EC Customs Law OXPORD TIMOTHY LYONS. Second Kdition UNIVERSITY PRFSS

Transcription

1 EC Customs Law Second Kdition TIMOTHY LYONS OXPORD UNIVERSITY PRFSS

2 Table of Cases from the European Court of Justice and Court of First Instance Table of Cases from Other Jurisdictions Table of European Community Treaties Table of European Community Secondary Legislation Table of Legislation from Other Jurisdictions Table of International Agreements, Conventions, and Treaties xxix lvii lix lxi Ixxv lxxvii 1. INTRODUCTION 1 A. Customs duties and customs unions: a broader perspective 2 1. The economics of customs unions 5 B. The international dimension in Community customs law 7 C. GATTandtheWTO 14 D. GATT 94 and EC customs law The primacy of international agreements GATT and direct effect 21 E. The EC's customs union THE CUSTOMS UNION IN ITS COMMUNITY CONTEXT 25 A. The customs union: economic and social objectives 26 B. The legal context of the customs union The customs union, free movement of goods, and transit The Common Agricultural Policy (CAP) and customs law The customs union and internal taxation Article The customs union: VAT and turnover taxes The customs union and state aid The customs union and competition law 45

3 xiv 7. The common commercial policy and external affairs Anti-dumping and countervailing duties 52 C. Customs Law and the EU 53 D. The financial context of customs duty: own resources General obligations concerning own resources FUNDAMENTAL CONCEPTS OF THE CUSTOMS UNION 63 A. The nature of the Community's customs union A customs union not a free trade area EuratomandECSC 66 B. The common customs tariff 68 C. The prohibition of internal customs duties and equivalent charges What is a customs duty or charge having equivalent effect? Regional duties The relevance of a charge's purpose and use Prohibited charges need not be payable to the Member State Charges for services may be prohibited charges Are the activities charged for required or permitted under Community law? Is the activity a service to the payee? Is the amount of the charge legitimate? 83 D. The nature of 'goods' Treaty goods Goods: a broad concept Community goods 88 E. Free circulation 89 F. The customs territory of the Community THE CUSTOMS UNION: LEGISLATION AND ADMINISTRATION 95 A. TheCCC The nature of the CCC The contents of the CCC 100

4 xv 3. Amendments to the CCC Amendments in Amendments in Amendments in Amendments in Modernized Customs Code The application and interpretation of the CCC 111 B. The implementing regulation 115 C. The Commission: customs law and administration 118 D. The Member States: customs law and administration Penalties for customs offences 122 E. Cooperation between Member States and with the Commission Cooperation in relation to recovery Cooperation in relation to the application of customs law 125 F. The Trader, the Member States, and the Commission THE COMMON CUSTOMS TARIFF: ADMINISTRATION AND INTERPRETATION 130 A. What is the tariff? 131 B. Elements of the tariff The Combined Nomenclature Its function, history, and basis The CN: what is it? Customs duties: common features different types The alteration and suspension of customs duties Tariff quotas Tariff quotas: applications and licences Management of tariff quotas Allocation of quotas Traditional trade flows Order of applications first come first served Application according to quantity requested 145

5 xvi C. TARIC and the tariff regulation The Commission's discretions in applying the CN and TARIC Case law on the Commission's role Classification regulations 150 D. The tariff, the Court of Justice, and the requirement of objectivity The role of the Court of Justice and national courts The Court of Justice's general approach and the requirement of objectivity Time that objective characteristics considered Evidence of objective characteristics Specific considerations relating to objectivity Advances in medical science Artistic merit Breeding methods Functions which the product facilitates Geographical origin Intention and the creation of products The intended use of products and their presentation Manufacturing and processing of products Sight and sensory perception Technological innovation 166 E. Interpretation of the tariff: rules and aids General rules regarding the CN 'A' General rules for the interpretation of the CN 'B' General rules applicable to both nomenclature and duties Notes and opinions of the WCO and the Community Case law generally Case law on specific goods and classification headings 176 F. The provision of information by customs authorities Issuing binding information Relying upon binding information The uses of binding information Binding information: validity and invalidity The UK and binding information 183

6 xvii 6. INTERNATIONAL ARRANGEMENTS AND AGREEMENTS 185 A. Autonomous Community measures The generalized system of preferences (GSP) The benefits of the GSP Loss of benefits Administrative matters Overseas Countries and Territories The Overseas Association Decision 197 B. Agreements The EEA Agreement The Europe Agreements and the Stabilization and Association agreements Association agreements Cooperation, trade, and development agreements: Yaounde, Lome, and Cotonou Cooperation agreements Partnership and cooperation agreements Trade and cooperation agreements 213 C. Applying and interpreting international agreements Agreements as part of the Community legal order The Court as interpreter of the agreements Charges having equivalent effect Traders'directly effective rights 219 D. The role and influence of internationallaw THE ORIGIN OF GOODS 227 A. Rules of origin: what they concern and their function 228 B. Multilateral international agreements and non-preferential origin Kyoto: Specific Annex K and Annex Dl Criteria for establishing origin 233 C. The CCC and non-preferential origin Origin in only one country Maritime matters 217

7 xviii Territorial sea: CCC, Article 23.2 and Products taken from the sea: Article 23(f) Exclusive rights to exploit the seabed: Article 23(h) Origin in more than one country 'Last'processing or working 'Substantial'processing or working Assembly operations CCC, Article 25 and origin shopping Special rules for particular products 246 D. Preferential origin The generalized system of preferences (GSP) Origin in a single country Origin in two or more countries Unit of qualification, accessories, and sets Norway and Switzerland Regional cumulation The least-developed countries The Overseas Countries and Territories Other Community measures governing origin Preferential origin under international agreements TheEEA Full and regional cumulation The Europe Agreements Agreements with EFTA Euro-Mediterranean Agreements The ACP states 262 E. Proof of origin, customs authorities, the Commission, and the trader Proofoforigin Proofoforigin and the Kyoto Convention Proofoforigin and the GSP Certificate of origin form A The obligations of the competent authorities 267

8 xix Invoice declarations Single or global proofs of origin? Presentation of the proofoforigin Errors in certificates and declarations Transactions for which certificates of origin are unnecessary Evidence of the status of Community goods Proof of origin and international agreements Administrative cooperation Administrative cooperation and the GSP Subsequent verification of origin Case law on relations between importing and exporting states The Commission and subsequent verification The importer and subsequent verification THE VALUATION OF GOODS 283 A. Customs valuation and international agreements The normal price and the transaction value 286 B. Valuation and Community law Simple, equitable, and commercial not arbitrary or fictitious Rates of exchange Valuation for customs duty purposes only The transaction value and alternatives to it 290 C. Determining the transaction value Which sale is relevant? What is'the price actually paid or payable'? Additions to the price actually paid or payable Exclusions from the price actually paid or payable Limitations on the use of the transaction value Related sellers and buyers 302 D. Alternatives to the transaction price The value of identical goods 305

9 xx 2. The value of similar goods The value based on unit price: the deductive method The computed value The elements of computed value The default method Simplified procedures for certain perishable goods 311 E. Items excluded from customs value 313 F. Declarations of value CUSTOMS ENTRY AND DECLARATION 319 A. Entry of goods into the customs territory Pre-entry procedure Customs supervision The duration of supervision Duty to convey goods to a customs office Presentation of goods to customs authorities Summary declaration Temporary storage Extending the time of temporary storage Global applications for extension 330 B. The declarant and customs declarations The declarant The declaration The purpose of the declaration The form of the standard declaration Documents accompanying the declaration Incomplete and simplified procedures Importers'obligations as regards the customs declaration Lodging and acceptance Amending and invalidating the declaration Examination of the declaration and the goods Release of goods Post-clearance examination of declarations 339

10 xxi 10. CUSTOMS PROCEDURES AND APPROVED USES AND TREATMENTS 340 A. Customs controls in a customs union Summary entry and exit declarations 344 B. Proving the existence of community goods 344 C. Rules governing customs procedures with economic impact General provisions relating to authorizations Applications for authorization Whereto apply Single authorizations The examination of economic conditions Decisions on authorizations The period for which authorizations are effective 352 D. The authorized economic operator 353 E. Release for free circulation and'end use' Authorization for favourable treatment The contents and duration of an authorization The transfer of goods subject to an authorization 358 F. Transit procedure The Kyoto Convention International agreements creating transit regimes The TIR Convention TIR and ATA procedures and the Implementing Regulation The Convention on Common Transit Community transit The external transit procedure The internal transit procedure Simplifications The responsibilities of the principal/holder The transit declaration and formalities on departure, en route, and at destination The end and discharge of the procedure 372

11 xxii 3.7 Paperless procedures The principal's guarantee Irregularities and the customs debt 375 G. Customs warehousing Community legislation Goods capable of being stored Storing and handling the goods Customs warehouses Responsibilities of warehouse-keeper and depositor Authorization 382 H. Processing under customs control Community legislation Authorization Operation of the procedure Calculating the customs debt 386 I. Temporary admission Community legislation Period of temporary importation Total relief from import duty Partial relief from import duty ATAcarnet The customs debt Discharge of the procedure 394 J. Export 394 K. Customs-approved treatments and uses which are not customs procedures Free zones and warehouses The designation of free zones and warehouses Entry to a zone or warehouse Use of goods and activity within free zones and warehouses Removal of goods from free zones or warehouses Valuation Re-exportation, destruction, and abandonment 403

12 xxiii 11. INWARD AND OUTWARD PROCESSING 404 A. The Inward Processing Procedure What it is and why it is necessary Inward Processing: a Community procedure The suspension system and the drawback system The equivalent compensation and prior exportation systems The equivalent compensation system The prior exportation system Triangular traffic system Permitted processing operations Authorization The form of the application Conditions for authorization Economic conditions Content of authorization The rates of duration and yield of the procedure The duration of the procedure and the period for discharge Rates of yield Movement of goods within the procedure The customs debt Calculating the proportion of import goods in compensating products The quantitative scale method The value scale method Discharge of the procedure Administrative cooperation 421 B. Outward Processing What it is and why it is necessary Outward processing: a Community procedure The standard exchange and prior importation systems The standard exchange system Prior importation system Triangular traffic system 424

13 xxiv 5. Permitted processing operations Authorization and entry The for m of the applic ation Conditions for authorization The content of the authorization Entry of goods for the arrangements The duration and yield of the procedure The duration of the procedure The rate of yield Relief from import duty The method of relief Reasonable means Reduced and zero rates of duty Preferential rates of duty Repair of temporary export goods Calculating the proportion of temporary export goods in compensating products The aggregated discharge procedure Administrative cooperation THE CUSTOMS DEBT AND RELIEFS FROM DUTY 433 A. Security for the customs debt Compulsory security Security at the option of the customs authorities Types of security Maintenance of, additions to, and release of security 437 B. Incurring a customs debt: the basic rules The debt on importation The debt on importation for breach of customs law Unlawful introduction of goods into the customs territory Unlawful removal of goods from supervision Failure to fulfil obligations or comply with conditions Unauthorized consumption or use of goods Two situations in which there is no debt on importation 445

14 2.6 Reliefs and exemptions 44ft 3. The debt on exportation The debt on exportation for breach of customs law Removal of goods from the customs territory without a declaration Failure to comply with conditions Reliefs and exemptions 447 C. The significance of the time and place at which a customs debt is incurred 448 D. Recovering a customs debt Calculating the debt Entry in the accounts Time limits for entry in the accounts Extension of time periods Subsequent entry into the accounts Communication to the debtor 453 E. Post-clearance recovery National authorities, post-clearance recovery, and non-entry in the accounts The Commission, post-clearance recovery, and non-entry in the accounts 457 F. Payment of the customs debt The obligation to pay, and the prescribed periods Deferment of payment Methods of deferment Periods of deferment Payment facilities other than deferment Interest 463 G. Extinction of a customs debt 464 H. Reliefs from duty Heads of relief from import duty Heads of relief from export duty 469 I. Other privileges Returned goods Products of sea fishing 4/2 xxv

15 xxvi 13. REPAYMENT, REMISSION, AND APPEALS 473 A. Repayment or remission: an introduction Four groups of situations in which repayment or remission is made 474 B. Duty not owed or improper entry in the accounts: CCC, Article CCC, Article 220.2(a)-(c) CCC, Article 220.2(b): Error on the part of the customs authorities CCC, Article 220.2(b): Detectability CCC, Article 220.2(b): Good faith 484 C. Relief where declaration invalidated or defective goods Customs declaration invalidated: CCC, Article Defective goods: CCC, Article D. Repayment and remission in other situations: CCC, Article No deception or obvious negligence Situations giving rise to repayment or remission under Article Situations under Article Returned goods: Article E. The general fairness clause: Article What is a special situation? Examples of situations giving rise to special situations Access to the Official Journal Mistakes by traders Fraud by commercial operators and official investigations Mistakes by customs authorities, the Commission, and others 500 F. Applications under CCC, Article The case to the Commission and the Commission's role Representations to the Commission The Commission's decision The Commission's discretion 508

16 xxvii G. Generally applicable procedural matters Applications for repayment or remission The form and nature of the application The grounds of the application Decision pending The decision 5 ] 2 4. Interest on repayments Loss of entitlement to repayment or remission Repayment or remission in error Repayment or remission where quotas and other arrangements apply 514 H. Situations which do not give rise to relief 515 I. Appeals Decisions Annulment, revocation, and amendment The appeal, suspension of the decision, and the provision of security The provision of security The UK's appeal procedure Ancillary and non-ancillary matters The provision of security prior to an appeal Security and unconditional rights of appeal Production of documents PLANNING FOR THE FUTURE 52 7 A. Planning for the future by the Council, the Commission. and Member States Customs 2007 and Customs B. Planning for the future by traders 531 Conclusion 533 Suggestions for Further reading 535 Index 539