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EU: Uniform penalties for customs infringements to be introduced soon?

For some time now there have been efforts to standardise customs sanctions law in the European Union. In December 2013, the European Commission had already presented a corresponding legal framework for harmonising sanctions law. The European Parliament’s position on the Commission’s proposal has now been published in the Official Journal of the European Union.

The need to harmonise the law on sanctions

The introduction of the Union Customs Code has harmonised customs legislation in the Member States of the European Union. However, despite the uniform regulation of the framework conditions, the Union Customs Code has so far provided that it would be the responsibility of each Member State to sanction breaches of customs law accordingly. The only stipulation was that any sanctions should in any case be effective, proportionate and dissuasive, with each Member State being responsible for the precise details of the sanctions.

The ongoing efforts to harmonise the law on sanctions are justified in particular by the need to harmonise it for reasons of transparency, the proper functioning of the internal market and the creation of a level playing field within the Union. So far, there would be 28 ways in the European Union to respond to breaches of customs legislation, which the Commission believes could lead to a loss of revenue for Member States and distortions of trade flows.

Introduction of new offences and danger of strict liability?

In order to ensure the effective enforcement of customs legislation in the Union, the Commission’s original proposal provided for three different categories of behaviour, each of which should be seen in isolation as an infringement of Union customs legislation. In particular, the Commission also proposed to create strict liability for breaches of customs legislation.

However, the European Parliament has rejected this proposal, so that strict liability may now not be to be expected.

Otherwise, the Commission’s proposal contains an extensive catalogue of acts and omissions which are supposed to constitute customs infringements, as well as the associated sanctions. Examples could be the failure of a person to ensure the accuracy and completeness of a customs declaration, the unauthorised removal of goods brought into the customs territory of the Union from customs supervision, or the failure of the debtor to pay the amount of import or export duty due within the specified period. The European Parliament has not made any substantive changes to the Commission proposal in this respect. The legal framework also contains rules on instigating, aiding and abetting and attempting infringements of customs legislation. It also contains a passage on the liability of legal persons.

Member States first have to transpose Directive into national law

However, unlike the Union Customs Code, which is directly applicable in every Member State of the Union, the Member States have yet to transpose the Directive harmonising the law on customs sanctions into national law. To this end, the European Union would set them a deadline for implementation. When transposing the Directive, the Member States are then required to incorporate the essential provisions of the Directive into national law, while leaving them room for manoeuvre in the implementation of the specific provisions. This scope for implementation is unlikely to lead to a complete standardisation of sanctions law.

It also remains to be seen when the Directive will enter into force at all. In legal terms, it also remains to be seen whether the Directive will be lawful, since the European Union has no legislative competence in the field of criminal law and administrative offences.

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