EU Customs Code in Russian. EU customs union and modernized EU customs code

El código aduanero de la Union

As you know, the EU Customs Code (el código aduanero de la Unión) comes into force in 2016. What surprises does he present to us? What should you expect?

Let's look at the most important aspects of the document.

The EU Unified Customs Code was adopted back in October 2013, but the main part of the provisions of the document will come into effect on June 1, 2016. A distinctive feature of the document is that it provides for a phased transition of the EU to the unified EU customs system. It is planned to completely complete the process of information exchange and the creation of unified databases for EU member countries by 2020.

Throughout the entire period after the adoption of the Customs Code, the European Commission, together with the member states of the Union, has been developing a plan for its implementation, which should be fully operational from January 1, 2021.

According to the plan of the European Commission, by December 31, 2020, the transition period should end completely, when the IT infrastructure will be created - and from that moment on, the Common Customs Code of the European Union will be in full force.

Innovations in the EU Common Customs Code

The EU Customs Code involves a number of innovations.

Status of authorized economic operator

First of all, they will affect authorized economic operators. It will be significant for themsimplified procedures for customs clearance and provision of customs guarantees, and a centralizedcargo clearance mechanism at customs.

Important: same preferences will also apply to those without official status authorized economic operator of participants in foreign economic activity, but who meet the criteria applied to authorized economic operators. That is, preferences will be provided in fact. These criteria include tax transparency in activities and relevant competence.

The innovations will also affect procedures for collecting customs fines, which will be significantly simplified and will allow avoiding, in certain cases, non-financial liability for reducing the amount of customs duties. It will be possible to avoid such liability if customs payments were underestimated accidentally or unknowingly and in an insignificant amount.

Changes in EU customs procedures

During the implementation of the Uniform Customs Code of the European Union, the system of customs clearance of goods will be modernized, as a result the number of customs procedures required for this will be reduced. Decision-making by customs authorities will be limited to a period of 4 months, that is, the service will become more efficient. National fine systems will be abolished - from now on only a unified system of penalties will be applied within the framework of the EU Labor Code. A very important innovation - the validity period of the ruling on legally binding tariff information (BTI) will be reduced from 6 to three years, i.e. it is now consistent with the existing ruling on legally binding information on the origin of goods BOIs (binding origin information rulings)

Carrying out rail transport within the framework of the EU Customs Code

Already in 2019, it is planned to introduce a unified electronic system in 28 EU member states, including the current Automated Tariff and Local Customs Clearance System (ATLAS). This will allow us to completely abandon paper CIM waybills for transit rail container transportation.

Unified electronic database within the framework of the EU Labor Code

The customs authorities of the European Union member countries and participants in foreign economic activity will carry out data exchange only in electronic form. For this purpose, by the end of 2019, an electronic system, including ATLAS, is gradually being introduced throughout the European Union.

That is, paper versions of documents will become the exception rather than the rule.

Functions and organization of customs warehouses under the new EU Customs Code

The EU Common Customs Code allows temporary storage of goods only in warehouses that have received permission to do so from the customs authorities of EU member states. To organize a customs warehouse, you will need to obtain the appropriate permit and pay a deposit.

Legal basis:

1. Download in Spanish: (official version of BOE)
2. In English, look for the version of the Community Customs Code (Modernised Customs Code) published in the Official Journal of the European Union (Official Journal No. L 145, Art. 1)
3. You can familiarize yourself with classic EU customs law at the following link:
4. EU customs law system (customs lawyer page, Spanish)

More about the laws of Spain:

On February 28, 1990, the EU Commission submitted a draft EU Customs Code for consideration; on October 12, 1992, the Customs Code was adopted by Council Regulation No. 2913/92 and came into force on January 1, 1994. Before the Customs Code came into force, Regulation No. 2454/93 was adopted

“On the application of the Customs Code,” or as it is also called, the Implementation Code. The Implementation Code approved the procedure for entry into force, as well as the application of the norms of the Customs Code of the European Union.

The EU Customs Code owes its appearance to the member states, since at that time there was no longer a need for national customs codes and statutes and a customs code was required, which would be integrated in the EU member states.

The Customs Code made it possible to abandon a huge number of various directives and regulations that carried instructions on customs control issues. The customs codec was one directive and instruction, because the ongoing formation of a common market required the consolidation of all instructions. The Customs Code is mandatory and has legal force in all member states, with the exception of rules that are reserved in the Treaties of Accession.

Although the EU Customs Code and the Implementation Codec were able to replace a huge number of directives and regulations, they still could not replace two regulations, these are Regulation No. 2658/87 “On the EU Common Customs Tariff” and Regulation No. 918/83 “On the System of Exemption from Payment of Customs Duties”. duties."

The legal basis for the adoption of the EU Customs Code is the EEC Treaty, or more precisely its Articles 26, 95, 133 and 135.

The EU Customs Code, like any other regulatory act, requires reforms and changes; the last time such reforms affected the EU Customs Code was in 2005, they affected the risk management system, authorized economic operators, etc.

The inexorable improvement of customs technology, as well as the continuous growth of international trade, forced the EU Commission to radically change the existing Customs Code in order to meet the realities of the current times. As a result, the European Parliament decided to develop a Modernized Customs Code.

The first draft of the MTK was submitted for consideration on December 10, 2003, but the draft turned out to be crude and was sent for revision. Almost a year later, on November 11, 2004, having taken into account and corrected all the comments, the draft was presented again, but it suffered the same fate as the first draft, it was sent for revision, and only on June 18, 2007, the final draft of the modernized customs code was approved and sent to the European Parliament. On 23 April 2008, the European Parliament adopted Regulation No. 450/2008 on the approval of the Community Customs Code (updated version of the Customs Code).

The preamble of the Modernized Customs Code speaks of the need to reflect in customs legislation new tasks of customs authorities, new roles and the current economic situation.

In its structure, the MTK is absolutely identical to the old TC; it also consists of nine parts, which includes chapters and sections, as well as 188 articles, which are the basic elements.

The modernized Customs Code consists of legal norms that can be divided into several groups:

general provisions;

provisions relating to customs control and regulation in the field of customs clearance;

provisions related to tariff regulation and the scope of calculation and payment of customs duties.

In the first group we include the provisions of parts l, Vlll and lX of the Modernized Customs Code.

Part l consists of three chapters:

The first chapter talks about the goals and objectives of the adoption of the ITC, and also lists all the customs territories of the EU. This chapter highlights Art. 4, which presents 33 concepts and definitions;

the second chapter of part l outlines the rights and obligations of persons when interacting with customs authorities. The issues discussed in this chapter relate to the implementation of customs operations by persons and the provision of information to the customs authorities. The second chapter establishes penalties for violation of customs legislation, and also regulates the procedure for appealing the actions of customs authorities;

The third chapter of part l deals with the issues of volute conversion and calculation of terms.

Part Vlll of the ITC deals with goods exported from the customs territory of the Community.

This part consists of three chapters:

the first chapter specifies the obligations to submit a preliminary declaration, measures establishing certain information, and also establishes customs controls and export formalities;

chapter two is entirely devoted to export and re-export;

the third chapter indicates the conditions under which exemption from payment of export customs duties is possible.

This group also includes the norms of part lX, which contains a list of EU regulations that have lost force with the adoption of the Customs Code, norms on the Committee on the Customs Code, norms on the entry into force of the Modernized Customs Code, as well as correlation tables that provide a comparison TK and MTK.

The norms related to customs clearance and customs control in the customs regulation system that belong to the second group make this group key. This group includes the positions of parts lV-Vll.

Part lV, which covers issues related to the arrival of goods into the customs territory of the EU, is divided into two chapters: the first chapter approves the procedure for submitting a short import declaration, determines the circle of persons responsible for this submission, as well as the procedure for making additions and changes to this declaration;

the second chapter is entirely devoted to the arrival of goods into the EU customs territory. This chapter also covers issues related to the presentation of goods to customs authorities, their unloading and inspection. In addition, this chapter contains provisions on formalities carried out after the presentation of goods, as well as on goods placed under the transit procedure. Part V reflects general rules on customs status, placement of goods under customs regime, confirmation, release and disposal

goods. This part consists of four chapters:

the first chapter concerns the customs status of goods;

the second chapter talks about placing goods under customs regime;

chapter three regulates the inspection and release of goods;

Chapter four establishes rules regarding the disposal of goods.

Belonging to the second group, Chapter One of Part Vl of the modernized EU Customs Code reveals the rules on the release of goods for free circulation.

Part Vll is very important, because it is devoted to special customs procedures, which, according to the Modernized EU Customs Code, include transit (external, internal and communal), storage, special use and processing (internal and external).

The third group includes the provisions of parts ll and ll of the Modernized EU Customs Code, as well as chapter two of part Vl.

Part ll talks about tariff regulation and is divided into three chapters:

The first chapter describes the Customs Tariff of the European Community and the tariff classification of goods. This chapter identified the main structural elements of the EU Customs Tariff, which included a combined product range, customs duty rates, tariff preferences;

the second chapter contains provisions that determine the country of origin of the goods for customs purposes. The preferential and non-preferential origin of goods is highlighted;

the third chapter concerns the determination of the value of goods for customs purposes. This chapter provides a definition of the customs value of goods, reveals the basic principles on which the determination of customs value is based, and also provides methods for determining customs value.

Part lll, belonging to the third group, talks about customs debt and security; this part consists of four chapters:

Chapter one talks about the occurrence of customs debt;

Chapter two talks about ensuring payment of potential or significant customs debt;

chapter three concerns the return and payment of import and export customs duties;

Chapter four talks about paying off customs debt.

Chapter two of part Vl of the Modernized Customs Code talks about cases of exemption from payment of import duties on back imported goods and marine products.

The fundamental changes of the Modernized Customs Code from the Customs Code are highlighted as follows:

customs declarations and accompanying documents are submitted only electronically;

exchange of information between customs authorities is carried out only in electronic form;

the concept of “Central Clearance” was introduced, now the authorized customs operator has the opportunity to declare and pay duties electronically at his location and regardless of which EU member state he has to move the goods through;

introduction of the “One Window” and “One Stop” concepts.

In modern realities, the EU MTC has not stopped improving, and the new edition of the Modernized Customs Code came into force on 02/01/2016. The main part of the code remains the same.

The main key changes are as follows:

authorized economic operators are provided with extended preferences;

the storage period for customs documents for customs inspection purposes has been increased from three to ten years;

from 05/01/2016, all types of declarations will be submitted only electronically through the EDI system;

To prove the import or export of goods to the tax office, you need to have a declaration only in electronic form in XML format.

The Code brings together about 75 regulations that were adopted from 1968 to 1992, and it was also aimed at achieving clarity and uniformity in the interpretation of the provisions of EU law affecting trade with third countries.

Before dwelling on the main provisions of the current European codified customs act, it is necessary to focus on the concepts and categories used in it, as well as those that are of great importance to it.

Tariff union- unification of states that have a common customs tariff for trade with third countries and eliminate import duties in mutual trade;

Free Trade Association - an organization that, in the absence of a single external customs tariff among member states, establishes a procedure for not imposing import duties in mutual trade on goods originating from member countries of the Association;

Customs Union- represents a tariff union with a harmonized system of legal norms in the field of customs regulation, as well as in the field of other types of import taxation;

Economic Union- the unification of states, together with the creation of the Customs Union, ensuring freedom of movement within the union of services, capital and labor.

Face- within the meaning of the Code, persons include: individuals; legal entities; in cases provided for by current legislation, an association of persons capable of carrying out legally significant actions, but not having the status of a legal entity.

A person domiciled in the Community - a) for individuals - any person permanently residing in the territory of the Community; b) for legal persons and associations - anyone having a registered office or central headquarters or permanent business establishment in the Community.

Customs - authorities whose powers include, among other things, the application of customs rules (this interpretation allows the immigration service, border authorities, etc. to be considered customs authorities).

Customs office- any institution in which all or some of the formalities provided for by customs regulations can be carried out.

Solution- an official act of customs authorities on the application of customs rules provided for a specific situation; such an act creates legal consequences for one person or a number of persons directly identified or possessing certain characteristics.

Customs status- whether or not the product belongs to “Community goods”.

Community Products:

a) produced entirely within the customs territory of the Community, subject to the conditions of Art. 23 of the Code (see below) and does not include goods imported from outside the customs territory of the Community;

b) imported from countries and territories outside the customs territory of the Community and released for free circulation in the Community;

c) produced in the customs territory of the Community from goods specified only in paragraph 6 or from a combination of goods specified in points a and b.

Article 23 of the Code details the concept of goods wholly produced in the customs territory of the Community.

Mineral products mined within the community;

Fruit products grown in the community;

Live animals on the territory of the Community;

Products originating from live animals raised on the territory of the Community;

Products produced in floating fish processing plants;

Products obtained from the seabed or shelf outside territorial waters, provided that the Member State producing them has the exclusive right to exploit that area of ​​the seabed or shelf;

Industrial waste or garbage collected within the Community for processing into raw materials;

Goods produced in the Community exclusively from the products referred to in the previous paragraphs or their derivatives, at any stage of production.

Goods not having the status of Community goods- all goods that do not meet the definition of “Community goods”. The Code also provides for the loss of the status of “Community goods” by goods when they are exported from the customs territory of the Community (with the exception of the customs procedure for internal transit).

Customs debt- the obligation of a person to pay the amount of import duty (customs duty on import) or export duty (customs duty on export) corresponding, in accordance with the current Community regulations, to the goods imported or exported. Article 20 of the Code specifies that the amounts of customs duties are determined on the basis of the Common Customs Tariff of the European Community.

Import duties: customs duties and fees of a similar nature paid when importing goods; agricultural taxes and other import charges levied under a general agricultural quota or by special agreements on certain products resulting from the processing of agricultural products.

Export duties:

a) customs duties and fees of a similar nature paid when exporting goods;

b) agricultural duties and other export charges levied in accordance with the general agricultural policy or by virtue of special agreements on certain goods produced as a result of the processing of agricultural products.

Debtor- the person who must pay the customs debt.

Supervision by customs authorities- a set of actions by customs authorities carried out to ensure the implementation of customs and other rules applicable to goods.

Control by customs authorities- implementation by customs authorities of special actions carried out to ensure the implementation of customs and other rules applicable to goods, namely: inspection of goods, checking the presence and correctness of filling out documents, checking accounting accounts and other records, inspection of vehicles, inspection of luggage and personal belongings, submitting official requests, etc.

Customs regime:

1) placing the goods under one of the customs procedures;

2) placing goods in a free zone or free warehouse;

3) re-export of goods from the customs territory of the Community;

4) destruction of goods;

5) refusal of goods.

Customs procedure:

1) release of goods into free circulation;

2) transit of goods;

3) placing the goods in a customs warehouse;

4) processing of goods within the customs territory;

5) processing under customs control;

6) temporary import;

7) processing of goods outside the customs territory;

8) export of goods,

Customs declaration- an act by which a person expresses in the established form and manner the intention to place goods under the selected customs procedure; Various forms of customs declaration are allowed.

Declarant- a person submitting a customs declaration on his own behalf, or a person on whose behalf a customs declaration is being submitted.

Presentation of goods to customs- notification of customs authorities according to the established procedure about the arrival of goods at the customs office or at another place designated by the customs authorities.

Release of goods- an act of customs authorities allowing the use of goods for purposes consistent with a given customs procedure.

Authorized person- a person authorized by a special act to carry out any actions related to customs clearance.

Current provisions- current norms of Community legislation and national legislation of member countries.

The Code does not define commonly used terms such as “import”, “export” and “re-export”. It seems that the meaning of these terms is generally known. Thus, import means the entry of goods into the customs territory; export and re-export - removal of goods from the customs territory (for the difference between export and re-export, see the section on customs regimes and customs procedures).

On 28 February 1990, the Commission of the European Communities presented the draft Community Customs Code. The Code was adopted on October 12, 1992 and came into force on January 1, 1994. On July 2, 1993, Commission Regulation No. 2454/93, called the Implementation Code, was adopted, establishing the procedure for the entry into force of the Customs Code; it was supplemented by the Commission Regulations of December 21, 1994 and certain acts of 1994.

Contents and general characteristics of the Code. In accordance with the purposes of its creation, the Customs Code applies only in the field of trade relations of the Community with third countries. The circulation of goods within the countries of the Community, since the constituent documents and principles of the “common market” imply their exemption from customs control, is not included in the range of issues regulated by the Code.

By its nature, the Code cannot regulate all customs and trade measures applied by the Community in relation to third countries. Since the purpose of the Code is to consolidate and systematize common rules and procedures for customs control for all goods, regardless of their nature, tariff policy measures that provide for different regulations for different goods are outside the scope of the Code. Combining the issues of tariff regulation of the EEC, the integrated customs tariff of the Community, together with the Customs Code, constitute the two cornerstones of EEC customs law applicable to trade with third countries.

The Code consists of 9 parts, combining 257 articles. The structure of the legal norms contained in the Customs Code can be presented in the form of three main groups:

1) introductory section- parts I-III - contains provisions on the movement of goods across the borders of the Customs Union, the definition of the customs territory, the definition of customs duty and the factors on the basis of which it is levied; Community customs tariff, origin of goods and their customs value;

2) core of the Code- the provisions of Part IV "Customs regimes", including the rules for the application of customs procedures in relation to various economic purposes; among the procedures provided for by the Code, the central place is occupied by the regulation of the procedure for the release of goods for free circulation, which is a priority from the point of view of the Treaty of Rome (Article 10)

3) last part of the Code- parts V-IX - contains, among other things, the rules for the collection of duties, the occurrence (or return) of a customs debt; The most important from a practical point of view are the provisions on the procedure for filing appeals against the actions of the customs authorities. Finally, this part of the Code contains a list of acts of the Council that are replaced by the Code.

What were the goals of the EU Customs Code?

1. Creation of a single legal document replacing the many acts adopted by the Community authorities in the field of customs regulation. In total, more than two dozen acts of the Council alone, put into effect over 22 years, have been replaced by the Code.

2. Achieving integrity, clarity and certainty of content. Simply reproducing the norms of “sectoral” (that is, regulating certain narrow aspects) acts on customs law in a single document would not make sense without developing a new approach to systematizing these norms. It is necessary to identify the most significant, fundamental principles, on the basis of which it is possible to consider other, more highly specialized rules.

Even at the stage of developing the draft Code, the Commission adopted the point of view that the Code, while establishing a certain mandatory list of provisions, at the same time should not be overloaded. The purpose of the Code - to reproduce legal norms in a clear, readable and logical form - should not lead to excessive saturation of the text. The fulfillment of this task was largely facilitated by the division of legal norms into two parts: the Customs Code itself and the Regulations establishing the procedure for the entry into force of the Code (the already mentioned Implementation Code).

Scope of application of the Code. The Customs Code and the conditions for its application, adopted both at Community and national levels, form the customs rules of the Union. EU customs regulations apply:

A) in the customs territory of the EU;

b) in trade between the Community and third countries;

V) to goods regulated by the EEC Treaty, the ECSC Treaty and the Euratom Treaty.

It is noteworthy that the Code does not define the terms “trade” and “goods”. Summarizing the definitions contained in other acts of the EU institutions (in particular, in the VAT Directive), we can propose the following definitions: “trade between the Community and third countries” is any movement of goods from an EU member state to a non-EU country, and vice versa ; “goods” - all tangible movable property, including electric current, gas, heat, cooling, etc.

EU Customs Law

Tutorial

Art.

Lecturer at the Department of European Law

Moscow State Institute

international relations (university) of the Ministry of Foreign Affairs of Russia,

Candidate of Legal Sciences

CONTENT

THE CONCEPT AND SOURCES OF EU CUSTOMS LAW»> 1. THE CONCEPT AND SOURCES OF EU CUSTOMS LAW

1.2. System of sources of EU customs law.

1.3. EU Customs Code.

2.2. EU customs territory

3.1. Customs duties in the EU. Classification of customs duties

3.2. Sales taxes and excise taxes

3.3. Customs duties

4.1. EU customs tariff structure. Combined nomenclature

4.2. Rules for classification of goods

4.3. EU integrated tariff

5.1. Non-preferential origin.

5.2. Preferential origin

6.1. Transaction price method

6.2. Reserve methods for determining customs value

7.1. Customs status of goods

7.2. Structure of customs regimes and customs procedures

7.3. Placing goods under the customs procedure. Customs declaration

7.4. Classification of customs procedures

7.5. Release into free circulation.

7.6. Transit of goods to the EU

7.7. Export

7.8. bonded warehouse

7.9. Processing inside the customs territory

7.10. Processing outside the customs territory

7.11. Processing under customs control

7.12. Temporary importation

7.13. Free zone and free warehouse

7.14. Re-export of goods

7.15. Destruction of goods and refusal of goods

See also Export declaration EX-1 (Form (EX1), Export declaration (EX1)) in (all sheets)

1. CONCEPT AND SOURCES OF EU CUSTOMS LAW

1.1. Concept of EU customs law

The concept of “customs law” in the traditional sense (i.e. in the understanding of national customs law) is a set of rules governing legal relations related to:

with the passage of goods across the customs border (customs taxation, customs control, customs regimes, etc.);

with the institutional organization of the customs mechanism;

with responsibility for offenses in the customs sphere and the procedure for considering customs disputes.

Customs law of the European Community, like national customs law, is a branch of law, namely a branch of European law. European law is generally understood as a set of legal norms related to the emergence and development of the European Communities and the European Union. Since the European Communities, representing an integration union of states, arose on the basis of the transfer by member states of part of their sovereignty to supranational structures (institutions and bodies of the Communities, and then the Union), issues of customs regulation passed, on the basis of constituent agreements, into the jurisdiction of integration entities. Thus, with the formation and development of legal norms of the Communities in the field of customs regulation, as well as in connection with the subsequent unification of customs regulation of the three communities - the European Economic Community (EEC), the European Coal and Steel Community (ECSC), the European Atomic Energy Community (Euratom ), it became possible to talk about the emergence of such a branch of EU law as customs law of the European Community (EU customs law).

The provisions of the Treaty on the European Community (hereinafter referred to as the EU Treaty) allow us to distinguish two main areas of customs regulation carried out by European law: relations within the customs union formed by the EU member states, and trade relations of the Community with third countries. Thus, one of the most important essential characteristics of European customs law is the set of rules regulating the internal and external aspects of the functioning of the EU customs union.

Legal acts of the European Community adopted to implement the provisions of the constituent treaties regarding the creation and functioning of the customs union are binding in the Member States, are directly applied, have direct effect and jurisdictional protection of the Court of Justice of the European Union and national courts. Acts of the Community institutions introduced the Community Common Customs Tariff (1968), the EU Customs Code (1994) and other important documents in the field of customs regulation.

Many areas of customs legal relations characteristic of national customs regulation remain outside the competence of the Community. In particular, the institutional basis of the customs service, the system and structure of customs authorities, the status of their employees are the subject of constitutional and administrative law of the EU Member States and are not regulated at Community level. Issues of liability for customs offenses and crimes also remain under the jurisdiction of national law (administrative and criminal), although the Maastricht and Amsterdam Treaties open up prospects for harmonization in this area.

The term “European Union customs law” covers a wider range of legal norms: both the law of the European Community (Communities) and the norms adopted within the framework of the 2nd and 3rd pillars of the European Union (cooperation in the fight against smuggling, drug trafficking and so on.). However, the latter do not have the distinctive features of Community law, since they do not have direct effect, require implementation in the national law of the member states and do not enjoy judicial protection. In this regard, this work examines the customs law of the European Community as a unique branch of integration law that emerged in the process of development of European integration.

The term “European customs law” is also found in the literature, which can mean:

The equivalent of the concept “customs law of the European Union” or a set of regional international legal norms, including customs law of the European Union and international agreements of the EU with European states that are not members of the EU and their integration associations (for example, the European Free Trade Association).

1.2. System of sources of EU customs law

The system of sources of customs law of the European Community includes:

acts of primary law (founding treaties of the European Communities and the European Union);

acts of secondary law (regulatory legal acts of EU institutions);

decisions of the Court of Justice of the European Communities;

international treaties of the Communities and Member States;

Founding agreements. Acts of primary law include the founding treaties of the EEC, the ECSC and Euratom, the Single European Act, the Maastricht, Amsterdam and Nice treaties, as well as treaties on accession to the Communities and to the Union of new members. Acts of this group have the highest legal force in the system of sources of European law. All other norms of European law cannot contradict the provisions of the founding treaties. Their norms, which are usually of a general nature or the nature of norms-principles, can have a direct effect if they are addressed directly to the subjects of legal relations, 1 or have an indirect effect if they are addressed to member states.

Treaty of Paris 1951 establishing the European Coal and Steel Community (ECSC) historically became the first legal act that established common principles in the customs and tariff regulation of the Community member countries. Article 4 of the Treaty establishing the ECSC recognized import and export duties or charges having an equivalent effect, as well as quantitative restrictions on the movement of goods, as incompatible with the common market for coal and steel and, accordingly, abolished and prohibited them within the Union. Article 72 of the Treaty establishing the ECSC empowered the Council, on a proposal from the High Authority, to establish minimum and maximum rates of customs duties on coal and steel in trade with third countries. Member States were obliged not to exceed the upper and lower limits of these customs duties. The formation of customs tariffs remained within the competence of the member states, but the Highest Governing Body was given the right to recommend changes to states in national tariffs.

1 Cm. case26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen ECR 3.

In Art. 73 of the Treaty establishing the ECSC enshrines the competence of the High Authority to exercise control over the licensing of import and export trade with third countries in relation to coal and steel. Article 74 of the Treaty establishing the ECSC empowers the High Authority to make recommendations to member governments on the introduction of quantitative restrictions (quotas).

The Treaty establishing the ECSC thus does not imply either the introduction of a common customs tariff or uniform customs policies regulating trade with third countries. Moreover, the range of goods regulated by the provisions of the Treaty is quite narrow, which did not allow the Association to be interpreted as a customs union in the sense of the General Agreement on Tariffs and Trade.

The Treaty establishing the ECSC was concluded for a period of 50 years, so it became invalid in 2002. The decisions of the EU Court of Justice formulated the following principles of customs regulation in relation to goods that were regulated by the Treaty establishing the ECSC:

The inclusion of goods regulated by the ECSC Treaty in general customs legislation is carried out on the basis of the Treaty on the European Community 1 ;

The conclusion of international agreements on all types of goods (including those regulated by the Treaty establishing the ECSC) takes place on the basis of the EU Treaty 2 .

The most important place among the “primary” sources of EU customs law is occupied by Treaty of Rome 1957 establishing the European Economic Community (EEC) , who formulated the concept and principles of the customs union of the Community countries. Currently, this agreement is called the Treaty on the European Community (EC). Among its main provisions in the field of customs regulation are:

Art. 14 – principles and goals of the internal market (formerly the common market);

Measures to ensure freedom of movement of goods (Articles 23-25 ​​and 29-31): prohibition of customs duties, quantitative restrictions, as well as equivalent fees and measures in internal trade of Member States;

Art. 23 – adoption of the Community Common Customs Tariff;

Art. 26 – the powers of the EU Council to change the duty rates of the Common Customs Tariff;

Art. 37 – customs regulation measures in relation to the EU common agricultural policy;

Art. 133 – principles of the Community's common trade policy;

Art. 187 – legal basis for tariff preferences in relation to overseas territories dependent on Member States;

Art. 310 – basis for tariff preferences arising from association agreements (for example, the customs union agreement with Turkey);

Application of general autonomous and conventional non-tariff measures to regulate trade with third countries (Articles 133, 300 and 310);

Art. 95 – convergence of the legislation of the member states on all issues related to the creation of a single market;

Art. 135 – legal basis for customs cooperation between member states (except for issues of national criminal jurisdiction);

Art. 280 – joint fight against offenses that harm the financial interests of the Community (including the fight against smuggling, since customs duties form the Community’s own resources).

The EU Treaty establishes decision-making procedures in the field of customs regulation. The Council makes decisions by a qualified majority, with the exception of decisions under Art. 187 (the principle of unanimity), as well as decisions under Art. 95 (joint decision-making procedure).

1 Case 239/84 Gerlach v. Minister van Economiche Zaken ECR 3507, case 328/85 Babcock v. Hauptzollamt Lubeck-Ost ECR 5119.

2 Opinion 1/94 ECR I-5267.

Treaty establishing the European Atomic Energy Community 1957 (Euratom) , due to the specific scope of its regulation, did not provide for such large-scale measures in the field of customs regulation as the Treaty establishing the EEC. However, this agreement proclaimed the creation of a common market of member states in the field of atomic energy, which provided for measures of both an internal nature (in trade within the Community) and external (in trade with third countries). Thus, Article 93 of the Treaty obligated the member states to abolish import and export customs duties and charges that have an equivalent effect in mutual trade in relation to certain goods. Article 94 provided for the formation, within a specified time frame, of a common Community customs tariff for trade in goods falling within the scope of the Treaty with third countries.

Single European Act (SEA) 1987 introduced significant changes to the constituent treaties of the Communities, in particular to provisions relating to the process and forms of economic integration of member states. For example, the Treaty establishing the EEC was supplemented by Article 8a, which provided for the gradual creation of the Community's internal market. The internal market is “a space without internal boundaries in which... the free movement of goods, persons, services and capital is ensured,” 1 and is a higher form of economic integration than the common market originally proclaimed in the Treaty of Rome. The significance of the EEA formulation is that measures to create a common market were complemented by the elimination of technical barriers to trade between member countries and the abolition of border control formalities within the Community.

The next most important stage in the formation of the legal framework of the European integration process was 1992 Maastricht Treaty on the European Union. The Treaty replaced the term “European Economic Community” with “European Community” and supplemented its functions with the creation of an internal market characterized by “the abolition of obstacles to the free movement of goods, persons, services and capital between member states.” 2 Significant changes were made to the section of the EU Treaty “Common Trade Policy”; in particular, the articles defining the procedure and stages of the formation of the common trade policy were abolished. The Maastricht Treaty significantly limited the power of member states to introduce protective trade measures. Now such measures could be taken by states independently only with the prior permission of the Commission.

1 EEA, art. 13.

2 Treaty on European Union, Art. G.

As components of the third pillar of the European Union, the Maastricht Treaty introduced provisions on customs cooperation, cooperation in the fight against drug trafficking and other forms of international crimes, including in the customs field. 1

Treaty of Amsterdam 1997, amending the Treaty on European Union, as well as the Treaties establishing the European Communities and certain acts relating to them, entered into force on 1 May 1999. The Treaty amended and specified the provisions on cooperation between the States of the European Union in the criminal law field, calling for to closer cooperation between the police forces, customs and other competent authorities of the Member States. The Treaty included, in particular, operational cooperation between customs authorities to prevent, detect and investigate criminal offenses among the general actions of states within the framework of the third pillar. 2

With regard to the Treaty of the European Community, the Treaty of Amsterdam significantly modified its provisions and structure with the aim of eliminating provisions that were no longer in force and adapting the Treaty to the conditions corresponding to the period of the Treaty of Amsterdam. The section of the EU Treaty concerning the customs union has undergone significant changes. A number of articles relating to the establishment of stages of union formation and transitional provisions were repealed. In the remaining articles, changes were made to record the achievement of the objectives of the customs union (in particular, replacing the term “abolition” with the term “prohibition” in Articles 3, 12 and the title of Chapter 2 of the EU Treaty). Based on the Treaty of Amsterdam, a consolidated text of the Treaty on the European Community was created, introducing a new numbering of articles. 3

Treaty of Nice , which came into force in 2003, creates the legal basis for a significant enlargement of the European Union. 4 In this regard, the Treaty adjusts the procedure for decision-making by the institutions of the Union. In addition, the Treaty provides for the adoption in the near future of the Constitution of the European Union, which will undoubtedly become a major milestone in the development of European integration and European law.

Regulations of EU institutions . Among the acts of secondary law, the greatest importance for the formation of EU customs law is regulations -acts of a general nature, fully binding and directly applicable in the member states. Article 249 of the EU Treaty establishes the direct effect of the regulations. The properties of the regulation make it possible to use this form of expression of EU law to consolidate the fundamental issues of the activities of the Community in general and the customs union in particular. Thus, the most important acts of European law include Council Regulation No. 2913/92 of October 12, 1992, introducing the Community Customs Code, the fundamental document of EU customs law. The uniform EU customs tariff was also enshrined in the form of the regulation. The principle of direct effect of regulations follows from the provisions of the founding treaties and is confirmed in decisions of the Court of Justice of the EU. 5

1 Ibid., Art. K1.

2 Treaty of Amsterdam, art. 1 paragraph 11.

3 In this work, the new numbering of the articles of the EU Treaty is indicated by the abbreviation “n.n.”

4 In 2004, 10 new member states are expected to join.

5 For example, casePoliti v. Italian Minister of Finance 43/71.

Directive , like a regulation, is binding in relation to the state (or a number of states) to which it is addressed. At the same time, the forms and methods of implementing the tasks set by the directive remain within the competence of national authorities. Sometimes, especially in the field of customs law, directives also detail the procedure for their application, placing responsibility for this on the Commission. Directives are actively used as a tool for harmonizing the national legislation of European countries, in particular in the field of customs policy. The Commission's directives in the field of indirect taxation (in particular, the most significant of them, the Sixth VAT Directive), play the most important role in the practice of regulating trade turnover in the EU. With the help of directives, the Community institutions regulated the formation of the single market in the early 90s. Directives are not directly applicable but may have direct effect provided they are clear, precise and unconditional. 1

Solutions are acts of an individual nature, binding on the subjects of law to whom they are addressed. In this case, the subjects can be both EU member states and individual private (legal) persons or certain categories of persons. The conditions for the direct effect of decisions are formulated by the EU Court of Justice. 2

Decisions of the European Court of Justice. 3 A separate group of sources of EU customs law are numerous decisions of the EU Court of Justice in the field of customs regulation. Court decisions, in addition to their enforcement function, play a vital role in interpreting, detailing and filling in the gaps of the founding treaties and acts of secondary EU law. A number of decisions of the EU Court of Justice on customs legal relations have acquired significant significance in the process of consolidating the supranational character of European law. 4

The decisions of the EU Court of Justice have the character of a judicial precedent, since they are binding when decisions are made by the judicial authorities of the member states. In addition, the EU Court itself makes decisions similar to its past decisions in similar cases (although exceptions to this principle are known in the practice of the EU Court). Many decisions of the Court of Justice of the EU in the field of regulation of the EU customs union formed the basis for subsequent regulatory legal acts of the Community (in particular, decisions of the Court of Justice of the EU defining measures having an equivalent effect, customs duties and quantitative restrictions).

International Treaties . Among the sources of European customs law, international legal acts occupy a special place. These acts are divided into two types:

international treaties concluded by the Communities or jointly by the Communities and Member States;

international treaties concluded by member states with third countries or international organizations and affecting the jurisdiction of the Communities. Acts of this type can be sources of European law only if they are concluded by virtue of an express authorization contained in the constituent agreement or resulting from an act of a Community institution, or if their status as a source of European law is confirmed by the Court of Justice of the European Union.

The first type includes, first of all, the General Agreement on Tariffs and Trade (GATT), signed by the European Community as one of the Contracting Parties in 1994 within the framework of the Agreements establishing the World Trade Organization (WTO) and uniting more than one hundred states of the world (original version GATT 1947 belonged to the international legal treaties of the second type, since the Contracting Parties to it were only member states, and not the Communities).

1 CaseVan Duyn v. Home Office 41/74.

2 Case Grad 9/70.

3 The term “judgments of the Court of Justice of the European Union” is also used in the literature.

4 Cm., For example, case26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen ECR 1.

The first type of international legal acts includes the 1983 International Convention on a Harmonized System of Description and Coding of Goods, to which the Community is a party, and which formed the basis of the EU Combined Nomenclature. The Community and the Member States jointly signed the Customs Convention on the International Transport of Goods under TIR Carnets, 1975 (TIR Convention) 1 . Bilateral and multilateral agreements signed by both the Community and the Community and member countries jointly, aimed at providing third countries (groups of countries) with tariff preferences (Lome Conventions, Yaoundé Convention, Agreement on the European Economic Area, etc.) can also be considered here. .).

The acts of the first group can also include documents adopted by international organizations in which the Community is a member (WTO, World Customs Organization, etc.).

Among the acts of international law of the second type, which are the sources of EU customs law, the following can be distinguished: International Convention on the Simplification and Harmonization of Customs Procedures, signed in Kyoto in 1973 (Kyoto Convention), Customs Convention on the ATA 2 carnet for the temporary import of goods of 1961 (ATA Convention), etc. A number of international treaties of the member states regulate the territorial aspects of the operation of EU customs law, in particular, the 1963 Paris Convention on customs regulation in relation to Monaco, the Treaty between Germany and the Swiss Confederation of 1964, etc.

1.3. EU customs code

On 28 February 1990, the EU Commission presented the draft Community Customs Code (hereinafter referred to as the Code). The explanatory memorandum accompanying the draft described the Commission's proposal as "the most far-reaching legal consolidation project ever undertaken in the field of Community law." The Code was adopted on 12 October 1992 by Council Regulation 2913/92 and entered into force on 1 January 1994.

On July 2, 1993, Commission Regulation No. 2454/93 (the so-called Implementation Code or Regulation on the Application of the Customs Code) was adopted, establishing the procedure for the entry into force and application of the provisions of the EU Customs Code.

The Code and the Implementation Code replaced more than a hundred regulations and directives that were previously in force in the field of customs regulation. However, the two most important regulations previously adopted in the EU continued (and continue to be) in force. These are Regulation 2658/87, which introduces the EU Common Customs Tariff, and Regulation 918/83, which establishes the customs duty exemption system.

The legal basis for the adoption of the Code is Articles 26, 95 and 133 of the EU Treaty. Thus, Article 26 provides that any change or elimination of duty rates in the General Customs Tariff is established by a decision of the Council, adopted by a qualified majority of votes based on a proposal from the Commission. Article 95 establishes, among other things, the need for a qualified majority for Council decisions aimed at the construction and functioning of the Community internal market. Article 133 contains provisions on the principles of the general trade policy.

The adoption of the Code represents the logical conclusion of a policy begun 25 years earlier by the first six member countries of the EEC. The essence of the policy of the first members of the Community was that, instead of numerous national legal acts, relations in the customs field should be regulated by acts of the Community, for which an extensive program should be carried out to harmonize customs rules and adopt strong supranational documents. Back in 1971, the Commission adopted a general program for the approximation of customs legislation, which proclaims the consolidation of Community customs law as its ultimate goal.

In accordance with the purposes of its creation, the Customs Code applies only in the field of trade relations of the Community with third countries. The circulation of goods within EU member states is not included in the scope of issues regulated by the Code.

1 Also known as the TIR convention (from the French Transport international routier).

2 The abbreviation ATA stands for a combination of the French and English names for temporary importation - Admission Temporaire and Temporary Admission.

By its nature, the Code cannot regulate all customs and trade measures applied by the Community in relation to third countries. Since the purpose of the Code is to consolidate and systematize general rules and procedures for customs control for all goods, regardless of their nature, tariff policy measures applied to certain categories of goods are outside the scope of the Code. Uniting EU tariff regulation issues The Common Customs Tariff together with the Customs Code constitute the two cornerstones of EU customs law applicable to third countries.

Contents of the Code. The Code consists of 9 parts, combining 253 articles. The legal norms contained in the Code can be presented in the form of three main groups:

General Conditions -Parts I, VIII and IX -contain provisions on the scope of application

Code, definition of the customs territory of the Community, characteristics of the main

terms of EU customs law, a list of rights and obligations of parties in customs

legal relations, the procedure for appealing decisions of customs authorities. To this group

This also includes the rules on the establishment of the Code Committee (Articles 247-249).

Methods for calculating duties - the provisions of Parts II, VI and VII, including the factors on the basis of which customs duties are levied (customs tariff, origin of goods and customs value), rules on privileged transactions and issues relating to customs debt.

The system of formalities and customs supervision - Parts III, IV and V - is, in fact, the core of the Code; this group contains key norms of EU customs law: rules for the import of goods into the customs territory of the EU, export of goods from the customs territory, as well as provisions on customs regimes.

As for the Implementation Code, its structure largely follows the structure of the Code. However, the Implementation Code contains only 5 parts, while the number of articles reaches 915, plus 113 annexes.

Scope of the code . The Customs Code, together with the rules for its application adopted at both Community and national level, forms the customs rules of the Community. EU customs regulations apply:

in the customs territory of the EU;

in trade between the Community and third countries;

to goods regulated by the EU Treaty, the Treaty establishing the ECSC and

Agreement “ Euratom ”.

It is noteworthy that the Code does not contain definitions of the terms “trade” and “goods”. Summarizing the definitions given in other acts of the EU institutions (in particular, in the Sixth VAT Directive), the following definitions can be proposed:

“Trade between the Community and third countries” means any movement of goods from an EU member state to a non-EU country and vice versa;

“Goods” - all tangible movable property, including electricity, gas, heat, cooling, etc.

Giving the above interpretation of the scope of application of the Code, Art. 1 stipulates that Community customs rules apply without prejudice to special rules in force in other areas of Union policy. Such special rules are, for example, the provisions of Art. 30 of the EU Treaty, which provides grounds for the application by EU countries of quantitative restrictions and other protective trade measures, as well as EU norms in the field of common agricultural policy.

1.4. EU Customs Law and International Law

As customs tariffs and regulations restrict international trade, making it difficult for foreign goods to enter domestic markets, international trade negotiations play an increasingly important role in the global economy. Their goals are generally the following:

Obtaining preferential (preferential) access to the markets of partner countries

(tariff preferences);

Either receiving the same treatment for exported goods in the importing country as for domestically produced goods (national treatment);

Or ensuring the treatment of exported goods in the importing country is no less favorable than for goods from any third country (most favored nation treatment (MFN)).

These regimes are usually provided on the basis of reciprocity. Sometimes international negotiations are conducted with the aim of limiting trade to prevent undesirable consequences for domestic markets (negotiations on coffee, dairy products, textiles, etc.)

The history of international legal regulation in the customs field begins in 1923, when, within the framework of the League of Nations, the International Convention on the Simplification of Customs Formalities was adopted, which still remains in force for EU member states (in accordance with Article 307 of the EU Treaty) .

Currently, the bulk of international legal acts in the trade and customs field that are in force in EU member states are developed and adopted within the framework of relevant international organizations. The most important of them are:

WTO;

World Customs Organization;

UN Economic Commission for Europe.

World Trade organisation. It originates from the General Agreement on Tariffs and Trade of 1947 (GATT-1947). In 1994, as a result of the Uruguay Round of multilateral trade negotiations, a new version of the General Agreement (GATT 1994) was adopted, along with the Agreement establishing the WTO and a number of agreements on certain aspects of international trade and customs regulation (“WTO Agreements”).

Principles of GATT and other WTO agreements:

Most favored nation treatment in customs taxation;

Mutual gradual reduction of customs duties and establishment of their maximum permissible level for WTO member countries;

National treatment for taxes, other fees and regulations in the field of international trade;

Freedom of transit in the territories of member countries;

Levying anti-dumping and countervailing duties on goods from WTO member countries only in cases where the prices of exported goods are below their normal value, or when exports are subsidized, and if the import of such goods causes or may cause significant harm to domestic producers;

The value of imported goods for customs purposes must be based on the actual value of the goods;

Quantitative restrictions on imports and exports are allowed only in exceptional cases, such as a threat to the balance of payments or national producers. A number of special agreements established more detailed rules for trade in textiles and clothing; technical barriers, licensing procedures and protective measures;

Import and export quotas, prohibitions and tariff quotas must be applied by WTO member countries without discrimination against other member countries.

The General Agreement defines the conditions for the creation of free trade zones and customs unions (Article XXIV). The GATT pays special attention to the procedure for resolving disputes between member countries.

The European Community is a member of the WTO and is bound by its rules. Community customs legislation is based on WTO agreements. However, individuals cannot always invoke WTO rules in courts if, in the court's opinion, EU law rules contradict WTO rules. This is possible, according to the EU Court of Justice, only when a Community normative act is adopted specifically to implement WTO rules, such as, for example, the EU Anti-Dumping Regulation. 1 Private parties also cannot use the WTO dispute settlement procedure.

World Customs Organization (WCO). Founded in 1950 under the name of the Customs Cooperation Council (CCC) with the aim of “ensuring the highest degree of harmony and uniformity” in the tariff systems of member countries and, in particular, “studying the problems of developing and improving customs procedures and customs legislation.” Within the framework of the STS, and then the Organization, the “Dictionary of International Customs Terms” was published and a number of important international agreements were adopted. Among them:

International Convention for the Simplification and Harmonization of Customs Procedures of 1975 (Kyoto Convention), which establishes common standards for all aspects of customs regulation (formalities for the import and export of goods, customs clearance, transit, customs regimes for the processing of goods, regimes for customs warehouses and free zones, rules origin of goods, etc.);

Istanbul Convention on Temporary Importation of 1993, introducing the ATA carnet - an international customs document used to formalize the temporary importation of goods into the customs territory;

International Convention on the Harmonized System of Description and Coding of Goods of 1987, establishing a uniform system of classification of goods for customs tariffs and foreign trade statistics, as well as standardization of foreign trade documents (the basis of commodity nomenclatures of the EU, the Russian Federation and other countries).

1 See case C-69/89 Nakajima v. Council ECR I-2069.

UN Economic Commission for Europe. Members of this regional organization within the UN are all European states, as well as the USA and Canada. Among its functions is the development of agreements in the customs field, in particular on issues of transit and temporary import. The most significant of them:

Agreement on the Import of Educational, Scientific and Cultural Materials, 1979;

Customs Convention on the Temporary Importation of Aircraft and Yachts for Personal Use, 1996;

Customs Convention on the Temporary Importation of Commercial Vehicles, 1994;

Customs Container Convention 1996;

Customs Convention on the International Transport of Goods under TIR Carnets, 1978;

International Convention for the Harmonization of Frontier Controls of Goods, 1984

1.5. EU customs law and national law of Member States

Although the EU Treaty establishes the exclusive competence of the Community in the field of customs and foreign trade regulation, in some cases national legal measures are permitted, such as:

Prohibitions and restrictions on imports and exports on grounds of public morality, public policy and public safety; protection of human life and health, protection of animals and plants; protection of national artistic, historical and archaeological heritage; protection of industrial or commercial property (Article 30 of the Treaty);

Measures to protect the environment, protect consumer rights, etc. (Articles 95, 153, 176);

Measures taken in the interests of the security of member states (trade in arms, ammunition - Article 296);

Measures of member states taken in cases of serious violations of law and order, in case of war, as well as to fulfill obligations to maintain peace and international security (Article 297);

Implementation of rights and obligations arising from agreements between member states and third countries concluded before January 1, 1958 (for new member states - before the date of their accession to the EU, Art. 307).

Certain acts of Community secondary law, in particular the Code, also authorize Member States to adopt national regulatory measures in certain cases. Member States may, in particular, determine:

Application of customs to a limited geographical or economic area;

Rights and obligations of customs agents;

Points where goods cross the customs border;

Forms of a short declaration provided for in Art. 44 Customs Code;

The competence of the customs authorities of the Member States;

Details of simplified and computerized customs formalities, in the absence of harmonization of these rules in the Community;

Location of free zones; - conditions of the customs regime for refusal of goods;

Sanctions for committing customs offenses;

Forms of securing payment of customs debt and forced payment;

Details of the procedure for appealing decisions of customs authorities.

2. BASICS OF THE EU CUSTOMS UNION

2.1. The concept of a customs union. EU Customs Union Principles

Article 23 of the EU Treaty states that the basis of the Community is a customs union covering all trade in goods and providing for the prohibition of import and export customs duties and any equivalent charges in trade relations between Member States, as well as the establishment of a common customs tariff in their relations with third countries . The conditions of the customs union apply to goods originating from Community countries, as well as to goods imported from third countries and released for free circulation in Community countries. It is noteworthy that the Treaty does not define a customs union. In this regard, the definition of a customs union contained in the General Agreement on Tariffs and Trade 1 (Article XXIV) is of interest: the replacement of several customs territories by one customs territory in such a way that

(a) duties and other restrictive trade controls (except for certain necessary restrictions) would be abolished in respect of substantially all trade between the territories constituting the union, or at least in respect of substantially all trade in goods originating in those territories; And

b) with certain reservations, essentially the same duties and other measures to regulate trade would be applied by each of the members of the union in relation to trade with territories outside the union.

As you can see, the GATT definition includes internal (a) and external (b) components of the customs union. However, the characteristics of the customs union according to the General Agreement from the point of view of the authors of the Treaty establishing the EU are not sufficient to ensure the freedom of movement of goods and the construction of a common market. The requirements of the articles of the Treaty establishing the EU on the prohibition of customs duties and equivalent charges in mutual trade of member states, as well as on the establishment of a common customs tariff for trade with third countries, are supplemented by the provisions on the prohibition of quantitative restrictions and any equivalent measures in trade turnover within the Community. Moreover, Article 95 (n. 90) of the Treaty establishing the EU prohibits the indirect protection of goods of Member States through internal taxation measures, and Art. 99 (n.n. 93) provides for the harmonization of legislation in the field of indirect taxation. Thus, achieving real freedom of movement of goods in accordance with the Treaty of Rome is not achievable only by the measures provided for customs unions by the General Agreement.

Summarizing the above provisions of the Treaty establishing the EU, we can conclude that for the real functioning of the EU customs union it is necessary to achieve the following goals:

elimination of customs duties and equivalent charges between Member States;

elimination of quantitative restrictions and equivalent measures in mutual trade of member states;

the adoption of certain conditions in the field of indirect taxation affecting trade within the Community;

adoption of a common external tariff.

1 All states that signed the Treaty establishing the EEC in 1957, as well as those that acceded to it later, were Contracting Parties to GATT 1947.

Elimination of customs duties. Article 12 in the original text of the Treaty of Rome obliged member states to refrain from introducing new customs duties on imports and exports, as well as equivalent fees, and prohibited increasing those duties and fees that were applied by the participating countries in mutual trade at the time of signing the Treaty. The text of Article 12 contained a clear and unconditional prohibition of the introduction by Community states of new customs duties. The norms of this article, in accordance with the letter and spirit of the Treaty of Rome, are interpreted as having direct effect for the national courts of the EEC member states. 1 The Treaty of Rome obliged member states to take measures to phase out import customs duties that existed at the time the Treaty entered into force during a transition period, as well as to phase out measures that had the same effect as import duties. Another goal of the Treaty was the elimination of customs duties on exports and equivalent fees until the end of the first stage of the creation of the EEC, that is, within 12 years.

The consolidated text of the Treaty establishing the European Community replaces former Article 12 with Article 25, which states: “Customs duties on imports and exports or equivalent charges shall be prohibited between Member States. This prohibition also applies to customs duties of a fiscal nature.” The wording of Article 25 of the Treaty establishing the EU partly incorporates the provisions of former Article 16 of the Treaty of Rome, which was excluded from the consolidated text.

The practical implementation of the provisions of the Treaty of Rome concerning the phased abolition of import and export customs duties did not cause any particular difficulties in the Community countries, primarily due to the clarity of the definitions: the concept of “customs duty” was directly included in national tariffs (as well as in the general Benelux tariff). The situation was much more complicated with the qualification of equivalent fees or, if translated literally, “charges having equivalent effect” ). The need for a phased abolition of such fees was a logical continuation of the requirements of the Treaty regarding the elimination of customs duties. The idea of ​​abolishing fees equivalent to customs duties is consistent with the objectives and goals of the Treaty, in particular the provisions on ensuring the freedom of movement of goods. Disputes regarding the recognition of certain fees introduced by EEC member states as having an equivalent effect have been repeatedly resolved in the practice of the EU Court of Justice. It was the EU Court of Justice that played a decisive role in detailing the concept of equivalent fees. 2

In the course of considering similar cases, the EU Court of Justice developed a formulation according to which fees that have an equivalent effect to customs duties are recognized any fees, regardless of their size, purpose and method of collection, which are unilaterally imposed on domestic and imported goods based on the fact of their crossing the border, not being customs duties in the literal sense . Moreover, such fees may be recognized by the EU Court of Justice as equivalent to customs duties even if they are not levied for state revenue, are not discriminatory or protectionist in nature, and are imposed on goods that do not have competitive domestic goods. Thus, almost any conceivable levy imposed on the import or export of goods can be interpreted as a measure falling within the prohibitive rules of the EU Treaty. According to the Court, permissible fees are only those that satisfy one of the following conditions:

The levy is part of the national tax system and applies equally to both domestic and similar imported goods;

The fee is compensation for services actually provided to an economic entity and is charged in an amount proportional to the service provided;

The fee compensates for the costs of inspection activities provided for by the obligations of Community member states in Community legal acts.

1 It is Art. 12 was involved in the famous “Van Gend & Loos” case (26/62), which laid the foundation

concepts of direct action of Community law.

2 Cm. affairs: Case 7/68, Commission v. Italy ECR 423; Cases 2 and 3/69, Social Funds voor de Diamantarbeiders v. SA Ch. Brachfeld & Sons ECR 211; Case 24/68, Commission v. Italy ECR 193; Case 18/87, Commission v. Germany ECR 5427and etc.

In addition to the above, the Court of Justice recommended that the Community institutions undertake work to harmonize the fees charged by Member States, similar to the one at issue in this case. Such harmonization, according to the EU Court of Justice, will allow such fees to fully comply with the principle of free movement of goods.

If a particular fee is found to be inconsistent with the provisions of the Treaty establishing the EEC, which relate to the prohibition of customs duties and equivalent measures, the Member State is obliged to reimburse the plaintiff(s) for the amount of the fee. 1 An exception to this rule is possible if the importer (exporter) who paid the fee included its amount in the price of the goods upon its subsequent sale, and thus, reimbursement of the fee by the state will lead to unjust enrichment of the importer (exporter). 2

Elimination of quantitative restrictions. The next necessary measure when creating the EU customs union was the elimination of quantitative restrictions in mutual trade between member states. Failure to comply with this condition would nullify the result of other efforts to create a customs union. Protectionist measures implemented through customs duties and indirect taxes can easily be replaced by a system of quotas and other quantitative restrictions on imports and exports. TO quantitative restrictions refers to any legislative or administrative regulations that establish volume or value limits for the export (import) of one or more goods.

Articles 30 - 36 of the Treaty establishing the EEC (nos. 28 - 30) form the fundamental rules of the Community in the field of prohibition of quantitative restrictions and measures having an equivalent effect in trade between member states. Article 30 (no. 28) contains a ban on quantitative restrictions on imports, as well as any other measures having equivalent effect ). Article 34 (n. 29) prohibits quantitative restrictions and measures of equivalent effect on exports from one Community country to another. Article 36 (no. 30) contains a list of grounds allowing the use by member states of quantitative restrictions and measures that have an equivalent effect in mutual trade. 3

Determining the actual quantitative restrictions did not cause any difficulties for either the EU Court or national authorities. In business " Geddo ” The EU Court of Justice defined them as follows: measures leading to complete or partial restriction, as appropriate, of import, export or transit . 4

1 Case 199/82, Amministrazione delle Finanze delle Stato v. San Giorgio ECR 3595.

2 Cases C-192-218/95, Societe Comateb v. Directeur General des Douannes et Droits Indirects ECR I-165.

3 Articles 31 - 33 of the Treaty establishing the EEC related to the transition period and were excluded from

text of the EU Treaty by the Treaty of Amsterdam.

4 Case 2/73, Geddo v. Ente Nazionale Risi ECR 865.

The most common form of quantitative restrictions is quotas.

As for measures that have an effect equivalent to quantitative restrictions, their qualification, like the problem of equivalent fees for customs duties, is quite complicated. In 1970, the Commission adopted Directive 70/50, according to which such measures included “all conditions laid down in legislative and administrative acts, as well as administrative practices, that create barriers to imports ... or make imports difficult and expensive in comparison with the sale of domestic products.” production." Article 2 of the Directive contains a list of measures that can be considered as having an effect equivalent to quantitative restrictions:

Fixing the minimum or maximum price for imported products;

Setting less favorable prices for imported products;

Reducing the volume of imports of products by reducing their consumer value or increasing their cost;

Establishment of payment terms for imported products that differ from the payment terms applied for domestically produced products;

Establishing conditions for packaging, composition, labeling, size, weight, etc., which apply only to imported products or impose higher requirements on imported products compared to domestically produced products;

Providing benefits when purchasing domestic products or creating any inconvenience when purchasing imported products;

Application of more complex warehouse conditions for imported products;

Application of the condition that the importer must have a representative (agent) in the territory of the country into which the products are imported.

The attitude of the Court of Justice to the problem of determining measures having an equivalent effect is clearly expressed in the decision in the Dassonville case: 1 all trade rules adopted by a Member State of the Community that are capable of directly or indirectly, actually or potentially causing harm to intra-Community trade must be considered as measures that have an effect equivalent to quantitative restrictions.

It is clear from the decision of the Court of Justice of the European Union that the decisive factor in determining the measures prohibited by Article 30 (n. n. 28) is their effect; The presence of a discriminatory nature in such measures is not mandatory. Moreover, the Court made it clear that in order to qualify certain national norms as measures having an effect equivalent to quantitative restrictions, the fact of discrimination of imported goods in relation to domestically produced goods is not even required (this approach was subsequently developed in the Cassis de Dijon case ").

The significance of the decision in the Dassonville case lies in the fact that instead of a fairly broad but limited list of measures contained in the 70/50 Directive, the definition of “measures having an effect equivalent to quantitative restrictions” came to cover almost any action of Member States that could directly or indirectly, actually or potentially, cause harm to intra-Community trade.

1 Case8/74, Procureur du Roi v. Dassonville ECR 837.

The practice of the EU Court of Justice in considering various discriminatory actions of member states is very rich. Thus, in the case “Commission v. Italy” The EU Court of Justice ruled to abolish the registration procedure for imported cars, which is more complex than the registration of Italian-made cars. 1 In the Rewe case, phytosanitary inspection of imported plants was declared illegal, but did not apply to similar domestic products. 2 In the Bouhelier case, the Court of Justice of the European Union prohibited the French regulation on quality control of watches intended for export (no similar controls were required for watches sold domestically). 3

The EU Treaty allows for several grounds for exempting government measures restricting and prohibiting imports (as well as exports and transit) from the prohibitive effect of Articles 28 and 29 of the Treaty. These grounds are:

public morality;

public policy;

public safety;

protection of life and health of people, animals or plants;

protection of national artistic, historical or archaeological heritage;

protection of industrial and commercial property.

Such restrictions and prohibitions, according to Art. 30 shall not constitute a means of arbitrary discrimination or a hidden restriction on trade between Member States. When applying this article of the Treaty, the Court of Justice of the European Union sets an additional requirement: “in order to satisfy the conditions of Article 36, Member States must strictly adhere to the scope of these conditions relating to the objectives and nature of the measures applied by States.” 4 However, the EU Court of Justice allows restrictions based on the rule of reason: actions of states must be non-discriminatory, proportional, must not be harmonized at the EEC level, and must not cause equivalent actions on the part of the country of origin of the product being the object of action.

Measures in the field of indirect taxation. In addition to the prohibition of customs duties and equivalent charges between Community countries, the EU Treaty aims to uniformly regulate taxes affecting the mutual trade of Member States. What is the relationship between national taxes and ensuring the freedom of movement of goods? Indirect taxes are non-discriminatory in nature, since they should apply equally to imported goods and domestically produced goods. However, using the nuances of tax legislation, states can establish a less favorable tax regime for some imported goods, both for regulatory (creating additional barriers to access to the domestic market) and fiscal (increasing budget revenues) purposes. Thus, with the help of tax measures, EU member states are able to achieve, and have achieved in practice, a reduction in the effectiveness of the provisions of the Treaty of Rome regarding the freedom of movement of goods. Moreover, if the prohibitive provisions of Articles 9 - 12 (no. 23 - 25) apply only to fees levied when goods cross national borders, then discriminatory tax measures can also be taken when imported goods are circulated within member states. To prevent such a situation, the EU Treaty contains a number of articles containing Community rules in the field of taxation.

1 Case154/85 ECR 2717.

2 Case4/75 Rewe-Zentralfinanz v. Landwirtschaftskammer ECR 843.

3 Case53/76, Procureur de la Republique Besancon v. Bouhelier ECR 197.

4 Case7/68 Commission v. Italy ECR 423.

Article 95 (n. 90) of the Treaty states: “No Member State will impose, directly or indirectly, on the products of other Member States internal taxes of any nature in amounts exceeding the direct or indirect taxation to which similar national products are subject. In addition, no Member State will impose internal taxes on the products of other Member States with the aim of indirectly protecting other products.” This article has direct effect from January 1, 1962. 1 The meaning of the article is to prevent tax discrimination in the internal trade turnover of member states.

Examples of indirect taxes permissible from the point of view of the Treaty of Rome are: turnover taxes, general consumption taxes and specific consumption taxes (including excise taxes). Indirect taxation of imported products is also allowed, even if there are no similar domestically produced products in the country. However, a domestic indirect tax should not create an advantage for other domestically produced products if they are used for the same purposes as the imported products. Consumption tax on imported goods is allowed only if it applies equally to similar domestically produced goods, if any.

Implementation of the provisions of the Treaty establishing the EEC, providing for the gradual harmonization of all indirect taxes in accordance with Art. 99 (n.n. 93), began with the harmonization of rules on turnover taxes, since these taxes entail a lot of formalities when goods cross borders. Initially, the goals of harmonization did not extend to the elimination of such formalities. 17 May 1977 The Council adopts the Sixth VAT Directive 2 with the aim of eliminating formalities at the internal borders of the Community. The reason for the adoption of the resolution was the decision to transition from financing the Community through contributions from member states to the creation of the EEC's own financial resources. These own resources are generated by the transfer to Community accounts of a certain percentage (currently 0.75%) of the value added tax base levied in the Member States. The purpose of the Sixth Directive was to create uniform rules for calculating the VAT base in the Community countries. However, tax borders between EEC countries remain, maintaining the need for border formalities. On 1 January 1993, following the completion of the single market period, amendments to the Sixth Directive came into force, eliminating tax boundaries between Community countries. The transitional mechanism for eliminating tax borders was based on compliance with the destination principle.

The European Union Customs Code came into force in October 2013. From May 1, 2016, its application begins throughout the customs territory of the EU.

Since the adoption of the EU Common Customs Code, the European Commission has worked together with the authorities of the member states on a plan for its implementation. The EU Customs Code provides for the gradual introduction of harmonized information exchange processes and common databases across the EU. This process should be fully completed by 2020.

In accordance with the plans of the European Commission, on December 31, 2020, the transition period should be completely completed, the appropriate IT infrastructure should be created and the unified customs code should begin to operate in full.

What innovations does the EU customs code include?

Authorized economic operator

First of all, the changes will affect the role of authorized economic operators. Thus, it is planned for them to simplify the procedure for providing customs guarantees, a centralized mechanism for customs clearance throughout the EU, and simplify the customs clearance procedure.

Similar benefits will be extended to foreign trade participants who do not have the official status of an authorized economic operator, but meet the criteria applied to them, including tax transparency and the presence of the necessary competencies.

Customs fines

Another important change concerns the procedure for collecting customs fines. The procedure will be simplified and will allow avoiding other, non-financial, liability in the event that the reduction in the amount of customs duties occurred accidentally, unconsciously and was not of a significant size.

Customs procedures

The introduction of a single EU customs code implies the modernization of the customs clearance system. The number of customs procedures in accordance with the new customs code will be reduced.

Rail transportation

The changes will also affect rail container transportation. The outdated transit system with paper CIM waybills should be replaced by an electronic system. The introduction of such a system in 28 EU countries, including the ATLAS system, is planned for 2019.

Customs warehouses

In accordance with the customs code of the European Union, temporary storage of goods is permitted only in warehouses authorized by the customs authorities of EU countries. To organize a customs warehouse, permission from the customs authorities and the payment of a deposit are required.

Electronic data interchange

The exchange of data between customs authorities and participants in foreign trade activities will be carried out exclusively in electronic form. Data exchange systems (ATLAS) will be introduced into existing practice gradually.