Explanatory Memorandum to COM(2013)884 - Union legal framework for customs infringements and sanctions - Main contents
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| dossier | COM(2013)884 - Union legal framework for customs infringements and sanctions. |
|---|---|
| source | COM(2013)884  |
| date | 13-12-2013 |
Despite the fact that customs legislation is fully harmonised, its enforcement, which ensures compliance with the customs rules and the lawful imposition of sanctions, lies within the ambit of Member States' national law. Consequently, customs legislation enforcement follows 28 different sets of legal rules and different administrative or legal traditions. This means that Member States can impose sanctions that seem appropriate to them as penalties for infringements of certain obligations stemming from the harmonised Union customs legislation.
Such sanctions differ in nature and severity according to the Member State that is competent for it. Namely, they are of different types (e.g. fines, imprisonment, confiscation of goods, temporal or permanent disqualification from the practice of industrial or commercial activities), irrespective their nature, and even when assuming the same type and nature, like for instance a fine, have different levels/ranges from Member State to Member State.
An overview of the situation regarding Member States' customs infringements and sanctions systems took place through a Project Group established, on a voluntary basis, by the Commission with 24 Member States[1], under the Customs 2013 Program. This Project Group analysed the 24 national regimes for customs infringements and related sanctions and reported back to the Commission. Several substantial differences were noted:
Table 1 – Differences in Member States' customs sanctioning systems
The nature of national sanctions for customs infringements| 16 out of 24 Member States provide for both criminal and non-criminal sanctions. 8 out of 24 Member States only have criminal sanctions.
Financial thresholds to distinguish between criminal and non-criminal infringements and sanctions| Member States whose systems foresee both criminal and non-criminal infringements and sanctions have different financial thresholds to decide on the nature of the customs infringement – whether criminal or non-criminal- and therefore the nature of the customs sanction. Thus the financial thresholds vary between 266 EUR and 50 000 EUR.
Member States' requirements to establish the economic operator's liability for the customs infringement| 11 out of 24 Member States consider that an economic operator is liable for certain customs infringements whenever there is a customs law breach, irrespective of the presence of intent, negligence or elements of careless or reckless behaviour (strict liability infringements). 13 out of 24 Member States cannot sanction an economic operator for a customs infringement without the presence of intent, negligence or elements of careless or reckless behaviour.
Time limits: -to initiate a customs sanction procedure -to impose a customs sanction -to execute the customs sanction| The large majority of Member States have time limits to initiate a sanction procedure, to impose a customs sanction and to execute it. These time limits vary from 1 to 30 years. 1 out of 24 Member States does not employ any time limit at all – it can initiate the sanction procedure or impose a sanction at any time.
Legal Persons' liability| An economic operator who is a legal person can be held liable for a customs infringement in 15 out of 24 Member States. In 9 out of 24 Member States legal persons cannot be held liable for infringements.
Settlement| Settlement refers to any procedure within the legal or administrative system of a Member State that allows the authorities to agree with an offender to settle the matter of a customs infringement as an alternative to initiating or completing customs sanction procedures. 15 out of 24 Member States have this procedure for customs infringements.
(Source: Report from the Project Group on Customs Penalties – Annex 1B of Impact Assessment for a legislative act laying down a Union legal framework on customs infringements and sanctions)
These differences in infringements to the customs legislation and sanctions have implications at several levels:
- from an international point of view, the different sanctioning systems existing in the Member States raise some concerns in certain WTO Member States regarding the compliance of the European Union with its international obligations in this field;
- within the European Union, the different enforcement of customs legislation makes the effective management of the customs union harder, as the same non-compliant behaviour may be treated in very different ways in each Member State as the previous table shows;
- for the economic operators, the differences in the treatment of infringements of Union customs legislation have an impact on the level playing field which should be inherent to the Internal Market, thus providing an advantage for those who breach the law in a Member State with lenient legislation for customs sanctions. This situation also has an impact on the access to customs simplifications and facilitations or to the process of being granted the AEO status as the criterion referring to compliance with customs legislation and the absence of serious infringements as a condition for obtaining the AEO status, is interpreted in a different way by national legislations.
In order to tackle those problems, the proposal sets a common legal framework for the treatment of customs infringements and sanctions, bridging the gap between different legal regimes through a common platform of rules and thus contributing to an equal treatment between economic operators in the EU, as well as the effective protection of the Union's financial interests and law enforcement in the field of customs.
Customs legislation referring to the trade in goods between the customs territory of the Union and third countries is completely harmonised and has been assembled in a Community Customs Code (CCC)[2] since 1992. A major overhaul of this Code was carried out in Regulation (EC) No 450/2008 of the European Parliament and of the Council of April 2008 laying down the Community Customs Code (Modernised Customs Code or MCC)[3], now recast and repealed by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (UCC) i, aiming at the adaptation of customs legislation to the electronic environment of customs and trade, to promote further the harmonisation and uniform application of customs legislation, and to provide Union economic operators with the appropriate tools for developing their activities in a global business environment.
This harmonised customs legislation needs to be strengthened with common rules regarding its enforcement. The need to take some steps in this direction has already been pointed out by the European Parliament in two reports[5], one from 2008 and another from 2011, calling for harmonisation in this field.
All this efforts are supported on the general obligation foreseen by the Treaty[6] for Member States to 'take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union'. This obligation includes sanctions, without differentiating between those of a criminal and non- criminal nature.
More specifically the Modernised Customs Code and the Union Customs Code include for the first time a provision[7] concerning administrative customs penalties.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- 1.1. General context
- 1.2. Legal context
- 2.1. Consultation with interested parties
- 2.2. Impact Assessment
- 3.1. The legal basis
- 3.2. Subsidiarity, proportionality and the respect for fundamental rights
- 3.3. Choice of instruments
- 3.4. Specific provisions
- 5. EXPLANATORY DOCUMENTS
Four consultation tools were used, none of them being public consultations (given the specific and technical nature of customs infringements and sanctions), and, following the request of the stakeholders, with a confidential treatment of the responses.
– A questionnaire was addressed to the customs administrations of Member States concerning their national customs infringements and penalties systems and answers from 24 Member States were collected as has been previously stated in this memorandum. The comparison of the data gathered showed the relevant differences among the customs sanctioning systems of the Member States.
– A High Level Seminar on Compliance and Compliance Risk Management with the participation of customs administrations from all Member States and Candidate Countries and representatives of economic operators was held in Copenhagen on 20-21 March 2012, where the issue of customs offences and penalties was acknowledged as an element of a 'compliance' scheme, and an issue to be further explored.
– A first stakeholder consultation with DG TAXUD's consultative body on customs issues (the Trade Contact Group (TCG)) was carried out. The TCG includes Union-level representatives of 45 European trade associations, including SMEs, involved in customs related activities. As a response to this consultation, the majority of the associations present at the meeting expressed their overall agreement on the relevance of DG TAXUD's initiative for their business activities.
– A second stakeholder consultation was carried out through another questionnaire, and was sent to SMEs through the Enterprise Europe Network, concerning the effects that the different infringements and sanctions systems in force in different Member States in the area of customs legislation have on the commercial activity of companies dealing with import/export activities.
The Commission conducted an impact assessment of policy alternatives (available at:…). Four policy options were analysed: A – baseline scenario; B – a modification of the legislation within the Union legal framework in force; C – a legislative measure on the approximation of the types of customs infringements and non-criminal sanctions and D – two separate legislative measures aiming at approximation of customs infringements and non-criminal sanctions on the one hand and criminal customs infringements and sanctions on the other hand.
After considering the possible options, the impact assessment concludes that a legislative measure that would identify customs obligations to which special protection should be given through the establishment of non-criminal sanctions for any breaches of them (option C), is to be preferred.
The resubmission of the impact assessment received a positive opinion of the Impact Assessment Board on 14 June 2013.
The proposal is based on Article 33 of the Treaty on the Functioning of the European Union (TFEU).
Article 33 TFEU states that customs cooperation between Member States and between the latter and the Commission should be strengthened within the scope of the application of the Treaties.
According to the Code, a decision taken by a Member State is applied in all other Member States and therefore requires consultation between the authorities to enhance its uniform application.
Likewise the introduction of certain facilitations and simplifications in the Union customs legislation and the AEOs access to them, is a strong reason to further strengthen the cooperation between Member States. In particular the assessment of the criteria required to be granted the AEO status and in particular the criterion related to the absence of any serious infringement or repeated infringement by the AEO requires comparable sanctioning systems throughout the EU in order to ensure a level playing field between economic operators.
Therefore the approximation of customs infringements and sanctions shall not only require customs cooperation between Member States but also shall contribute to the correct and uniform application and enforcement of the Union customs legislation.
The approximation of customs infringements and non-criminal sanctions shall be seen as integral part of secondary law that the Union may adopt with a view to strengthening the cooperation between the customs authorities of the Member States and between the Member States and the Commission in its role of implementing the legislation of the customs union, being an area of Union exclusive competence. Union action in that area does not therefore deserve being assessed with regard to the principle of subsidiarity laid down in Article 5(3) of the Treaty on European Union.
However, even if subsidiarity would have to be considered, although in the specific case we are in a fully harmonised policy area (customs union) with fully harmonised rules, whose effective implementation determines the very existence of the customs union, only the Union is in a position to meet the objectives of this directive also because of the fact of the important disparity in national legislations.
In accordance with the principle of proportionality, as set out in Article 5 i of the Treaty on European Union, this proposal does not go beyond what is necessary to achieve that objective. The content of this proposal is in line with the requirements enshrined in the European Charter of Fundamental Rights. Particularly, certain provisions under the chapter of procedural rules have been inserted in line with the principle of the right to good administration and fair trial, but also in the light of the principle ne bis in idem.
This proposal for an approximation of national laws in the area of customs cooperation in the Union, will take the form of a Directive which Member States will have to transpose in their national legislation.
The proposal addresses infringements linked to the obligations stemming from the Union Customs Code. To do so, it includes a common list of different infringements (strict liability, committed with negligence and committed with intent) breaching the rules of the Union Customs Code and as such encompasses all possible situations that persons may face in that respect when dealing with customs authorities. The proposal considers as infringement not only the complete performance of the behaviours listed in the proposal but also its intentional attempt.
In parallel to those conducts, this proposal also establishes a common scale of effective proportionate and dissuasive sanctions linked to the infringements and relevant circumstances that should be taken into account by the competent authorities from Member States when determining the type and level of sanctions for customs infringements which contribute to the adaptation of the sanction to the specific situation. The combination of the scale of the sanctions along with the relevant circumstances permits to establish several levels of severity in order to respect the principle of proportionality of the sanctions. Moreover, the proposal defines certain cases where a behaviour falling in the categories defined as strict liability infringements by this proposal shall not be considered as such when they are due to an error on the part of the competent customs authorities.
The proposal refers to the liability of persons playing a relevant role in the commission of customs infringements with intent, stating an equivalent treatment to that of the persons committing the infringement to those inciting, aiding or abetting these infringements. It refers, as well, to the liability of legal persons, as customs infringements can also result from conducts attributable to legal persons.
Finally the proposal includes some necessary procedural provisions in order to avoid overlap of sanctions for the same facts and persons. In particular it concerns the time limit within the competent authorities must initiate the procedure against the person responsible of the infringement, the possibility of suspending the sanctioning proceeding in those cases where criminal proceedings are being carried out with regard to the same facts and the territorial competence by defining which Member State is considered competent to deal with the case when the infringement involves more than one Member State.
The implementation of those articles in the national legislation of Member States will ensure a homogeneous treatment of economic operators regardless the Member State where they fulfil their customs formalities and commercial operations. It will also ensure the compliance with the international obligations stemming from the Kyoto Convention.
The proposal will not have an impact on human resources and on the European Union budget and is therefore not accompanied by the financial statement foreseen under Article 31 of the Financial Regulation (Regulation (EC, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002).
This proposal has no budgetary implications for the Union.
It is important for the Commission to ensure the correct transposition of the Directive to national legislation. In order to achieve this and given the different structure of the national legal orders, Member States should communicate the exact reference to the national provisions and how it transposes each specific provision of the Directive. This does not go beyond what is necessary for the Commission to ensure that the Directive's main aim, an effective implementation and enforcement of Union customs legislation in the customs union, is achieved.