These answers & questions are of an explanatory and illustrative nature. Customs legislation takes precedence over the content of this document and should always be consulted. The authentic texts of the EU legal acts are those published in the Official Journal of the European Union. There may also be national instructions.
Q.: What about new applications lodged as of 1 May 2016?
A.: Until 1/10/2017, the Member States will define the specific data requirements to be applied in line with the transitional rules outlined in the UCC DA-IA. Some MS might continue to ask for the information based upon what they ask today ("appropriate alternative data requirements") at least insofar as the UCC DA-IA data requirements are optional, other MS might shift already towards the new data requirements laid down in the UCC DA-IA. In all cases, the information provided should allow MS to check conditions and criteria as defined in the UCC and DA-IA.
Q.: Article 55 (13) of the adopted version of the TDA of 17 December 2015 amending the Delegated Regulation (EU) 2015/2446 stipulates the insertion of articles 129(a) to (d). Those articles are mainly dealing with the authorised issuer which is why I wonder whether there might have occurred a mistake and the text should be read as "the following Articles 128a to Article 128d are inserted".
A.: Indeed, the reference is incorrect, and will be amended at an appropriate moment.
Q.: Does Article 128(2) IA mean that in all cases the customs value will be determined on the basis of a sale occurring during the warehousing procedure?
A.: No, Article 128 (2) IA applies only where the goods were not yet sold for export at the time they were declared for the warehousing procedure.
Q.: Under the UCC, are royalties and license fees to be included in the customs value?
A.: Yes, the general approach will continue to apply: royalties and license fees are included in the customs value. The UCC sets out the basic rule as before, and the UCC IA contains additional provisions in this regard.
Q.: Why Article 347 IA only applies to contracts concluded before the entry into force of the IA?
A.: The provision was drafted to protect the legitimate expectation of traders, bound by commercial arrangements ("bona fide" contracts). Such a "bona fide" criterion of course cannot be applied to contracts concluded after the entry into force of the IA.
Q.: Why did the DV1 disappear?
A.: The DV1 will disappear as a paper document, since the relevant data elements concerning valuation will be provided in the customs declaration. Anyway, until the relevant IT import systems are not deployed, the possibility is given to continue providing these elements via a paper form, corresponding to the "old" DV1 (see TDA Article 6).
Q.: As Article 22 UCC states that "Except where otherwise provided, the competent customs authority shall be that of the place where the applicant's main accounts for customs purposes are held or accessible, and where at least part of the activities to be covered by the decision are to be carried out." The question may be raised where should an economic operator apply for the use of a comprehensive guarantee when he has his main accounts for customs purposes in MS A but the guarantee is meant to cover his warehouses in MS B, MS C and MS D?
A.: In case an economic operator applies for the use of a comprehensive guarantee and he has his main accounts for customs purposes in MS A but the guarantee is meant to cover his warehouses in MS B, MS C and MS D, the competent customs authority is determined according to Article 12 DA: where it is not possible to determine the competent customs authority in accordance with the third subparagraph of Article 22(1) of the Code, the competent customs authority shall be that of the place where the applicant's records and documentation enabling the customs authority to take a decision (main accounts for customs purposes) are held or accessible.
Q.: The issue of movement of goods between temporary storage facilities: the Union customs legislation foresees that compliance with obligations under the Union legislation is required before goods could be released. That applies to the veterinary legislation. Goods cannot be released before goods before they go through veterinary checks. Customs have to check the validity of the vet certificate. It is to prevent that goods which are unsafe can enter the EU territory and spread diseases. However, the possibility, introduced with the UCC, to move goods from a temporary storage facility to another even in another country, means that goods could potentially cross the EU without going through veterinary checks. Formalities of procedures should be coordinated and adjusted in order to properly coordinate the procedures.
A.: These movements should not take place before any controls and checks have been carried out. This will also be highlighted in the guidance on import and export.
Q.: What will happen on 1 May 2016 with the local clearance procedure as the UCC no longer refers to this possibility?
A: As from 01/05/2016 no new application for LCP is acceptable. As far as existing authorisations are concerned, they will remain valid after 01/05/2016 until their re-assessment (1 May 2019 the latest) and are to be read as provided for in Annex 90 of the DA:
|Authorisations for ‘local clearance procedure’ (Article 76(1)(c) of Regulation (EEC) No 2913/92, Articles 253 to 253g, 263 to 267, 272 to 274, 276 to 278, 283 to 287of Regulation (EEC) No 2454/93)|
Authorisations for ‘entry in the declarant’s records’ (Article 182 of the Code, Article 150 and Articles 226 to 229 of Implementing Regulation (EU) 2015/2447) combined or not with approved places;
Q.: How to read the following authorisations? (answers given in text)
a) LCP at import with standard declaration or simplified declaration lodged at clearance of the goods (Article 266(3) CCIP) can be read as a standard procedure or a simplified declaration authorisation with presentation of the goods in an approved place according to Articles 5 (33) and 115 UCC.
To be noted: approved place must be reassessed before 1 May 2019.
The approval for the places other than the customs offices for the presentation of the goods will continue to have unlimited validity, until the reassessment.
b) LCP at import with notification of arrival and entry in the records at clearance of the goods (Article 266(1) CCIP) can be read as EIDR with presentation of the goods.
To be noted: the authorisation must be reassessed before 1 May 2019.
c) LCP at import with notification waiver (Article 266(2)(b) CCIP) can be read as EIDR with presentation waiver.
To be noted: the authorisation and the presentation waiver must be reassessed before May 2019 according to the new criteria of Article 182(3) UCC. The authorisation holders do not need to be AEOC before the reassessment.
d) LCP at export with a standard declaration or simplified declaration lodged at clearance (Article 285 CCIP) can be read as EIDR (art. 21 TDA) with standard standard/simplified declaration that may be used for all types of goods covered by the LCP authorisations with the presentation of the goods in an approved/designated place according to article 115 UCC.
To be noted: the conditions of Article 150(4) and (5) DA must not be met till the reassessment of these authorisations because there is a real exchange with ECS (related to the possibility of Article 21 TDA). LCP read as EIDR can remain with standard declaration till the reassessment.
e)LCP at export with notification of departure of the goods (Article 285a CCIP) can be read as EIDR with presentation of the goods at the premises of the operator.
To be noted: the authorisation must be reassessed before May 2019. The notification may be the full declaration as for article 21 TDA.
Q.: In order to be authorised for the Simplifications of Title V, should the applicant be an AEOC?
A.: Not all simplifications impose the condition for the applicant to be an AEOC. It is though requested for the Centralised clearance involving more than one MS, the Self-assessment and the Entry into the declarant's records with a presentation waiver.
Q.: Can an AEOC be authorised for a Self-assessment combined with the entry in the declarant's records (EIDR)?
A.: When self-assessment is authorized for a customs procedure for which entry in the declarants' records is already allowed the operator should have two different but complementary authorisations – one for self-assessment and one for entry in the declarant's records.
Company Rail Cargo EU holds an authorisation issued in the year 2006 for the use of the simplified transit procedure for goods carried by rail in accordance with Articles 412 et seq. of Commission Regulation (EEC) No 2454/93. This authorisation covers the guarantee waiver by law as stipulated by Article 95(1)d of the Community Customs Code (Council Regulation (EEC) No 2913/92).
Q.: What happens between Mays 2019 and the date of the upgrading of NCTS (planning October 2019).
A.: In this case, Member States will have the option to continue the waiver until 1 May 2019 via the application of Articles 250 and 251 (1) of the Commission Delegated Regulation, read together with Article 345(1) of the Commission Implementing Regulation, laying down rules for the re-assessment of existing authorisations that remain valid on 1 May 2016.
For new authorisations issued as of 1 May 2016, the possibility to include a waiver of guarantee by law no longer exists not even during the transitional period, during which a paper based simplified transit procedure can be applied according to Articles 25, 29-45 TDA. Reasoning: The UCC applies as from 1 May 2016, including during the transitional period and the UCC does not provide for a legal basis allowing for such a waiver (see in particular Article 89 paragraph 8 UCC). Nevertheless, the UCC allows the reduction of the reference amount for a guarantee or a guarantee waiver by authorisation.
According to Articles 226 and 227 of the Code the transit procedure can be either external (T1) or internal (T2).
Q.: For export, the type of the transit procedure has an impact on the definition of the customs office of exit. Therefore please clarify, where goods are to be exported from the Union and after completion of the export procedure are placed under the TIR procedure at an inland customs office to be moved to the place outside the customs territory of the Union, which type of the transit procedure – external or internal should apply?
A.: According to Article 226(3)(b) of the UCC, when the TIR procedure begins in the customs territory of the Union and is to end outside that territory, the external transit procedure should apply.
During the transitional period, i.e. until the PoUS system is deployed, shipping companies can be authorised to use the following manifests as proofs of the customs status of Union goods without having to present them for endorsement and registration to the competent customs office:
(i) shipping company's manifest (the cargo manifest) pursuant to Article 128(2) DA ;
(ii) customs goods manifest (CGM) pursuant to Article 128(1)(b) DA.
While the shipping company's manifest can only be used during the transitional period, the CGM as a new means of proof introduced under the UCC in accordance with Article 199(1)(c) IA may be used by “Authorised Issuers” both during and after the transitional period. The status of the “Authorised Issuer” for the use of the CGM will remain valid after the transitional period has ended, hence no new application would be required at that time.
Q.: Can the CGM be used as a proof of Union status as of 1 May 2016? Moreover: do I need a new authorisation if I am already authorised under Article 324a CCIP to issue a proof of status on the basis of a shipping company's manifest?
A.: Without an authorisation to issue the CGM as a proof of Union status yourself, i.e., as a non-authorised issuer, you cannot yet use the CGM. This is because the CGM as a proof of Union status has to be requested, endorsed and registered in the PoUs system which is not yet available. However, if you hold the status of an “Authorised Issuer” granted pursuant to Article 128(1)(b) DA, you may already as of 1 May 2016 use the CGM as a proof of Union status. This is because CGMs issued by Authorised Issuers do not have to be endorsed and registered in the PoUS system.
Authorisations issued on the basis of Article 324a CCIP, which remain valid after 1 May 2016, are also valid as authorisations for using the CGM (see Article 254 DA and Annex 90 to DA, point 9).
Q.: If I apply during the transitional period for an authorisation to become an authorised issuer to issue a shipping company's manifest as a proof of the customs status of Union goods without having to submit it to customs for endorsement, can I use the same authorisation to issue a CGM as a proof of Union status?
A.: During the transitional period, pursuant to Article 128(2) DA you can be authorised to use the shipping company's manifest as a proof of Union status without having to submit it to customs for endorsement. However, you are not allowed to use that authorisation to issue the CGM as a proof of Union status without endorsement and registration by customs. If a shipping company wants to be authorised to use the CGM as a proof of Union status without having to submit it to customs for endorsement and registration, it has to apply for a separate authorisation on the basis of Article 128(1)(b) DA, which will remain applicable also following the deployment of the PoUS system.
Q: Which data elements shall be included in the CGM during the transitional period?
A: During the transitional period the CGM issued by Authorised Issuers shall contain the same data elements as those included in the shipping company’s manifest used pursuant to Article 128(2) DA as a proof of the customs status of Union goods.
These data elements are set out in Article 126(a) DA and include the following:
(a) the name and full address of the shipping company;
(b) the name of the vessel;
(c) the place and date of loading;
(d) the place of unloading. The manifest shall further include, for each consignment:
(e) the reference for the bill of lading or other commercial document;
(f) the number, description, marks and reference numbers of the packages;
(g) the normal trade description of the goods including sufficient detail to permit their identification;
(h) the gross mass in kilograms
(i) the container identification numbers, where applicable; and
(j) the following entries for the status of the goods:
— the letter ‘C’ (equivalent to ‘T2L’) for goods whose customs status of Union goods can be demonstrated,
— the letter ‘F’ (equivalent to ‘T2LF’) for goods whose customs status of Union goods can be demonstrated, consigned to or originating in a part of the customs territory of the Union where the provisions of Directive 2006/112/EC do not apply,
— the letter ‘N’ for all other goods.
After the transitional period, the data elements applicable for the CGM will be those set out in Annex B-DA.
Q.: Are there any changes as of 1 May 2016 as regards the box 18 of the transit declaration?
A.: On 1 May 2016 there are no changes as regards box 18 of the transit declaration as the legal provisions for the transitional measures (TDA) reproduce the rules of Regulation 2454/93 in this respect (see Appendix C1 of the TDA).For transit please see in particular Articles 24-29 of the TDA. In its final provisions, in Article 55 (1), you can find under number 4 the rule that the data requirements of Annex B-DA shall only apply once the respective system is ready. Once this is the case (scheduled for 2019) there are some improvements as regards Box 18 of the transit declaration. Please see column D1 of Annex B-DA, data element no. 7/7 to which the following footnotes apply:
Q.: The list of sensitive goods was deleted under the UCC provisions. How to deal with the comprehensive guarantee authorisations and guarantor's undertakings for those goods?
A.: The list of sensitive goods will not apply as of 1 May 2016 and the authorisations for the use of the comprehensive guarantee (full or reduced) will cover all goods. Therefore separate authorisations concerning sensitive goods will not be required. But until the re-assessment the existing authorisations and the guarantor's undertakings for the use of the comprehensive guarantee for normal goods and for sensitive goods can continue to be used.
Q.: For customs transit, paper documents may be used mainly in the context of business continuity as a fall back option. The models of these paper documents have changed with the UCC provisions and the accordingly amended transit Convention. Can paper documents which are still valid and have been issued according to the old models continue to be accepted?
A.: The above mentioned documents should be accepted also after 1 May 2016 and until the Contracting Parties replace those documents by the models which are set out in the amended Union legislation and the transit Convention in line with the rules on reassessment of authorisations (Article 251 DA and Article 71 of the Convention, Appendix I as amended in April 2016).
Use of such documents is limited to fall-back cases in the context of the business continuity procedure:
a) TC 31 — Comprehensive guarantee certificate (Annex 72-04 IA, Annex C5, Appendix III, Convention)
b) TC 33 — guarantee waiver certificate (Annex 72-04 IA, Annex C6, Appendix III, Convention
No transitional period has been granted in the legal provisions for the use of old models of the following forms in the context of the standard procedure and therefore the new models shall be used as of 1-5-2016, e.g. for the
TC11 — Receipt, Annex 72-03 IA/Annex B10, Appendix III, Convention;
TC 10 — Transit advice note, Annex 72-04 IA/Annex B8, Appendix III, Convention);
TC 32 — individual guarantee voucher (Annex 32-06 IA/Annex C3, Appendix III, Convention) and a guarantor’s undertaking — Individual guarantee (Annex 32-01 IA/Annex C1, Appendix III, Convention).
Q.: In relation to the re-assessment which is required for existing authorisations, would this re-assessment include:
- the lodging of an application?
A.: The re-assessment of decisions that remain valid on 1 May 2016 is to be made ex-officio by customs administrations and does not require an application
- the new UCC data requirements or the transitional data requirements defined by each MS (i.e. 3 mandatory elements, others optional but allowing to check conditions and criteria)?
A.: As regards the authorisations covered under the UCC Customs Decisions system, both formats will be allowed for the re-assessments launched until 30/09/2017. For the re-assessments of those authorisations launched as of 1/10/2017 they have to be fully respecting the new data requirements;
- the possibility to extend the geographical validity (from 1 MS to more MS)?
A.: It is not possible to extend the geographical validity of the authorization during the re-assessment (if not asked in the initial application). However, the applicant has the possibility to submit a new application where the geographical validity can be extended (amendment upon application by the holder of the decision - see UCC art. 28); in this case, it occurs outside the re-assessment process.
Q.: Would this re-assessment result in a new and UCC decision with a new identification number?
A.: Yes, enabling the automatic verification of the new valid authorisation (nr) when a declaration is processed.
These questions & answers are of an explanatory and illustrative nature. Customs legislation takes precedence over the content of this document and should always be consulted. The authentic texts of the EU legal acts are those published in the Official Journal of the European Union. There may also be national instructions.