Regulatory Impact Assessment (RIA) of customs modernisation in BiH Gap Analysis and legal issues Ulrich Schroeder, Legal Advisor, EUTPP 2 project

Gap Analysis and legal issues Last EU BiH Progress Report (09/11/10):…Progress has been limited in the field of customs…Substantial efforts are required to further align customs legislation with the acquis…the customs law has yet to be revised regarding issues such as paperless environment, security and trade facilitation.”

The EU Modernised Customs Code (MCC) entered into force in the EU dated 24/06/2008 (but not for all provisions). Applicable (for all other provisions) when the Implementing Provisions (MCCIP) will be applicable: not earlier than 24/06/2009 and not later than 24/06/2013 Gap Analysis and legal issues

In the meantime the Community Customs Code (CCC) and its Implementing Provisions (CCCIP) are applicable. However, a draft MCCIP is published dated 25/01/11 by EC Directorate General Taxation and Customs Union (DG TAXUD) Gap Analysis and legal issues

The TAXUD-timeline for the publication and entry in to force of the MCCIP Commission regulation is end of 2011 Gap Analysis and legal issues

Modernised Customs Code (MCC): -Streamling the legal framework -Greater standardisation of customs rules and procedures (e.g. harmonisation of economic operator’s rights and obligation in particular with regard to decisions, simplifications and guarantees) Gap Analysis and legal issues

-Simplification of customs procedures through the use of computerisation of customs declarations and data -Legal basis for the introduction of new facilities for economic operators (e.g. self assessment by operators and Single Window/On Stop Shop Gap Analysis and legal issues

-This RIA is a fact based analysis to examine and measure the benefits, costs and risks for the implementation of the MCC in BiH -The fact analysis is inter alia based on a gap analysis to identify the main areas of the MCC with economic impact for BiH Gap Analysis and legal issues

The Customs Policy Law (CPL) of BiH (BiH Official Gazette No 57/04) is not fully harmonised with the Community Customs Code (CCC) – the previous legal basis - and the Modernised Customs Code (MCC) – the new legal basis Gap Analysis and legal issues

Regarding the Customs Policy Law (CPL) of BiH, the Secondary Laws, based on this CPL, are not taken under consideration, because of non publishing by the Indirect Taxation Authority (ITA) of BiH Gap Analysis and legal issues

Gap Analysis and legal issues A.-“Electronic Customs Union”- MCC Article 5 No 1 :Exchange and storage of data All exchanges of data, accompanying documents, decisions and notifications between customs authorities and between economic operators and customs authorities required under

the customs legislation, and the storage of such data as required under the customs legislation, shall be made using electronic data-processing techniques. Note: Exceptions should be possible based on the MCCIP Gap Analysis and legal issues A.-“Electronic Customs Union”-

CCC Article 61: The customs declaration shall be made: (a)In writing; or (b)Using a data-processing technique where provided for by provisions…or where authorized by Gap Analysis and legal issues A.-“Electronic Customs Union”-

CCC Article 61: the customs authorities; or (c) by means of a normal declaration…. Gap Analysis and legal issues A.-“Electronic Customs Union”-

CPL of BiH Article 58: The customs declaration shall be made: a)in writing; or b) using a data-processing technique where provided for by the provisions laid down in the implementing Gap Analysis and legal issues A.-“Electronic Customs Union”-

CPL of BiH Article 58: regulations to this law or where authorised by the customs authorities; or c) by means of an oral declaration……. Gap Analysis and legal issues A.-“Electronic Customs Union”-

Gap Analysis and legal issues B.-”Centralised clearance”- MCC Article 106: Centralised clearance 1.Customs authorities may authorize a person to lodge, or make available, at the customs office responsible for the place where he is established a customs declaration for goods which are presented to customs at another

MCC Article 106: Centralised clearance customs office. In such cases, the customs debt shall be deemed to be incurred at the customs office at which the customs declaration is lodged or made available. Gap Analysis and legal issues B.-”Centralised clearance”-

Gap Analysis and legal issues C.-”One-Stop-Shop”- MCC Article 26: Cooperation between authorities 1.Where, in respect of the same goods, controls other than customs controls are to be performed by the competent authorities other than the customs authorities,

MCC Article 26: Cooperation between authorities Customs authorities shall, in close cooperation with those other authorities, endeavor to have those controls performed, wherever possible, Gap Analysis and legal issues C.-”One-Stop-Shop”-

MCC Article 26: Cooperation between authorities at the same time and place as customs controls (one-stop-shop), with customs authorities having the coordinating role in achieving this. Gap Analysis and legal issues C.-”One-Stop-Shop”-

Gap Analysis and legal issues D.-”Single Window”- MCC Article 26: Cooperation between authorities 2. In the framework of the controls referred to in this Section, customs and other competent authorities may, where necessary for the purposes of

MCC Article 26: Cooperation between authorities minimising risk and combating fraud, exchange with each other and with the Commission data received……………….. Gap Analysis and legal issues D.-”Single Window”-

Gap Analysis and legal issues E.-”Authorised Economic Operator”- MCC Article 13: Application and authorisation 1.An economic operator who is established in the customs territory of the Community and who meets the conditions set out in Article 14 and 15 may request the status of authorised economic operator

MCC Article 14: Granting of status (d)….in cases where an authorised economic operator wishes to take advantage of simplifications provided for in accordance with the customs legislation, practical standards of competence or professional qualifications …. Gap Analysis and legal issues E.-”Authorised Economic Operator”-

CCC Article 5a: Authorised Economic Operator 1.Customs authorities, if necessary following consultation with other competent authorities, shall grant…. the status of “authorised economic operator” to any economic operator established in the customs territory.. Gap Analysis and legal issues E.-”Authorised Economic Operator”-

CCC Article 5a: Authorised Economic operator - -a satisfactory system of managing commercial and, where appropriate, transport records, which allows appropriate customs control. Gap Analysis and legal issues E.-”Authorised Economic Operator”-

Customs Policy Law (CPL) of BiH: No Authorised Economic Operator provisions in compliance with the Community Customs Code (CCC) and Modernised Custom Code (MCC) Gap Analysis and legal issues E.-”Authorised Economic Operator”-

Status for Customs Representatives: MCC: Yes CCC: No CPL: No Gap Analysis and legal issues E.-”Authorised Economic Operator (AEO)”-

Gap Analysis and legal issues F.-”Risk Management”- MCC Article 25: Customs Controls 2.Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures……

MCC Article 25: Customs Controls 3.The Commission…..shall adopt…implementing measures laying down the following: (a) Common risk management framework Gap Analysis and legal issues F.-”Risk Management”-

CCC Article 13: 2.Customs controls, other than spot- checks, shall be based on risk analysis using automated data processing techniques, with the purpose of identifying and quantifying the risk and developing the necessary measures to assess the risks…….. Gap Analysis and legal issues F.-”Risk Management”-

CCC Article 13: The committee procedure shall be used for determining a common risk management framework, and for establishing common criteria and priority control areas Gap Analysis and legal issues F.-”Risk Management”-

CCC Article 13: Member States, in cooperation with the Commission, shall establish a computer system for implementation of risk management Gap Analysis and legal issues F.-”Risk Management”-

Customs Policy Law (CPL) of BiH: There are no Risk Management provisions according to the CCC or MCC in force Gap Analysis and legal issues F.-”Risk Management”-

Gap Analysis and legal issues G.-”Rights and obligations”- I. “Right of appeal” MCC Article 23: Right of appeal 1.Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him directly and individually

CCC Article 243: Appeals 1.Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, which concern him directly and individually Gap Analysis and legal issues G.-”Rights and obligations”- I. “Right of appeal”

Customs Policy Law (CPL) of BiH: Article Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him Gap Analysis and legal issues G.-”Rights and obligations”- I. “Right of appeal”

Customs Policy Law (CPL) of BiH: The CPL is not in compliance with the CCC and the MCC Gap Analysis and legal issues G.-”Rights and obligations”- I. “Right of appeal”

Gap Analysis and legal issues G.-”Rights and obligations”- II.“-Binding tariff information (BTI) - Binding origin information (BOI)” MCC Article 20: Decisions relating to binding information 3.BTI or BOI decisions shall be valid for a period of three years….

CCC Article 12 4.Binding information shall be valid for a period of six years in the case of tariffs and three years in the case of origin…….. Gap Analysis and legal issues G.-”Rights and obligations”- II.“-Binding tariff information (BTI) - Binding origin information (BOI)”

CPL of BiH Article 11: 4.Binding information shall be valid for a period of six years in the case of tariff classification or three years in the case of origin…….. Gap Analysis and legal issues G.-”Rights and obligations”- II.“-Binding tariff information (BTI) - Binding origin information (BOI)”

Gap Analysis and legal issues G.-”Rights and obligations”- III.-”Customs Debt”- Important changes (e.g.): Incurrence of a customs debt (Customs debt on importation)

The customs debt incurred according to the MCC and not “in accordance with the national provisions” Gap Analysis and legal issues G.-”Rights and obligations”- III.-”Customs Debt”-

Incurrence of a customs debt CCC Article 201: 3. ….may also be considered debtors in accordance with the national provisions in force Gap Analysis and legal issues G.-”Rights and obligations”- III.-”Customs Debt”-

Incurrence of a customs debt Customs Policy Law (CPL) of BiH Article 193: 4. ….may also be considered debtors in accordance with the national provisions in force. Gap Analysis and legal issues G.-”Rights and obligations”- III.-”Customs Debt”-

Incurrence of a customs debt Customs Policy Law (CPL) of BiH Article ….may also be considered debtors in accordance with the national provisions in force. Gap Analysis and legal issues G.-”Rights and obligations”- III.-”Customs Debt”-

Gap Analysis and legal issues G.-”Rights and obligations”- IV.-”Guarantee”- The MCC is using another language : MCC Article 59 –Guarantee- CCC Article 193 – Security- CPL – Security-

The MCC has an additional provision for providing a guarantee Gap Analysis and legal issues G.-”Rights and obligations”- IV.-”Guarantee”-

MCC Article 59: Provision of a guarantee (c) by another form of guarantee which provides equivalent assurance….. Gap Analysis and legal issues G.-”Rights and obligations”- IV.-”Guarantee”-

MCC Article 59: Provision of a guarantee (c) by another form of guarantee which provides equivalent assurance….. Gap Analysis and legal issues G.-”Rights and obligations”- IV.-”Guarantee”-

Gap Analysis and legal issues H.-”Customs Procedures”- -”Inward Processing”- The Inward Processing has been combined with the Processing under Customs Control Procedure.

The current Inward Processing under the draw-back system procedure, which provides for a refund of customs duties already paid upon export of the processed goods, is no longer included in the MCC Gap Analysis and legal issues H.-”Customs Procedures”- -”Inward Processing”-