31.3.2014   

EN

Official Journal of the European Union

C 94/1

1.

The objective pursued by the draft regulation is the sound application of Union legislation in the fields of customs and agriculture, providing in particular the Commission but also the Member States’ customs and other authorities with more effective mechanisms to assist it in preventing, investigating and prosecuting operations that are in breach of customs and agricultural legislation. To that end the proposal:

2.

The Court has examined the Commission proposal in the light of the results of its audit work.

3.

The Court considers that the proposal will contribute to achieving the objectives pursued by the regulation, subject to some specific remarks which are referred to in paragraphs 5 to 8. Furthermore, the proposal to amend Article 18b and the directory provided for in Articles 18a and 18g of the draft Regulation addresses concerns expressed in paragraphs 9 and 10 of the Court’s opinion No 3/2007 (6), issued on the last occasion that this Regulation was amended. The Court also considers useful the clarification in Article 12 that information obtained through mutual cooperation may constitute admissible evidence in criminal proceedings in Member States. For these reasons, the Court welcomes the Commission’s proposal.

4.

As the European Data Protection Supervisor is the competent authority for questions relating to data protection supervision and will have to be consulted accordingly by the Commission, the Court does not address that matter in the present opinion.

5.

Articles 18a and 18g of the proposal set out the arrangements by which the Commission will establish and analyse a directory of data received from public or private service providers active in the international supply chain and share this data with the Member States’ authorities. Articles 18a(6) and 18g(3) limit access to this directory to certain Commission departments and national authorities and make the transfer of data to other institutions subject to specific conditions. However, these provisions of secondary law cannot restrict the Court’s audit powers established through primary law, namely Article 287(3) TFEU. Whilst, strictly speaking, it is not necessary to make reference to the audit powers of the Court in the amended Regulation (EC) No 515/97, it would nonetheless be useful to point out in the relevant Articles that those provisions are ‘without prejudice to the Court of Auditor’s right of access to documents and information under Article 287(3) TFEU’. This would ensure that all parties involved in the implementation of the Regulation are aware of the audit powers of the Court and that these cannot be made subject to restrictive conditions. For the same reason, a reference to the Court of Auditors in Article 29, concerning access to the Customs Information System, would be useful.

6.

Articles 18c to 18f set out the arrangements by which the Commission will obtain and process information about container movements into, inside and out of the customs territory of the Union. This information will be provided by public and private service providers, in effect the shipping companies. The World Shipping Council (WSC), which represents approximately 90 % of the global liner vessel capacity (7), was consulted as part of preparing the legislative proposal. This procedure gives a degree of assurance that the proposal is practicable and will not result in unreasonable costs for shipping companies (8).

7.

The Court notes that there is no provision in the draft legislation for any verification of the completeness, reliability and timeliness of the data provided by the shipping companies. Furthermore, no resources are set aside in the legislative financial statement for such a procedure. Completeness, reliability and timeliness of the data are risks that need to be addressed, having due regard to the cost of any controls put in place.

8.

Article 18h of the proposed Regulation empowers the Commission (OLAF) to obtain directly from economic operators documents supporting import and export declarations when these are required for investigations. The aim is to speed up OLAF investigations and thus to reduce the risk of time-barring. The Court considers that this measure is appropriate. However, in the interest of sincere and effective cooperation between the Commission and the Member States, it would be appropriate to provide in this Article: