COD1998/134: Community customs code (amend. regul. 2913/92/EEC)
*note: Council Common Position is approved by EP 2nd Reading and Final Act. Thus, I won’t repeat the positions of EP 2nd Reading and Final Act below.
#^1. Recital 1 in Common Position (not important)
Council Common Position mostly adopted Original Proposal with slight wording changes.
ORIGINAL PROPOSAL:
Whereas Article 253 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as last amended by Regulation (EC) No 82/97 of the European Parliament and of the Council (2), provides that, before 1 January 1998, the Council shall, on the basis of a Commission report, review the Code with a view to making such adaptations as may appear necessary taking into account in particular the achievement of the internal market, and that the report may be accompanied by proposals;
COUNCIL COMMON POSITION:
Article 253(4) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing theCommunity Customs Code 1, provides that, before 1 January 1998, the Council is, on the basis of a Commission report, which may be accompanied by proposals, to review the Code with a view to making such adaptations as may appear necessary, taking into account in particular the achievement of the internal market.
#^2. Recital 2 in Original Proposal (Not important)
ORIGINAL PROPOSAL:
Whereas the partitioning of the internal market due to the reservation of the direct form of customs representation for particular groups established in the Member State concerned has to be brought to an end; whereas it is appropriate to delay the application of this amendment until 1 January 2002, in order to allow the economic circles to adapt to the new situation;
COUNCIL COMMON POSITION:
Deleted
#^3. Recital 2(new) in Common Position (IMPORTANT)
COUNCIL COMMON POSITION:
Every revision of the Code must, without instituting any barriers to international trade, be regarded as an opportunity to introduce instruments and procedures to prevent fraud, the prevention of fraud being one of the best ways of saving taxpayers' money as underlined in the Council's conclusions of 19 May 1998.
1
GREEN / GREEN
#^4. Recital 3(new) in Common Position (Not important)
COUNCIL COMMON POSITION:
Account should be taken of the Council Resolution of 25 October 1996 on the simplification and rationalisation of the Community's customs regulations and procedures
#^5. Recital 4 in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Whereas it is necessary to define more clearly who is responsible for assigning a customs-approved treatment or use to goods presented to customs;
COUNCIL COMMON POSITION:
Deleted
RED / RED
#^6. Recital 5 in Common Position (important)
ORIGINAL PROPOSAL:
Whereas provision should be made for the possibility that customs declarations may not have to be accompanied by certain documents;
COUNCIL COMMON POSITION:
Provision should be made for the possibility of customs declarations lodged by means of a data-processing technique not being accompanied by certain documents.
GREEN / GREEN
#^7. Recital 7 in Common Position (not important)
ORIGINAL PROPOSAL:
Whereas it is preferableto use the committee procedure to establish certain alternative methods of calculating the charges due under the outward processing arrangements;
COUNCIL COMMON POSITION:
It is appropriate to make provision, in accordance with the committee procedure, for additional cases in which charges due under outward processing arrangements are calculated taking the cost of processing operations as a basis.
#^8. Recital 8 in Common Position (IMPORTANT)
ORIGINAL PROPOSAL:
Whereas in some free zones, where there are economic reasons for doing so, it is appropriate to permit completion of the formalities attaching to the customs warehousing procedure, and the carrying out of customs checks by the customs authorities;
COUNCIL COMMON POSITION:
In some free zones it may be appropriate to permit completion of the formalities attaching to the customs warehousing procedure and the carrying out of customs checks by the customs authorities according to that procedure.
RED / WHITE
#^9. Recital 10 in Common Position (important)
ORIGINAL PROPOSAL:
Whereas the provisions relating to the place where a customs debt is incurred should include special rules for particular cases where the sum involved is below a given threshold and cases where simplified procedures for release into free circulation are authorised; whereas the implementing provisions should be established in accordance with the committee procedure, taking into account in particular the possible dissociation of the place where the customs debt is incurred and the place where VAT on importation is incurred;
COUNCIL COMMON POSITION:
The provisions relating to the place where a customs debt is incurred should include special rules for particular cases where the sum involved is below a given threshold.
RED / RED
#^10. Recital 11 in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Whereas in some cases it is not immediately possible to calculate the exact amount legally due, with the result that the prescribed three-year limit could lead to faiture of a post-clearance recovery action; whereas in such circumstances the sum probably due should be entered in the accounts in good time; whereas the party concerned should not in any circumstances remain in uncertainty for more than five years in total;
COUNCIL COMMON POSITION:
Deleted.
RED / RED
#^11. Recital 11(new) in Common Position (important)
COUNCIL COMMON POSITION:
It is necessary, for the particular case of preferential arrangements, to define the concepts of error by the customs authorities and of the good faith of the person liable for payment. The person liable for payment should not be held responsible for a malfunction of the system due to an error made by the authorities of a third country. The issue of an incorrect certificate by such authorities should not, however, be considered an error if the certificate is based on an application which contains incorrect information. The incorrect nature of the information provided by the exporter in his application must be assessed on the basis of all the factual elements which are contained in that application. The person liable for payment can plead his good faith where he can demonstrate that he has taken due care, except when a notice stating that there are grounds for doubt has been published in the Official Journal of the European Communities.
GREEN / GREEN
#^12. Recital 12 in Common Position (NOT IMPORTANT)
ORIGINAL PROPOSAL (Recital 13):
Whereas the Community's financial interests must be protected against unduly lengthy legal proceedings, and against the total invalidation of a communication where part of the debt is time-barred;
COUNCIL COMMON POSITION:
The Community's financial interests and the rights of the person liable for payment should be protected against unduly lengthy legal proceedings.
#^13. Recital 14(new) in Common Position (not important)
COUNCIL COMMON POSITION:
The measures necessary for the implementation of Regulation (EEC) No 2913/92 should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.
#^14. Article 1(1)(new) in Common Position (not important)
COUNCIL COMMON POSITION:
In Article 4, point 24 shall be replaced by the following:
"24) Committee procedure means either the procedure referred to in Articles 247 and 247a, or in Articles 248 and 248a".
#15. Article 1(1) in Original Proposal (important)
ORIGINAL PROPOSAL:
Article 5(2), second subparagraph (Regulation (EEC) No 2913/92)
1. The second subparagraph of Article 5(2) is replaced by the following:
‘Member States may reserve the right, on their territory, to make customs declarations by indirect representation to customs agents.
Implementing provisions may be laid down in accordancewith the Committee procedure, in particular to ensureequitable conditions of access to the two types of representation.’
COUNCIL COMMON POSITION:
Deleted from Original Proposal and same as EP 1st reading
RED / RED
#16. Article 1(1a) (new) in EP 1ST Reading (IMPORTANT)
EP 1ST READING:
Article 13 (Regulation (EEC) No 2913/92)
1a. Article 13 is replaced by the following:
‘Article 13
The customs authorities shall adopt, under the terms laid down by the provisions in force, the control measures which they consider necessary for the correct application of Community customs rules and procedures. They shall also introduce effective control measures which shall guarantee uniform application of those rules and facilitate the fight against fraud.
COUNCIL COMMON POSITION:
NOT ADOPTED
NO CHANGE / WHITE
#^17. Article 1(3) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
In Article 49(1), the introductory phrase is replaced by the following:
'1. Where goods are covered by a summary declaration, the person who is the holder of the goods shall complete the formalities necessary for them to be assigned a customs-approved treatment or use within:`
COMMON POSITION:
DELETED
RED / RED
#18. Article 1(4) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 62(3) (Regulation (EEC) No 2913/92)
4. The following paragraph is added to Article 62:
‘3. Exceptions to the requirement established in paragraph 2 may be laid down in accordance with the committee procedure, in particular where the declaration is made electronically.
However, the right of access without prior warning of the national authorities or, where appropriate, of Community authorities, together with the obligation on the part of the operator to keep the proof for a minimum period shall be guaranteed. Implementing measures shall also be defined in accordance with the committee procedure.’
COMMON POSITION:
DELETED FROM ORIGINAL PROPOSAL AND SAME AS EP 1ST READING
RED / RED
#19. Article 1(4a) (new) in EP 1st Reading (IMPORTANT)
COMMON POSITION (Article 1(3)):
In Article 77, the current text becomes paragraph 1 and the following paragraph shall be added:
"2. Where the customs declaration is made by means of a data-processing technique, the customs authorities may allow accompanying documents referred to in Article 62(2) not to be lodged with the declaration. In this case the documents shall be kept at the customs authorities' disposal."
RED / GREEN
#20. Article 1(5) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 115(4) (Regulation (EEC) No 2913/92
5. Article 115(4) is replaced by the following:
‘4. Specific provisions for the application of paragraph 1 may be adopted in accordance with the committee procedure.’
COMMON POSITION (Article 1(4)):
Article 115(4) shall be replaced by the following:
"4. Measures aimed at prohibiting, imposing certain conditions for or facilitating recourse to paragraph 1 may be adopted in accordance with the committee procedure."
SAME AS MODIFIED COMMISSION PROPOSAL
HARD TO TELL / GREEN
#21. Article 1(6) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 117(c) (Regulation (EEC) No 2913/92
6. The following sentence is added to Article 117(c):
‘The cases in which the economic conditions are deemed to have been fulfilled may be determined in accordance with the committee procedure.’
COMMON POSITION (Article 1(5)):
Same as Original Proposal
NO CHANGE / WHITE
#22. Article 1(7) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 118(4) (Regulation (EEC) No 2913/92
7. Article 118(4) is replaced by the following:
‘4. Specific time limits may be laid down in accordance with the committee procedure.’
COMMON POSITION:
‘4. Specific time limits may be laid down in accordance with thecommittee procedure for certain processing operations or for certainimport goods.’
RED / RED
#^23. Article 1(6) in Common Position (IMPORTANT)
ORIGINAL PROPOSAL (Article 1(8)):
8. Article 124 is replaced by the following:
'Article 124
1. The drawback system may be used for all goods, with the exception of those which, at the time when they are declared for free circulation, are subject to quantitative import restrictions or to presentation of an import or export certificate.
2. The drawback system may be used only if no export refund has been set for the compensating products at the time the declaration for release for free circulation of the import goods is accepted.
3. Permission to use the drawback system may be granted only if, at the time when the export declaration for the compensating products is accepted, no export refund or tax has been set for the compensating products.
4. Derogations from paragraphs 1, 2 and 3 may be laid down in accordance with the committee procedure.`
COMMON POSITION (Article 1(6)):
Article 124 shall be replaced by the following:
"Article 124
1. The drawback system may be used for all goods. It shall not, however, be usable where, at the time the declaration of release for free circulation is accepted:
– the import goods are subject to quantitative import restrictions,
–a tariff measure within quotas is applied to the import goods,
– the import goods are subject to presentation of an import or export licence or certificate in the framework of the common agricultural policy, or
– an export refund or tax has been set for the compensating products.
2. Moreover, no reimbursement of import duties under the drawback system shall be possible if, at the time the export declaration for the compensating products is accepted, these products are subject to presentation of an import or export licence or certificate in the framework of the common agricultural policy or an export refund or tax has been set for them.
3. Derogations from paragraphs 1 and 2 may be laid down in accordance with the committee procedure."
GREEN / BLUE
#^24. Article 1(9) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
The second indent of Article 128(1) is replaced by the following:
'- placed, with a view to being subsequently re-exported, under the customs warehousing procedure, the temporary importation procedure or the inward-processing procedure (suspensive arrangement), or in a free zone or free warehouse.`
COMMON POSITION:
Deleted
RED / RED
#25. Article 1(11) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 133(e) (Regulation (EEC) No 2913/92)
11. In point (e) of Article 133, the following sentence is added:
‘The cases in which the economic conditions are deemed to have been fulfilled may be determined in accordance with the committee procedure.’
COMMON POSITION (Article 1(8)):
SAME AS ORIGINAL PROPOSAL
NO CHANGE / WHITE
#^26. Article 1(13) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
13. Article 144 is replaced by the following:
'Article 144
Where a customs debt is incurred under Article 201(1)(a), or under Articles 203 or 204, for goods placed under the temporary importation procedure with partial relief from import duties, the amount of that debt shall be equal to the difference between the amount of duties calculated pursuant to Article 214 and that payable pursuant to Article 143.`
COMMON POSITION:
DELETED
RED / RED
#27. Article 1(14) in Original Proposal (important)
ORIGINAL PROPOSAL:
Article 152 (Regulation (EEC) No 2913/92)
14. Article 152 is replaced by the following:
‘Article 152
By way of derogation from Article 151, the committee procedure may be used to determine the cases in which, and the specific conditions upon which, goods may be released for free circulation following an outward processing operation either with total relief from import duties, or by taking the cost of the processing operation as the basis for assessment for the purpose of applying the customs tariff of the European Communities.’
COMMON POSITION (Article 1(10)):
The following paragraph shall be added to Article 153:
"By way of derogation from Article 151, the committee procedure may be used to determine the cases in and specific conditions upon which goods may be released for free circulation following an outward processing operation, with the cost of the processing operation being taken as the basis for assessment for the purpose of applying the Customs Tariff of the European Communities."
GREEN / GREEN
#^28. Article 1(16) in Original Proposal (NOT IMPORTANT)
ORIGINAL PROPOSAL:
16. Article 167 is amended as follows:
(a) in paragraphs 1, 2 and 3, the term 'Member States` is replaced by the term 'the customs authorities`;
(b) the first sentence of paragraph 3 is replaced by the following:
'3. Without prejudice to Article 168a, free zones shall be enclosed.`
COMMON POSITION (Article 1(11)):
Article 167(3) shall be replaced by the following:
"3. Free zones with the exception of those designated in accordance with Article 168a, shall be enclosed. The Member States shall define the entry and exit points of each free zone or free warehouse."
#^29. Article 1(17) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
Article 168(1) is replaced by the following:
'1. The perimeter and the entry and exit points of free zones, where they are enclosed, and of free warehouses shall be subject to supervision by the customs authorities.`
COMMON POSITION (Article 1(12)):
Article 168(1) shall be replaced by the following:
"1. The perimeter and the entry and exit points of free zones, except the free zones designated in accordance with Article 168a, and of free warehouses shall be subject to supervision by the customs authorities."
RED / GREEN
#^30. Article 1(18) in Original Proposal (IMPORTANT)
ORIGINAL PROPOSAL:
The following Article is inserted between Article 168 and heading B ('Placing of goods in free zones or free warehouses`):
'Article 168a
1. The customs authorities may designate free zones where customs checks and formalities shall be carried out, and in which the provisions concerning customs debt shall apply, in accordance with the requirements of the customs warehousing procedure.
Articles 170, 176 and 180 shall not apply to the free zones thereby designated.
2. The free zones designated in accordance with paragraph 1 shall not be regarded as free zones within the meaning of Articles 37, 38 and 205.
References to free zones in other sections of the legislation shall not be taken to refer to the free zones governed by this Article.`
COMMON POSITION (Article 1(13)):
The following Article shall be inserted between Article 168 and heading B ("Placing of goodsin free zones or free warehouses"):
"Article 168a
1. The customs authorities may designate free zones in which customs checks and formalities shall be carried out and the provisions concerning customs debt applied in accordance with the requirements of the customs warehousing procedure.
Articles 170, 176 and 180 shall not apply to the free zones thus designated.
2. References to free zones in Articles 37, 38 and 205 shall not apply to free zones referred to in paragraph 1."
RED / WHITE
#^31. Article 1(19) in Original Proposal (important)
ORIGINAL PROPOSAL:
Article 212a is replaced by the following:
'Article 212 a
Where customs legislation provides for favourable tariff treatment for goods by reason of their nature or end-use, or providesexemption or total or partial relief from import or export duties pursuant to Articles 21, 145 or 184 to 187, such exemption or relief shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211, on condition that the behaviour of the declarant involves neither fraudulent dealing nor obvious negligence and the produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.`