Administrative Customs Sanctions under the Proposed EU Customs Reform

Two Special Issues (GTCJ Vol. 18, Issue 11–12 (November 2023) and Vol. 19, Issue 6 (June) 2024) of this Journal have already been devoted to the Customs Reform proposed by the EU Commission. One cornerstone of the proposal for a reformed Union Customs Code (R-UCC) has, however, not been treated in detail yet:: The insertion of a new Title XIV on customs infringements and non-criminal sanctions. An overview of the whole proposal is provided by Lux, The Ambitious Customs Reform Package Proposed by the EU Commission, GTCJ Vol. 18, Issues 11–12 (November 2023), page 399, where customs infringements and sanctions are treated at pages 418 et seq. Furthermore, Antonini and Ioachimescu-Voina treat the proposed customs sanctions also briefly in the same GTCJ issue at pages 439 et seq. Recital 66 of the proposal explains the need for such action as follows: Despite the fact that customs legislation is harmonised through the Code, Regulation (EU) No 952/2013 only included the obligation for Member States to provide for penalties for failure to comply with the customs legislation and required such penalties to be effective, proportionate and dissuasive. Member States have, therefore, the choice of customs penalties, which vary greatly across Member States and are subject to evolution over time. A common framework establishing a minimum core of customs infringements and of non-criminal sanctions should be laid down. Such framework is necessary to address the lack of uniform application and the significant divergences between Member States in the application of sanctions against breaches of customs legislation that can lead to a distortion of competition, loopholes and ‘customs shopping’. The framework should be composed of a common list of acts or omissions that should constitute customs infringements in all Member States. In determining the sanction applicable, customs authorities should define if these acts or omissions are committed intentionally or by obvious negligence. While the European Parliament (EP), in its first reading,1 has already agreed to this proposal with minor amendments, it is unlikely that the Council (in which Member States’ Governments are represented) will accept this part of the proposal, so that it will probably be carved out from the final version. Nevertheless, it seems worthwhile to describe and analyse the proposed provisions both in the light of previously failed attempts to harmonize administrative customs sanctions, and with regard to already adopted harmonization measures in the area of criminal and non-criminal sanctions for the purpose (1) of explaining why this reform attempt is very likely to fail again, and (2) of providing ideas how the next reform attempt regarding this controversial issue could have more chances of success.