Latest edition of EY Belgium’s Customs and Excise update

Port of Antwerp: New procedure regarding the non – discharge of a sea freight summary declaration

On 1 May 2023, the Antwerp customs authorities introduced a new procedure regarding the non-discharge of sea freight summary declarations with the objective to improve the management and handling thereof.

After the second month following a sea vessel’s arrival in the port of Antwerp, the Antwerp customs back-office receives a PLDA report, listing the cargo that hasn’t been entirely discharged within the temporary storage period of 90 days. This report, including details of the goods and the shipping agent’s name, is forwarded to the temporary storage holder to address the non-discharge. The subsequent response and the supporting documents submitted by the economic operator determine the course of action for the back-office: they will either send the file to the competent authorities for payment collection or have the temporary storage declaration manually discharged by the dock office services.

At the end of the third month following a sea vessel’s arrival in the port of Antwerp, a report will be sent to the relevant back-office, containing a summary declaration for the vessels within the back-office’s jurisdiction for which no file has been initiated yet. Based on the report, the back-office initiates a file for each item that hasn’t been assigned a customs-approved treatment or use by the end of the discharge period. The back-office then processes the relevant goods and sends a final letter to the shipping agent and temporary storage holder, requesting necessary supporting documents within 30 days. Failure to submit supporting documents within the specified timeframe will result in forwarding the files to the appropriate authorities for the collection of outstanding amounts.
 

Changes to the stock declarations procedure– Cliquet system

The Royal Decree of 14 February 2023, which entered into force on 3 March 2023 contains various amendments regarding stock declarations and the payment procedure and terms related thereto.

The most significant amendments can be summarized as follows:

• In case of an excise rate increase, the stock declaration must be filed, compulsory, on MyMinFin no later than the Thursday following the second week of the excise rate increase.
• The statement of honour by the depot holders and holders of a petrol station, must be submitted to the officer in charge of the administration of the competent excise or customs office of the area where the energy products are held (not via MyMinFin). Submitting a new statement of honour is unnecessary if a declaration has already been filed in 2022.
   

Belgian Constitutional Court case regarding the discretionary power of the customs administration in respect of the forfeiture of goods

On 9 February 2023, the Belgian Constitutional Court ruled that the difference in treatment between Article 221, §1 of the Belgian General Law on Customs and Excises (hereafter: GLCE) and Article 263 GLCE on the application of the forfeiture is not considered to be in breach of the principle of equality and non-discrimination as determined in Article 11 and 11 of the Belgian Constitution. In its judgement, the Constitutional Court states that the difference in powers between the Customs Administration, which can waive all or part of the forfeiture of property in the context of a transaction (Article 263 GLCE), and that of the criminal court, which does not have the power to waive forfeiture (Article 221, §1 GLCE) justifies the difference in treatment.

The Court notes that forfeiture relates to the object of the crime committed. Common criminal law also provides in the mandatory forfeiture of the property that is the object of the crime (Article 42, 1° Belgian Criminal Code). The compulsory forfeiture of Article 221, §1 GLCE is based on the idea that criminal behaviour should not be rewarded by being enriched by the goods that have been removed from customs or excise supervision and is deemed justified by the fact that the crimes committed are of severe nature.

Finally, the Court accepts that the power of the Customs Administration to waive the (full) forfeiture is in line with the legislator’s objective of detecting and enforcing customs and excise violations in a smooth manner, by means of the transaction. After all, the court believes that expediting the case would benefit the Belgian state by securing a quicker payment of the evaded customs and excise duties. The court also notes that the ability of the Administration to waive forfeiture could be viewed as beneficial to the Belgian State, as it could make the transaction more attractive to the accused, ultimately resulting in faster collection of customs and excise duties. Moreover, by accepting the transaction, the accused avoids a criminal conviction, which can also make the transaction more interesting for the accused. Since the offender can appeal to an independent judge in case he refuses the transaction, the necessary guarantees of due process are provided.
 

EU published 10th sanction package against Russia one year after Russia’s military invasion of Ukraine

On 25 February, the EU Commission published its 10th sanction package against Russia. In line with previous sanctions packages, the EU introduced new trade and financial sanctions aimed at depriving the Russian economy of critical goods and technology. In addition, new enforcement and anti-circumvention measures were introduced.

The main elements of the 10th sanction package are the following:

• New entries on sanction list: 121 individuals and entities are added to the sanctions list. Among the individuals and entities added are Iranian individuals and entities who are contributing to Russia’s war capacity against Ukraine by providing Russia with Unmanned Aerial Vehicles (drones) and other goods and technology used for the manufacture of military systems;
• New export bans and restrictions on sensitive dual-use and advanced technologies which could contribute to Russia’s military and technological enhancement or the development of its defence and security sector: Items on which restrictions are introduced include, among other, electronic integrated circuits, thermographic camera’s, electric generators, binoculars, radars, compass, vehicles (heavy trucks not yet banned, snowmobiles, etc.), bridges, structures for building towers, for-lifts, cranes, machina parts, turbojets (aviation industry), hydraulic brake fluids, rare-earths and compounds (coal, coke, hydrogen, nitrogen, oxygen, silicon, etc.), printing ink, species of wood, types of paper and cardboard, and even a complete industrial plant (to avoid loopholes) etc.;
• New import bans on Russian high-revenue goods: Further restrictions are introduced on the import of goods which generate significant revenues for Russia, such as, bitumen and asphalt, petroleum coke, paraffin wax, carbon, synthetic rubber, etc.;
• Financial measures: 3 Russians banks (i.e., Alfa Bank, Rosbank & Tinkoff Bank) are added to the list of entities subject to assets freeze and the prohibition of making funds and economic resources available. In addition, a reporting obligation on the frozen assets and reserves of the Central Bank of Russia has been introduced;
• Anti-circumvention measures: A prohibition to transit dual-use goods and firearms via the territory of Russia to third countries is introduced. Additionally, aircraft operators are obliged to notify non-scheduled (i.e., private) flights between the EU and Russia, whether directly or via a third country;
• Other measures: A prohibition to provision gas storage in the EU to Russian individuals or entities (incl. foreign entities controlled or acting on behalf of Russian entities) has been introduced. Storage for LNG is excluded from this prohibition. The broadcasting licenses in the EU of certain Russian media outlets have been suspended. The package also introduces a prohibition for Russian nationals or natural persons residing in Russia to hold any positions in the governing bodies of the owners or operators of critical infrastructures, European critical infrastructures, and critical entities (i.e., vital societal functions or economic activities). Lastly, measures were introduced to facilitate the divestment from Russia by EU operators.
   

Commission exceptionally updates the 2022 EU control list of dual-use items

Almost a month after the publication of the Delegated Regulation 2023/6 amending Annex I of Regulation 2021/821 – also known as the dual-use Regulation. The commission decided on 23 February to update the EU control list of dual-use items. These extraordinary measures were taken to align with the decision taken by the non-proliferation regime Australia Group, which is a multilateral export control regime in charge of preventing the proliferation of chemical and biological items.

The update includes four new entries for maritime toxins that can be synthesized and used for biological weapons. Namely: brevetoxins, gonyautoxins, nodularins and palytoxin. Most of the other amendments were related to the update of references and editorial changes.
 

Ukraine’s Autonomous Trade Measures (ATMs) to be renewed

Regulation 2023/1077 of 31 May 2023 extends the suspension of import duties, quotas and trade defence measures on imports from Ukraine with another year. While keeping EU industry concerns in mind, the primary goal of the ATMs is to provide support to Ukraine.

With the aim of achieving this objective and in light of the considerable rise in imports of certain agricultural goods from Ukraine into the EU in 2022, the renewed ATMs feature an expedited safeguard mechanism to protect the Union market, if needed.
 

Reform of the Union Customs Code

On 17 May 2023, the European Commission has put forward proposals for what it says is the most ambitious and comprehensive reform of the EU Customs Union since its establishment in 1968. The proposals are based on the aim to come to a new partnership with businesses, take a smarter approach to customs controls and have a modern approach to e-commerce.

A few highlights:

• The introduction of the concept of carrier and importer, the latter being defined as single responsible person at entry that should be established in the European Union;
• The abolishment of the duty exemption for low-value consignments below 150 EUR and full alignment between the VAT and customs treatment of B2C e-commerce sales related to goods dispatched from third countries or territories;
• Simplified commodity code system for low-value B2C e-commerce transactions by introducing four customs duty categories;
• Introduction of an EU Customs Authority to come to a more standardized approach regarding, initially, IT and Data and Risk Management.
• Introduction of the Trust and Check Trader which will be an additional category to the existing AEO programme. Traders qualifying as such will be able to release their goods into circulation into the EU without any active customs intervention at all. 
• Establishment of the EU Customs Data Hub that allows businesses to interact with one single portal when submitting their customs information and they will only have to submit data once for multiple consignments.

The proposals will now be sent to the European Parliament and the Council of the European Union for agreement. Based on the proposals, the first major changes will apply as of 1 January 2028.
 

Regulation on the Carbon Border Adjustment Mechanism and revised Emission Trading System adopted and published

The Council of the European Union has adopted the Carbon Border Adjustment Mechanism (CBAM) and revised Emission Trading System (ETS) on 16 May 2023.

The CBAM will enter into force on 1 October 2023 and initially apply to imports of certain goods and selected precursors whose production is carbon intensive and at most significant risk of carbon leakage: cement, iron and steel, aluminium, fertilisers, electricity and hydrogen. Importers need to submit quarterly reports, listing amongst others the weight of the imported CBAM products per installation in the country of origin, embedded emissions of the imported products and a carbon tax paid in the country of origin (if applicable). More detailed implementing legislation is expected to be published in July.

The main feature of the revised ETS is its extension to aviation and maritime sectors and the new ETS II will cover fuels for transportation and heating. The free allowances will be phased out starting as of 1 January 2026.
 

Deforestation Regulation published

Regulation 2023/1115 aims to minimize the risk of deforestation and forest degradation associated with products that are placed on or exported from the EU market. The regulation sets mandatory due diligence rules for all operators and traders who place, make available on the EU market or export the following commodities: palm oil, cattle, wood, coffee, cocoa, rubber and soy. The rules also apply to a number of derived products such as chocolate, furniture, printed paper and selected palm oil based derivates (used for example as components in personal care products). The regulation sets a cut-off date for the new rules on 31 December 2020, meaning that only products that have been produced on land that has not been subject to deforestation or forest degradation after 31 December 2020 will be allowed on the EU market or to be exported from the EU. The regulation will  enter into force on the 26th of June. The main obligations will apply 18 months after the entry to force of the regulation.
 

Updates in relation to customs declarations following Implementing Regulation 2023/398

Commission Implementing Regulation 2023/398 includes amendments made to Delegated Regulation 2015/2446 as regards extending the possibilities for making customs declarations orally or by any other act deemed to be a customs declaration, the invalidation of declarations in specific cases and specifying the exchange for entry summary declarations. 

The amendments have been made to tailor it better to the needs of economic operators and customs authorities and to take into account the developments regarding the forthcoming deployment of releases 2 and 3 of the Import Control System (ICS2).
 

EU amends additional import duties on certain US originating products

The EU has published Commission Delegated Regulation 2023/858, addressing the annual adjustment of additional import duties imposed on certain goods originating from the United States. These additional import duties were imposed due to the United States’ failure to comply with its obligations under the World Trade Organization (WTO) agreements, specifically in relation to the Continued Dumping and Subsidy Offset Act (CDSOA). In response to this non-compliance, the EU took action in 2018 by implementing an additional customs duty of 4.3% on specific products imported from the United States. The level of suspension has been annually reviewed and adjusted. In 2022, the level of suspension was modified to a 0,001% customs duty, prompting the amendment of Regulation 2018/196 to reflect this adjustment.

On 1 May 2023, the EU published the amended the rate for the additional import duty on certain US originating products, the revisited rate is set at 0,164%. Consequently, starting from 1 May 2023, products falling under the following CN codes and originating in the United States will be subject to an additional import duty of 0,164%: 0710 40 00 (corn cobs), ex 9003 19 00 (frames and mountings of base metal), 8705 10 00 (crane lorries), and 6204 62 31 (denim clothing). Regulation 2018/196 has been amended accordingly to reflect these changes.
 

Initiation of an anti-dumping investigation on imports of certain PET products originating in China

The European Commission announced the initiation of an anti-dumping investigation concerning imports of certain polyethylene terephthalate (‘PET’) originating in China. The complaint was lodged on 14 February 2023 by PET Europe on behalf of the Union industry of PET in the sense of Article 5(4) of the basic regulation.

The product subject to this investigation is polyethylene terephthalate (‘PET’), having a viscosity of 78 ml/g or higher, according to ISO Standard 1628-5 and currently classified under CN code 3907 61 00. The investigation will determine whether the product under investigation originating in China is being dumped and whether the dumped imports have caused injury to the Union industry. The investigation of dumping and injury will cover the previous year, from 1 January 2022 to 31 December 2022.
 

Definitive anti-dumping duties on tyres originating in China

The Commission Implementing Regulation 2023/737 imposes definitive anti-dumping duties on imports of certain pneumatic tyres - new or retreaded - of rubber, of a kind used for buses or lorries, with a load index exceeding 121. The products subject to these measures are classified under CN codes 4011 20 90 and ex 4012 12 00 (TARIC code 4012120010) and must be originating in China. The regulation provides a comprehensive list with the companies in scope, and with the applicable anti-dumping rates and relevant TARIC additional codes. 

The reinstatement of the anti-dumping duties is a consequence of the reopening of the investigation after the implementation of the judgement of 4 May 2022 in joined cases T-30/19 and T-72/19, with regard to Implementing Regulation 2018/1579 and Implementing Regulation 2018/1690. Excess amounts collected will be refunded or remitted.
 

Definitive anti-dumping duties on imports of certain hot rolled stainless steel sheets and coils (‘SSHR’) originating in Indonesia extended to Türkiye

In October 2020 the European Commission imposed a definitive anti-dumping duty on imports of certain hot rolled stainless steel sheets and coils (‘SSHR’) originating in Indonesia, China and Taiwan. On 17 June 2022, the Commission received a request from the European Steel Association ‘EUROFER’ to investigate the possible circumvention of the anti-dumping measures in force and to make imports of SSHR consigned from Türkiye, whether declared as originating in Türkiye or not, subject to registration. The product concerned by the possible circumvention is flat-rolled products of stainless steel, whether or not in coils (including products cut-to-length and narrow strip), classified under HS codes 7219 11, 7219 12, 7219 13, 7219 14, 7219 22, 7219 23, 7219 24, 7220 11 and 7220 12.

The investigation period covered the period from 1 January 2018 to 30 June 2022 and based on several findings, the Commission concluded that the anti-dumping duty imposed on imports of SSHR originating in Indonesia was circumvented by imports of the product under investigation consigned from Türkiye. Hence, the anti-dumping measures in force on imports of SSHR originating in Indonesia are now extended to imports of these products consigned from Türkiye. The extended duty is the anti-dumping duty of 17,3 % and shall be collected on imports registered in accordance with Implementing Regulation 2022/1310.
 

Renewal of anti-dumping duties on imports of high tenacity yarns of polyesters originating in China

On 11 May 2023, two regulations, Implementing Regulation 2023/934 and 2023/935, that adjust and extend the scope of the existing measures on imports of high tenacity yarn of polyester (HTYP) from China were adopted by the European Commission. Multiple investigations have revealed that if the existing measures are not maintained, injurious dumping is likely to persist. Furthermore, these investigations have highlighted the necessity of revising and expanding the measures to include an additional manufacturer (Hailide) to effectively address the issue of injurious dumping. The newly announced measures will extend the imposition of anti-dumping duties on high tenacity polyester yarn imports from China for an additional five years. These measures will also result in an increase in the duty rates, ranging from 6.9% to 23.7%. It is important to note that anti-dumping measures have been in effect for these Chinese products since 2010 and have undergone multiple renewals in the past.
 

New Northern-Ireland Brexit Protocol: The Windsor Agreement has been formally adopted

On 27 February, the European Commission and UK government have reached a political agreement in principle, which will significantly reduce the number of checks on the shipment of goods from Great Britain to Northern Ireland. The agreement introduces a comprehensive set of joint solutions aimed at addressing the practical challenges faced by citizens and businesses in Northern Ireland, providing them with more certainty and predictability.

One of the most significant changes involves a new system of checks on goods moving from Great Britain to Northern Ireland, with different levels of checks and controls depending on the final destination of the goods. Under the new system, ‘trusted traders’ will be able to send goods destined to stay in Northern Ireland through a ‘green lane’ that involves significantly fewer checks and controls. Green lane goods will be labelled ‘not for EU’ to clearly distinguish between the green and red lane goods. The goods that are transported on to Ireland or other parts of the EU will be required to go through a ‘red lane’ where they will be subjected to the full checks and controls. New data-sharing and labelling arrangements will be used to oversee the new system and where smuggling is suspected, some customs inspections may still be carried out on green lane goods. Businesses moving goods from Northern Ireland to Great Britain will not be required to complete customs declarations, and online business sending parcels to individuals will be subject to minimal customs formalities.

Other measures of the agreement include:

• Certain bans will be removed on retail food products entering Northern Ireland from Great Britain (for example on chilled sausages);
• Reduced UK VAT and excise duty rates will be applied on alcohol and certain alcoholic beverages sold in Northern Ireland, as long as these rates are not below the EU minimum duty rates;
• Simplified procedures will be implemented for plants, plant products and agricultural machinery staying in Northern Ireland after moving from Great Britain;
• Northern Ireland will now have access to all medicines, including novel medicines, at the same time as the rest of the UK, since UK public health and consumer standards will now apply. Medicines destined for the UK internal marked will move from Great Britain into Northern Ireland via the green lane.

The Windsor agreement has been formally adopted by the UK-EU on 24 March at the meeting of the UK-EU Joint Committee. Following the approval phase, the UK and EU will need to convert the newly agreed rules into legislation.

For more information, please consult this alert.