We have already reported on several occasions the forthcoming amendment to Article 84 of the DelVO. The background to this is that the current legal text provides that the economic operator may demonstrate the existence of sufficient financial resources to settle the part of the reference amount not covered by the guarantee. In the worst case scenario – that is, if the guarantee is exemptunder Article 84(3) – this would mean that a substantial financial guarantee for the entire reference amount would have to be organised here.
In order to alleviate this unfavourable regime for economic operators, the German delegation, with the support of various Member States and business associations, has requested that the Commission remove this requirement. This was followed by a very lively discussion on several rounds and various committees on this topic. The pragmatic approach proposed by Germany received a great deal of support, but not from all the Member States and, in the last resort, from the Commission. However, this was the start of the search for a compromise acceptable to all sides. The new text is now available and is already in the internal consultation process involving the EU departments concerned (e.g. TAXUD, Budget, OLAF, Legal Service, etc.).
Proposal for recasting
In terms of content, the amendment consists of the following formulation or adaptation
The respective texts in Article 84 (1) (f) = 50% reduction / 2 (g) = 30% reduction / 3 (l) = exemption is deleted.
To this end, two new paragraphs are inserted in Article 84 of the DelVO:
To decide on the level of reduction of the comprehensive guarantee or on the guarantee waiver, the assessment of the sufficient financial standing as referred to in paragraphs 1 (e), 2 (f) and 3 (k) shall include, in particular, an assessment of the ability of the applicant to fulfil his obligations of paying his customs debts and other charges which may be incurred and for which the reduced amount of the guarantee would prove insufficient.
When carrying out the assessment referred to in the first subparagraph, customs authorities may take into account the risk of incurrence of those customs debts and other charges in relation, inter alia, to the volume and type of customs related business activities of the economic operator and to the type of goods for which the guarantee is required.
If the condition on sufficient financial standing has already been assessed as a modality for the application of the criterion referred to in Article 39(c) of the Code, it shall not be re-examined, in accordance with Article 38 (5) of the Code. It can only be evaluated for the purpose of granting an authorisation to use a comprehensive guarantee with a reduced amount or a guarantee waiver.
This is the current text proposal, which is now being discussed again. It is therefore still a provisional version which has not been definitively adopted. Dates for the conclusion of the discussion have not yet been set.
Key elements of the recast
- In principle, it will continue to be checked for financial solvency
- What is new is that the legal text for determining financial strength states that a risk assessment should be included; this is then intended to explore the relationship between a possible origin of the customs debt and the actual activities of the economic operator concerned, as well as the nature of the goods
- In addition, aNois should not be further examined on this requirement if this has already been done in the context of the granting of AEO status
We will keep you informed about the further developments.