CHAPTER 1 — Incurrence of a customs debt
Subsection 1 — Rules for calculation of the amount of import or export duty
Calculation of the amount of import duty on processed products resulting from inward processing
1. In order to determine the amount of import duty to be charged on processed products in accordance with Article 86(3) of the Code, the quantity of the goods placed under the inward processing procedure considered to be present in the processed products for which a customs debt is incurred shall be determined in accordance with paragraphs 2 to 6.
2. The quantitative scale method laid down in paragraphs 3 and 4 shall be applied in the following cases:
(a)
where only one kind of processed products is derived from the processing operations;
(b)
where different kinds of processed products are derived from the processing operations and all constituents or components of the goods placed under the procedure are found in each of those processed products.
3. In the case referred to in paragraph 2(a), the quantity of the goods placed under the inward processing procedure considered to be present in the processed products for which a customs debt is incurred shall be determined by applying the percentage which the processed products for which a customs debt is incurred constitute of the total quantity of the processed products resulting from the processing operation, to the total quantity of the goods placed under the inward processing procedure.
4. In the case referred to in paragraph 2(b), the quantity of the goods placed under the inward processing procedure considered to be present in the processed products for which a customs debt is incurred shall be determined by applying, to the total quantity of the goods placed under the inward processing procedure, a percentage calculated by multiplying the following factors:
(a)
the percentage which the processed products for which a customs debt is incurred constitute of the total quantity of the processed products of the same kind resulting from the processing operation;
(b)
the percentage which the total quantity of the processed products of the same kind, irrespective of whether a customs debt is incurred, constitutes of the total quantity of all processed products resulting from the processing operation.
5. Quantities of goods placed under the procedure which are destroyed and lost during the processing operation, in particular by evaporation, desiccation, sublimation or leakage, shall not be taken into account in the application of the quantitative scale method.
6. In cases other than those referred to in paragraph 2, the value scale method shall apply in accordance with the second, third and fourth subparagraphs.
The quantity of the goods placed under the inward processing procedure considered to be present in processed products for which a customs debt is incurred shall be determined by applying, to the total quantity of the goods placed under the inward processing procedure, a percentage calculated by multiplying the following factors:
(a)
the percentage which the processed products for which a customs debt is incurred constitute of the total value of the processed products of the same kind resulting from the processing operation;
(b)
the percentage which the total value of the processed products of the same kind, irrespective of whether a customs debt is incurred, constitute of the total value of all processed products resulting from the processing operation.
For the purposes of applying the value scale method, the value of the processed products shall be established on the basis of current ex-works prices in the customs territory of the Union or, where such ex-works prices cannot be determined, the current selling prices in the customs territory of the Union for identical or similar products. Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be used for the determination of the value of the processed products unless it is determined that the prices are unaffected by the relationship.
Where the value of the processed products cannot be determined pursuant to the third subparagraph, it shall be determined by any reasonable method.
Application of the provisions on end-use procedure to processed products resulting from inward processing
1. For the purposes of the application of Article 86(3) of the Code, when determining the amount of import duty corresponding to the customs debt on processed products resulting from the inward processing procedure, the goods placed under that procedure shall benefit from a duty exemption or a reduced rate of duty on account of their specific use, which would have been applied to those goods if they had been placed under the end-use procedure in accordance with Article 254 of the Code.
2. Paragraph 1 shall apply where the following conditions are fulfilled:
(a)
an authorisation to place the goods under the end-use procedure could have been issued, and
(b)
the conditions for the duty exemption or the reduced rate of duty on account of specific use of those goods would have been fulfilled at the time of acceptance of the customs declaration for placing goods under the inward processing procedure.
Application of the preferential tariff treatment to goods placed under inward processing
For the purposes of the application of Article 86(3) of the Code, where, at the time of the acceptance of the customs declaration for placing goods under the inward processing procedure the imported goods fulfil the conditions to qualify for preferential tariff treatment within tariff quotas or ceilings, those goods shall be eligible for any preferential tariff treatment provided for in respect of identical goods at the time of acceptance of the declaration of release for free circulation.
Specific import duty on processed products resulting from outward processing or replacement products
Where a specific import duty is to be applied in relation to processed products resulting from the outward processing procedure or replacement products, the amount of the import duty shall be calculated on the basis of the customs value of the processed products at the time of acceptance of the customs declaration for release for free circulation minus the statistical value of the corresponding temporary export goods at the time when they were placed under outward processing, multiplied by the amount of import duty applicable to the processed products or replacement products, divided by the customs value of the processed products or replacement products.
Derogation for the calculation of the amount of import duty on processed products resulting from inward processing
Article 86(3) of the Code shall apply without a request from the declarant where all of the following conditions are fulfilled:
(a)
the processed products resulting from the inward processing procedure are imported directly or indirectly by the relevant holder of the authorisation within a period of one year after their re-export;
(b)
the goods would, at the time of the acceptance of the customs declaration for placing the goods under the inward -processing procedure, have been subject to a commercial or an agricultural policy measure or an anti-dumping duty, countervailing duty, safeguard duty or retaliation duty had they been released for free circulation at that time;
(c)
no examination of the economic conditions was required in accordance with Article 166.
Subsection 2 — Time-limit for establishing the place where the customs debt is incurred
Time-limit for establishing the place where the customs debt is incurred under Union transit
For goods placed under the Union transit procedure, the time-limit referred to in Article 87(2) of the Code shall be either of the following:
(a)
seven months from the latest date on which the goods should have been presented at the customs office of destination, unless before the expiry of that time limit a request to transfer the recovery of the customs debt was sent to the authority responsible for the place where, according to the evidence obtained by the customs authority of the Member State of departure, the events from which the customs debt arises occurred, in which case that time-limit is extended by a maximum of one month;
(b)
one month from the expiry of the time-limit for the reply by the holder of the procedure to a request for the information needed to discharge the procedure, where the customs authority of the Member State of departure has not been notified of the arrival of the goods and the holder of the procedure has provided insufficient or no information.
Time-limit for establishing the place where the customs debt is incurred under transit in accordance with the TIR Convention
For goods placed under transit in accordance with the Customs Convention on the international transport of goods under cover of TIR carnets, including any subsequent amendments (TIR Convention), the time-limit referred to in Article 87(2) of the Code shall be seven months from the latest date on which the goods should have been presented at the customs office of destination or exit.
Time-limit for establishing the place where the customs debt is incurred under transit in accordance with the ATA Convention or the Istanbul Convention
For goods placed under transit in accordance with the Customs Convention on the ATA Carnet for the Temporary Admission of Goods done at Brussels on 6 December 1961, including any subsequent amendments (ATA Convention) or with the Convention on Temporary Admission, including any subsequent amendments (Istanbul Convention) the time-limit referred to in Article 87(2) of the Code shall be seven months from the date on which the goods should have been presented at the customs office of destination.
Time-limit for establishing the place where the customs debt is incurred in cases other than transit
For goods placed under a special procedure other than transit or for goods which are in temporary storage, the time-limit referred to in Article 87(2) of the Code shall be seven months from the expiry of any of the following periods:
(a)
the prescribed period for discharge of the special procedure;
(b)
the prescribed period for ending the customs supervision of end-use goods;
(c)
the prescribed period for ending the temporary storage;
(d)
the prescribed period for ending the movement of goods placed under the warehousing procedure between different places in the customs territory of the Union where the procedure was not discharged.
CHAPTER 2 — Guarantee for a potential or existing customs debt
Section 1 — General provisions
Cases where no guarantee shall be required for goods placed under the temporary admission procedure
The placing of goods under the temporary admission procedure shall not be subject to the provision of a guarantee in the following cases:
(a)
where the customs declaration may be made orally or by any other act as referred to in Article 141;
(b)
in the case of materials used in international traffic by airlines, shipping or railway companies or providers of postal services provided that those materials are distinctively marked;
(c)
in the case of packings imported empty, provided that they carry indelible non-removable markings;
(d)
where the previous holder of the authorisation for temporary admission has declared the goods for the temporary admission procedure in accordance with Article 136 or Article 139 and those goods are subsequently placed under temporary admission for the same purpose.
Guarantee in the form of an undertaking by a guarantor
1. Where the guarantee is provided in the form of an undertaking by a guarantor and may be used in more than one Member State, the guarantor shall indicate an address for service or appoint an agent in each Member State in which the guarantee may be used.
2. The revocation of the approval of the guarantor or of the undertaking of the guarantor shall take effect on the 16th day following the date on which the decision on the revocation is received or is deemed to have been received by the guarantor.
3. The cancellation of the undertaking by the guarantor shall take effect on the 16th day following the date on which the cancellation is notified by the guarantor to the customs office where the guarantee was provided.
4. Where a guarantee covering a single operation (individual guarantee) is provided in the form of vouchers, it may be made using means other than electronic data processing techniques.
Forms of guarantee other than a cash deposit or an undertaking given by a guarantor
1. The forms of guarantee other than a cash deposit or an undertaking given by a guarantor shall be the following:
(a)
the creation of a mortgage, a charge on land, an antichresis or other right deemed equivalent to a right pertaining to immovable property;
(b)
the cession of a claim, the pledging, with or without surrendering possession, of goods, securities or claims or a savings bank book or entry in the national debt register;
(c)
the assumption of joint contractual liability for the full amount of the debt by a third party approved for that purpose by the customs authorities or the lodging of a bill of exchange the payment of which is guaranteed by such third party;
(d)
a cash deposit or means of payment deemed equivalent thereto other than in euro or the currency of the Member State in which the guarantee is required;
(e)
participation, subject to payment of a contribution, in a general guarantee scheme administered by the customs authorities.
2. The forms of guarantee referred to in paragraph 1 shall not be accepted for the placing of goods under the Union transit procedure.
3. The Member States shall accept the forms of guarantee referred to in paragraph 1 in so far as those forms of guarantee are accepted under national law.
Section 2 — Comprehensive guarantee and guarantee waiver
Reduction of the level of the comprehensive guarantee and guarantee waiver
1. An authorisation to use a comprehensive guarantee with an amount reduced to 50 % of the reference amount shall be granted where the applicant demonstrates that he fulfils the following conditions:
(a)
the applicant maintains an accounting system which is consistent with the generally accepted accounting principles applied in the Member State where the accounts are held, allows audit-based customs control and maintains a historical record of data that provides an audit trail from the moment the data enters the file;
(b)
the applicant has an administrative organisation which corresponds to the type and size of business and which is suitable for the management of the flow of goods, and has internal controls capable of preventing, detecting and correcting errors and of preventing and detecting illegal or irregular transactions;
(c)
the applicant is not subject to bankruptcy proceedings;
(d)
during the last three years preceding the submission of the application, the applicant has fulfilled his financial obligations regarding payments of customs duties and all other duties, taxes or charges which are collected on or in connection with the import or export of goods;
(e)
the applicant demonstrates on the basis of the records and information available for the last three years preceding the submission of the application that he has sufficient financial standing to meet his obligations and fulfil his commitments having regard to the type and volume of the business activity, including having no negative net assets, unless where they can be covered;
(f)
the applicant can demonstrate having sufficient financial resources to meet his obligations, for the part of the reference amount not covered by the guarantee.
2. An authorisation to use a comprehensive guarantee with an amount reduced to 30 % of the reference amount shall be granted where the applicant demonstrates that he fulfils the following conditions:
(a)
the applicant maintains an accounting system which is consistent with the generally accepted accounting principles applied in the Member State where the accounts are held, allows audit-based customs control and maintains a historical record of data that provides an audit trail from the moment the data enters the file;
(b)
the applicant has an administrative organisation which corresponds to the type and size of business and which is suitable for the management of the flow of goods, and has internal controls capable of preventing, detecting and correcting errors and of preventing and detecting illegal or irregular transactions;
(c)
the applicant ensures that relevant employees are instructed to inform the customs authorities whenever compliance difficulties are discovered and establishes procedures for informing the customs authorities of such difficulties;
(d)
the applicant is not subject to bankruptcy proceedings;
(e)
during the last three years preceding the submission of the application, the applicant has fulfilled his financial obligations regarding payments of customs duties and all other duties, taxes or charges which are collected on or in connection with the import or export of goods;
(f)
the applicant demonstrates on the basis of the records and information available for the last three years preceding the submission of the application that he has sufficient financial standing to meet his obligations and fulfil his commitments having regard to the type and volume of the business activity, including having no negative net assets, unless where they can be covered;
(g)
the applicant can demonstrate having sufficient financial resources to meet his obligations, for the part of the reference amount not covered by the guarantee.
3. A guarantee waiver shall be granted where the applicant demonstrates that he fulfils the following requirements:
(a)
the applicant maintains an accounting system which is consistent with the generally accepted accounting principles applied in the Member State where the accounts are held, allows audit-based customs control and maintains a historical record of data that provides an audit trail from the moment the data enters the file;
(b)
the applicant allows the customs authority physical access to its accounting systems and, where applicable, to its commercial and transport records;
(c)
the applicant has a logistical system which identifies goods as Union or non-Union goods and indicates, where appropriate, their location;
(d)
the applicant has an administrative organisation which corresponds to the type and size of business and which is suitable for the management of the flow of goods, and has internal controls capable of preventing, detecting and correcting errors and of preventing and detecting illegal or irregular transactions;
(e)
where applicable, the applicant has satisfactory procedures in place for the handling of licences and authorisations granted in accordance with commercial policy measures or relating to trade in agricultural products;
(f)
the applicant has satisfactory procedures in place for the archiving of its records and information and for protection against the loss of information;
(g)
the applicant ensures that relevant employees are instructed to inform the customs authorities whenever compliance difficulties are discovered and establishes procedures for informing the customs authorities of such difficulties;
(h)
the applicant has appropriate security measures in place to protect the applicant's computer system from unauthorised intrusion and to secure the applicant's documentation;
(i)
the applicant is not subject to bankruptcy proceedings;
(j)
during the last three years preceding the submission of the application, the applicant has fulfilled his financial obligations regarding payments of customs duties and all other duties, taxes or charges which are collected on or in connection with the import or export of goods;
(k)
the applicant demonstrates on the basis of the records and information available for the last three years preceding the submission of the application that he has sufficient financial standing to meet his obligations and fulfil his commitments having regard to the type and volume of the business activity, including having no negative net assets, unless where they can be covered;
(l)
the applicant can demonstrate having sufficient financial resources to meet his obligations, for the part of the reference amount not covered by the guarantee.
4. Where the applicant has been established for less than three years, the requirement as referred to in paragraphs 1(d), 2(e) and 3(j) shall be checked on the basis of available records and information.
Section 3 — Provisions for the Union transit procedure and the procedure under the Istanbul and the ATA Convention
Release of the guarantor's obligations under the Union transit procedure
1. Where the Union transit procedure has not been discharged, the customs authorities of the Member State of departure shall, within nine months from the prescribed time limit for presentation of the goods at the customs office of destination, notify the guarantor that the procedure has not been discharged.
2. Where the Union transit procedure has not been discharged, the customs authorities, determined in accordance with Article 87 of the Code, shall, within three years from the date of acceptance of the transit declaration, notify the guarantor that he is or might be required to pay the debt for which he is liable in respect of the Union transit operation in question.
3. The guarantor shall be released from his obligations if either of the notifications provided for in paragraphs 1 and 2 have not been issued to him before the expiry of the time limit.
4. Where either of the notifications has been issued, the guarantor shall be informed of the recovery of the debt or the discharge of the procedure.
5. The common data requirements for the notification as referred to in paragraph 1 are set out in Annex 32-04.
The common data requirements for the notification as referred to in paragraph 2 are set out in Annex 32-05.
6. In accordance with Article 6(3)(a) of the Code, the notification as referred to in paragraphs 1 and 2 may be sent by means other than electronic data-processing techniques.
Claim for payment against a guaranteeing association for goods covered by ATA carnet and notification of the non-discharge of CPD carnets to a guaranteeing association under the procedure of the ATA Convention or Istanbul Convention
1. In case of non-compliance with one of the obligations under ATA carnet or CPD carnet customs authorities shall regularise the temporary admission papers (claim for payment against a guaranteeing association or notification of the non-discharge, respectively) in accordance with Articles 9, 10 and 11 of Annex A to the Istanbul Convention or where applicable, in accordance with Articles 7, 8 and 9 of the ATA Convention.
2. The amount of import duty and taxes arising from the claim for payment against a guaranteeing association shall be calculated by means of a model taxation form.
3. The common data requirements for the claim for payment against a guaranteeing association referred to in paragraph 1 are set out in Annex 33-01.
4. The common data requirements for the notification of the non-discharge of CPD carnets referred to in paragraph 1 are set out in Annex 33-02.
5. In accordance with Article 6(3)(a) of the Code, the claim for payment against a guaranteeing association and the notification of the non-discharge of CPD carnets may be sent to the relevant guaranteeing association by means other than by electronic data-processing techniques.
CHAPTER 3 — Recovery and payment of duty and repayment and remission of the amount of import and export duty
Subsection 1 — Notification of the customs debt and claim for payment from guaranteeing association
Means of notification of the customs debt
The notification of the customs debt in accordance with Article 102 of the Code may be made by means other than by electronic data-processing techniques.
Exemption from notification of the customs debt
1. The customs authorities may refrain from notifying a customs debt incurred through non-compliance under Article 79 or 82 of the Code where the amount of import or export duty concerned is less than EUR 10.
2. Where the customs debt was initially notified with an amount of import or export duty which was less than the amount of import or export duty payable, the customs authorities may refrain from notifying the customs debt for the difference between those amounts provided that it is less than EUR 10.
3. The limitation of EUR 10 referred to in paragraphs 1 and 2 shall apply to each recovery action.
Section 2 — Payment of the amount of import or export duty
Suspension of the time-limit for payment in case of application for remission
1. The customs authorities shall suspend the time-limit for payment of the amount of import or export duty corresponding to a customs debt until they have taken a decision on the application for remission, provided that the conditions are fulfilled:
(a)
where an application for remission pursuant to Article 118, 119 or 120 of the Code has been presented, the conditions laid down in the relevant Article are likely to be met;
(b)
where an application for remission pursuant to Article 117 of the Code has been presented, the conditions laid down in Article 117 and Article 45(2) of the Code are likely to be met.
2. Where the goods subject to an application for remission are no longer under customs supervision at the time of the application, a guarantee shall be provided.
3. By way of derogation from paragraph 2, the customs authorities shall not require a guarantee if it is established that providing a guarantee would be likely to cause the debtor serious economic or social difficulties.
Suspension of the time-limit for payment in the case of goods that are to be confiscated, destroyed or abandoned to the State
The customs authorities shall suspend the time-limit for payment of the amount of import or export duty corresponding to a customs debt where the goods are still under customs supervision and they are to be confiscated, destroyed or abandoned to the State and the customs authorities consider that the conditions for confiscation, destruction or abandonment are likely to be met, until the final decision on their confiscation, destruction or abandonment is taken.
Suspension of the time-limit for payment in the case of customs debts incurred through non-compliance
1. The customs authorities shall suspend the time-limit for payment, by the person referred to in Article 79(3)(a) of the Code, of the amount of import or export duty corresponding to a customs debt where a customs debt has been incurred through non-compliance as referred to in Article 79 of the Code, provided that the following conditions are fulfilled:
(a)
at least one other debtor has been identified in accordance with Article 79(3)(b) or (c) of the Code;
(b)
the amount of import or export duty concerned has been notified to the debtor referred to in point (a) in accordance with Article 102 of the Code;
(c)
the person referred to in Article 79(3)(a) of the Code is not considered a debtor in accordance with Article 79(3)(b) or (c) of the Code and no deception or obvious negligence may be attributed to that person;
2. The suspension shall be conditional on the person for whose benefit it is granted issuing a guarantee for the amount of the import or export duty at stake, except in either of the following situations:
(a)
a guarantee covering the whole amount of import or export duty at stake already exists and the guarantor has not been released from his obligations;
(b)
it is established, on the basis of a documented assessment, that the requirement of a guarantee would be likely to cause the debtor serious economic or social difficulties.
3. The duration of the suspension shall be limited to one year. However, this period may be extended by the customs authorities for justified reasons.
Subsection 1 — General provisions and procedure
Application for repayment or remission
1. By way of derogation from the third subparagraph of Article 22(1) of the Code, the application for repayment or remission of import or export duties referred to in Article 116 of the Code shall be submitted to the competent customs authority of the Member State where the customs debt was notified.
2. The application referred to in paragraph 1 may be made by means other than electronic data-processing techniques, in accordance with the provisions in the Member State concerned.
Supplementary information where goods are situated in another Member State
The common data requirements for the request of supplementary information where goods are situated in another Member State are set out in Annex 33-06.
The request for supplementary information referred to in the first subparagraph may be made by means other than electronic data-processing techniques.
Means of notification of the decision on repayment or remission
The decision on repayment or remission of import or export duty may be notified to the person concerned by means other than electronic data-processing techniques.
Common data requirements related to formalities where goods are located in another Member State
The common data requirements for the reply to the request for information concerning the completion of formalities where the application for repayment or remission relates to goods which are located in a Member State other than that in which the customs debt was notified are set out in Annex 33-07.
Means for sending information on the completion of formalities where goods are located in another Member State
The reply referred to in Article 95 may be sent by means other than electronic data-processing techniques.
Extension of the time-limit for taking a decision on repayment or remission
Where the first subparagraph of Article 116(3) of the Code or point (b) of the second subparagraph of Article 116(3) of the Code applies, the time-limit for taking the decision on repayment or remission shall be suspended until such time as the Member State concerned has received the notification of the Commission’s decision or the notification by the Commission of the return of the file for the reasons provided in Article 98(6).
Where point (b) of the second subparagraph of Article 116 (3) of the Code applies, the time-limit for taking the decision on repayment or remission shall be suspended until such time as the Member State concerned has received the notification of the Commission's decision on the case involving comparable issues in fact and of law.
Subsection 2 — Decisions to be taken by the Commission
Transmission of the file to the Commission for a decision
1. The Member State shall notify the person concerned of their intention to transmit the file to the Commission before the transmission and give to the person concerned 30 days to sign a statement certifying that he has read the file and stating that he has nothing to add or listing all the additional information that he considers should be included. Where the person concerned does not provide that statement within those 30 days, the person concerned shall be deemed to have read the file and to have nothing to add.
2. Where a Member State transmits a file to the Commission for decision in the cases referred to Article 116(3) of the Code, the file shall include at least the following:
(a)
a summary of the case;
(b)
detailed information establishing that the conditions referred to in Article 119 or Article 120 of the Code, are fulfilled;
(c)
the statement referred to in paragraph 1 or a statement by the Member State certifying that the person concerned is deemed to have read the file and to have nothing to add.
3. The Commission shall acknowledge receipt of the file to the Member State concerned as soon as it has received it.
4. The Commission shall make available to all Member States a copy of the summary of the case referred to in paragraph 2(a) within 15 days from the date on which it received the file.
5. Where the information transmitted by the Member State is not sufficient for the Commission to take a decision, the Commission may request additional information from the Member State.
6. The Commission shall return the file to the Member State and the case shall be deemed never to have been submitted to the Commission in any of the following cases:
(a)
the file is obviously incomplete since it contains nothing that would justify its consideration by the Commission;
(b)
under the second subparagraph of Article 116(3) of the Code, the case should not have been submitted to the Commission;
(c)
the Member State has transmitted to the Commission new information of a nature to alter substantially the presentation of the facts or the legal assessment of the case while the Commission is still considering the file.
Right for the person concerned to be heard
1. Where the Commission intends to take an unfavourable decision in the cases referred to Article 116(3) of the Code, it shall communicate its objections to the person concerned in writing, together with a reference to all the documents and information on which it bases those objections. The Commission shall inform the person concerned of his right to have access to the file.
2. The Commission shall inform the Member State concerned of its intention and the sending of the communication as referred to in paragraph 1.
3. The person concerned shall be given the opportunity to express his point of view in writing to the Commission within a period of 30 days from the date on which he has received the communication referred to in paragraph 1.
Time-limits
1. The Commission shall decide whether or not repayment or remission is justified within nine months from the date on which it has received the file referred to in Article 98(1).
2. Where the Commission has found it necessary to request additional information from the Member State as laid down in Article 98(5), the period referred to in paragraph 1 shall be extended by the same period of time as the period between the date on which the Commission sent the request for additional information and the date on which it received that information. The Commission shall notify the person concerned of the extension.
3. Where the Commission conducts investigations in order to take a decision, the period referred to in paragraph 1 shall be extended by the time necessary to complete the investigations. Such an extension shall not exceed nine months. The Commission shall notify the Member State and the person concerned of the dates on which investigations are initiated and closed.
4. Where the Commission intends to take an unfavourable decision as referred to in Article 99(1), the period referred to in paragraph 1 shall be extended by 30 days.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
