The role of institutes of international maritime law in the development of EU customs law and the implementation of the Union Customs Code: summary

The implementation of the EU’s common trade and customs policy raises many problems, both at the theoretical and practical level. Such problems are often related to the protection of the EU’s economic area (customs territory of the EU). For this reason, EU customs law should be considered a crucial tool for the management of processes related to international trade, including those taking place in maritime areas falling within the customs territory of the Union. In this respect, EU customs law can also be seen as a set of rules defined to facilitate the development of international trade, while at the same time serving the interests of the EU itself and its Member States in protecting the internal market. Thus, EU customs law, the interpretation and application of its rules regarding the regulation and taxation of economic activities in maritime areas also directly depend on aspects and provisions of international maritime law.

Taking into account the reform of EU customs law after the newly adopted Union Customs Code (entered into force since 2016, the interplay between international maritime law and EU customs law and the challenges facing the EU and its Member States in this area (while ensuring the legal protection of the EU’s customs territory belonging to maritime areas) are becoming increasingly important and relevant. In this context, the article „The role of institutes of international maritime law in the development of EU customs law and the implementation of the Union Customs Code: problematic aspects“ (Gediminas Valantiejus, „Tarptautinės jūrų teisės institutų reikšmė ES muitų teisės raidai ir Sąjungos muitinės kodekso įgyvendinimui: probleminiai aspektai“, from „XXI amžiaus iššūkiai tarptautinei teisei: Liber Amicorum Sauliui Katuokai“ [“21st Century Challenges to International Law: Liber Amicorum Saulius Katuoka“] (ed. J. Žilinskas et al.), p. 401-435, Vilnius: Mykolas Romeris University, 2020, ISBN 978-9955-19-995-3), the summary of which is presented here, seeks to identify legal issues related to the implementation of economic activities in maritime areas by analyzing the case-law of the Court of Justice of the European Union related to the application of EU customs law and its regulations defining the boundaries of the EU customs territory, determining the customs origin of goods and describing the order of the customs procedures. The article also presents suggestions on how the identified legal issues should be addressed by amending EU customs legislation.

The main conclusions of the research are are presented below:

1. The implementation of the EU’s common trade and customs policy faces both theoretical and practical problems related to the protection of the EU’s economic area (customs territory). For this reason, EU customs law should be considered as a crucial tool for the management of processes related to international trade, including those taking place in maritime territories falling within the customs territory of the Union. In this respect, EU customs law can also be seen as a set of rules defined to facilitate the development of international trade, but at the same time serving the interests of the EU itself and its Member States in protecting the internal market of the Union. On the other hand, EU customs law as well as the interpretation and application of its rules regarding the regulation and taxation of economic activities in maritime areas, are directly dependent on certain aspects and provisions of international maritime law. These provisions concern, in particular, the definition of the boundaries of the maritime territories falling under the sovereignty of the EU Member States, the application of rules of customs origin (determining the customs origin of products obtained at sea and assigning them to a specific country), the order of customs procedures applicable towards goods which are transported to or from maritime areas/territories.

2. When defining the boundaries of the EU customs territory in marine waters, it is important to take into account that the current Union Customs Code [1], unlike the previous Community Customs Code [2], does not explicitly exclude the territorial sea of the certain EU Member State from the customs territory of the EU. According to the author, such an abstract (compared to the provisions of the Community Customs Code) legal regulation enshrined in the  Union Customs Code can nevertheless be considered appropriate from the point of view of international maritime law, because according to general provisions of international law, the concept of “state” includes its territorial sea (as an object of international maritime law). On the other hand, under international conventions (Kyoto Convention on the simplification and harmonization of customs procedures [3]) and specific EU customs rules (distinguishing between free zones, free ports and free customs warehouses), not all parts of the EU customs territory are subject to the same regulatory regime. According to the author, this principle is not properly enshrined in the general rules of the Union Customs Code, which are currently presuming the equivalent legal status of individual parts of the customs territory of the Union, and it would therefore be appropriate to supplement Article 4 of the Union Customs Code with a reference to possible specific customs rules and exemptions depending on the status of individual parts of the customs territory of the Union.

3. The application of the rules of international maritime law in EU customs law is also crucial for the proper interpretation of the rules of customs origin, in particular regarding the customs origin of fishery products obtained in maritime areas. In this respect, it is important to mention that the regulations of the international maritime law define whether the ship (vessel) or floating factory which extracted or caught the products concerned at sea, in particular in waters outside the territorial sea, may be subject to the jurisdiction of one or another country, which ultimately determines the origin of the products obtained and their taxation by using preferential or non-preferential customs tariffs. In this respect, it should be noted that the Union Customs Code does not yet lay down fully clear and detailed rules on the allocation of the burden of proving the origin of goods, justifying and proving the operations and circumstances underlying the origin (nature of operations at sea, the status of the ship (vessel), etc.). As the determination of such circumstances has given rise to some disputes which are reflected in the case-law of the Court of Justice of the EU (CJEU) [4], it is proposed to clarify the provisions of the Union Customs Code, in particular Article 64 thereof, by providing that the person, which is extracting the products and is obliged to pay customs duties (declarant), should in all cases be responsible for proving the origin of the goods (products) concerned.

4. The case law of the CJEU (based on the case C-4/15, Argos [5]), which deals with legal regulation of customs procedures applicable to goods which are being processed or manufactured in maritime areas, such as high seas (e.g. by using outward processing procedure), has so far complied with the provision that the conditions of these procedures can be interpreted broadly. In the author’s view, such a model of interpretation of the customs procedure may adversely affect the general concept and concept of the customs debtor and potentially allow the inclusion of any person involved in the customs procedure into the concept of the debtor, regardless of whether he has abused his rights and sought to evade customs duties, or not. It is therefore proposed to clarify the provisions of Article 79 of the Union Customs Code, which imperatively states that the debtor may be a person who knew or reasonably ought to have known that an obligation under customs legislation has not been fulfilled and has not taken all measures, which could reasonably be expected to fulfil the obligations laid down in the customs legislation to collect the import customs duties.

Sources and literature

[1] Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast), see: <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02013R0952-20200101>;

[2] Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, see: < https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31992R2913>;

[3] The International Convention on the simplification and harmonization of Customs procedures, see: <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:21973A0518(01)>;

[4] Case 100/84, Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland, 1985 E. C. R. 01169;

[5] Case C‑4/15, Staatssecretaris van Financiën v. Argos Supply Trading BV, 2016 EU:C:2016:580.

Additional notes:

The original version of the article was published in the author’s personal LinkedIn profile on 18.09.2022

https://www.linkedin.com/pulse/role-institutes-international-maritime-law-eu-customs-valantiejus/

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