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2016 OAS Guidelines

2.I.1. General provisions

Article 39(a) of the UCC requires that there have been no serious or repeated violations of customs and tax legislation, and in particular that there have been no convictions for serious crimes related to the applicant's economic activity. Furthermore, Article 24 of the AE CAU considers this criterion to be met if, during the last three years, the applicant has not committed serious or repeated violations of customs and tax legislation, nor has he or she been convicted of a serious crime related to his or her economic activity. In this context, Article 24 of the AE CAU distinguishes between natural persons and non-natural persons.

If the applicant is a natural person, they must meet these conditions

  • the applicant and,
  • where applicable, the employee in charge of the applicant's customs affairs.

If the applicant is not a natural person, these conditions must be met

  • the applicant,
  • the person in charge of the applicant or who controls his address and
  • the employee in charge of the applicant's customs affairs.

A specific definition of customs legislation is included in Article 5, paragraph 2, of the UCC. "Tax regulations" should be understood in a broad sense, not limited to taxes related to the import and export of goods (e.g., e.g., VAT, corporate taxation, excise duties, etc.). On the other hand, "tax regulations" must be limited to taxes that have a direct relationship with the applicant's economic activity.

A history of compliance with customs and tax legislation may be considered appropriate when the customs authority competent to take the decision considers that an infringement is of minor importance in relation to the number or magnitude of the related transactions and has no doubt as to the applicant's good faith.

If the person exercising control over the applicant's business is established or resides in a third country, or if the applicant's period of establishment is less than three years, the customs authorities will assess compliance with this criterion based on the customs authorities' past history and information available to them.

It is recommended that the following common specific circumstances be taken into account when assessing infringements by the competent customs authorities throughout the EU :

  • The compliance assessment must cover all of the applicant's customs activities, including all relevant tax elements, taking into account any history of serious offenses related to the economic activity.
  • The term "infringement" shall refer not only to acts discovered by the customs authorities during checks carried out at the time of entry of the goods into the customs territory of the Union or when they are subject to a customs procedure. Any violation of customs, tax, or criminal legislation detected during subsequent post-clearance controls, as well as any other violations observed through the use of other customs authorizations or any other source of information available to the customs authorities, will also be considered and assessed.
  • disposition of the customs authorities.
    - Violations committed by freight forwarders, customs agents, or other third parties acting on behalf of the applicant will also be taken into account. The applicant must provide evidence that appropriate measures have been taken to ensure compliance by persons acting on its behalf, such as establishing clear instructions for such parties, monitoring and verifying the accuracy of statements, and taking corrective action in the event of errors.
  • The applicant's failure to comply with national non-customs or non-tax legislation in the various Member States should not be overlooked, although, in this case, such infringements must be considered in light of the operator's good faith and their relevance to its customs activities.
  • When sanctions related to a specific infringement are reviewed by the competent authority following an appeal or review, the assessment of the seriousness of the infringement shall be based on the revised decision. When the competent authority fully revokes the sanction for an infringement, such infringement shall be deemed not to have occurred.

Before making a decision on compliance with the criterion of compliance with the law, a comparison must be made between the total number of infringements committed by the applicant and the number of operations carried out in the same period, in order to establish appropriate ratios. In this context, the different types of activities must be taken into account in terms of the number and volume of customs declarations and operations carried out by the applicant.