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7th Symposium of Lawyers - Helmut Große
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” European Customs tightens up Helmut Große Deutscher Speditions- 30. April 2008, St. Petersburg 7th IRU-Symposium "Level of harmonisation of the politics of control and sanctions for transport operators carrying goods by road" Ladies and Gentlemen, with the creation of the Single Market in the European Union in 1993 the customs borders between the member states were removed. Since then there have no longer been any formal custom controls - basically customs only monitor the existing prohibitions and limitations for cross border goods traffic on the outer borders of the EU.The dilemma: any illegal goods that are brought into the community can then essentially circulate freely in the Single Market. The German Customs Administration thus set up so-called Mobile Control Groups, in order to combat smuggling and to monitor statutory import, export and transit prohibitions.Customs monitoring particularly ensures the collection of import and export duties as well as upholding customs law. With the introduction of the Customs Code on 1 January 1994 the most important legal sources concerning customs matters in the European Community were largely summarised and standardised. At the same time the national customs laws were annulled. Wherever the Code or its implementation regulations do not regulate an issue recourse has to be made to national regulations. In Germany these are the Abgabenordnung, the Zollverwaltungsgesetz, the Zollverordnung, the Außenwirtschaftsgesetz and the Außenwirtschaftsverordnung. European customs law is not - as it actually should be - characterised by a financial customs approach but by penalty customs thinking. Thus for numerous infringements not only is a fine due but simultaneously the customs duty and import tax as well (30 - 40 %). In the modernised Custom Code, which is expected to come into force in 2010, the EU is leaving penalty customs thinking behind. Infringements should then usually only be subject to a fine. Within the context of recording cross border goods traffic the conveyor, that is the actual carrier, has to keep a range of obligations. These include transporting any goods brought across the border into the customs zone of the Community to the responsible customs post within a pre-determined period of time (the so-called Conveyance Obligation in accordance with Art. 38 Customs Code). Arrival is to be notified to the customs post (Presentation Obligation in accordance with Art. 40 Customs Code). This has to be done within the determined opening times of the customs post. The presentation obligation applies to the person who has carried the goods (the conveyor). If applicable the forwarder who takes over the goods from the conveyor after they arrive at the customs post responsible can also be subject to the presentation obligation. If any infringement against these stipulation is made then an invalid conveyance exists with the result that a customs debt in accordance with Art. 202 Para. 1 Customs Code is incurred. Infringements against these stipulations are treated as import smuggling. Alongside the criminal and fine consequences, goods subject to the import information obligation can also incur a payment obligation for import duties. Import duties are duties regulated in the Customs Code as well as import sales tax and any other consumption taxes due on imported goods. The sanctions range from seizure of the goods with payment of a fine of up to € 5,000.00, up to the initiation of criminal proceedings. In practice the courts partly impose draconian fines or even prison sentences e.g. up to 5 years in the case of tax evasion in accordance with § Customs debtors can be:
Practical examples (transport under TIR Carnet coming from a third country): No identification/manipulation of the customs seal The goods are placed at German customs and the driver removes the identification at the customs office without the presence of a customs officer or the seal was removed or manipulated. In this case the driver receives a warning fine of € 75.00. A complete inspection follows which leads to considerable time delays which are connected Exceeding the presentation deadline Exceeding the presentation deadline is largely unproblematic. If the delayed presentation can be explained by external circumstances (traffic jams, accidents etc) and if all the paperwork is available the procedure will be ended at this point. If frequent incidents occur a fine process will usually be initiated and customs will apply for exclusion from the TIR Carnet scheme. The wrong goods If, for example, incorrectly labelled goods (unintentionally) are carried in a despatch process (ladies’ blouses instead of men’s shirts) this procedural error leads a customs and import duty being incurred. Considerable loss of time is to be taken into account as well as additional costs for storing the goods until the import duty has been determined. Claims are made not only against the forwarder who bears the main obligation but also the driver because he has “abstracted” the goods. Non presentation of the goods Non presentation of the goods to the customs office basically leads to import duty being incurred in accordance with Article 203 Customs Code. At the same time a fine process will be initiated as well as criminal proceedings if there is any basis to suspect tax evasion. Smuggling If goods are hidden (smuggling) the goods will be seized and the driver(s) will usually be arrested. A process will be initiated due to tax evasion. Investigations can be made into all people involved. All parties involved as well the warranting organisation, if applicable, are the debtors. From our point of view the liability regardless of negligence or fault of the forwarder/transport company/driver in many cases e.g. cigarette smuggling is to be criticised. There are several judgements from higher courts in which forwarders/drivers have been held liable for smuggling even when it could be clearly determined that they did not know anything about the smuggled cargo. In this case customs cover does not apply because this only occurs for damage due to errors in the despatch order which did not apply in this particular case. Finally I would like to make some comments on the planned EU measures for increasing security in cross border goods traffic. Customs related security initiatives of the EU Following the attacks of September 11. 2001 it was not only the USA but the EC Commission too believing it necessary to develop measures against possible terrorist attacks particularly in the field of goods traffic. As a consequence the Brussels’ efforts to contain a potential danger has entailed changes and cost increases for export companies as well as for forwarders and carriers when dealing with third countries. With the security amendment to the Community Customs Code the European Union introduces a number of measures to tighten security around goods crossing international borders. The measures will mean faster and better-targeted checks. The results are positive for customs authorities, the public and industry. The measures cover three major changes to the Customs Code:
The EC-Customs Initiative aiming at improving security of the international supply chain has taken effect since early 2007. Authorized Economic Operator (AEO) One of the main elements of the security amendment of the Community Customs Code is the creation of the AEO-concept. The AEO-Status is not legally binding but a more customs-related status acquired voluntarily, however, at least in Germany businesses have demanded this status for forwarding and logistics companies. The AEO-Provisions have been in use in Germany since 01. January 2008. On the basis of the security amendments of the Community Customs Code, Member States will be entitled to grant the AEO-status to any economic operator that meets common criteria relating to the operators' control systems, financial solvency and compliance record. Pre Arrival / Pre Departure Declarations from the 1st July 2009 As another important point the European Commission proposed a number of measures designed to meet the need for safety and security in relation to goods crossing international borders. Among other measures, the new Regulation requires traders to supply customs authorities with advance information on goods brought into, or out of, the customs territory of the European Community. This will provide for better risk analysis, but, at the same time, for quicker process and release upon arrival. Electronic pre-registrations are scheduled to become applicable as of 1. July 2009. It is anticipated that a 24 hour deadline for prior declaration will apply to goods brought into the customs territory of the EU by sea , where the voyage duration exceeds that period, but in most other cases (by rail and inland waterway), prior notification will probably need to be given just 2 hours, if electronic, or 4 hours if on paper, before the goods are brought into, or out of, the customs territory of the EU (by road probably 1 hour before). This will bring about additional and high costs for the service providers concerned. Forwarders will meet these high challenges. Thank you very much for your attention. |
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