Update: Implementation of the European Union Customs Code (UCC)

The European Commission and industry representatives are agreeing amendments to the legislation and the guidance. In addition, the European Commission is launching new initiatives to further modernize customs in the EU.

Key Points:

• Importers acting in good faith: Industry representatives are concerned that importers bear more risk under the UCC than under the previous customs code.  If an importer imports goods with lower duties under a preferential arrangement, but it turns out later that the goods did not in fact have the preferential status to qualify for the lower duties, importers could plead “good faith” to reduce their liability under Article 220(2)(b) of the previous customs code, a provision not available within the UCC. Industry representatives argue that this puts too much risk on importers.  So far, the European Commission has avoided amending the legislation.  Instead, the European Commission suggests that there should be   fewer cases of goods being imported incorrectly with preferential status under the UCC, because the exporting country’s government is involved in registering exporters under preferential arrangements.
• Guarantees by Authorized Economic Operators (“AEOs”): The UCC allows AEOs to post lower guarantees, but industry representatives are concerned that this provision is not working well.  Industry representatives have argued that Article 84 of the UCC Delegated Act should be amended. The European Commission has indicated that it will aim to resolve this by the end of 2017, and will also publish guidance on guarantees.
• New system for the Generalized System of Preferences (“GSP”): The EU launched a new system for GSP origin certification in January 2017.  The system, called “REX”,  will allow exporters to self-certify origin for GSP with        statements of origin.  This system will replace the “Form A” certificate of origin.  The system will be phased in from 2017-2019 for different sets of countries.  The 2017 set includes India, Kenya, Bhutan, Comoros, Laos, Nepal, and a number of  other countries.

Definition of “exporter”: After long discussions between the European Commission and industry representatives, the European Commission has finally agreed to amend the definition of “exporter” in the UCC.  Industry representatives have been concerned that the current definition in the UCC causes problems for transporters that do not own the goods that they are transporting.

Forward-looking initiatives

• Further modernization and integration of customs: The European Commission has issued a paper on “Developing the EU Customs Union and its governance”, which sets out a vision for EU customs with greater digitalization, better coordination between Member States, and integrated border management.
• Excise and customs: The European Commission has launched a Project Group on excise and customs cooperation, as the legislation on excise and customs matters have not been well coordinated so far.
• VAT and customs for small consignments: The European Commission has also launched a Project Group on Low Value Consignments, with a focus on facilitating VAT and customs issues for postal and courier services.

Regarding the Wortmann case, the European Commission has  indicated that the court’s decision was very clear – Member States must pay interest on repayments of duties levied in contravention of EU law, and the interest must be charged from the time of  payment of the duties.  There is currently no plan to amend the UCC in light of this case, since the court hadn’t relied on the text of the UCC, and so it was not clear whether there are any implications for the UCC.