Union Customs Code, a striking enforcement of articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) organising the comitology bipolarity between delegated and implemented acts.
The very expected Union customs code of October 9th, 2013 has finally been issued in the Regulation 952/2013, published in the OJEU of October 10th, 2013.
Whereas most of its articles will not enter into force until June 1st, 2016, some of them will in the very near future (October 30th, 2013). It hence seemed useful to have a look at these articles, in order to gather what they are about.
The purpose of most of the articles entering into force is actually to define the delegated powers to the European Commission, as well as the executive powers of the latter.
The other few articles entering into force on October 1st 2013 are the following:
Article 52, “Charges and Costs”: this article is almost identical to article 30, §1 of the modernised Customs Code.
Article 286: Repeal and amendment of legislation in force
Article 287: Entry into force
Article 288: Application
A correlation table is annexed to the Regulation, with the articles of the Union Customs Code and the 2008 modernised Customs Code. One will regret that solely a correlation table with the 2008 modernised Customs Code (which was, overall, never applied) is provided for, whereas a similar table including the 1992 Code (in its current consolidated version) would have been very helpful…
We also note the editorial explosion of the Union Customs Code, with 288 articles against only 188 in the 2008 modernised Customs Code…
This seems mainly due to the abovementioned articles (delegated and executive powers conferred to the European Commission). It should be noted (article 284) that this delegated power to adopt delegated acts to the European Commission is conferred for limited periods of five years, as from October 30th 2013, automatically renewable… unless the European Parliament and the Council of the UE object to the renewal at least three months before the end of the five years period.
The European Commission will also have to draft a report on this delegation of powers at least nine months before the end of the period.
In view of the foregoing, the European Parliament and the Council of the EU will have no more than six months at most to possibly object to the tacit renewal of the delegation of powers to the European Commission.
It should, nevertheless, be noted that on one hand, the European Parliament as well as the Council of the EU can (article 284-3) revoke this delegation at any moment, and on the other hand, that the European Commission has the obligation (article 284-4) to immediately notify the European Parliament and the Council of the EU of the adoption of any delegated act. The European Parliament and the Council of the EU shall then have a period of two months at most from receipt of the notification to issue an objection, and at their own initiative, this period can be extended by two months.
This possibility means, therefore, an increased control over the European Commission’s actions and through that, confers a new role of “watchdog” to the these two institutions. The question, however, is to know whether or not, but also how, the democratic institution and the governmental institution will agree on issuing such an objection.
All these articles actually reflect the impact of the Lisbon Treaty, which significantly changed delegation of executive competence of the European Commission, both as a theory as a practice.
The entry into force of articles 290 and 291 of the TFEU organised, in fact, in a binary way, the world of comitology: delegated acts, and executive acts.
- The transcription, in this Union Customs Code, of objection and revocation possibilities now offered to the legislators, is very clear, killing on one hand the old regulatory procedure with scrutiny (PRAC), and reinforcing on the other hand the control by the legislators of the European Commission’s action.
- The drafting of this Union Customs Code also translates new comitology rules into practice, rules resulting from the Regulation 182/2011, notably from the examination procedure of its article 5.
With this in mind, we look forward, as customs engineering consultants close to the operators concerned, to reading, in the light of these articles entering into force on the 1st of June 2013, the projects of implementation rules of this new Union Customs Code.