpose of identifying and evaluating the risks and developing the necessary measures to counter the risks’. This system, which Member States are to implement in cooperation with the Commission by 30 June 2009 at the latest, will also be regulated by rules laid down by the Commission on the basis of Article 196. In any case, the EESC welcomes the measure and hopes that the Commission has made quite sure that all the Member States are willing to implement a system which will presumably prove to be costly and sensitive to manage.

3.1.9

Article 30 exempts from customs controls and formalities the cabin and hold baggage of passengers on intra-Community flights and sea-crossings, but without prejudice to security and safety checks and checks linked to prohibitions or restrictions laid down by the Member States: this is tantamount to saying that the exemption only applies in countries which have not laid down prohibitions or restrictions. Since there are always restrictions in place everywhere, if only with regard to goods subject to excise duty, the general rule is, in practice nullified and customs' power to carry out controls on both cabin and hold baggage remains intact.

4.1

Titles II — VIII deal with customs formalities and procedures, and broadly retain the content of the Code currently in force. The EESC does not intend to analyse these provisions in detail, as they have already been discussed extensively during the consultations held with stakeholders before the text was drawn up. It will therefore merely comment on a few articles of particular interest.

4.2

Article 55 states that a customs debt is incurred even in the case of smuggled or illegally-trafficked goods (defined as ‘goods which are subject to measures of prohibition or restriction on importation or exportation of any kind’): customs duties are due in any event, without prejudice to the application of other criminal or administrative measures. However, counterfeit currency and narcotic drugs which do not enter the authorised circuits are exempt from the customs debt; these kinds of trafficking are clearly viewed purely as criminal offences, except in cases where a Member State's legislation requires customs duties to serve as the basis for determining financial penalties. Despite an opinion to the contrary from the European Court of Justice, the EESC does not believe that customs authorities should be deprived of the legitimate income they would have gained from establishing a customs debt — administrative and criminal penalties apart — at least in the case of narcotic drugs, whose value could be set at the respective market price. The fact that a drug is imported illegally does not change the fact that it is still an import. In other words, while the reason for exempting counterfeit currency is clear, the reason for exempting narcotic drugs is not.

4.3

Under Article 61, customs authorities may authorise an operator to provide a comprehensive guarantee to cover its customs debts. Article 64 states that one of the forms that this guarantee can take is an undertaking given by a guarantor, and Article 66 specifies that it can be provided by a ‘bank or other officially recognised financial institution accredited in the Community’. This provision is important in that it acknowledges that any bank or financial institution from any European country can provide a valid guarantee for customs in another country: this is an important principle which is already in force but which in practice is often obstructed by customs in various countries. However, it is not yet clear what is meant by the phrases ‘officially recognised’ and ‘accredited in the Community’: the EESC feels that they are superfluous and misleading, as banks and financial institutions established in the Community already have a ‘European passport’ and no further indications are necessary.

4.4

Again on the subject of guarantees, Article 83 gives the Commission the possibility, again under the ‘Article 196’ procedure, of adopting a ‘special procedure’ for securing payment from guarantors. However, no information is given as to what the special procedure consists of or its scope. If this is a reference to the petition for prosecution of the guarantor ‘at the first request’ it is certainly nothing new, as this kind of guarantee already exists and is provided for by other regulations (such as the EU Financial Regulation). If, however, other formulas are implied, it would be as well to specify them because the cost of a guarantee varies according to the risk and the procedures for prosecuting the guarantor.

4.5

Furthermore, Article 83 stipulates that interest on customs debts is to be charged for the period between the date of expiry and the date of actual payment; Article 84 caters for the opposite case, where it is a customs authority which is in debt towards the importer or exporter: here, it is explicitly stipulated that no interest is due for the first three months. The EESC stresses this clear, unacceptable discrepancy between the ways in which the public authority and the general public are treated.

5.1

The provisions of this title are essential for understanding the Code's structure and scope. The keystone is Article 196, which states that in implementing the legislation ‘the Commission shall be assisted by the Customs Code Committee, hereinafter referred to as “the Committee”’, acting under ‘Articles 4 and 7 of Decision 1999/468/EC’ and ‘having regard to the provisions of Article 8 thereof’. In practice, this means that the Commission has the power — albeit with the assistance of the committee — to regulate all aspects of the Customs Code, in line with normal Community procedure. The EESC has no objection to this but trusts that the rules adopted will respect users' needs and will be sufficiently flexible as to be able to be updated at the appropriate time in line with progress in techniques, technology and commercial practice.

5.2

Under the powers conferred on it by Article 196, the Commission (Article 194) can adopt measures laying down:

5.2.1

The Commission's powers are therefore fairly broad and include the right to determine, itself (second indent), the cases in which, and conditions under which, Member States may be required to revoke or amend a decision. The EESC notes that while, in the cases covered by the first and third indents, the Commission is performing its institutional role of coordinating and implementing decisions adopted or endorsed by the Council, in the case of the second indent it is exercising power in an anomalous way, even though, all things considered, this may be justified by circumstances and the EESC is certainly not opposed to it.

5.2.2

On a general note, the EESC points out that the decision to carry out controls on operations of all kinds effected by the public — including commercial transactions and customs work — will affect free trade, and that it derives from political decisions, endorsed by the EU and the Member States within their different remits. The Commission, of course, implements these decisions.

5.2.3

The EESC hopes that the customs reform will not upset the necessary balance between free trade and users' and end-consumers' safety and security, and that it will be carried out with due respect for the professionalism of customs staff and importers/exporters' employees.