(1)

The 2 140 customs offices (3) that are present over the external borders of the European Union need to be properly equipped to ensure the efficient and effective operation of the customs union. The need for adequate and equivalent customs controls is ever more pressing not only by reason of the traditional function of customs to collect revenue but also increasingly by the necessity to significantly reinforce the control of goods entering and exiting Union’s external borders in order to ensure both safety and security. However, at the same time, those controls on the movement of goods across the external borders should not impair but rather facilitate legitimate trade with third countries , in compliance with the safety and security conditions . [Am. 1]

(1a)

The customs union is a cornerstone of the European Union, which is one of the largest trading blocks in the world, and is essential for the proper functioning of the single market for the benefit of both businesses and citizens. In its resolution of 14 March 2018  (4) , the European Parliament expressed particular concern regarding customs fraud, which has created a significant loss of income for the Union's budget. The European Parliament reiterated that a stronger and a more ambitious Europe can only be achieved if it is provided with reinforced financial means and called, therefore, for providing continuous support to existing policies, for increasing resources to the Union’ flagship programmes, and for additional responsibilities to be matched with additional financial means. [Am. 2]

(2)

There is currently an imbalance in the performance of customs control by Member States. This imbalance is due both to geographic differences between Member States and in their respective capacities and resources , as well as to a lack of standardised customs controls . The ability of Member States to react to challenges generated by the constantly evolving global business models and supply chains depend not only on the human component but also on the availability and proper functioning of modern and reliable customs control equipment . Other challenges, such as the surge of e-commerce, the digitalisation of the controls and inspections records, resilience to cyber-attacks, sabotage, industrial espionage and misuse of data, will also increase demand for better functioning of customs procedures . The provision of equivalent customs control equipment is therefore an important element in addressing the existing imbalance. It will improve equivalence in the performance of customs controls throughout Member States and thereby avoid the diversion of the flows of goods towards the weakest points. All the goods entering the customs territory of the Union should be subject to thorough controls in order to avoid ‘port-shopping’ by custom fraudsters. To ensure that the overall strength is increased as well as convergence in the performance of customs control by Member States, a clear strategy related to the weakest points is required. [Am. 3]

(3)

A number of Member States have repeatedly expressed the need for financial support and requested an in-depth analysis of the equipment needed. In its conclusions (5) on customs funding on 23 March 2017, the Council invited the Commission to ‘evaluate the possibility of funding technical equipment needs from future Commission financial programmes and improve coordination and (…) cooperation between Customs Authorities and other law enforcement authorities for funding purposes’. [Am. 4]

(4)

Under Regulation (EU) No 952/2013 of the European Parliament and of the Council (6), customs controls are to be understood not only as the supervision of customs legislation but also other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside that territory, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure. Such other legislation empowering customs authorities with specific tasks of control includes provisions on taxation, in particular as regards excise duties and value added tax, on the external aspects of the internal market, on the common trade policy and other common Union policies having a bearing on trade, on the overall supply chain security and on the protection of the financial and economic interests of the Union and its Member States.

(5)

Supporting the creation of an adequate and equivalent level of customs controls at the Union’s external borders allows maximising the benefits of the customs union. A dedicated Union intervention for customs control equipment correcting current imbalances would moreover contribute to the overall cohesion between Member States. In view of the challenges facing the world, in particular the continued need to protect the financial and economic interests of the Union and its Member States while easing the flow of legitimate trade, the availability of modern and reliable control equipment at the external borders is indispensable.

(6)

It is therefore opportune to establish a new Instrument for financial support for customs control equipment that should ensure the detection of practices, such as for example counterfeiting of goods and other illegal commercial practices . Already existing formulas of financial support should be considered. [Am. 5]

(7)

As customs authorities of the Member States have been taking up an increasing number of responsibilities, which often extend to the field of security and take place at the external border, ensuring equivalence in carrying out border control and customs control at the external borders needs to be addressed by providing adequate Union financial support to the Member States. It is equally important to promote inter-agency cooperation , while considering cybersecurity, at Union borders as regards controls of goods and controls of persons among the national authorities in each Member State that are responsible for border control or for other tasks carried out at the border. [Am. 6]

(8)

It is therefore necessary to establish an Integrated Border Management Fund (‘the Fund’).

(9)

Due to the legal particularities applicable to Title V of the TFEU as well as the different applicable legal bases regarding the policies on external borders and on customs control, it is not legally possible to establish the Fund as a single instrument.

(10)

The Fund should therefore be established as a comprehensive framework for Union financial support in the field of border management comprising the Instrument for financial support for customs control equipment (‘the Instrument’) established by this Regulation as well as the instrument for financial support for border management and visa established by Regulation (EU) No …/… of the European Parliament and of the Council (7).

(11)

This Regulation lays down a financial envelope for the Instrument, which is to constitute the prime reference amount, within the meaning of point 17 of the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (8), for the European Parliament and the Council during the annual budgetary procedure. To secure budgetary discipline, the conditions as to how the grants will be prioritised should be clear, defined and based on needs that have been identified for the tasks performed by customs points. [Am. 7]

(12)

Regulation (EU, Euratom) [2018/XXX] of the European Parliament and of the Council (9) (the ‘Financial Regulation’) applies to this Instrument. It lays down rules on the implementation of the Union budget, including the rules on grants.

(13)

Regulation (EU) [2018/XXX] of the European Parliament and of the Council (10) establishes the ‘Customs’ programme for cooperation in the field of customs to support the customs union and customs authorities. In order to preserve the coherence and horizontal coordination of cooperation actions, it is appropriate to implement all of them under one single legal act and set of rules. Therefore, only the purchase, maintenance and upgrade of the eligible customs control equipment should be supported under this Instrument while the Customs programme for cooperation in the field of customs should support related actions, such as cooperation actions for the assessment of needs or training relating to the equipment concerned.

(13a)

Customs control equipment financed under this Instrument should meet optimal security, including cybersecurity, safety, environmental and health standards. [Am. 8]

(13b)

Data produced by customs control equipment financed under this Instrument should be accessed and processed only by duly authorised staff of the authorities, and should be adequately protected against unauthorised access or communication. Member States should be in full control of that data. [Am. 9]

(13c)

Customs control equipment financed under this Instrument should contribute to providing optimal customs risk management. [Am. 10]

(13d)

When replacing old customs control equipment by the means of this Instrument, Member States should be responsible for environment friendly disposal of old customs control equipment. [Am. 11]

(14)

In addition, and where appropriate, the Instrument should also support the purchase or upgrade of customs control equipment for testing new pieces or new functionalities in operational conditions before Member States start large-scale purchases of such new equipment. Testing in operational conditions should follow up in particular on the outcomes of research of customs control equipment in the framework of Regulation (EU) [2018/XXX] (11).

(15)

Most customs control equipment may be equally or incidentally fit for controls of compliance with other legislation, such as provisions on border management, visa or police cooperation. The Integrated Border Management Fund has therefore been conceived as two complementary instruments with distinct but coherent scopes for the purchase of equipment. On the one hand, the instrument for border management and visa established by Regulation [2018/XXX] (12) will exclude equipment that can be used for both border management and customs control. On the other hand, the instrument for financial support for customs control equipment established by this Regulation will not only support financially equipment with customs controls as the main purpose but will also allow its use as well for additional related purposes such as border controls , safety, and security. This distribution of roles will foster inter-agency cooperation as a component of the European integrated border management approach, as referred to in Article 4(e) of Regulation (EU) 2016/1624 (13), thereby enabling customs and border authorities to work together and maximising the impact of the Union budget through co-sharing and inter-operability of control equipment. To ensure that any instrument or equipment financed by the fund is in the permanent custody of the designated customs point that owns the equipment, the act of co-sharing and interoperability between customs and border authorities should be defined as being non-systematic and non-regular. [Am. 12]

(16)

By way of derogation from the Financial Regulation, funding of an action by several Union programmes or instruments should be possible in order to allow and support, where appropriate, cooperation and interoperability across domains. However, in such cases, the contributions may not cover the same costs in accordance with the principle of prohibition of double funding established by the Financial Regulation. If a Member State has already been awarded or has received contributions from another Union programme or support from a Union fund for the acquisition of the same equipment, that contribution or support should be listed in the application. [Am. 13]

(16a)

The Commission should incentivise joint procurement and testing of customs control equipment between Member States. [Am. 14]

(17)

In view of the rapid evolution of customs priorities, threats and technologies, work programmes should not span over long periods of time. At the same time, the need to establish annual work programmes increases the administrative burden for both the Commission and Member States without it being necessary for the implementation of the Instrument. Against that backdrop, work programmes should in principle cover more than one budgetary year. Moreover, to ensure that the integrity of the Union's strategic interests are preserved, Member States are encouraged to consider carefully cybersecurity and the risks to potential exposure of sensitive data outside the Union when tendering for new customs control equipment. [Am. 15]

(18)

In order to ensure uniform conditions for the implementation of the work programme under this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (14). [Am. 16]

(19)

Although central implementation is indispensable in order to achieve the specific objective of ensuring equivalent customs controls, given the technical nature of this Instrument, preparatory work is required at technical level. Therefore, implementation should be supported by individual assessments of needs that are dependent on national expertise and experience through the involvement of customs administrations of the Member States. Those assessments of needs should be based on a clear methodology including a minimum number of steps ensuring the collection of the required relevant information. [Am. 17]

(20)

To ensure regular monitoring and reporting, a proper framework for monitoring the results achieved by the Instrument and actions under it should be put in place. Such monitoring and reporting should be based on quantitative and qualitative indicators measuring the effects of the actions under the Instrument. Member States should ensure a transparent and clear procurement procedure. Reporting requirements should include some detailed information on customs control equipment and procurement procedure beyond a certain cost threshold , and a justification of the expenses . [Am. 18]

(21)

Pursuant to paragraph 22 and 23 of the Inter-institutional agreement for Better Law-Making of 13 April 2016 (15), there is a need to evaluate this Instrument on the basis of information collected through specific monitoring requirements, while avoiding overregulation and administrative burdens, in particular on Member States. These requirements, where appropriate, can include measurable indicators, as a basis for evaluating the effects of the Instrument on the ground.

(22)

In order to respond appropriately to evolving policy priorities, threats and technologies, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending this Regulation in order to lay down work programmes, amending the customs control purposes for actions eligible under the Instrument and the list of indicators to measure the achievement of the specific objectives. It is of particular importance that the Commission carries out appropriate and fully transparent consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. [Am. 19]

(23)

In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (16), Council Regulation (Euratom, EC) No2988/95 (17), Council Regulation (Euratom, EC) No 2185/96 (18) and Regulation (EU) 2017/1939 (19), the financial interests of the Union are to be protected through proportionate measures, including the prevention, detection, correction and investigation of irregularities and fraud, the recovery of funds lost, wrongly paid or incorrectly used and, where appropriate, the imposition of administrative sanctions. In particular, in accordance with Regulation (EU, Euratom) No 883/2013 and Regulation (Euratom, EC) No 2185/96, the European Anti-Fraud Office (OLAF) may carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other criminal offences affecting the financial interests of the Union. In accordance with Regulation (EU) 2017/1939, the European Public Prosecutor's Office (EPPO) may investigate and prosecute fraud and other illegal activities affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (20). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the Union’s financial interests, to grant the necessary rights and access to the Commission, OLAF, the EPPO and the European Court of Auditors and to ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(24)

Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 of the Treaty on the Functioning of the European Union apply to this Regulation. These rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes, indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also concern the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States, as the respect for the rule of law is an essential precondition for sound financial management and effective EU funding. Funding under this Instrument should respect the principles of transparency, proportionality, equal treatment and non-discrimination. [Am. 20]

(25)

The types of financing and the methods of implementation under this Regulation should be chosen on the basis of their ability to achieve the specific objective of the actions and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. This should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation. Improving the implementation and quality of spending should constitute guiding principles for the achievement of the objectives of the Instrument while ensuring optimal use of financial resources. [Am. 21]

(26)

Since the objective of this Regulation, which is to establish a Instrument that supports the customs union and customs authorities, cannot be sufficiently achieved by the Member States alone further to objective imbalances existing at geographical level amongst them, but can rather, by reason of the equivalent level and quality of custom control that a coordinated approach and a centralised funding will help providing, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,