|
|
 
|
 |
 |
 |
 |
 |
 |
 |
 |
|
|
|
|
|
|||||||||
|
|
|
|||||||||
| |||||||||||
|
7th Symposium of Lawyers - Alessandro Pesce 2
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” “THE LEVEL OF HARMONISATION OF INSPECTION AND SANCTIONS POLICIES FOR ROAD CARRIERS TRANSPORTING GOODS BY ROAD” Rapporteur: Mr Alessandro Pesce (Italy) Inspection and sanctions policies relating to bringing goods into a customs territory
When goods enter a country, States require the payment of import duties or other taxes. Some regulations apply even when the goods are transiting through the country in question. Under certain conditions, the duties and taxes paid may be refunded when the goods leave the country. It is clear that whenever goods cross a border, national customs procedures place a burden on trade and pose an obstacle to their circulation. To facilitate trade, States have adopted transit rules which enable operators to transport goods across borders or territories without paying the taxes owed in principle upon entering (or leaving) the territory concerned. As far as Italy is concerned, bringing goods into the customs territory is governed by international, European Community, and national sources: The TIR Convention of 1975, which was adopted by the European Community and by member States. With approximately 50 countries using this procedure, the TIR system is the only really international customs transport system currently available. The goods are moved from a departure customs office within a country to a destination customs office in another country, covered by an internationally recognized customs transit document, the TIR carnet, which also provides a financial guarantee for the payment of the duties and taxes suspended. The guarantee system is managed by the IRU. One condition of the TIR procedure is that the goods’ circulation must include road transport. Although each member State is a contracting party to the TIR Convention, the European Community is considered to be a single territory for the purposes of the TIR procedure. This TIR system can only be used in the European Community when the movements start or end in a third-party country, or when the goods are moved between two member States via the territory of a third-party country or more. For the transport of goods between the 27 EU member States and EFTA countries (Iceland, Norway, Liechtenstein and Switzerland) the procedure used is the common transit procedure. It is based on the Convention of 20 May 1987 concerning the common transit procedure. The rules are the same as the ones for European Community transit and are adopted in the European Community Customs Code. The European Community transit procedure is used for customs transit operations between the member States (and Andorra and the Republic of San Marino). The external European Community transit rules (T1) apply mainly to the circulation of non-European Community goods and European Community goods which, in-between their departure point and their destination in the EU, must pass through the territory of a third-party country. It suspends duties and other applicable taxes until the goods reach their destination within the European Community. The internal European Community transit rules (T2) apply to European Community goods which are shipped from one point to another in the European Community customs territory and either pass through the territory of an EFTA country or are imported there. The rules are established in the European Community Customs Code. The basic customs legislation for the European Community is contained in the Customs Code (EEC Council Regulation No. 2913/92) and in the Code’s implementation provisions (EEC Commission Regulation No. 2454/93). Currently, the adoption of the Regulation establishing the European Community Customs Code (modernised Customs Code) is being discussed by the European Parliament, and it should come into force in mid-2008. Its implementation provisions should be completed and adopted by late 2008 or early 2009. Those international and European Community provisions which are not complete must be integrated using national laws. In Italy, Presidential Decree No. 43 of 23 January 1973 (unique legislative text relating to customs matters) will settle numerous issues which are not dealt with in the European Community Code, and particularly how the customs service and customs offences work.
If the carrier wants to bring goods into the European Community’s territory in general and Italy in particular by paying import duties and taxes at the destination, it must use a transit procedure. Carriers from non-European Community countries belonging to the TIR Convention may have access to the TIR procedure. Appendix 9 to the TIR Convention sets out conditions and minimum requirements in order to be authorised to use TIR carnets, but each national association will deliver the actual carnets to the carriers accepted into the system. The TIR carnet accompanying the goods is an internationally-recognised document that certifies the existence of the guarantee and is used as an inspection document for customs purposes in countries that goods depart from and pass through, and in destination countries. The TIR carnets are printed by the International Road Transport Union (IRU) and distributed to the national guarantor associations. At the departure customs office, the authorities check the loading and the match with the description of the goods in the TIR carnet, and then seal the loading compartment. If inspected, the carrier must show the TIR carnet duly stamped by the customs offices it has passed through, and the seals must be intact. A carrier wanting to use the internal (T2) or external (T1) European Community transit rules must present the transit declaration to the departure office, either in the form of a paper document, or in electronic form. Electronic declarations can be made to the departure customs office or from the operator’s own premises. The system assigns a unique record number to the declaration; the movement reference number. Following any checks at the departure office itself or at the approved sender’s premises, and once the guarantees are accepted, the goods are placed under the transit procedure. The system prints the transit support document. These documents must travel with the goods and be presented to all the offices passed through as well as to the destination office.
The national customs authorities are the bodies assigned to controlling the bringing of goods into the customs territory. The European Community comprises a single customs territory and inspections of goods which arrive from outside are carried out by the customs authorities of the European Community Member States which have external borders. If you use the TIR system, the entry point customs office within the European Community territory checks the seals and removes a section from the TIR carnet. The final check is carried out by the destination office, which takes charge of the goods. In cases involving European Community transit, the checks are carried out by the customs authorities of the member States, which can act as the departure office, the destination office and, possibly, as the transit office. Normally, the inspection procedures are standardised, but each interested customs authority retains full inspection rights. When fraud is suspected, the customs authorities and, generally speaking, police authorities, can check the goods either in the customs offices or during carriage.
Customs offences are governed by national laws. In Italy, the single text in the field of customs regulates customs offences that are classified as part of the overall offence of contraband (which falls under the penal legal system), and several offences and contraventions incurring administrative fines for which sanctions of an administrative nature are laid down. Generally, contraband is considered to exist whenever import or export duties and taxes exceeding 4,000.00 Euros have not legitimately been paid or when the rules prohibiting, restricting or regulating the import or export of the goods have not been followed. The law makes detailed provision for various hypotheses regarding contraband. The sanctions applicable are pecuniary penalties proportional to the duties fraudulently infringed (2 to 10 times the value of the duties themselves). A prison sentence is stipulated in the case of repeat offending and in the case of aggravating circumstances, for example the offence of association to commit crimes. The offence of contraband always entails the confiscation of fraudulent goods and the instruments involved in the fraud, or in other words the means of transport as well. Even means of transport which belong to subjects who are exonerated may be confiscated provided that they have been converted for the purpose of committing the offence. In terms of taxation and civil law, duties and taxes fraudulently avoided are still payable.
Criminal liability is based on participation in the offence. The persons who committed the customs offences and their accomplices are subject to penal sanctions. In the case of pecuniary penalties, the carrier and the owner of the means of transport are legally and jointly liable for payment of the pecuniary penalties if the person who committed the offence is their employee and is insolvent. In all cases, the penal sanction has no influence on the obligation to pay the duties and taxes relating to the fraud. The law names several persons as being jointly and legally liable for the payment of import and export duties and taxes due, in addition to the persons who committed the customs offences and their accomplices. The transit procedures make provision for the presence of a guarantor: in the TIR system, the national guarantor association in each country guarantees the payment of any duty or other tax likely to become payable in the event of an irregularity occurring in the country during the TIR operation; a mandatory condition for the transport of goods covered by the common/European Community transit rules is the establishment of a guarantee sufficient to ensure payment of any customs debt likely to arise regarding the goods. Generally, all the operators involved in the import or export operation are legally liable for payment of the duties and taxes due.
In the case of criminal offences, the Court is competent in relation to the public prosecution instituted by the Public Prosecutor according to the rules of general law. In the case of offences and contraventions incurring administrative fines, the Customs Authorities have the authority to contest them. The demand for payment of fines and import and export duties and taxes due may be contested before the Tax Court within 60 days of the notification date. |
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
