The ANAF Order no. 922/2021 for the approval of the Methodological Norms regarding the accomplishment of the subsequent customs supervision and control was published in the Official Gazette no. 656 dated July 2, 2021.
According to the normative act, it is necessary to update the national legislative framework in the field of customs supervision and control subsequently related to the new Union customs regulations, respectively:
– Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code, as subsequently amended and supplemented,
– Commission Delegated Regulation (EU) 2015/2446 supplementing Regulation (EU) no. Regulation (EC) No 952/2013 of the European Parliament and of the Council as regards the detailed rules for certain provisions of the Union Customs Code, as subsequently amended and supplemented,
– Commission Implementing Regulation (EU) no. 2015/2447 of 24 November 2015 laying down rules for the implementation of certain provisions of Regulation (EU) no. 952/2013 of the European Parliament and of the Council establishing the Customs Code of the Union, with subsequent amendments and completions and to the recommendations formulated by the European Commission.
According to the indicated norms, the subsequent customs supervision and control activity is exercised by the General Directorate of Customs within the National Agency for Fiscal Administration through the Customs Supervision and Control Directorate and through the structures under its coordination on the specialized line within the regional customs directorates, respectively services. customs supervision and control and customs offices. The customs supervision and control department and the structures designated within the regional customs directorates by the organization and functioning regulation represent the control apparatus specialized in the prevention, ascertainment, and sanctioning of frauds at the customs regulations and other legal dispositions, by:
- supervision actions carried out to ensure compliance with customs regulations or other provisions applicable to goods under customs supervision;
- specific acts of re-verification of the declarations or subsequent customs control, performed for the correct application of the customs regulations and other legal dispositions under the competence of the customs authority.
An important aspect provided in Order 922 is the assimilation of the subsequent customs audit with the subsequent general control, following that through the internal working procedure the Guide on customs audits will be implemented, a confidential document elaborated by DG TAXUD, destined only to the customs authority of the states. member.
This provision was regulated in the new order in article 11 letter a) as follows: “Control actions can be carried out in the following forms:
- a) general control represents the activity of verification of all customs operations for a determined period. Subsequent customs audit can be assimilated to general control. General control is usually a planned control. “
- b) partial control, which represents the activity of verifying one or more customs operations for a determined period. In motivated cases, in order to apply correctly and uniformly the customs regulations and other legal provisions, the control can be extended to all customs operations.
During the subsequent customs control or re-verification of the declarations by the representatives of the customs offices, before taking a decision that would have unfavorable consequences for the person subject to control, the control team communicates to it the reasons on which it intends to take the decision.
The communication of the reasons underlying an unfavorable decision and the exercise of the right to be heard by the person subject to subsequent customs control shall be made in accordance with the provisions of Article 22 paragraph 6 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code and subsequent legislation.
We mention that according to Article 22 (6) of EU Regulation 952/2013, before taking a decision that would have unfavorable consequences for the applicant, the customs authorities communicate to the applicant the reasons on which they intend to take the decision. The applicant is given the opportunity to express his / her point of view within a specified period from the date on which he/she receives this information or is deemed to have received it. Upon expiry of that period, the applicant shall be informed, in an appropriate form, of the decision.
Communication referred to in the first subparagraph of Article 22 (6) of the Code:
- a) includes a reference to the documents and information on which the customs authorities intend to base their decision;
- b) indicates the term in which the person in question must express his point of view, starting from the date on which this person receives or is considered to have received the mentioned communication;
- c) includes a reference to the right of the person concerned to have access to the documents and information referred to in point (a), in accordance with the applicable provisions.
If that person expresses his or her point of view before the expiry of the above-mentioned period (point (b), the customs authorities may take a decision unless the person concerned expresses at the same time his intention to continue to express his point of view within the stipulated term.
The means of communicating the reasons are provided for in Article 9 of the same Regulation as follows: ” If the communication referred to in the first subparagraph of Article 22 (6) of the Code is made as part of the verification or control process, the communication may be made. by using means other than electronic data processing techniques. If the application is submitted or the decision is notified by using means other than electronic data processing techniques, the communication may be made using the same means. ”
We specify that there were situations in which, following the verification missions of the Court of Accounts or Internal Audit, it was found that control documents were drawn up in breach of the limitation period for notification of the customs debt, in the sense that these documents were drawn up the limitation period of 5 years as provided for in the Fiscal Procedure Code shall be taken into account and not the period of 3 years provided for in the Customs Code of the Union.
Thus, a new article was introduced in the new order – article 32 which regulates that the duration of the subsequent customs control is established by the control order, which can be extended in duly justified cases, depending on the control objectives, without exceeding the limitation period. of the notification of the customs debt, provided for in Article 103 of Regulation (EU) no. 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code.
Another important aspect refers to the introduction of new documents used in the subsequent customs control activity, respectively
- The invitation (annex no. 3 of Order 922/2021 – model and instructions) and.
According to Article 29, the members of the control team may request in writing the presence at the headquarters of the institution they belong to, by sending an invitation to the natural person or the legal representative of the legal person or any other person directly or indirectly related to the verified operations. provide necessary documents, information, and clarifications during the verifications.
- Summons (annex no. 4 of Order 922/2021 – model and instructions).
- According to article 30, in case the person subject to control does not accept the invitation of the control team to appear for the performance/continuation of the subsequent customs control or refuses to make available to the control team the requested documents and documents, the summons is sent.
With the appearance of OpANAF 922/2021, certain provisions regarding:
– organizing and planning the subsequent controls because we consider that these aspects are not opposable to third parties, and will be regulated internally;
– the deadline for the completion of subsequent controls following the initiation of requests for mutual administrative assistance in customs matters, in order to remove possible inconsistencies between the provisions of Union legislation and those of national legislation regarding the suspension of subsequent customs control;
– drawing up the unilateral note and the finding note, in order to merge the aspects found following the re-verification of the customs declarations and the subsequent customs control in a single document opposable to the parties;
– the stages and detailing of the procedure related to the formulation of the preliminary complaint against the control report, as these are provided in the Law of administrative contentious no. 554/2004, with the subsequent modifications and completions;
– evidence, monitoring, and reporting the results of the subsequent customs control activity by drawing up internal documents that are not opposable to third parties, and will be regulated internally.
Legal basis
– ANAF Order 922/2021 for the approval of the Methodological Norms regarding the accomplishment of the subsequent customs supervision and control;
– Regulation 2447/24-Nov-2015 laying down rules for the implementation of certain provisions of Regulation (EU) no. 952/2013 of the European Parliament and of the Council establishing the Union Customs Code;
– Regulation 952/09-Oct-2013 establishing the Union Customs Code.