Customs Compliance & Risk Management
Case law
CJEU on the right to be heard: it cannot be limited by any legislative provision
The right to be heard is well known to practitioners from various customs decisions and the Art. 22(6) of the Union Customs Code: 'Before taking a decision which would adversely affect the applicant, the customs authorities shall communicate the grounds on which they intend to base their decision to the applicant, who shall be given the opportunity to express his or her point of view'. This fundamental right of the EU legal order is not just a formality - the Court of Justice of the EU (CJEU) recently annulled a regulation because it found that the European Commission had violated the importer's right to be heard during the process of adopting that regulation. It is therefore worthwhile for importers, exporters and other parties involved to take a close look at the topic and be prepared to use the right to their own advantage at EU or national level if needed.
Determination of the non-preferential origin of goods: All you need is... luck
Legal clarity and certainty are what compliant companies need in order to be able to concentrate on their core activities. Legislators are trying to fulfil this need by, for example, introducing additional legislation such as binding information (BI) decisions. Frustratingly, the more legislation, the less clarity. BI decisions issued by customs authorities can be overturned by the European Commission (e.g. Harley-Davidson case), or the Court of Justice of the EU (CJEU) can rule in a dispute over a BI decision that the European Commission has exceeded its powers when adopting delegated legislation, which raises the question of how binding the rules laid down in the delegated regulations, e.g. the UCC Delegated Act, are. On the latter, we provide a brief overview of a recent CJEU judgement on the rules of non-preferential origin.
Overviews and comments
Non-tariff measures: their purpose and effect on trade
According to UNCTAD, 90 % of global trade is subject to non-tariff measures (NTMs). NTMs can increase trade costs three times as much as tariffs. NTMs often lack transparency. This increases uncertainty and unpredictability in global trade. At the same time, NTMs can be beneficial for international trade, as they guarantee quality through certification, provide information about products through labelling, reflect a commitment to socially important issues through labelling and environmental standards, etc. This article briefly describes what non-tariff measures are, what purpose they fulfil and what impact they have.
CBAM: history, objectives, scope, and its compatibility with international law (I)
Note from the CCRM editors: This first part of the article provides an overview of the history, objectives and scope of the Carbon Border Adjustment Mechanism (CBAM) introduced by the EU. It also examines the issue of whether the Paris Agreement on climate change foresees border adjustment measures by countries with high climate ambitions, and poses the following question: Is the CBAM fair towards developing countries? In the second part, the author will provide an overview of the provisions of the General Agreement on Tariffs and Trade (GATT) which could justify the CBAM, his assessment of the CBAM Regulation, and share a practical list of questions that companies can use in order to find out whether they are affected, and if so, how they can prepare to meet the CBAM requirements, in particular for the transitional period.
EU sanctions against Russia and Belarus: non-tariff measures or non-tariff barriers?
This article discusses the challenges faced by the Bulgarian automotive industry in the context of EU sanctions against Russia and Belarus. A national customs risk profile has been introduced, triggered by the export of certain automotive parts of HS Chapters 84 and 85 to Turkey, the United Arab Emirates, Kazakhstan and others. The documents and information required from the consignee of the goods in the third country and the end user of the goods (if different) in order for these goods to be exported are problematic, as it is often very difficult, if not impossible, to obtain this data.
Communication (EU): recent changes in the classification of goods
A recently published EU Official Journal contains a communication in accordance with Article 34(7)(a)(iii) of the Union Customs Code on decisions relating to binding information issued by the customs authorities of the member states concerning the classification of goods in the customs nomenclature. In this article, we provide an overview of some of the international tariff measures listed in the communication.
Combined Nomenclature 2024 (and how we... classify dragons)
Editors’ word: 2024 is the year of the wood dragon (Chinese zodiac sign). How do we classify such a dragon? :-) We can start the discussion with wood and its products, among which we find a dragon tree* (4407 29), and an old legend says that when a dragon dies, it is reborn as a dragon tree... such an interesting fact in the run-up to the New Year. Despite the importance of dragons in 2024, we won't find anything new about them in next year's Combined Nomenclature. However, we invite you to take a look at the other changes - check for any new developments related to your imports or exports. Thank you to Virginija Dordzikienė for the overview.
What is ‘cool’ about customs for you?
‘What are your main tasks as the Head of European Customs at DB Schenker? What are the main challenges and how do you deal with them? How do you measure success? What is ‘cool’ about customs for you? If you would have all the powers and resources, what would be the very first thing you would change in customs world?’ – We had the opportunity to put these and other questions to Rainer Wilms, who we would like to thank for his answers and insights.
Used car parts - export of waste or goods for reuse?
Today, we often talk about circular economy goals and the ambition to reduce waste by extending the life of products through reuse, repair, refurbishment or recycling. The legal framework is still under development. For example, there are provisions in the EU Combined Nomenclature for certain waste and scrap and for used cars, but no such provisions for used car parts - this can lead to difficulties when declaring these goods for the chosen customs procedure. Let us give an overview and discuss a current practical situation in Lithuania regarding the environmental and customs requirements for the declaration of parts of used cars for export.
Thoughts on non-preferential & Deep Origin
The fundamental premise of these notes is that the absence of any harmonization for rules of non-preferential rules of origin is increasingly and very rapidly creating additional discriminatory opportunities to expand and extend the scope and impact of a wide range of trade policies and trade restrictions. A brief analysis will provide a few examples of this phenomena, including an examination of its probable causes, and possible approaches to mitigate related barriers to international trade. The final notes will examine potential information and data contradictions in the current efforts to control so-called 'negative externalities' by way of 'deep origin' requirements, such as forced labour and carbon measures, at the border.
What to expect if you transport goods to (or from) Russia and Belarus via Latvia?
According to customs data, since the introduction of sanctions, Latvian customs performed 184,972 cargo document controls and 6,027 cargo physical controls. In 8,396 cases, customs prevented the movement of goods subject to sanctions. In 2022, 114 criminal proceedings have been initiated for the circumvention of sanctions, and in 2023, – 87 criminal proceedings. Considering the above, economic operators who move goods from or to Russia and Belarus or countries that could be used to circumvent sanctions should consider the consequences mentioned in this article.
REACH chemical regulations in the EU and the UK – international conflict?
In the manufacturing industry, there are often complex supply chains where chemical substances cross borders between the UK and the EU several times. In this article we provide an overview of how REACH works in the EU (including the current revision) and in the UK, the implications for businesses and also address the Windsor Framework for Northern Ireland. Most companies use chemicals, sometimes even without realising it, therefore you need to check your obligations if you handle any chemicals in your industrial or professional activity. You might have some responsibilities under EU REACH or UK REACH or both.
News update
EU law news October/November 2023
News in week 48: Amendment of EU's GSP Regulation; UCC Work Programme 2023 revision; updated UCC Guidance on Special Procedures other than Transit; EU completes ratification of state-of-the-art trade agreement with New Zealand; Transitional Rules for Ukraine are now in ROSA (Access2Markets); a provisional anti-dumping duty on imports of certain polyethylene terephthalate (PET) originating in China; tariff classification of a multifunctional apparatus in a housing with front control buttons, to be installed in the dashboard of a motor vehicle; and more updates!
Ukraine customs and trade news October/November 2023
News at a glance: Customs clearance without presentation of goods - no longer an option; Constitutional Court: the Customs Code must allow for the individualisation of penalties; Pan-Euro-Mediterranean Regional Convention: Alternative rules of origin (EU and Ukraine); verification of exporters of agricultural products; reliable, transparent and comprehensible trade protection tools that benefit both Ukrainian businesses and international partners.
Topic spotlight
The significance of double taxation avoidance agreements in international trade
Understanding the terms Double Taxation and Double Taxation Avoidance Agreements (DTAAs) is crucial in the field of international taxation, as they encapsulate complex scenarios that impact cross-border trade and investments. This paper aims to unravel the conceptual framework of DTAAs, assessing their advantages and disadvantages in the realm of international trade. By presenting case studies, this paper endeavors to delineate how DTAAs influence international trade decisions, offering a pragmatic understanding of their significance.
Perspective
Non-tariff measures: the biggest challenges in 2023
Where do we draw the line between non-tariff measures that help governments achieve important goals (e.g. sustainability) and non-tariff barriers that unnecessarily restrict trade? How can SMEs ensure compliance in an increasingly complex regulatory environment (international sanctions, export controls, SPS, CBAM, REACH, forced labour, etc.)? As a distributor, how do you control the supply chain with multiple points of sale and resale, especially in relation to export control? These and other related questions were addressed at the 18th Authors' Meeting in an exchange of views between experts from different countries - the EU, the UK, the US, Brazil and Pakistan.