The new Union Customs Code (UCC) that entered into force earlier this year introduces a number of important changes to the EU customs rules to ensure parties’ right to be heard and the uniform interpretation of customs rulings throughout the EU. However, the relevant provisions of the UCC leave some gaps in its coverage, such that companies must remain alert to the full range of means at their disposal to preserve their rights and ensure predictability in the customs environment.
Under EU customs law, economic operators can apply for binding information rulings whenever they wish to have predictability as to the interpretation of customs legislation by customs authorities. Probably the most significant change introduced by the new UCC to advance rulings on tariff and origin matters is that information rulings are binding, not only on the issuing customs authorities, but also the holder. In addition, the updated UCC establishes procedures to ensure that customs authorities, in the interest of uniform interpretation across EU Member States, avoid releasing contradictory binding information. All customs authorities throughout the EU are thus bound by the advance rulings released by the customs authorities of one Member State.
The UCC also introduced detailed rules and procedures concerning the customs decisions taken by customs authorities in all other areas of EU customs legislation, besides tariff and origin matters. In this context, the UCC has introduced provisions concerning the right to be heard. Specifically, before taking a decision that would adversely affect the applicant, customs authorities must communicate to applicants the grounds on which they intend to base their decision and provide applicants an opportunity to present their point of view. However, such right to be heard is not applicable to binding tariff and origin information under the UCC.
Similarly, the provisions concerning customs decisions in general do not formally address the point of uniform interpretation, which could raise doubts as to whether a customs decision taken in the area of customs valuation, for example, is binding for the customs authorities of other Member States. As a result, the EU legal order must be relied upon to ensure not only the right to be heard in the context of binding tariff and origin information rulings, but also uniform application of the content of customs decisions in other fields of customs legislation.
In fact, as a regulation under EU law, the UCC is a secondary legislative act lower in ranking than both the primary sources of the EU treaties and the principles of the Charter of Fundamental Rights of the European Union, which have been accorded primary legal ranking through cases decided by the EU Courts. To the extent the UCC is interpreted and applied in accordance with its secondary status within the EU legal order, economic operators should therefore be entitled to the benefits stemming from the principle of uniform interpretation and the right of defense guaranteed by the EU legal order.
Prepared as part of our occasional collaboration with Laura Beretta and Davide Rovetta, Grayston & Co., Brussels.