Discretion to deactivate identifier codes
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The Tobacco Products (Traceability and Security Features) Regulations 2019 PART 6 — Deactivation of identifier codes
Circumstances in which economic operator identifier codes may be deactivated
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(1) Subject to regulation 20, the Commissioners for Her Majesty's Revenue and Customs may exercise the discretion set out in Article 15(4) of the Commission Implementing Regulation where Conditions A to C are met. (2) Condition A is that the person whose identifier code is being considered for deactivation— (a) has failed to comply with regulation 6(1) and this is a second, third or subsequent contravention, (b) has failed to comply with a notice under regulation 22 by the deadline for compliance set out in that notice, (c) has deliberately provided false information in an application to the UK ID Issuer for an identifier code that is required or permitted to be made by that person under Chapter III of the Commission Implementing Regulation, (d) has a conviction, other than a conviction treated as spent for the purposes of the Rehabilitation of Offenders Act 1974, for an offence under the customs and excise Acts, (e) has, within the last 12-months, become liable to a penalty or penalties under the customs and excise Acts exceeding £10,000, or (f) has not used the identifier code in the last 12-months. (3) Condition B is that the Commissioners have given written notice to the person which— (a) confirms that the Commissioners are considering exercising the discretion in Article 15(4) of the Commission Implementing Regulation to require the UK ID Issuer to deactivate the economic operator identifier code allocated to that person, (b) identifies— (i) in cases where paragraph (2)(a) applies, the requirements with which the person has failed to comply ..., (ii) in cases where paragraph (2)(b) applies, the notice under regulation 22 with which the person has failed to comply, (iii) in cases where paragraph (2)(c) applies, the false information provided in an application, (iv) in cases where paragraph (2)(d) applies, the offence committed under the customs and excise Acts for which the person has been convicted, (v) in cases where paragraph (2)(e) applies, the contravention of those Acts in relation to which the person has become liable for a penalty, or (vi) in cases where paragraph (2)(f) applies, the date on which the identifier code was last used, (c) states that the recipient may make representations in writing to the Commissioners, and (d) states the date by which any representations must be received by the Commissioners, being a date no earlier than 14 days after the date on which notice is given. (4) Condition C is that the Commissioners, on being satisfied that deactivation would be duly justified , must give written notice to the person of their decision to exercise the discretion stating— (a) the date from which the deactivation will have effect, and (b) the period for which the deactivation is to remain in force, being a period no longer than— (i) is reasonable to protect the traceability system for tobacco products, or (ia) in cases where paragraph (2)(a) applies— (aa) a period of six months in the case of a Category A, B, or C contravention which is a second contravention; or (bb) a period of five years in any other case; or (ii) in cases where paragraph (2)(d) applies, the period before the conviction becomes spent. (5) For the purposes of paragraph (2)(e), a person does not become liable to a penalty until the latest of— (a) the date on which the penalty becomes payable under the customs and excise Acts, (b) the determination of a review of that penalty, (c) the final determination of an appeal against that penalty, or (d) the withdrawal of any review or appeal referred to in sub-paragraphs (b) and (c). (6) In this regulation, “ the customs and excise Acts ” has the meaning given in section 1 of the Customs and Excise Management Act 1979 . (7) Where paragraph (2)(a) applies, if an appeal is made against the decision to give a deactivation notice, or the period of deactivation, the deactivation must be suspended until the final determination of the appeal, but only in a case to which paragraph (8) applies. (8) This paragraph applies where the person who is the subject of the deactivation notice satisfies the Commissioners that the primary function of the facility linked to the identifier code in respect of which the deactivation is made is the supply of tobacco products. (9) For the purposes of paragraph (8), the primary function includes (but is not limited to) a case where more than fifty per cent of the gross income of the facility over the six months immediately preceding the date of the deactivation notice issued under paragraph (4) is derived from the sale of, or services related to, tobacco products.
Circumstances in which facility identifier codes may be deactivated
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(1) The Commissioners may exercise the discretion set out in Article 17(4) of the Commission implementing regulation in cases to which this regulation applies. (2) This regulation applies in a case where— (a) the condition in regulation 18(2)(a) is met; (b) the economic operator identifier code which is liable to deactivation in accordance with regulation 18 is linked to more than one facility; and (c) the Commissioners consider it appropriate to deactivate the FID of the facility in which the contravention occurred instead of deactivating the economic operator identifier code. (3) Where a FID is to be deactivated in accordance with this regulation, regulation 18 applies to that deactivation as if it were the deactivation of an economic operator identifier code, and for this purpose paragraphs (1) and (3) of that regulation are to be read as if for “Article 15(4)” there were substituted “Article 17(4)” . (4) Where a FID is deactivated in accordance with this regulation, the economic operator identifier code must not be deactivated in respect of the same contravention.
Application to cancel a deactivation notice
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(1) A person may apply to the Commissioners for Her Majesty's Revenue and Customs for a deactivation notice given to that person to be cancelled. (2) The Commissioners must, as soon as reasonably practicable after receiving the application— (a) agree to the application, (b) refuse the application in writing, giving reasons for the refusal, or (c) request additional information. (3) Where the Commissioners have requested additional information, they must, as soon as reasonably practicable after receiving the additional information— (a) agree to the application, or (b) refuse the application in writing, giving reasons for the refusal.
Restriction on re-application
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(1) A person that is the subject of a deactivation notice must not apply for an economic operator identifier code under Article 14 of the Commission Implementation Regulation during the period of deactivation set out in that notice. (1A) Subject to paragraph (1C), where an economic operator identifier code has been deactivated in accordance with regulation 18(2)(a), an application for a facility identifier code in respect of any facility that was linked to that economic operator identifier code must not be made by any person during the period of deactivation. (1B) Subject to paragraph (1C), where a FID has been deactivated in accordance with regulation 18A, an application for a FID in respect of the same facility must not be made by any person during the period of deactivation. (1C) Paragraphs (1A) and (1B) do not apply in a case where— (a) the ownership of the facility has changed since the deactivation occurred; and (b) the person who is the owner at the time of the application is not the person who is the subject of the deactivation notice. (2) In cases where a person has acted contrary to the restriction imposed by paragraph (1) and obtained an economic operator identifier code, the Commissioners for Her Majesty's Revenue and Customs may exercise the discretion set out in Article 15(4) of the Commission Implementing Regulation without the conditions referred to in regulation 18 being met. (3) In cases where a person has acted contrary to the restrictions imposed by paragraphs (1A) or (1B) and obtained a facility identifier code, the Commissioners may exercise the discretion set out in Article 17(4) of the Commission Implementing Regulation without the conditions referred to in regulation 18 or, as the case may be, 18A, being met.
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