EU TFEU: Customs cooperation

EU customs cooperation plays a key role in the fight against fraud and organised crime. We look at the current provision on customs cooperation and what the Lisbon Treaty brings to these activities within the European Union.

***

The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):

45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.

***

The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:

TITLE X
CUSTOMS COOPERATION

Article 135 TEC

Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.

***

The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):

Part Three Policies and internal actions of the Union

Title I The internal market

Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)

Article 27a TFEU (ToL), after renumbering Article 33 TFEU

Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.

***

We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):

Subsection 2
Customs cooperation

Article III-41 Draft Constitution

Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.

***

The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).

***

The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.

Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.

Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.

Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.

These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)

***

The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:

http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm

There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).

The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:

http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm

The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:

“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.

In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”

In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).

The Customs 2013 Programme consists of the following activities, according to Article 1(2):

(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.



Ralf Grahn

EU TFEU: Customs union aims

We look at the strategic objectives of the European Union's customs union in the light of the current Treaty establishing the European Community and the Lisbon Treaty undergoing ratification in the member states.



***

Article 27 of the Treaty establishing the European Community (TEC), in Chapter 1 The customs union, presents the following aims, addressed to the Commission. The latest consolidated version of the current treaties is found in OJ 29.12.2006 C 321 E/52:

Article 27 TEC

In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:

(a) the need to promote trade between Member States and third countries;

(b) developments in conditions of competition within the Community in so far as they lead to an improvement in the competitive capacity of undertakings;

(c) the requirements of the Community as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;

(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Community.

***

The intergovernmental conference did nothing to disturb these guidelines in the Treaty of Lisbon (ToL), so there are only a few light touches to apply to this provision to be able to read the consolidated version, as it appears in the Treaty on the Functioning of the European Union (TFEU). We bear in mind that ‘Community’ is replaced by ‘Union’, and that the final numbering of the TFEU differs from the Lisbon Treaty version:

Part Three Policies and internal actions of the Union

Title 1a (ToL), later Title II Free movement of goods

Chapter 1 (ToL and TFEU) The customs union

Article 27 TFEU (ToL), after renumbering Article 32 TFEU

In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:

(a) the need to promote trade between Member States and third countries;

(b) developments in conditions of competition within the Union in so far as they lead to an improvement in the competitive capacity of undertakings;

(c) the requirements of the Union as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;

(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.

***

The intermediary stages in the treaty reform process were almost identical to the current and Lisbon Treaty wording:

Article III-40 Draft Constitution (OJ 18.7.2003 C 169/34)

Article 151(6) Constitution (OJ 16.12.2004 C 310/65)

***

The guidelines offered to the Commission are evident in part, with subparagraph (a) targeting external effects and subparagraph (b) aiming at improving competition internally.

The rise in global demand for energy, raw materials, water and food seems to outrun the resource base or the production capacity, which leads to higher prices. Scarcity increases the risk of unfair practices and serious disturbances as well as the possible need for reassessment of consumption patterns.

Like political objectives in general, the aims the Commission is ordered to follow can be contradictory in part. The real test is, as often, which guiding principles are ‘more guiding than others’.

The substantial objectives of the customs union are intrinsically linked to trade policy and internal market aims, but here we take a closer look at questions of more indirect import, focusing administrative developments of customs within the European Community (Union).

***

We assume that the reader is a non-specialist, who wants to get acquainted with the basic aims of the customs union.

The Commission’s ‘Customs strategy’ pages offer an introduction. The Commission proposes legislation, and there is a common customs border, but operations are carried out by 27 national customs administrations (working to fill the EU’s till). Customs and trade policy questions are intertwined. Smooth cooperation between different authorities and a paperless customs environment are present challenges.

The Commission’s customs strategy is from 2001, and there is a joint mission statement from the EU customs administrations (2005) as well as strategic aims and key actions. There are references to key documents for further study:

http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm

We take note of the page ‘International Customs Day 26 January 2008’ for two reasons. Customs are crucial in the fight against the trafficking of drugs and drugs precursors. In 2007 the European Community was admitted to the World Customs Organisation (WCO), on an ‘interim basis’ akin to the WCO members’ rights and obligations:

http://ec.europa.eu/taxation_customs/article_4709_en.htm

How the objectives in the customs policy area are reflected in customs legislation can be seen by looking at newish legislation in force, with the Community Customs Code and its implementing provisions highlighted as the basic legislation:

http://ec.europa.eu/taxation_customs/common/legislation/legislation/customs/index_en.htm


Proposed legislation is on offer through the page ‘Customs proposals (legislation)’:

http://ec.europa.eu/taxation_customs/common/legislation/proposals/customs/index_en.htm

Given the importance of the Community Customs Code and its implementing decisions, we are offered an explanatory framework ‘101’ by the Commission’s press release ‘Modernised Community Customs Code – Frequently Asked Questions’ (MEMO/08/101, 19 February 2008).

Then there is Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework). The general reader is encouraged to read the recitals (‘Whereas’), setting out the priorities of the Customs 2013 Programme.


Ralf Grahn