Історія торгівлі, податків та мита

THE HISTORY OF CUSTOMS AND ITS LEGAL BACKGROUND

Gellert Lothar

Governmental University of Applied Sciences, Munster

Today I want to give you a brief historical overview of the customs, including its laws with some historical thoughts related to Germany and the European Union.

Don’t be afraid, I will not go back far to the ancient times and to the first customs officer named in the Holy Bible, the customs officer Mathew or how we call him in German language “Matthaus”.

Here I will limit myself to the customs history, which goes back to the 19th century.

From 1834 to the Customs Union

Because of the many states in Europe at the beginning of the 19th Century, there were a lot of borders, for example in Germany nearly 1,800 customs borders.

These borders hampered trade and unrestricted movement immensely.

The founding of the German Customs Union on 1 January 1834 was a first step towards a customs union in Europe.

The establishment of uniform external tariffs and the elimination of internal tariffs, favored a free trade, while reducing smuggling.

Over time, more and more countries joined, so that a German free trade zone was created and in 1869 a Customs Act was established.

In the framework of the foundation of the German Empire in 1871, the whole Empire became a unique customs territory, although Bremen and Hamburg held their status as so-called free ports.

A new Customs Act entered into force in 1939, which was based on the Customs Act of 1869. We all know about the sad history and the role Germany played in it in the first part of the 20th century. So it was no wonder that the new Customs Act was very much influenced by political ideas of that time.

After the founding of the Federal Republic of Germany on 23 May 1949 and the adoption of the German Constitution “Gnmdgesetz” (GG), duties, fiscal monopolies and federal excise taxes should be managed in accordance with the Grundgesetz by the German tax authorities.

After 1951, the European Coal and Steel Community (EC SC) was set up and this was the time where the process of European integration began. For the first time sovereignity rights were placed under the supervision of a supranational body.

However customs law remained as a national legislation still and was not harmonized at that time.

Therefore in Germany on 14 June 1961, the German Customs Act was published in the Federal Law Gazette, because after six amendments of the existing law and new regulations a new Customs Act seemed to be necessary.

The organization of the European Union with its Treaties and the creation of the Community Customs Code in 1993 represent the “status quo” in the long development of customs law in Europe.

Building a Customs Union

The Customs Union

What is significant for a Customs Union?

A customs union is an alliance between two or more independent states which unite their territories to a common customs territory.

Important is that in relation to third countries at each boundary of the customs territory the duty is levied on certain goods from certain countries with the same amount, using a common external tariff.

The goal of a customs union was already enshrined in 1957 in the Treaty on the European-Economic-Community EEC.

However, it lasted until 1968 when this idea was realized in the commercial transport and 1970 for the transport of agricultural products.

The free trade principle is now manifested in Article 28 of the Treaty of the Functioning of the EU (TFEU) (ex Article 23 Treaty on the European Community).

Meanwhile the EU has established a customs union with Turkey, Andorra, San Marino and some overseas countries and territories.

The development of the Community Customs Code

First thoughts on the creation of a unified and general customs law under the common interior and justice policy go back to the year 1974.

At the Paris Summit first principles of freedom of establishment and free movement of persons were set up.

With the implementation of the Single European Act (SEA) in 1987, the four basic building blocks were set: free movement of persons, goods, services and capital.

Goal should be the realization of a harmonized internal market resulting by 1992.

With the harmonization of that internal market, the Community faced a major challenge, as a good balance between a functioning market and the delivery of sovereignity rights of Member States to the supranational body European Community had to be found.

At that time the customs regulations were scattered in many different European regulations and guidelines.

As the basic lawbook in customs matters the Customs Code was created as a summary and revision of all these different legislation in one legislative Act.

Overlaying of national law by the European Customs Legislation

In principle, the primary and secondary Community law takes precedence over the application of national laws.

This also means that national regulations contrary to the EU-law became and become invalid.

The ECJ has confirmed this principle in several judgments since July 1976.

However, the European Institutions Commission and Council left to the Member States some possibilities for national legislation in some legal questions and problems where the community law did not settle everything in detail but left it to the Member States to fill these holes and gaps by national law.

The CCIP

On January 1st 1994 the Implementing Regulation for the Customs Code (Regulation (EEC) No 2454/93) came into force.

Together with the Community Customs Code it is the largest harmonized law, which had ever been within the EU.

Like the Community Customs Code the Implementing Regulation basically includes as well provisions for procedural aspects, (the formal customs law), as tax matters, (the substantive customs law).

It follows the same systematic structure as the Code.

In addition, here a codification of administrative law takes place, which is for the administrations of the Member States of fundamental importance in their daily work.

In more than 900 articles and 100 attachments, the Commission has specifically referred to the Council Regulation and created especially many definitions, for example, in Article 1 of the CCIP, for a better understanding of the Code.

As a further step the European Commission has noticed that even the Implementing Regulation cannot settle everything and that still a few questions remained unsolved.

So, in addition, the Commission has therefore issued guidelines, which are intended to illustrate and extend the Implementing Regulation.

These guidelines led as a positive result to a decrease in the number of of attachments in the CCIP.

Nevertheless, numerous changes have become necessary for the Implementing Regulation over the last years.

Thus, in addition to the AEO-concept (Authorized Economic Operator, “AEO”) risk management and the summary declaration for imports (see Article 182 a - 182 d CCIP) have been implemented.

The importance of European Customs Legislation for the European integration process

The Customs Code was and is a factor determining the political and economic unification of Europe.

It is the basis for the internal market.

It is also relevant for the common foreign and security policy.

What appeared as a vision shortly after the end of the Second World War and the almost complete destruction of Europe has become a reality today.

With the gradual abandonment of the Member States’ sovereignty a community could be established, that presents by its treaties and binding legal instruments an unprecedented alliance of states

The Customs Code expresses that the EU is not only a community of values and solidarity, but also a community of law.

Because of this law, the EU could grow into a global economic power and by this law the open borders, the high exchange of goods and services, the migration of workers and the large number of cross-border corporate networks could be made possible.

Finally, the codification of customs regulations in one single regulation is a milestone in relation to the design of EU law.

A look into the future

Perhaps you have already heard that due to the big amount of legal changes it was envisaged at the beginning of 2000 to draft a new Customs Code, which was named the Modernised Customs Code. This MCC entered into force in 2008 and should be applicable by June 2013.

However in the course of time it was established that many new IT-Sy stems had to be created and a lot of new provisions had to be drafted in following the Treaty of Lisbon, the latest version of the European Treaties.

Therefore it was decided not to let enter the MCC into application but to draft another new Customs Code, the so-called Union Customs Code (UCC).

The proposal for a Union Customs Code, as a recast of the Modernised Customs Code, was put forward by the Commission in February 2012 and the ordinary legislative procedure was then launched in European Parliament and Council.

The “trilogue” between European Commission, Council and Parliament about the text was successfully concluded in April 2013.

The adoption of the new UCC Regulation is (was) planned for the second week of September by the European Parliament and the third week of September by the Council.

The new regulation shall enter into force before 1 November 2013. Its empowering provisions will however apply immediately on its date of entry into force - in order to provide legal bases for the adoption of related Commission acts - while its substantive provisions will apply only on 1 May 2016 .

Insofar as parts of the new legislation depending on IT systems are concerned, it shall be applicable no later than end of December 2020.

Conclusion

As a conclusion we can state that it was a long way with certain developments that brought to us to status quo.

And we can see that customs law is a living thing which depends on social environments and circumstances.

Therefore we can be curious, in particular my young friends here in the Academy, what the future will bring to us related to the customs world and its juridical background.