Research Activities
On the following pages you will find summaries of current and completed dissertations, listings of publications by Prof. Dr. Wolffgang, useful research information and interesting links.
Current Projects
An Overview of some of the projects currently at the Institute of Customs and International Trade Law.
The dissertation deals with the question of legal violation in the event of misconduct in cross-border trade. At the same time, it’s examined what requirements the various legal regulations (customs law, tax law and foreign trade law) places on disclosure of legal violations.
Since December 2021, Mr Lodde has been working in the IMPACCT working and research group under the umbrella of the UN OCHA under the leadership of Virginie Bohl, the Senior Project Coordinator of IMPACCT. The scientific focus of the research group is the import of relief goods into African countries. It analyses the pan-African free trade agreement AfCFTA in close cooperation with various aid organisations such as Médecins Sans Frontières, the International Committee of the Red Cross, UNFPA, Unicef, UNHCR and Logistics Cluster. The aim of IMPACCT is to speed up the import of relief supplies, especially medical supplies, into African countries. To this end, Mr Lodde is analysing how the AfCFTA, but also other trade agreements or economic partnership agreements, can be used.
Mr Lodde is the main legal expert within the research group. As part of his research activities, Mr Lodde meets regularly, usually weekly, with representatives of the aid organisations. The research group also regularly seeks dialogue with state actors. Discussions are currently taking place with the ministries of economics and customs authorities of various African countries such as Ethiopia, Liberia, Mozambique and Somalia (both Mogadishu and Somaliland). As the main legal contact for the research group, Mr Lodde also advises the participants on other customs law issues.
Completed Projects
An overview of the completed projects of the Institute of Customs and International Trade Law.
Misuse and circumvention of customs legislation – Status, requirements and possibilities of codification
by Cornelius Herschbach
The factual requirements and the legal consequences of determining an abusive or legally circumventing economic arrangement have always been controversial. In tax law, there are extensive disputes regarding the characteristics of the abuse of legal arrangements. The terms abuse and circumvention are unclear and difficult to define in general terms. In addition, there are difficulties in distinguishing them from criminal behaviour. In terms of customs law, the fiscal interests of the state must be reconciled with the interests of the economic operator in a regulation that is as clear, unambiguous and predictable in terms of legal consequences as possible.
The aim of this work is to develop a codification proposal for a general provision on abusive arrangements in European customs law. It is intended to regulate the requirements and legal consequences of a finding of an abuse of rights. The status of the codification of the prohibition of abuse of rights in (customs) law is presented and the question of why it is necessary to codify the prohibition is discussed. Finally, a codification proposal is submitted that takes into account both the fundamental conflicts of interest and the framework conditions under EU law.
For more information please click here. To download the whole dissertation please click here.
The Development of the Concept of Customs Duties in European customs Legislation
by Stephanie Goebel
The concept of customs duties is an essential component of European customs legislation. However, there is as yet no uniform definition of the term »customs duties« in the primary or secondary law of the European Union, in the case law of the European Court of Justice, or in the literature. In this context, this thesis examines possible characteristics of the term and the reasons for imposing customs duties. In the process, it considers whether the substantive and procedural provisions of the Union Customs Code are characterized by the »economic concept of customs duties«.
For more information please click here.
As part of the ECCE project, Professor Wolffgang has published an edited volume together with Prof Giangiacomo D’Angelo (Università di Bologna), Prof Walter de Wit (Erasmus University Rotterdam) and Prof Santiago Ibáñez Marsilla (Universidad de Valencia). The volume contains a comparative analysis of several aspects of the customs controls of a number of EU Member States, which will help clarify those controls and, consequently, facilitate the proper functioning of the European Customs Union and also better safeguard EU financial interests. In this context, member of the ICTL Benedikt Wemmer explains the structure of the German customs administration and gives an overview of different methods and tools in German custom controls. In addition, Professor Wolffgang and Benedikt Wemmer togehter with Giangiacomo D’Angelo, Federico Tarini, Walter de Wit, Martijn Schippers, Santiago Ibáñez Marsilla and Jorge J. Milla Ibáñez examine the interplay between customs valuation and transfer pricing in the EU after the Hammatsu Case.
You can download the volume here. For more information please click here.
Services and trade in goods in the WTO system
by Dr. Hanns-Thilo von Spankeren
Since the conclusion of the Uruguay Round, there have been two separate agreements at WTO level, the GATT and the GATS, which aim to liberalise international trade in goods on the one hand and international trade in services on the other. At the same time, however, an increasing interdependence of goods and services can be observed in economic reality. Be it that services account for an ever larger share of the value added of goods, packages of goods and services are put together and sold together, or the goods themselves are no longer sold, but rather their mere possibility of use.
The paper examines these links and analyses whether the existing regulations at WTO level are still suitable for taking them into account. In this context, the long-disputed classification of digital products as goods or services is also addressed. A special focus is also placed on customs value and origin law issues. Based on the conclusion that GATT and GATS are fundamentally suitable for covering such links, the relationship between GATT and GATS is finally analysed and the possibilities for resolving potential conflicts are examined.
For more information please click here. For the dissertation please click here.
The conditions for market access and marketing of foreign goods in Canada measured against the obligations of the WTO and WCO member states
by Dr. Ota Fischer-Zach
I. Subject of investigation and aims of the doctorate
The cross-border trade in goods conflicts with the interest that individual countries have in the economic interventions by their governments. Such interventions can have international effects.
Owing to risk that individual countries will take protectionist measures, one of the most important tasks of the WTO is to ensure legal security. Achieving this objective requires a regulatory framework with a clearly defined catalogue of rights and duties. The most important pillar of this framework is the WTO (World Trade Organization). The WTO and its organs form the institutional framework which implements and administers the material legal order which they have created. Substantively, the WTO legal order consists of three pillars: the trade in goods (a. o. GATT), trade in services (GATS) and intellectual property rights (TRIPS). The Trade Policy Review Mechanism (TPRM) and the Understanding on Rules and Procedures governing the Settlement of Disputes (DSU) complement these three regulatory areas.
The WTO legal order does not advocate unconditional free-trade but reflects the awareness that governmental intervention in the economy may be necessary and therefore permits it under certain conditions. Although such interventions are permissible under international law they are restricted through recurring principles in the WTO legal order (e.g. Most-Favoured-Nation Treatment and National Treatment). This reflects the fact that the WTO legal order is based on international law whose objective is trade liberalization. This objective is achieved by the successive reduction of tariff and non-tariff trade barriers.
Customs law also represents an important component of the world trade order. Besides the WTO, the World Customs Organisation (WCO) is the most important international organization in this field. Of central importance is the International Convention on the Simplification and Harmonization of Customs procedures (Kyoto Convention) of 18th May 1973. This agreement was revised thoroughly and adopted on 26th June 1999 (Revised Kyoto Convention 1999).
Canada is a member of the WTO and WCO and accounts for a high percentage of world trade: according to world trade statistics, Canada is in 9th place regarding exports and in 10th place regarding imports. It therefore plays an important role in both international organizations.
The doctorate investigates the conditions for accessing the Canadian market and marketing goods in light of the requirements of the WTO and WCO legal orders.
Market access is dependent on tariff and non-tariff governmental measures which regulate border crossings. In the WTO legal order market access is regulated by Arts. II and XI of the GATT. The marketing of goods is regulated by internal measures applied after the goods have entered the country (cf. GATT Art. III).
According to Art. 26 of the Vienna Convention on the Law of Treaties (VCLT) and Art. XVI:4 of the Agreement Establishing the WTO, in particular, the parties of the agreement are obliged to ensure that its laws, regulations and administrative procedures comply with international standards. The investigation compares national and world trade standards in terms of target-performance in order to establish whether a country is complying with its international obligations.
Against this background, the doctorate aims to:
- describe the fundamental aspects of the Canadian market access and marketing conditions for goods
- examine whether the Canadian market access and marketing conditions for goods comply with the WTO legal order
- consider the requirements of customs law under the WCO and WTO legal orders, with particular reference to the Revised Kyoto Convention 1999.
- describe a normal case without conflicts and identify possible frictions in order to understand the structures of the Canadian international trade law
- analyse exemplary measures in world trade which the trade partners of Canada regard as trade barriers
II. Structure of investigation
The procedure for the investigation is determined by the aforementioned subject and aims of the doctorate. The structure is as follows:
- Chapter 1 introduces the fundamental legal, economic and methodological structures of the doctorate;
- Chapter 2 describes the Canadian economic and legal system;
- Chapter 3 deals with Canada’s integration into the WTO/WCO and regional trade agreements – especially the NAFTA.
- Chapter 4 describes the basics of constitutional law and the relevant organisations involved in the application of Canadian international trade law as well as the legal practice on this subject. It also provides an overview of Canadian legislation in this field.
- the investigation focuses on Canadian customs procedural law in Chapter 5. The legal aspects of this topic are not systematically regulated under Canadian customs law. The relevant requirements are scattered throughout two important Canadian customs laws: the Customs Act and Canadian customs tariff. This chapter aims to provide a structured description of this legal area which tends to be marginalised in the Canadian literature on customs law. It also examines the conformity of Canadian customs procedural law with the Revised Kyoto Convention 1999. This chapter examines the Canadian law on customs duty (i.e. rules of origin, customs value and customs tariff) against the background of world trade and the requirements of world customs law. It concludes by analysing the extent to which Canada has implemented the international provisions in the area of trade facilitation.
- Chapter 6 explains how non-tariff trade barriers are applied in Canada and the related legal practice. It asks whether it complies with the world trade law relating to e.g. subsidies and countervailing measures as well as government procurement.
- Chapter 7 investigates trade barriers in the area of the protection of intellectual property rights (IPR).
- the final chapter provides examples of specific governmental measures and subjects them to an analysis from the perspective of world trade law. It uses different sources to identify possible trade barriers. For example, each year the EU and USA publish state- and sector-specific reports about trade barriers in the international traffic of goods and services. Examples discussed include the state-regulated import and sales of alcoholic beverages as regulated by the Canadian Liquor Boards. Moreover there is the topic of geographical indications, standardized in Art. 22 ff. of the TRIPS that provokes different legal understandings between European and transatlantic law. In conclusion, the chapter examines the Ontario Green Energy Act fostering renewable energies from the perspective of world trade law.
The Authorised Economic Operator (AEO)
by Dr. Theresa Opitz
The Authorised Economic Operator (AEO) is a certificate introduced back in 2005, which grants benefits to a reliable economic operator who has been examined according to customs law. According to Art. 39 letter c of the Union Customs Code (UZK), one of the requirements for obtaining AEO status is proof of solvency. The dissertation deals comprehensively and critically with the design of an adequate proof of solvency. First of all, the purpose which the legislator pursued with the introduction of the AEO certificate is explained. After considerations under insolvency law on the concept of illiquidity, explanations follow on the examination of liquidity in the context of balance sheet analysis. In order to concretise the design of the proof of solvency developed up to that point, explanations on financial planning follow. Subsequently, potential objections to the alternative solution developed are anticipated and refuted. Finally, it is examined to what extent the preferred solution is permissible within the scope of administrative action.
For more information please click here. For the dissertation please click here.
The ECJ’s principle on interest on refunds of duties levied in breach of EU law and its compatibility with the customs law refund interest provision of Art. 116 para. 6 UCC
by Dr. Annika Verhorst
Refunds of import or export duties that have already been paid can be of great economic significance for both the companies concerned and the customs authorities. The same applies to interest that may have to be paid by the customs authorities to the economic operator on refunded import or export duties.
The refund interest provision of Article 116 (6) of the CCC (formerly Article 241 of the CCC) generally precludes the payment of refund interest by the customs authorities. The ECJ, on the other hand, provides for a general obligation to pay interest on refunds of duties levied in violation of EU law. With reference to the Wortmann case (ECJ, judgment of 18.1.2017, Case C-365/15), this paper deals in particular with the question of whether the ECJ’s interest principle is compatible with the refund interest rule under customs law, or whether there may be principles under customs law that result in the ECJ’s case law not being applicable to customs law situations, or only to a limited extent. On the basis of the result elaborated in the paper on this question, the implications for Article 116 (6) of the IPC are subsequently examined.
For more information please click here. For the whole dissertation pleasce click on this link.
Creation and Extinction of Customs Debts under the Union Customs Code and the Economic Customs Concept
by Dr. Kerstin Harden
This paper deals with a central area of European customs law, customs debt law. In the area of conflict between fiscal, sanctioning and economic motives, the question arises as to which approach customs debt law pursues under the Union Customs Code (UCC).
Within the scope of the thesis, the customs debt law origination and extinguishment provisions of the UCC are presented, examined and measured against the concept of economic customs. In doing so, the question is examined to what extent European customs debt law is compatible with the concept of commercial customs and what problems arise for practice as a result of the new regulations.
In this context, the new approaches to customs debt law as introduced into Union law by the IPC, their history of development and the relevant case law on this subject to date are dealt with in particular. It is also of particular importance that the concept of commercial customs is not explicitly anchored in either international or European customs law, so that the question of its existence, derivation and formulation is also covered by the object of research.
For more information, please click here. For the whole dissertation, please click here.
The subsequent verification of preferential proofs of origin
by Dr. Maximilan Lojenburg
The disseratation “The subsequent verification of preferential proofs of origin” deals with the methods of verification of preferential proofs. Preferential law is presented in its historical development on the basis of the contractual preferential agreements of the European Union with third countries as well as the autonomously granted preferences of the EU. With regard to the problem of the subsequent verification of preferential proofs, the verification procedure of preferential proofs of origin is analyzed in detail and suggestions for its improvement are made.
For more information, please click here. For the whole dissertation, please click here.
The Eurasian Economic Union in the multilateral trading system
by Dr. Igor Belozerov
This paper deals with the Eurasian Economic Union. The five member states – Armenia, Belarus, Kyrgyzstan, Kazakhstan and Russia – are pursuing a comprehensive integration strategy and, to this end, have almost completely freed mutual trade from trade barriers. The measures applicable to trade with third countries have also been largely harmonised. However, neither the legal system of the Eurasian Economic Union itself nor its relationship with other regimes and actors under international law has been sufficiently examined. The work starts from this finding, but chooses a more specific perspective as its main focus: As a customs union, the Eurasian Economic Union finds itself in a particular situation of tension and conflict and has to meet the requirements of WTO law and, more specifically, of Art. XXIV GATT. The author raises this question as the central problem and dares to make a first examination of the compatibility of the Eurasian Economic Union with the requirements of Art. XXIV GATT. XXIV GATT.
For more information, please click here. For the whole dissertation, please click here.
Reform approaches to the harmonisation of preferential rules of origin
by Dr. Pia Beaucamp
Rules of origin are an essential part of any free trade agreement. The so-called preferential rules of origin define the originating status of products of the parties to free trade agreements. They are decisive for determining the applicability of a free trade agreement and the associated favourable treatment. The design of these rules determining the origin of goods is specifically negotiated in each agreement. As a result, these negotiated provisions regularly differ from one another.
The present paper deals on the one hand with existing approaches under international law on the way to an approximation of the different rules of origin. On the other hand, it deals with the rules of origin of seven different free trade agreements – European, American and Chinese. The paper takes a closer look at these rules and compares them with each other. Finally, it suggests wording that can contribute to a constant harmonisation of preferential rules of origin.
For more information please click here. For the dissertation please click here.
Constitutional framework to issue decrees in the area of excise duty legislation
by Dr. Dirk Jansen
The national law on excise duties is based upon eight different acts which make alcohol and alcoholic beverages, energy products, electricity, tobacco and coffee subject to taxation. These acts lay down the general rules for chargeability, amount, exemption and the person liable for the excise duty taxation and also enact rules for a tax suspension system. Each act is accompanied by one or more decrees that are issued by the Federal Ministry of Finance with the intention to specify the regulations in further detail. This national legislation for excise duties is (like any other tax that is important for the establishment of an internal market within the European Union), often subject to short-term changes due to the strong influence of the European Legislation and constantly changing economic processes.
If a short-term change or adoption of European Law becomes necessary, the Federal Ministry of Finance has, in general, the choice of either going to parliament and changing the act in question or adopting the change by issuing an amended decree. Due to the duration and the complexity of the legislation procedure the Ministry tends to solve as many changes or adoptions as possible by amending the decree. However, the German constitutional framework contain numerous rules which regulates the relationship between the specific act and its accompanying decree. The main reason for these rules is the fact that a parliamentary act has much more democratic legitimacy than a ministerial decree. If a decree fails to comply with this constitutional framework it might be declared invalid by the Federal Constitutional Court.
One example of such a short-term amendment was the state aid problem of the § 55 Energy Tax Law (Energiesteuergesetz) that allowed a certain tax exemption for the producing industry. This tax exemption lacked a CO² related dependency and was therefore not in compliance with European law. Due to this fact it became necessary to connect the tax exemption with a national CO² reduction plan. Therefore, the government partly amended the Energy Taxation Act. This amendment made it possible to decide on the compliance with the CO² reduction plan by means of a decree. If the producing industry fails to comply with the CO² reduction plan the decree will have to deny the further use of this tax exemption. This might be questionable, because the higher democratic legitimacy of a parliamentary act will be derogated by a decree with far less legitimacy.
The aim of this research is to look at recent amendments under similar circumstances, to analyse their compliance with the constitutional framework and to draw conclusions for future amendments. Therefore, the first step is to analyse the constitutional framework, focussing on its impact on the special requirements for excise duty legislation. It will then be possible to focus on recent changes and the excise duty legislation as a whole. Finally, the amendments and their constitutional problems can be divided into different groups thereby making it possible to draw conclusions for further parliamentary acts or decrees.
For more information please click here. For the whole dissertation please click here.
The Community Customs Tariff
by Dr. Anna Judith Kaiser
The Community Customs Tariff comprises much more than only sections and classes of products in the schedule of customs duties: fFor example, it has played an important part in the European process of (economic) integration by contributing helping to establish a powerful and credible trading unit. Furthermore, it can be used as an economic political instrument against competitive pressure. Finally, the Community Customs Tariff serves as a judicial political instrument.
From a structural perspective, though however, it contains atypical elements compared to other legal provisions. This is due to the fact that it does not consist of articles but on the one hand of an extensive nomenclature (for the Community Customs Tariff the so-called “Combined Nomenclature”) on the one hand and on the other hand of tariff rates on the other. The nomenclature itself provides for a catalogue of headings including diverse categories of goods that are arranged in sections containing chapters. Thereby the Community Customs Tariff establishes the relationship between a financial burden and a specific product and hence gives answer to the question of the respective amount of the tariff burden.
All these (and further) specific elements characterize the Community Customs Tariff and the use of it. Therefore, the research project analyses the Community Customs Tariff, in particular its structure as a legal norm, its characteristics and the risks its application being involvesd by its application.
Customs valuation methods to prove that price agreements between related parties are not affected
by Dr. Michael Landwehr
This paper deals with the possibilities of proof under customs value law, which can be used to prove or disprove the influence of price agreements between related parties to the contract of sale. International legal sources and interpretation methods according to the Vienna Convention on Contracts (WVK) are the subject of the study.
The author explores the methodological approach of a systematic examination of the arm’s length principle in the GATT Customs Value Code. In doing so, he makes use of the principle of systematic integration under international law according to Art. 31 (3) lit. c) WVK. From this, he derives a regulatory contribution to the implementation of arm’s length settlement in the GATT Customs Valuation Code.
Subsequently, the author develops a generally valid verification scheme to concretize the normative purpose of the arm’s length principle in the GATT Customs Value Code. The treatment of relatedness cases under customs value law is thus placed on a new basis under international law. In particular, the OECD transfer pricing guidelines are becoming increasingly important in this customs value-based proof of the non-influence of price agreements between associated companies. Price influences as a result of transfer price adjustments are also addressed, as is the benefit of transfer pricing documentation under customs law in connection with the examination of the circumstances surrounding the purchase transaction.
In addition, the author critically examines the relationship between the transaction value under customs law and the transfer price under tax law as well as the harmonisation proposals made by international organisations (e.g. ICC).
For more information, please click here. To download the whole dissertation, please click here.
Principles and limits of risk analysis for general security purposes within the postal supply chain
by Dr. Adam Strzoda
In the face of terrorist threats, the open lifestyle of liberal democratic societies is exposed to increasing security risks. In order to preserve the characteristics of an open society, freedom and security must be balanced. The lifeline of our modern industrial and information society is the flow of goods and information around the globe. This is where society is particularly vulnerable and at the same time particularly dependent on openness. It is therefore questionable to what extent our communication and transport systems are prepared for these new threats. The evaluation of information for the purpose of risk analysis should help to cope with the flood of information and ensure security by means of targeted further investigations. Whether and to what extent the legal areas concerned are prepared for this and how solutions can and must be designed in accordance with fundamental rights is part of this work.
For more information please click here. For the full dissertation please click here.
Fundamental rights protection of the manufacture, transport and marketing of weapons of war
by Dr. Philipp Busche
The study analyses the correlation between the basic rights of the German arms industry and a strict and effective war weapons control which is laid down in Art. 26 of the German constitution. The prevailing opinion understands the basic rights in part one of the constitution as a prima facie freedom for every man. The study points out that this broad understanding of freedom does not apply to the arms industry. According to Art. 26(2) of the German constitution weapons designed for warfare may be manufactured, transported or marketed only with the permission of the Federal Government. Details shall be regulated by a federal law. This affects the arms industry’s basic rights. They are not established directly by the constitution. Instead they are granted by the federal legislature within certain boundaries and provide only a limited protection against state interference. The Federal Government has a wide discretion to grant or deny a permission.
For more information, please click here.
Future prospects of postal customs clearance arrangements with special focus on the question of security aspects
by Dr. Claudia Hudasch
Within the European Union, postal operators are a key element of the European economy and in 2007 they delivered around 95 billion letters and postal items. Each EU citizen receives approximately 200 postal deliveries a year. Depending on their content, postal items are subject to customs law.
After several trade facilitation initiatives, customs policy has changed. For instance, 9/11 saw an increase in security initiatives world-wide. Today, customs procedures are more focused on security and risk management. In addition, customs authorities have to meet further challenges in a complex and constantly changing environment.
A growing number of illicit cross-border movements of drugs, counterfeit merchandise, dual-use chemicals, currency and cultural property items are threatening global trade interests. As a consequence, various legislative initiatives around the world have changed the legal framework. The most important changes include the WCO Framework of Standards, the Modernised Customs Code of European Community, the US Code of Federal Regulation and the China Customs Order No. 172. The majority of these new regulations deal with electronic clearance information and advance information for risk analysis. Besides that, there are new regulations concerning the use of communication and information technologies between customs authorities and economic operators. These developments affect European customs authorities, European industry, as well as European citizens.
The increased use of various modes of modern transport by criminals may lead to a rise in the number of suspicious items sent via the postal network. The universal postal service is characterised by a large number of items, huge variety of customers and speed of delivery. These circumstances and a special legal framework (e. g. postal secrecy and data privacy), require a tailor-made solution of customs controls and risk management measures in postal traffic.
The subject of this thesis is to evaluate the future prospects of postal customs clearance arrangements with a special focus on the question of security aspects considering postal secrecy and data privacy. The aim is to define a legal framework that allows effective control of items with the help of sophisticated, non-intrusive screening technologies in combination with modern methods of electronic exchange between postal operators and customs authorities. These challenges have to be solved within the environment of European and national legislation, thereby emphasising the interaction of data privacy, customs and postal laws. The law must ensure that the system of customs controls in postal traffic strikes a balance between data privacy, trade facilitation and security.
For more informaton please click here. For the dissertation please click here.
The powers of OLAF concerning on-the-spot-checks at economic subjects in the Netherlands
by Dr. Sabine Brandenburg
OLAF (Office de la lutte anti-fraude) has the task of uncovering fraud, corruption and other irregularities that affect the financial interests of the European Community. Previously, this task was carried out by the Member States, until it became obvious that this was not effective.
With Council Regulation Nr. 2185/96 first the European Commission obtained certain investigative powers to protect the Communities financial interests against fraud and other irregularities. Within the Commission UCLAF (Unite de coordination de la lutte anti-fraude) carried out the inspections. It soon turned out to be problematic that UCLAF was, on the one hand, under the control of the Commission but, on the other, obliged to run internal investigations within the Organs of the European Community. Following irregularities within the European Commission in 1999, OLAF was established. OLAF is now completely independent and protects the financial interests of the European Community.
OLAF carries out internal investigations within the European Institutions as well as external investigations (i.e. on-the-spot-checks) on economic subjects in the Member States. Most of the time these on-the-spot-checks are carried out in close cooperation with the relevant national investigation service. Nevertheless, OLAF has its own investigative powers resulting from Regulations Nr. 2185/96, 1073/99, 1074/99. These regulations do not grant explicit powers but refer to the relevant national law.
The most important referrals to national law are:
- Investigation procedure (Art. 6 (1) (3) Reg. No. 2185/96; Art. 6 (4) Reg. No.1073/99)
- Access to information and documentation / inspection facilities (Art. 7 (1) sentences 1 and 2 Reg. No. 2185/96)
- Secrecy and protection of information (Art. 8 (1) Reg. No. 2185/96)
- Requirements concerning the reports (Art. 8 (3) Reg. No. 2185/96; Art. 9 (2) Reg. No. 1073/99)
In the Netherlands the relevant provisions are located in the following laws:
- Algemene Wet Bestuursrecht (a general law concerning administrative procedure)
- Algemene wet inzake rijksbelastingen (a general tax law)
- Douanewet (the special law for customs controls)
My task is to illuminate the interaction of the Community Regulations with the above mentioned national laws in order to determine the actual inspection possibilities concerning on-the-spot-checks in the Netherlands.
Origin as a basis for commercial policy measures
by Dr. Kai Henning Felderhoff
For a large part of the commercial policy measures adopted by the EU in relation to third countries (in particular anti-dumping duties), it is essential for their application to know the commercial (“non-preferential”) origin of the product. This form of origin under customs law can also be important for determining when a product is actually “made in Germany”. Worldwide, the criterion of “last substantial processing or working” is of decisive importance for determining commercial origin.
In the future, the importance of trade policy origin will increase. The European Commission intends to lay down specific rules for determining the commercial origin of each product within the framework of the Union Customs Code (UCC) by means of binding list rules. In addition, the Commission wants to enforce binding rules on the labelling of goods imported into the EU and manufactured in the EU, which are to be based on the trade policy origin.
The present paper compares the current legal situation and the reform proposals, identifies existing and imminent conflicts in the determination of trade policy origin and seeks to find practical solutions.
For more information, please click here. For the whole dissertation, please click here.
Border adjustment measures as a climate protection instrument
by Dr. Sophie Gappa
Without the conclusion of a climate agreement that is binding under international law, all forms of pricing of carbon dioxide emissions are unilateral individual actions. Such actions entail risks for the so-called pioneer states: The internalisation of emission costs increases the national price level. A reaction to this cost pressure can be the relocation of production and emissions to countries with lower climate protection levels (so-called carbon leakage). However, taking on a pioneering role can be risky not only from the point of view of climate protection, but also from competition policy considerations: The cost disadvantages can lead to a reduction in the competitiveness of regulated industries on international markets. The instrument of border tax equalisation addresses these problem points and aims to create a so-called level playing field.
This paper examines the admissibility of border adjustment measures under international trade law and examines the extent to which this instrument can be used for the purpose of climate protection. In this context, the paper deals with the interplay between the regimes of world trade and climate law.
For more information, please click here. For the whole dissertation, please click here.
Free trade in economic crisis
by Dr. Alexander Karrenstein
The financial and economic crisis that began in 2008 led to a massive expansion of government support in favor of the industries affected by the crisis. Such government support offers the possibility of a protectionist orientation, from which domestic companies particularly benefit.
Against this background, the author considers in his treatise the compatibility of the US economic stimulus package enacted in 2009 with selected rules of WTO law.
The WTO Subsidies Agreement and the WTO Agreement on Government Procurement are used as a benchmark for reviewing measures of this economic stimulus package, the so-called “American Recovery and Reinvestment Act of 2009”.
In addition, the author evaluates the two named WTO agreements under further aspects, including economic justification, legitimacy and sustainability.
Requirements of indirect restrictive measures
by Dr. Tobias Schöppner
The European Union has enacted numerous regulations which impose certain specific restrictive measures against the persons and entities listed in appendixes to those regulations. Such persons will be forced to act in accordance with international law using economic and political pressure. Among these regulations are Council Regulation (EC) No 881/2002 (Usama bin Laden, Al-Qaida, Taliban) and Council Regulation (EC) No 2580/2001 (Terrorism). In each case, parts of these regulations impose a prohibition:
“No economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity designated by (…) and listed in (…), so as to enable that person, group or entity to obtain funds, goods or services.”
These regulations call upon economic operators to observe the law and hence all sanction lists in any sort of business. If they fail to comply they will face severe consequences.
The subject of the dissertation is the review of these regulations with regard to their compatibility with European Fundamental Rights and basic principles of a constitutional state. It will include the content of the regulations and the interpretation of the requirements as well as a suggestion for a definition of making something indirectly available to, or for the benefit of somebody. If the regulations do not comply with European Fundamental Rights and certain legal principles there might be a need to amend unwritten requirements.
For more information please click here. For the whole dissertation please click here.
The guarantee of human dignity in Art. 1 EU Charter of Fundamental Rights
by Dr. Astrid Berlth
By codifying human dignity at the head of the Charter of Fundamental Rights of the European Union, the Convention on Fundamental Rights has made visible a fundamental right that had hitherto only been touched by the case-law of the European Court of Justice. In the present work, the background of the guarantee of human dignity in the European Union is examined and its status in its fundamental rights architecture is examined. In particular, the dual nature of Article 1 of the CRCh as a fundamental right with a subjective legal dimension and as an objective legal principle as well as its significance for the first title of the CRCh are examined. The constitutions of the Member States of the European Union as well as the case law of the Luxembourg Court of Justice are among the sources of information.
For more information, please click here. For the whole dissertation, please click here.
The restriction of foreign investment in German defense companies
by Dr. Anna Labitzke
The author examines the Eleventh Act to Amend the Foreign Trade Act and the Foreign Trade Ordinance. This law makes it possible to prohibit foreign direct investments in German defense companies. The question is investigated whether this possibility of control or actual prohibitions that have been issued represent or can represent an unjustified encroachment on basic rights. This study is conducted against the background that the Eleventh Amendment Act does not provide for a compensation scheme either. In the past, such compensation regulations have often been demanded for other restriction measures in foreign trade law. First of all, the concept of “essential security interests” newly introduced by the Act will be analyzed. Furthermore, the author examines whether the list in Art. 346 (2) TFEU includes dual-use goods as well as war weapons and whether this list refers to the currently available military equipment. Furthermore, an analysis of the relationship between the freedom of capital and the freedom of establishment and the regulation of Art. 346 (2) lit. b) TFEU, which allows Member States to take far-reaching special measures in the field of armaments, is presented.
The right to be heard in the Modernised Customs Code
by Karina Witte, LL.M.
The right to be heard is a fundamental principle of European Union law. Developed by the ECJ, it was included in the Charter of Fundamental Rights and has now been codified for the first time in a comprehensive form as an administrative law principle in customs law in Art. 16 para. 4 of the Modernised Customs Code (MCC).
This paper first presents in detail the current situation in customs law before the Modernised Customs Code came into force. Subsequently, the content and application of Art. 16 para. 4 MCC will be discussed. Through its introduction, the party concerned has a general, comprehensive right to be heard prior to the adoption of onerous decisions in the area of customs law. This represents a major step towards safeguarding the rights of defence of the individual. In addition, the codification promotes the legal certainty and legal unity that the European Union has been striving for since its beginnings.
For more information please click here. For the dissertation please click here.
Preventive Measures in Cases of Export of Goods
by Klaus-Peter Ricke
1. Today prevention plays a more and more important role in our society. One can notice prevention in almost every area of human life, for instance in medical science, the environment and politics, especially in the area of police and customs. The reason for the intensive discussion about prevention in our society is the Islamic terrorisms which culminated in the attack on the World Trade Center on 9/11. The United Nations, the European Union and the national states created countless resolutions, regulations and laws to fight against this kind of crime to prevent that this will happening again.
But approximately ten years earlier – 1988/1989 – another crime had happened. The construction of an entire facility in Rabta/Libya to produce poison-gas, built by a German company. The damage for Germany, the German people and the economy was enourmous (in the New York Times one could read: „Auschwitz in the sand“). And so the German legislation created laws and regulations to prevent that this will happening again.
2. This dissertation begins with the description of the case Rabta/Libya in detail and the consequences for our national law and practises (first part). The description of this case, of the disclosure and the worldwide reactions shows the importance prevention has for the area of export and what damage be exists if there are not enough preventative provisions and cooperation between authorities.
3. The second part deals with the basic principles of the law for the police in the area of public security in general and the organisation of the Customs Investigation Service as a special police service, competent especially for prevention and investigation in the area of export. In the last two decades the German legislator has created many provisions which enable the authorities for export control, especially the German Customs Investigation Service to act intensively in prevention. Especially secret measures such as surveillance of letters and telecommunication. These are useful tools to get information before an illegal export can taken place. But there are limits for with these measures and these limits are the provisions of the German Constitution. And So frequently our Federal Constitutional Court (Bundesverfassungsgericht = BVerfG) decides that the special measures were not in accordance with the basic principles of our constitution. Also in the second part the most important decisions are described and interpreted, especially the decision concerning the law of Census of Population (Urteil des BVerfG vom 15. Dezember 1983 – 1 BvR 209/83), the decision concerning the surveillance of letters and telecommunication by the Customs Criminology Office (Beschluss des BVerfG vom 3. März 2004 – 1 BvF 3/92) and the decision concerning the storage of telecommunication transfer-data in advance according the Telecommunication Act (TKG) and the Code of Criminal Procedure (StPO) – Urteil des BVerfG vom 2. März 2010 – 1 BvR 256/08.
3. The third part deals with four preventative measures in the area of export:
- the intervention in special cases according Art 2 Par. 2 Foreign Trade and Payments Act (§ 2 Abs. 2 AWG)
- the intervention in cases of transit of dangerous goods (Art. 6 Council Regulation (EC) No 428/2009 of 5 May 2009 – the so called dual-use regulation)
- the surveillance of letters and telecommunication according Art. 23a et seq. Customs Investigation Service Act (§§ 23a ff. Zollfahndungsdienstgesetz – ZFdG) and
- the preventive seizure of goods according Art. 32b Customs Investigation Service Act (§ 32b ZFdG).
These measures are described in detail from the origin of the law, through the development of the law up to now. There are different examples which explain how the measures work and what problems can exist. Most important is the question if the renewed provisions of the surveillance of letters and telecommunication – necessary after the decision of the Federal Constitutional Court in 2004 – are now in accordance with the Constitution. In this context the author makes some proposals to improve the law.
4. The dissertation ends with a short conclusion and a short view into the future of prevention concerning the proliferation of weapons of mass destruction and conventional arms.
For more information please click here. For the dissertation please click here.
The Impact of the TRIPS-Agreement on Border Measures in the English Law
by Hendrik Meier
Although counterfeit products have been known for ages, the phenomenom of unauthorized copy and distribution of products that are protected by intellectual property rights has in particular expanded since the 1970s. Whereas in former times, in the first instance, books, luxury and fashion products were targeted by so-called product pirates, nowadays goods from almost every economic branch are subject to counterfeit production and trade. This does not only affect the holders of the original intellectual property rights that suffer direct and indirect losses (e.g., in addition to reduced sales, in many cases they also face a damage to their image by the minor quality of counterfeit products). Also customers have to cope with products that do not meet the quality they expect from the original product. In some cases, even the customer´s health is endangered by counterfeit goods (e.g. when pharmaceuticals or spare parts for vehicles are counterfeit). Moreover, the trade in counterfeit goods has reached a dimension that is recognizable in terms of national economics. According to some estimates, trade in counterfeit products amounts to up to 10 % of the world trade. As a result, jobs are destroyed and the incentive to develop new products and techniques is lowered.
Amongst others (e.g. civil law damages or criminal law sanctions), one means in order to combat the trade in counterfeit products is to seize them at the border. As regards to goods protected by a trade mark, this measure was incorporated in the Law of the United Kingdom as soon as 1845. Several traditional international multilateral agreements seeking the protection of intellectual property rights contain provisions for border measures, too. For example, the first international agreement in this field of law, the Paris Convention from 1883, provides for the seizure of goods unlawfully bearing a trade mark.
Nevertheless, the provisions of the traditional conventions are not binding for the member states. Thus, those member states that decide not to transform the border measure provisions into their national law or to directly apply them face no sanctions. In contrast to this, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS-Agreement), that is part of the Agreement Establishing the World Trade Organization (WTO-Agreement) from 1994, sets up provisions for border measures that are binding for its member states. A member state that rejects to transform the rules into national law or to directly enforce them may be subject to sanctions under the WTO-Agreement. Hence it follows that the TRIPS-Agreement is the first international multilateral agreement that contains truly binding rules for border measures as a means for the protection of intellectual property rights.
This dissertation aims to show the impact of the border measure provisions of the TRIPS-Agreement on the Law of the United Kingdom.
To accomplish this, the research presents the TRIPS-Agreement in general. Here, inter alia, the reasons that lead to this agreement are considered as well as its historic background. In the next part, the relationship between the TRIPS-Agreement, European Law and the Law of the United Kingdom is explained. At this point, in particular the question of the direct applicability of the provisions of the TRIPS-Agreement is looked at. Following this, the individual intellectual property rights are described as protected by the TRIPS-Agrement, the Law of the European Community and the Law of the United Kingdom. After that, the general principles of the TRIPS-Agreement are presented. In this connection, the author grants an overview over the enforcement rules of the TRIPS-Agreement, of which the border measures form part.
In a next step, the border measures of the TRIPS-Agreement, the Community Law and the Law of the United Kingdom are analyzed in detail. With respect to the protected goods, the conditions for the border measures set up by customs law and the procedures of the border measures, the differences of the provisions at these three levels are pointed out. This is especially important as the United Kingdom has not directly transformed the provisions of the TRIPS-Agreement into national law. Instead, Parliament seems to have relied on the European Community to fulfil this obligation by passing a Community Regulation. Hence, emphasis in this part of the dissertation is laid on the Regulation EC 3295/94 that expressively aims to comply with the provisions of the TRIPS-Agreement. Here, the rules of the TRIPS- Agreement, this Regulation and the Law of the United Kingdom at the time when the Regulation came into force are compared. In addition, the following developments of the border measures in Community Law and the Law of the United Kingdom are explained as well.
The author draws the conclusion that the TRIPS-Agreement only had an indirect impact on the border measures under the Law of the United Kingdom. The transformation of the border measure provisions of the TRIPS-Agreement only took place by way of the aforesaid Community Regulation. However, this lead to a more intensive protection of intellectual property rights through border measures. This was further improved by following Community Regulations. It can thus be said that the TRIPS-Agreement was the initial reason for the European Community to improve its system of protection of intellectual property rights through border measures. Due to the binding character of Community Regulations, the protection in the United Kingdom was improved in the same way. As another consequence of this, nowadays only in few cases can counterfeit products still be seized on the sole basis of the national law.
The Central American Customs Union – Regional economic integration and its compatibility with the world trade order using the example of the Mercado Común Centroamericano (MCCA)
by Philipp Johst
The doctoral thesis deals with regional economic integration in Central America and the compatibility of the Central American Customs Union with the world trade regime. Focal points of my research are the emerging preferential trade agreements, the so-called PTAs, the Understanding of Art. XXIV GATT and the future of the multilateral trade regime. Moreover, I put emphasis on some Central America specific aspects and problems of economic integration, such as the ramshackle institutionality of integration, the lack of supranationality, political and social disruptions as stepping stones for economic integration.
The members of the Central American Common Market have not reached their aim of installing a customs union being consistent with the world trade regime, more precisely with the exception clause of Art.XXIV GATT for regional economic integration. By analyzing the Central American problems it is striking, that they are not only caused by the absence of inevitably unconditional political will but also by deficiencies of technical know-how and administrative capacities. It requires permanent efforts, internal and intraregional reforms, as well as external aid and capacity building to culminate the process of integration in the formation of a functioning customs union. The political conditions in the region of instability and discontinuity of long term processes does not allow a prediction on a timeline for the customs union process yet.
The thesis is opened by an introduction explaining the theory and levels of integration as well as its specific terminology.
The first chapter is about the historical background of integration. The idea of regional integration – not only the economic one – has a long tradition on the Central American isthmus. Especially the second half of 20th century had been formative years for the economic integration and the foreign trade policies of the Central American States. The 1960s – the Central American Common Market (CACM) was just founded – had been the boom years of integration. Implementing trade tools of import substitution policies by the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) the CACM members was able to foster the intraregional trade and raised economic wealth, albeit on a comparably modest level. In the so-called “lost decade” of 1970s and 1980s civil wars as well as energy and financial crises led to frustration of the achieved. After peace in the region and the beginning of political and economic reconstruction in the 1990s, the CACM members turned to open regionalism, i.e. they tore down most of the extremely high tariff barriers, got members of the WTO, opened themselves to world market, and made policies of liberalizing trade.
The second chapter deals with the legal framework of the integration process, e.g. legislative sources, organs and institutions, competencies, regional forms of action, and trade dispute settlement. Unfortunately, the Central American Integration (SICA) is bloated and overlapping bureaucracy hinders efforts at deepening political and economic integration on the isthmus. Most Organs and Institutions are of intergovernmental character and there is a lack of “real” regional competencies, so that progress is very little. Another institutional problem is the lack of acceptance by all members of the system. As long as only three out of five members accept and participate in organs like the Central American Parliament or the Court of Justice, there is no opportunity for reaching the state of integration of a customs union, which requires a certain set of common institutions.
The third chapter forms the core of the thesis. It is subdivided into a part analyzing WTO law part, and secondly a assessment of CACM compliance with the world trade regime, i.e. the requirements of article XXIV GATT.
The relationship between the multilateral world trade order and regional trade agreements is one of the most recent aspects in world trade law and a key question for the future of the WTO. Do we have the consider regional trade agreements as stumbling or as building blocks multilateral trade regime? Therefore the first part treats of legal prerequisites of the world trade order, macroeconomic aspects of regional economic integration, transparency aspects an compliance control competency.
Nevertheless, the main focus is on the compliance test defining the requirements of Art.XXIV GATT and subsuming the CACM.
The internal trade regime of the CACM is less problematic. Regarding the tariffs the CACM members eliminated barriers for substantially all the trade. There are still some deficiencies concerning other restrictive regulations of commerce, especially sanitary and phytosanitary regulations. By far more severe is the discrepancy between rulemaking on the one hand and handling and execution of customs regulations on the other. Although they try hard to establish common standards of application it is still a way to go to a harmonized congruent customs handling.
Likewise, the other restrictive regulations of commerce are the reason why the CACM members fail to meet the external requirement of Art.XXIV GATT for customs unions. The members are not applying substantially the same regulations of commerce yet. Eminent aspects are the tariff classification, application of safeguards and sanitary and phytosanitary measures. Moreover, it can be observed that Central American countries hardly follow common trade policies. They do not only speak with a single voice at the Free Trade Area of the Americas (FTAA) negotiating sessions or multilateral gatherings such as the WTO, but they do not even coordinate their negotiating positions in these for as, as does the Andean Community, for example. Accordingly, SICA appears to be failing in what should be its most important role, positioning Central America for better insertion into the hemispheric and international market places.
The investigation concludes with the ascertainment that CACM is promising but not compatible with the exception clause of Art.XXIV GATT yet. Shifting to the Enabling Clause will not be an option as it would require a notification anew. More alarming would be the political message since the referral the Enabling Clause would be understood as a confession of failure.
For more information click here. For the whole dissertation please click here.
Risk management in customs law - new legal territory New legal territory or familiar terrain? (2010)
Risk management in customs law – new legal territory – New legal territory or familiar terrain?
by Markus Witte
Although the terms “risk” and “risk management” were originally used in business administration, they have increasingly found their way into German and European law in recent years. Until now, this has mainly applied to areas of law that deal with the safety of plants or products, such as genetic engineering, chemicals or food law.
With the so-called “small customs code reform” of 2005, the customs authorities in Germany and other European countries are now also obliged to base their controls on risk analyses and introduce risk management. But what exactly does this mean? Is customs law merely taking up existing approaches to dealing with risks from other areas of law? Or is it breaking new legal ground? The author examines these questions in this paper. He analyses the history and design of risk management in customs law and attempts to classify it within the existing concepts for managing risks in law and business administration.
For more information please click here. To download the whole dissertation please click here.
Customs Law of the East African Community in light of WTO Law and the Revised Kyoto Convention
by Dr. Edward Kafeero, LL.M.
The Treaty for the Establishment of the East African Community (EAC) was signed by the presidents of Kenya, Tanzania and Uganda on 30th November 1999, in Arusha, Tanzania. The Treaty entered into force on 7th July 2000 and it was formally launched on 15th January 2001. This was followed by the signing of the Protocol on the Establishment of the East African Customs Union on 2nd March 2004, which entered into force on 1st January 2005. The East African Community currently comprises five countries, following the accession of Burundi and Rwanda on 18th June 2007.
All Partner States of the East African Community are also Members of both the World Trade Organization and as such they are obliged to observe its rules. These countries are also members of the World Customs Organization under the auspices of which the Kyoto Convention was signed. Thus, the Revised Kyoto Convention which was adopted as a blueprint for modern and efficient customs procedures in the 21st century is also indispensable to customs legislation administration in the East African Community.
This work fundamentally examines the consistency of EAC customs law with international customs law as contained in various WTO rules and in the provisions of the Revised Kyoto Convention. It is divided into three parts. And each part contains three chapters. Part I elaborates the fundamental concepts and laws pertinent to Customs, particularly at an international level. It is, so to say, the ‘dogmatic’ part of the work. In the first place, the meaning of the term Customs is expounded from historical and linguistic points of view. This is followed by the exposition of the major tenets of customs law as contained in the GATT/WTO legal and economic system. Lastly, the fundamental pillars of the Revised Kyoto Convention (and of the World Customs Organisation, under whose auspices the convention was signed) are elucidated.
Part II first traces the development of the East African Community and then describes its structure and functioning. In chapters 5 and 6, the substantive and procedural customs law of the East African Community is then expounded and interpreted. It should be noted that a number of comparisons and contrasts are also made in these chapters.
Part III is basically evaluative. First, the concept of Regional Trade Agreements is analyzed and defined. This is followed by the explication of the systemic issues which concern the WTO disciplines on Regional Trade Agreements. This is very helpful, inter alia, in assessing the legal status of the East African Community vis-à-vis the World Trade Organisation, which assessment is made precise within chapter 8. The last chapter then evaluates the laws relating to certain customs procedures available in the EAC, indicating their level of conformity with the Revised Kyoto Convention.
The results of this work indicate that there is a high degree of consistency between the written customs laws of the East African Community and the rules of both the World Trade Organisation and the Revised Kyoto Convention.
Despite the above-mentioned consistency, there are a number of problems with regard to the implementation of the international customs laws or standards in the day-to-day customs administration within the East African Community. As indicated in the study, these problems are mainly infrastructural and managerial in character. They particularly relate to information dissemination and information management; the use of modern techniques and technologies; as well as integrity.
Contact:
edward_kafeero@yahoo.de
The dissertation is available at miami.uni-muenster.de
by Verena Alvez-Mesa
Customs authorizations and the offence of customs evasion according to § 370 AO
by Dr. Stephan Kastner
Not least because of the strict rules of conduct and the formal requirements for customs procedures, authorizations in the area of customs law have a special significance. The holder of such an authorization can or will only rarely be able or willing to renounce it after it has been applied.
The authorizations considered in the context of this work have in common that they permit certain declarations or conduct which, without the authorization (in the case of intentional conduct), is criminally sanctioned by § 370 AO, the national criminal offence of customs evasion: The granting or existence of a license has – apart from its customs law content – direct consequences on the criminal relevance of the respective conduct or procedure. There are many examples of this.
The present study first examines the effects of customs authorizations on the criminal offence of customs evasion according to § 370 AO with special consideration of the principles developed by case law and literature on the administrative (act)accessoriness of “authorization-dependent criminal offences”. Then, the effects of the previously developed results on conceivable constellations of facts are presented (ineffectiveness or illegality of the permit, appeal proceedings, interim legal protection, errors of the party involved). Furthermore, the author examines the (criminal) consequences that revocation and withdrawal of a customs authorization (may) have. Finally, the paper deals with the criminal law consequences of retroactive authorizations.
For more information, pleae click here. For the whole dissertation as a download, please click here.
Discriminatory equal treatment of developing countries in the WTO? – Enabling Clause and the Generalised System of Preferences put to the test
by Torsten Eberhard
The WTO legal system contains numerous special provisions designed to take account of the special needs of developing countries. A central norm in this area is the Enabling Clause from 1979, on the basis of which the preferential tariff treatment of developing countries within the framework of Generalised Systems of Preferences (GSP) is legitimised under WTO law.
The Enabling Clause was the subject of a WTO dispute settlement procedure for the first time between 2002 and 2004, which was characterised in particular by the fact that the Panel and the Appellate Body (AB) held opposing views with regard to the interpretation of the standard. The dispute centred on the question of whether industrialised countries are allowed to differentiate between the beneficiary developing countries within a GSP in such a way that some developing countries are placed in a better tariff position than others. Against this backdrop, this study is dedicated to the interpretation of the Enabling Clause. To this end, it traces the political, economic and international legal history of the norm and of the GSP as a trade and development policy instrument. After describing the dispute settlement procedure, the question of which interpretation is preferable is examined in detail. Finally, the consequences of the now binding AB decision for the future practice of GSP programmes are presented and problems are identified which could arise in particular in the design of politically motivated incentive systems as a means of differentiating between developing countries.
For more information please click here. To download the whole dissertation please click here.
Offences under the Foreign Trade and Payments Act – Systematics, legal interest and interpretation of § 34 para. 2 AWG
by Tanja Kistner
Exports play a particularly important role for the European economy, especially for the German economy. Effective export controls and the corresponding sanctions for offences are therefore essential.
According to the penal provisions of the AWG, in particular § 34 para. 2 AWG, not only the type of products, but also the politically dependent, undefined characteristics of the external security of the Federal Republic of Germany, international peace and foreign relations must be assessed. Fundamental questions arise such as the legal interest, the constitutionality of the blanket technique and the jurisdiction of the criminal court.
For more information please click here. To download the whole dissertation please click here.
The Position of the Assignee in the Law on Export Refunds – The Grant and Revocation of Export Refunds and Legality of Sanctions
by Dr. Nils Harnischmacher
I. The Problem and Approach to the Investigation
Compared to other market products in the European Community, agricultural produce displays a number of peculiarities. For instance, some produce can only be harvested at certain times of the year. The yield may also be closely connected to the local conditions relating to soil and climate. Owing to such peculiarities there may be fluctuations in the quantity harvested that, in turn, causes price fluctuations and thereby instability on agricultural markets. In order to stabilize these markets, the agricultural policy of the Community provides in for the creation of European market regimes that each regulate the market for individual agricultural produce (Art. 34 (1) EC Treaty).
These market regimes provide for a Community market price that, as a rule, is higher than that found on the global market. The low price on the global market means that there is no real incentive for exporters to sell Community produce on the global market that they had previously acquired at a high price on the EC internal market. Export refunds offer one incentive for traders to sell their goods on the global market. They are, in effect, compensation payments made to exporters of Community produce and are financed by the Community budget. Export refunds serve to compensate the difference in prices charged on the global market and the internal market of the EC. The aim of export refunds is to deplete excess production and allow Community produce to be exported.
The fact that export refunds are only paid once the goods have left the Community means that exporters face a temporary lack of finance. In order to avoid this situation, exporters assign their claims to export refunds to third parties (i.e. banks) in order to pre-finance the export.
The assignment of claims to export refunds as well as the granting and revocation of export refunds to the assignee raise all manner of legal questions owing to the mixture of Community and national law that regulates this area. The dissertation examines this aspect as well the question as to whether it is lawful to impose sanctions on the assignee.
II. Results of the investigation
The investigation shows that the system of export refunds raises a number of interesting legal questions that, quite apart from their practical implications, also raise fundamental questions relating to legal science.
The analysis of the assignment of a claim to export refunds as well as the grant and revocation of refunds in relation to the assignee, has demonstrated that the law on export refunds constitutes a multi-layered legal system involving a complex interplay of legal sources in Community and national law. In this respect, Community law may take precedence over national law but, at the same time, the two sources are closely interrelated.
The interrelationship between Community and national law becomes clear when the claim for export refunds is assigned. Although Community law does not regulate the assignment of the claim to export refunds, it does determine how national rules on assignment contained in §§ 398 ff. BGB are to be applied.
The decision to revoke the grant of export refunds is not regulated by Community law either. Instead, national law (i.e. § 10 of the Gesetz zur Durchführung der Gemeinsamen Marktorganisationen und der Direktzahlungen (Act to Implement the Common Market Organization and Direct Payments (hereinafter “MOG”)) is to be used as the basis for a claim for recovery. Despite the applicability of § 10 MOG, the national legal provisions of § 48 (2) and (4) of the Verwaltungsverfahrensgesetz (Administrative Procedures Act (“VwVfG”)) cannot be invoked to protect legitimate expectations because they are overruled by applicable Community law in this area (i.e. Art. 52 (4) Reg. (EC) No. 800/99).
The basis of authority for the recovery of export refunds as well as the regulations protecting legitimate expectations in this respect are regulated at Community level by Art. 52 (1) and (4) Reg. (EC) No. 800/99. The provisions make the assignee and exporter jointly liable for the repayment of export refunds although this is governed by national law (§§ 421 ff. BGB) owing to the statutory arrangements under Community law.
The interpretation of Art. 52 Reg. (EC) No. 800/99 allows the sanction contained in Art. 51 Reg. (EC) No. 800/99 to be imposed on the assignee. It has also been established that the sanction is punitive in nature (i.e. criminal law in the broad sense).
The investigation into the legality of the sanction has revealed that there is no interrelationship between Community and national law. As a result, this question can only be answered on the basis of Community law.
As a result, the Community has the authority to impose punitive sanctions (criminal law in the broad sense) in relation to export refunds. Articles 34 (2) (1) and 37 (2) (3) EC Treaty state that the Community is has the power to issue all “necessary measures” and do not require a restrictive interpretation according the Community legal principles of either “nullum crimen sine lege” or “nullum crimen sine lege parlamentaria“.
The investigation has also established that the authority of the Community to impose punitive sanctions (criminal law in the broad sense) in relation to export refunds has been effectively delegated to the Commission.
That said, the imposition of the sanction on the assignee breaches higher-ranking Community law. The author has argued that there is an infringement against the Community legal principles of “nulla poena sine culpa” and proportionality as well as the assignee’s general freedom to act, which constitutes a fundamental Community right.
Concerning the legal consequences of this infringement against higher-ranking Community law, the question concerning the applicable doctrine of the (improper) exercise of discretion requires a reconsideration of the relationship between Community and national law. As a result, the discretion exercised by the Hamburg Main Customs Office is limited to an action against the exporter alone. By contrast, there will be an improper exercise of discretion if the sanction is imposed on the assignee.
This finding has far-reaching practical consequences and effects on the imposition of sanctions in relation to export refunds. Assignees can always appeal against the imposition of sanctions by arguing that it contravenes Community law and constitutes an improper exercise of discretion.
Contact:
nils.harnischmacher@web.de
Further information:
www.efa-schriften.de
The Implementation of the SAFE Framework of Standards: Comparison between Brazil, the European Community and USA
by Fernanda Maria Barcellos Herrmann, LL.B. (São Paulo), LL.M. (Münster)
International trade is one of the drivers of the global economy and responsible for its prosperity. And its environment has faced a huge change in the last years. For instance, import and export of goods considerably increased as a result of the reduction of duty rates and the conclusion of Trade Agreement between countries. In addition, since the September 11, 2001 attacks (often referred to as 9/11) in the United States of America, the political focus changed all over the world: current objectives are to counter terrorist threats and prevent terrorist acts. International trade is also vulnerable to terrorist attacks. For this reason, securing the international supply chain and simplifying international trade procedures became a strategic global issue for governments and their customs administrations in the 21st century.
As a result of the need to secure and facilitate international trade, the World Customs Organization (WCO) adopted in June 2005 the SAFE Framework of Standards (hereinafter referred to as „SAFE Framework“), which is an international instrument based on the Revised Kyoto Convention,1999. The SAFE Framework establish Standards which aim to enable and support the implementation of a secure supply chain and simplified trade procedures at a global level, strengthen the Customs-to-Business partnership as well as establish the co-operation between the Customs Administrations of each WCO-Member.
The Resolution on the SAFE Framework consists of four core elements (risk management, risk assessment, advanced electronic cargo information and authorized economic operator programm) and rests on two pillars, so-called „Customs-to-Customs“ and „Customs-to-Business“. A set of 17 standards should be implemented in each country, so that the main goal is achieved: security and facilitation of the international supply chain.
Although the SAFE Framework is (so far) not a binding rule its „advisable aspect“ has already been recognized by many WCO-Members: in other words, for the ones who want to continue playing an important role in the international trade of the new century, there seems to be no way out. The adoption of the SAFE Framework requires the full implementation of all of its 17 standards with no exceptions. The WCO-Members should inform the WCO about their intention to implement the SAFE Framework.
In December 2007 many WCO-Members joined the World Customs Forum 2007 in Bruxel, Belgium. The Forum brought an overview of the SAFE Framework and pointed out how could it be further developed, which steps should be taken for the success of this initative. At the Forum the WCO-Members had the opportunity to give their opinion about the SAFE Framework, as well as inform about the status of the implementation in their countries. Brazil, the United States of America and the European Community (27 Member-Countries) include the list of 154 WCO-Members (status June 2008) that have expressed their intention to implement the SAFE Framework.
The purpose of this work is to present the measures undertaken as well as programs implemented by the above-mentioned countries and customs union, respectively, to secure and facilitate the international trade in accordance to the SAFE Framework of Standards. An overview of the SAFE Framework of Standards, its concepts and benefits of its implementation will be given. A brief description of current import and export procedures in each analysed WCO-Member will also be part of the present work. Status of mutual recognition as well as a critical analysis of obstacles that must be faced will be presented. Special focus will be given to the Authorized Economic Operator Programs by means of a comparative study.
For additional information, please contact fe_herrmann@hotmail.com.
National Competence and export control under Art. 133 EC
by Dr. Christoph Schaefer, LL.M. (London)
Export controls are installed by states or state-like entities such as the European Community to scrutinize the exports of certain goods or – to a lesser extent – services. Traditionally, the legal mechanism employed is a licensing procedure based on a control list specifying these items in minute detail. From the early nineties onwards legislators installed “catch-all”-controls beside the lists, which made the export of any good subject to a licence if it was intended to be used for a particular purpose. As today’s export control is mainly aimed at forestalling proliferation, the most relevant intent covered by “catch-all”-clauses is the potential use in weapons of mass destruction (WMD). Although most export controls concern the field of security and foreign policy it should be borne in mind that export controls do also exist in other policy areas, e.g. for objects of national cultural value or chemical precursors in drug production.
Export controls are dualist in nature. Seen from an objective point of view, they are a deterrent to inter-state trade and hinder commerce of goods and services irrespective of their motivation. Nevertheless, this motivation is central to law-makers and administrators who usually follow a goal outside trade policies such as external security and other considerations of foreign policy. Usually legislators try to keep the obstacles to trade as small and the licensing procedure as smooth as possible. An example: The export of a high-tech machine tool listed in the German ‘Ausfuhrliste’ to a country outside Europe such as Syria requires permission from Germany’s Federal Office of Economics and Export Control ‘BAFA’. For the exporter this means additional costs since he has to go through the licensing process, even though that is free of charge. In addition, there is uncertainty about keeping the contract since the licence takes at least a few weeks to be processed. For the Federal Republic, the controls are a central instrument to enforce its security policy which aims at preventing the spread of modern technologies to states that the Federal Republic assumes to develop WMD.
The struggle between trade and other policy objectives is ancient and it comes in many variations and disguises. If viewed from the particular legal angle of competence, the question of the distribution of competence between the EC and its Member States arises. Competence in a legal sense is the capability of an entity to set valid rules in a given area. The competence must be conferred to the Community by the Member States while the latter’s sovereignty gives them competence to act in any given field. Art. 133 EC allows the Community to set rules regarding trade policy towards Non-Member States (Common Commercial Policy). However, Member States retain competence in the field of their external security, their cultural heritage and other policy aims pursued by export controls. How does the dualist nature of export control fit into this competence pattern?
The ECJ’s case-law has clear outlines. In the Werner case of 1995 the ECJ ruled Art. 133 EC to give the EC exclusive competence to enact export controls irrespective of their motive or policy aim. National rules are permissible only if there is specific authorisation by the Community. Authorisations can be generally phrased norms of Community Law, i.e. Art. 11 of the Export Regulation 2603/69 which is phrased similar to Art. 30 EC. National legislation such as the catch-all-clauses §§ 5c and 5d of the German ‘Foreign Trade and Payments Regulation’ can be based on Art. 11 Export Regulation.
The dissertation examines this competence question and develops its own solution. Parts of this solution have been brought forward in the 1980s by scholars like Timmermanns and practitioners like Gilsdorf. The dissertation contends the assumption that competence under Art. 133 is wholly exclusive. Exclusivity in this sense means exclusion of the member states of all power to regulate which overstretches in its practical results the Community’s capabilities. The ECJ tries to soften these consequences by constructing the possibility of authorisation which is very difficult to anchor in the Treaty or other primary Community Law. Competences are generally not disposable by their addressees. The dissertation advocates a different approach based on the functionality of the Common Commercial Policy. The CCP is to protect Community intra-trade and its uninhibited working by securing a level entry and exit for goods. Internally, Member States are allowed to erect barriers to trade in accordance with Art. 30 for reasons enumerated in that provision. This should be reflected in the CCP, interpreted as a mechanism of protection for internal trade. Thus, this concept views Art. 133 as a competence with an exclusive “core” and a concurrent “rest”. Art. 133 is an exclusive competence where it serves the internal market and the free movement of goods but a concurrent competence in all other areas. The dissertation develops and discusses this concept of “external parallelism” in detail before being applied to the various export controls applicable in the German Legal System.
Contact
Christoph Schaefer: c_schaefer@gmxpro.de
Securing the Supply Chain: Does the Container Security Initiative Comply with WTO Law?
by Dr. Christopher Dallimore
This dissertation investigates the Container Security Initiative, a security measure of the US Customs and Border Protection Bureau that aims to protect container traffic between the United States and its trade partners against terrorist attacks. The focal point of the investigation is the question whether the Container Security Initiative is compatible with the obligations of the American government under WTO law. Furthermore, the dissertation deals with the question whether the Container Security Initiative can be justified on the basis of the available exceptions in the WTO agreements in the case of infringement.
The compatibility of the IT procedure ATLAS (import) as e-government with customs and tax secrecy
by Talke Ovie
Advances in information and communication technology have led to a shift from an industrialised society to an information society. Public administration has utilised this progress and introduced electronic government services under the banner of “e-government”. The German customs administration also offers economic operators electronic import customs clearance with the ATLAS IT procedure.
The advantage of the IT procedure is that the entire import process is handled electronically. The information provided in the customs declaration is made available to all public authorities involved in the import process. By passing on the data, there is a risk that the economic operator will become transparent, as the information from the customs declaration is company-related data that is worthy of protection under data protection law. This danger can only be countered by laws. These laws include customs secrecy and tax secrecy.
The extent to which the IT procedure ATLAS (import) is e-government and what risks this poses to data protection is the subject of this study. It also examines whether the handling of content data from the electronic customs declaration complies with the requirements of customs and tax secrecy. The relationship between customs and tax confidentiality also plays a role here.
For more information please click here. For the whole dissertation please click here.
Procedural aspects of dispute settlement in the institutional framework of the World Trade Organisation (WTO)
by Daniel Weber
On 1 January 1995, the WTO came into force and with it the reformed, uniform and streamlined dispute settlement procedure within the organisation, which was codified in the “Understanding on Rules and Procedures Governing the Settlement of Disputes” (Dispute Settlement Understanding, DSU). This drew a remarkable line under a previously existing dispute settlement system, which was based on customary law from the thin lines of Art. XXII and XXIII GATT 1947 and, over time, revealed too many procedural weaknesses.
After more than 10 years of practical experience, this study is dedicated to several procedural aspects with the question of whether the new dispute settlement mechanism requires further optimisation. Specifically, the admissibility of so-called amicus curiae briefs, the question of a possible professionalisation of the panel level, the lack of possibility under current procedural law for the Appellate Body to refer cases back to the lower panel level (“remand authority”) and finally the problem of the chronological sequence between compliance panels and arbitration proceedings in the context of the enforcement of decisions of the Dispute Settlement Body (Art. 21, 22 DSU) are examined. After describing the basic procedure of a dispute settlement procedure within the institutional framework of the WTO, the above-mentioned procedural problems that arise in the process are examined, analysed, evaluated on the basis of case law and the relevant international law regulations and suggestions for improvement are developed.
For more information, please click here. For the whole dissertation, please click here.
EC customs law in conflict with WTO law
by Markus Dierksmeier
In the WTO dispute settlement proceedings “EC – Selected Customs Matters” (WT/DS315), fundamental principles of EC customs law were called into question by the USA. As a result, however, the central question as to whether the system of applying EC customs law is in an irreconcilable conflict with WTO law remained unanswered. There is therefore still a risk that the EC’s customs administration system as a whole will be contested in future dispute settlement proceedings. Against this background, the application of EC customs law, taking into account the decisions of the Panel and Appellate Body in “EC – Selected Customs Matters”, is comprehensively measured against WTO law.
For more information, please click here. For the whole dissertation, please click here.
Combating terrorism through economic sanctions
by Dr. Gudrun Dahme
Following the attacks of 11 September 2001, the UN Security Council not only established for the first time that acts of international terrorism threaten international peace, but also ordered Member States to freeze funds, other financial assets and economic resources of persons, companies and organisations suspected of terrorism and to prohibit third parties from making such sources of financing available to them. The obligation to impose economic sanctions on non-state actors is a novelty, which began with the corresponding measures against Usama Bin Ladin and certain Al-Qaida members in force since the end of 2000. The UN resolutions as well as the EU, EC and national legal acts adopted for their implementation, which are directed against individuals named on lists, raise a variety of legal questions not only because of the coexistence of different normative bodies, but above all because of their personal nature. The present study analyzes these novel economic sanctions, which at the same time represent a new measure in the fight against terrorism. The international and European legal regulations which are the focus of the study are embedded in their context, interpreted, examined for their legality and also examined with regard to the legal protection options of those affected by them.
For more information, please click here. For the whole dissertation, please click here.
The authorised economic operator Development and outcome of the legislative process
by Julia Maren Neitzel
With the so-called “security amendment” to the Customs Code, the legal concept of an “Authorised Economic Operator” (AEO) was introduced into Community customs law in 2005. In December 2006, following intensive discussions in the Customs Code Committee, the EU Commission issued the associated implementing provisions in Regulation (EC) No. 1875/2006. The provisions come into force – with a few exceptions – on 1 January 2008. The aim of the new regulation is to increase security in the international supply chain (“supply chain security”) and at the same time facilitate legitimate trade. To this end, economic operators are to be thoroughly checked for their reliability and, if the results are positive, they are to be granted the status of “authorised economic operator” (AEO). This is linked to advantages in the form of customs simplifications and/or security simplifications. In this way, “strategic partnerships” between customs and industry are established.
In her work, the author analyses the concept of an EC AEO. She shows the development of the individual provisions in the course of the legislative process and looks at the planned further development of the legal concept as part of the Modernised Customs Code 2009. The AEO model is also integrated into the international context of security-related business partnership programmes. Particular attention is paid to the SAFE Framework of the World Customs Organisation (WCO).
For more information, please click here. For the whole dissertation, please click here.
On-the-spot checks by the European Anti-Fraud Office (OLAF) in Spain
by Oliver Sticht
The European Anti-Fraud Office (OLAF) is the central point of contact for all measures to protect the Community’s financial interests. OLAF’s work is increasingly becoming the focus of public interest as a result of increasing damage and fraud to the Community’s finances. OLAF’s work in the area of combating subsidy and aid fraud is primarily carried out by means of on-the-spot checks on economic operators. This study deals with these OLAF inspections in Spain. The focus is on analysing the important European and Spanish procedural regulations, in particular Spanish administrative law, tax law, criminal procedural law and aspects of commercial and constitutional law. The results of the analysis of the Spanish procedural rules are transferred to OLAF and analysed for the inspectors. This projection enables economic operators in particular to gain an insight into the procedural processes of on-the-spot checks in Spain. In addition, this work informs economic operators about their rights of defence.
For more information, please click here. For the whole dissertation, please click here.
The concept of exporter in export control
by Michael Tervooren
In the European economy, which is largely dependent on exports to third countries, smooth and fast export processing is a cost factor that should not be underestimated. In addition, certain export transactions are subject to authorisation and require an export licence from the Federal Office of Economics and Export Control. A distinction must be made here between the licensing requirement under the War Weapons Control Act and the licensing requirement in the dual-use sector. The dual-use area includes dual-use goods, i.e. goods that can be used for both civilian and military purposes. Exports requiring authorisation without an export licence are subject to severe penalties under the Foreign Trade and Payments Act.
An application for an export licence must always be submitted by the exporter. However, the determination of the exporter poses considerable problems for both the economic operators and the competent authorities due to the increasing economic interdependence.
For more information, please click here. For the whole dissertation, please click here.
EC – Selected Customs Matters
by Dr. Markus Dierksmeier
In the WTO dispute settlement procedure “EC – Selected Customs Matters” (WT/DS315), fundamental principles of EC customs law were questioned by the US. As a result, however, the central question of whether the system of application of EC customs law is in conflict with WTO law remained unanswered. There is still a risk that in future dispute settlement proceedings the EC customs administration system as a whole will be challenged. Against this background, the application of EC customs law will be fully measured against WTO law, taking into account the decisions of the Panel and Appellate Body in “EC – Selected Customs Matters”.
For more information, please click here. For the whole dissertation, please click here.
The Australian Customs Law in Light of International Trade Regulations
by Dr. Jan-Dirk kleine Holthaus
With regard to its customs and foreign trade regulations, Australia is often considered an international exemplar. Through the deregulation measures which began in 1983, Australia managed to develop from a strongly controlled national economy to one of the most liberal economies in the world. Part of this deregulation process was also the reform of the customs law, particularly the reduction of customs tariffs and the modernisation of the customs procedures law. Hence Australia is recognised as exemplary by the World Trade Organisation (WTO) and the World Customs Organisation (WCO).
The author thus examines whether the Australian customs law, particularly the customs procedures law, deserves this good reputation. In the process, he examines the Australian customs law with regard to its conformity with the WTO/WCO international regulations concerning movement of goods. At the WTO level, the study examines the regulations concerning customs value, rules of origin, transparency as well as prescriptions on trade facilitation. And at the WCO level, the emphasis is put on the Convention on the Harmonised Commodity Description and Coding System, the Revised Kyoto Convention (1999) as well as the Framework of Standards (2005).
The book offers a well detailed description of WTO and WCO regulations concerning customs procedures. Although the WCO with its 170 member states plays an important role in the international harmonisation of customs procedures and customs system, its regulations have been up to now sparsely treated in literature. Likewise, little had been so far written on the Australian customs law. Yet the Australian customs law is a very interesting example of an effective, modern and exemplary customs administration/system which outstandingly succeeds to strike a balance between increased security interests and trade facilitation.
ISBN 3-8300-2938-1
More information is also available at www.verlagdrkovac.de (German).
Market access barriers to the import of goods into New Zealand
by Dr. Christian Becker
What are the trade restrictions on goods imported into New Zealand? Does the country deserve its reputation for being a state with an extremely liberal trade regime? Christian Becker analyzes whether New Zealand – like other countries – maintains open or hidden trade restrictions on imported goods in legal or factual terms.
The author begins with a brief description of New Zealand’s economic development. The emphasis is on a description of the development after colonisation by the United Kingdom. Particularly relevant are changes in the almost 100-year partnership between the two states, New Zealand’s growing economic ties to the Asia-Pacific region and the fundamental restructuring of New Zealand’s trade and economic order after 1984.
After outlining the current situation in New Zealand’s economy, the integration of the country into the global network of trade agreements is analysed. Since the economic and legal dependence of the states on each other is greater today than ever before, cooperation between them in this area has increased considerably in recent years. New Zealand has also signed various bilateral, regional and multilateral trade agreements. The most important of these are undoubtedly the WTO agreements, so that the work also contains an introduction to the content and practice of the principles and provisions of the WTO legal system and identifies problem areas.
Despite many agreements to liberalise world trade, many states continue to serve – sometimes openly, sometimes subtly – protectionist tendencies. By concentrating on one country, the author aims to show exemplary developments and difficulties in international trade. It is examined whether and to what extent subtle or hidden trade restrictions are applied in New Zealand. The investigation focuses on the customs system and the application of various non-tariff trade barriers (including trade defence instruments such as anti-subsidy and anti-dumping measures as well as regulations for the protection of humans, animals and the environment).
Finally, two market studies will be carried out for New Zealand. Internationally, protectionist measures are widespread, particularly in the agricultural, textile and clothing sectors. Therefore, the current situation of these two sectors in the international field as well as in New Zealand is examined.
For more information, please click here.
Trade Facilitation – WTO law and its reform to facilitate international trade in goods
by Dr. Carolin Eve Bolhöfer
The globalisation of value chains in recent decades has made the effectiveness of border procedures an essential competitive factor in world trade. While trade requires customs clearance to be as fast, uncomplicated and inexpensive as possible, the state must fulfil its control function, levying customs duties and enforcing import and export restrictions. The aim of trade facilitation policy is to reconcile these interests, which at first glance appear to be contradictory. This goal is pursued at national, regional and international level, for example by automating and standardizing procedures. Legal limits are placed on the state’s regulatory autonomy in this area by world trade law. Since the founding of the World Trade Organization (WTO) in 1995 and the associated expansion of multilateral world trade agreements, it has gained considerable legal and political importance. In her work, the author examines existing international law in the field of border procedures with special regard to world trade law and, against the background of the increasing globalization of value chains, its need for reform. In addition to codified law, the case law of the WTO Dispute Settlement Body in this context is also taken into account.
For more information, please click here. For the whole dissertation, please click here.
Controls by the European Anti-Fraud Office (OLAF) in Greece
by Dr. Kristina Daroussis
The fight against fraud and the protection of the Community’s financial interests have become much more important over the last decade. The reason for this is that, as the financial volume of the European Union has increased, so has the damage to Community finances. As part of the creation of appropriate anti-fraud measures, the European Anti-Fraud Office (OLAF) was set up in 1999 with the task of detecting irregularities affecting the budget of the European Communities. In order to fulfil this task, regulations were created which allow OLAF inspectors to carry out on-the-spot checks on economic operators in the individual Member States. To a certain extent, these regulations under European law refer to the respective national regulations. The powers of the inspectors and the procedural rules to be applied thus result from an overall view of the Community law and the relevant national regulations. The main focus of the present study is to show, on the basis of all relevant national and Community law regulations, what concrete powers the OLAF inspectors have in the course of an inspection in Greece and what restrictions they are subject to.
For more information, please click here. For the whole dissertation, please click here.
South African Customs Law against the Background of World Customs Law in Comparison with Laws of the European Community
by Dr. Natan Hogrebe
The objective of this work is to evaluate the South African customs law in comparison with the provisions of the European customs law and international guidelines. For this purpose, the South African customs law is studied section by section according to the dogmatic guidelines particularly those contained in the International Convention on the Simplification and Harmonisation of Customs Procedures (Revised Kyoto Convention). Every legal section is scrutinised for its conformity with the world customs law and thereafter compared with the European Law.
The South African customs law has both national and international legal sources. The principal international sources considered are the different agreements within the WTO and WCO context and more especially the Revised Kyoto Convention. Since the end of the apartheid regime, there has been a development of some forms of integration of customs law. These are: the South African Development Community (SADC) and the much older but reformed South African Customs Union (SACU). These legal sources are extensively presented in the introductory part of the work.
The South African national customs law is chiefly contained in the Customs and Excise Act (1964) with later amendments and annexes as well as the guidelines to the Act. Compared with the world customs law, the South African customs guidelines show some lack of clarity and discretion. When compared with the European law, there are conceptual variations which can actually have material effects.
The fundamental achievement of this work is the recommendation to revise the South African customs law and to modernise it basing on the internationally negotiated regulations of the world customs law.
The work has been published by Shaker Verlag, Aachen 2006 (ISBN 3-8322-5442-0); the text is also available for download.
The operation of controls by the European Anti-Fraud Office (OLAF) in the United Kingdom
by Dr. Gerswid Altenhoff-Weber
Fraud and irregularities place a heavy burden on the financial budget of the European Community. Since only a consolidated Community can meet the increased requirements resulting from its enlargement, the fight against such behaviour is of great importance for the progress of European integration. Since 1999, the European Anti-Fraud Office (OLAF) has been responsible for protecting Community finances. The focus of its work is on the on-the-spot checks which OLAF is allowed to carry out independently in the individual Member States. According to Community law, OLAF inspectors should carry out the checks under the same conditions as national inspectors. This means that not only Community law but also the national law of each Member State regulates the scope of OLAF’s control powers. This paper examines the powers of OLAF in relation to controls in the UK and the procedural obligations to which OLAF controllers are subject. The paper explains the relationship between the respective European and national regulations.
For more information, please click here. For the whole dissertation, please click here.
Export control in Italy
by Dr. Alexia Maier
The Italian export control law in the field of exports of dual-use goods has been specifically regulated by law since the enactment of the Law of 27.02.1992, No. 222. Following the harmonization of export controls in the dual-use sector at Community level through Regulation (EC) No. 3381/1994 and the joint decision of the Council 94/942/CFSP, the Italian government issued Legislative Decree 89/1997 on 24.02.1997, which implements Regulation (EC) No. 3381/1994. After the entry into force of Regulation (EC) No. 1334/2000, which is currently applicable at Community level in the field of export control law, Legislative Decree 96/2003 was issued on 09.04.2003. This paper presents the development of the Italian codification in the field of export control of dual-use goods. It focuses on the analysis of the implementation of Regulation (EC) No. 1334/2000 by Legislative Decree 96/2003 and the admissibility of its provisions under Community law, and compares the legal implementation of Regulation (EC) No. 1334/2000 in Italy with that in Germany.
For more information, please click here. To download the whole dissertation, please click here.
The Australian Market Access Conditions and their Compatibility with World Trade Law
by Dr. Dominic Thiele, LL.M
The World Trade Organization (WTO) carries out a central function for reducing trade barriers on an international level. Thus, in matters of progressive globalization, the WTO certainly epitomizes a key role. By entering the WTO Treaties, all Member States of the WTO have committed to accept a broad range of international law obligations in regards to the configuration of their respective national market access. However, in practice, obligations of the WTO framework are not always fully observed. The legal instruments of World Trade Law are laid down in the WTO Agreements, comprising more than 22,000 pages. Due to their complexity and abstractness, even experienced jurists have strong difficulties to properly apply and interpret these legal instruments. The evaluation whether Member States perform in conformity with WTO Law constitutes a concrete application of international law that comes along with interdisciplinary interwoven problems.
This research provides a comprehensive outline of the Australian market access from the perspective of WTO Law. It is targeted to make a contribution for a better understanding of World Trade Law. In this context, the dissertation forms an exemplary analysis in which the market access regulation of a WTO Member State – Australia – is scrutinized in relation to WTO Law conformity. Australia is a very suitable country for such an exemplary analysis for several reasons. First, it has gained negative experiences with strong protectionism in its economic-political history. Second, since in the late 80’s its government has realized the negative economic impact of protectionism on the national economic performance, Australia is highly endeavoured to reduce its trade barriers. This has led to a situation in which the WTO problems of Australia are reduced to a manageable frame on the one hand. On the other hand, however, some rudiments of Australia’s protective trade policy still exist and constitute respective need for discussion. Finally, as a former colony of the UK and because of its specific geographic situation, Australia is subject to certain temptations in regard to WTO Law infringements.
The author begins his analysis by describing the basic elements of the Australian market access conditions. In a second step, the World Trade topics of customs law, subventions, antidumping, public procurement, services, protection of intellectual property and regional trade agreements are respectively reflected by outlining the WTO framework first and then scrutinizing Australia’s practice in each field. In the third part of the analysis, the author explicitly analyzes selected issues that generate particular problems in the context of WTO Law: The Australian luxury car tax (factually affecting only import products), restrictions on direct investments of foreigners, sanitary and phytosanitary import restrictions, and the regulation concerning accreditation and labelling of genetic modified organisms are such issues, creating legal problems from the perspective of WTO Law and in part already having led to pending WTO penalty proceedings.
The author’s findings that follow from his analysis are: From today’s perspective, Australia is a comparatively liberal trade partner, performing in most fields in conformity with WTO Law. However, few areas still exist in which Australia could amend its performance. These areas are typical problems in the context of WTO Law and are also to be discussed for other WTO Member States; the respective findings of the author can be transferred to comparable trade instruments of other WTO Members.
External Links
The complete dissertation is available for download at www.thieledom.de
International information assistance in tax proceedings
by Dr. Michael Hendricks
The increasing internationalization of the economy is also forcing national tax administrations to cooperate between states. Joint clarification of facts within the framework of international information assistance is of central importance in this context.
The present study systematically prepares and analyses the numerous legal bases of national, European and international law. The limits of administrative trade are defined and new forms of cooperation are examined.
Subsidy fraud in agricultural exports
by Isabell Halla-Heißen
Protecting its financial interests and preventing or penalising the unjustified use of its financial resources is a vital interest of the European Community. Even though a wide range of regulations and agreements have been concluded for this purpose, the Community does not have its own criminal power or competence to enact criminal law. In this respect, it is dependent on the Member States to ensure the most comprehensive possible protection against abuses in their area by enacting appropriate criminal sanctions. This study examines the question of whether the criminal offence of subsidy fraud under Section 264 StGB protects the financial interests of the Community to the extent required. The yardstick for the assessment is the relevant European law and the agreements concluded.
In the past, the area of agricultural exports using refunds has proven to be particularly susceptible to fraud. This work takes this as an opportunity to analyse the protection of the EC’s financial interests using the example of export refunds. To this end, the European framework conditions and the law on agricultural refunds are first presented in order to be able to determine the relevant requirements for the interpretation of Section 264 StGB. For the area of export refunds, the question of whether the protection provided by Section 264 StGB is sufficient is then examined.
For more information please click here. For the whole dissertation please click here.
Protection of the European Community’s financial interests
by Dr. Barbara Fleckenstein-Weiland
The losses incurred by the European Community as a result of unlawful activities amount to many hundreds of millions of euros each year. The European Anti-Fraud Office OLAF has been carrying out internal and external controls to protect the financial interests of the EC on the basis of Regulations No 2185/96 and No 1073/99 since 1999 as part of the Commission’s Authority. The Office’s investigations target all financial sectors. This has since been the case in particular for on-the-spot audits and inspections of private economic operators in the Member States, rights which were previously reserved exclusively for national authorities on the basis of relevant sectoral regulations. The aim of the present paper was to present the relevant national law for OLAF investigations in Austria and to shed light on the consequences for OLAF’s controls of Austrian economic operators in accordance with EC law.
For more information, please click here. For the whole dissertation, please click here.
Controls on French operators under Regulations Nos 1073/99 and 2185/96
by Dr. Oliver Frese
The fight against fraud to protect the financial interests of the European Community has been in the public interest for several years. In particular since the historically unprecedented resignation of the European Commission in March 1999, regulations have been adopted at Community level which allow for a more determined fight against irregularities, fraud, corruption and mismanagement. Of central importance is OLAF, the Anti-Fraud Office created in May 1999, which for the first time gives European Community officials the power to carry out checks on economic operators in the individual Member States. The mandate conferred on OLAF provides for controls to be carried out in accordance with national law, subject to the applicable Community law. The control mission thus defined triggers a tension between Community law and the respective national law in each individual Member State whenever OLAF carries out controls. The present paper examines which control powers are available to OLAF in France and which rights of defence of a French economic operator concerned, on the other hand, must be taken into account when carrying out a control.
For more information, please click here. For the whole dissertation, please click here.
A Customs Law for the State of Palestine
by Dr. Andree Haarhuis
The Palestinian economy is dependent on a revival of trade in order to achieve a sustainable improvement in the economic situation. However, due to ever-increasing globalisation, this upturn can only be achieved if access to the Palestinian market for cross-border trade in goods is substantially facilitated. To this end, the Palestinian economy needs a customs law that provides incentives for economic operators to operate on its territory. These incentives can only be found in clear and unambiguous customs legislation that comprehensively regulates foreign trade, but at the same time provides for the simplification of the movement of goods and the reduction of trade barriers, thus giving economic operators the greatest possible scope for action. The current customs law situation is unsuitable to meet these requirements.
Consequently, the Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH initiated the drafting of a Palestinian customs law within the framework of a third-party funded project of the Institute for Tax Law at the Westfälische Wilhelms-Universität Münster. The present paper examines and explains this draft law.
For more information, please click here. For the whole dissertation, please click here.
OLAF’s controls in Belgium
by Dr. Nathalie Harksen
The protection of the European Communities’ financial interests has become an increasingly serious need due to the constant enlargement of the Community and the resulting increase in expenditure. As part of the efforts to establish appropriate anti-fraud measures, the European Anti-Fraud Office (OLAF) was set up in 1999 with the task of detecting irregularities affecting the budget of the European Communities. In order to fulfil this task, regulations were created which allow OLAF inspectors to carry out checks on economic operators in the Member States. These European legal regulations refer to the respective national regulations, so that the powers of the inspectors result from an overall view of the Community law and the relevant national regulations. The present paper describes the concrete powers of OLAF staff members during an inspection in Belgium and the restrictions they are subject to.
For more information, please click here. For the whole dissertation, please click here.
Transfer Price and Customs Value
by Dr. Thomas Möller, Dipl.-Finanzwirt, Dipl.-Kaufmann (FH)
In the realm of international trade more than half of business transactions are conducted between related enterprises. Big companies get goods from all over the world through their complex networks of suppliers. For business reasons transfer prices are used for such transactions. The relatedness of the supplying enterprise to the one buying entails a danger that the transfer price may not reflect the real economic value of the transaction. Since there is no global procedure for apportioning expenses, the transfer price also helps in the determination of taxable income. It serves in the calculation of due taxes for each party to the business transaction. In order to effect a fair expense allocation settlement in the use of transfer prices for taxation purposes, the OECD member countries opted for the arm’s length principle.
In the OECD transfer pricing guidelines, the calculation of customs value so as to judge its conformity with the arm’s length standard within intra-company transfer prices is deemed advantageous. The OECD asks for collaboration between tax and customs administrations in the auditing of transfer prices. The same conclusion was reached by the European Court of Auditors in 2000 in its special report concerning valuation of imported goods for customs purposes. The general assumption within German administrations, literature and jurisprudence is that in the calculation of the appropriate transfer price, there is legally no connection of the amount calculated by tax administrations to that arrived at by customs valuation administrations and vice-versa. Against this background, the work picks out as central theme: the relationship between transfer price and customs value. The aim of the research is to analyse the basic principles of tax and customs law for the valuation within intra-company supplies from foreign countries into Germany. The gist of the analysis revolves around the possibilities and limits of a uniform use of transfer price for both tax and customs.
Chapter seven (pp. 237 ff.) gives the real analysis of the relationships between transfer price and customs value. In the author’s view, there exists an identical target for the transfer price for taxation purposes and the transfer price to be accepted for customs valuation (I). The author notes similarities also for valuation itself. Hence he asks whether there is, and if yes, which relationship between transfer price and customs value there is. The author introductorily discusses the international developments at the OECD level and in individual countries (II). He observes that in the USA there is an extensive connection between the valuation of imports both for tax and for customs purposes.
It is very important to note that according to the author’s diagnosis, the judgements of the European Court of Justice indulge in a totally different customs valuation system, which is: customs valuation on the basis of “normal price” concept instead of “transaction value”. The same applies to a decision of the German Federal Fiscal Court of the year 1967, I 220/64. Also the Federal Fiscal Court decided directly neither on issue of relationships between transfer price and customs value nor on the no more valid valuation system of the “normal price”.
In the special report of the European Court of Auditors concerning customs valuation of the year 2000, the European Commission gave its opinion about the relationship between what it refers to as corporate transfer price (transfer price) and what it refers to as transaction value (customs value). The Commission sees no customs problem in overvaluation and it bases this on the out-dated case law of the European Court of Justice of the year 1980. The same view is sustained in Germany by the tax administration. In it administrative principles, the Federal Ministry of Finance merely points out that transfer price can differ from customs value. In doing so, it also bases itself on the out-dated judgement of the Federal Fiscal Court of 1967. The German customs administration responsible for customs valuation is of another opinion. In its published record of a customs valuation meeting held in the year 2000, the Federal Ministry of Finance maintained the view that there exists a relationship between transfer price and customs value (2).
The relationship between transfer price and customs has been up to now very loosely treated in literature. The author asserts hereunto (3) that transfer price has a general relevance for customs valuation but with a different objective target for tax on the one hand and for customs on the other. Concerning the question whether customs value and appropriate transfer price are ultimately the same, or whether customs value (optimised customs value) is a more suitable market price for tax auditing, the author does not find any convincing answer in the so far existing literature.
A focal point of the analysis builds up from the comparison undertaken by the author (IV). This comparison includes not only legal provisions but also business perspectives particularly tax audit and customs valuation methods. His comparison of the provisions and the resultant methods of both tax and customs laws shows a fundamental concordance. Given that there are different misgivings in the literature about the acceptance of the respective values, the author analyses the corresponding special regulations of both tax and customs laws. As a result, he has logically and in an integrative manner enfeebled these concerns.
In a short summary of his analysis, the author observes that he has not found a conclusive answer to the relationship between transfer price and customs value (V). Because of the importance of transfer price in the taxation realm and in search of a fiscal market price, the author considers it meaningful to use to exploit his cognitions of customs valuation for transfer price. For imports from foreign countries into Germany, the author offers his own solution by developing the concept of market price for taxation purposes basing on the customs valuation system of the customs code. He visualises his concept in a diagram.
The examination ends in the eighth chapter with a concluding appraisal of the findings of the author’s analysis (p.p. 268 ff.). The author poses concretely 22 theses. They contain proposals which are orientated towards financial/economic principles for both tax and customs practices regarding transfer prices as well as impulses for the European as well as national legislators.
With the presented work – which was accepted by the Faculty of Economics and Behavioural Sciences at the University of Freiburg (Albert-Ludwigs-Universität Freiburg im Breisgau) – the author undertook to comprehensively analyse the specification of international transfer prices both from tax and customs law perspectives and to deduce a concept for the uniform determination of transfer prices for both tax and customs purposes. A positive side effect of this approach is the production of a new additional criterion for the verification of tax transfer prices.
Contact
t.w.moeller@web.de
For more information please click here. For the whole dissertation please click here.
Controls by the European Anti-Fraud Office (OLAF) in Italy
by Verena Weber
With the increasing importance of the European Union and the scope of Community finances, the damage and fraud to the detriment of Community finances have also become more numerous and more serious. In order to counteract such behaviour, Regulation (Euratom/EC) No 2185/96 introduced specific control powers for the Communities. These powers were transferred to the European Anti-Fraud Office (OLAF). When carrying out on-the-spot checks on economic operators, OLAF must take into account the Community requirements of the Control Regulation. In addition, Community law refers in part to the applicable national provisions. This paper deals with OLAF’s inspections of economic operators in Italy. In this context, the European and Italian powers of control and procedural rights of the parties concerned are explained in particular. Of particular importance is the relationship between European and national law standards.
Fore more information, please click here. To download the whole dissertation, please click here.
Conditions and legal effects of the right to information in customs law
by Dr. Regina Hoffacker
In view of the complexity of customs regulations and the need of economic operators for legal certainty, information from the administration on the application of customs law is of considerable importance. When carrying out foreign trade transactions, faulty disposition bases based on a lack of legal knowledge can pose considerable risks. Therefore, entrepreneurs have a significant interest in the conditions under which they are entitled to information in individual cases and whether the customs authorities are bound by the information they provide.
The present paper deals specifically with the information claims under Articles 11 and 12 of the Customs Code and is intended to provide a comprehensive overview of the factual conditions as well as the legal effects of the various information claims. An essential focus of the work is the presentation of the legal effects of the right to information according to Article 11 of the Customs Code. In particular, the question of the consequences of incorrect official information on which the economic operator has relied is at the center of the discussions.
Fore more information, please click here. To download the whole dissertation, please click here.
Customs Code and Fiscal Code, analysis of the relationship between the provisions of the Fiscal Code and the provisions of the Customs Code of the European Community
by Prof. Dr. Lothar Gellert
With the customs law of the European Communities, a new situation has arisen for the tax procedure law applicable in Germany. This has been particularly true since 1993, the year in which the EC Customs Code (CC) came into force. Community law now regulates procedural aspects that were previously reserved for the German Tax Code (AO). However, it is often not clear to the user of the law whether certain questions are regulated by Community law or whether recourse to the AO is still possible. Even in jurisdiction and literature there are no clear statements.
The author has examined the entire AO to determine which regulations are being supplanted by customs law or which are still unaffected and still apply. In addition, the author has developed a customs AO which, in the interests of legal clarity, applies to all import duty cases and is presented in the form of a draft law.
For more information, please click here. For the whole dissertation, please click here.
The licensing procedure for dual-use goods in German export control law
by Dr. Wolfgang Ehrlich
The approval procedure for dual-use goods conducted by BAFA is characterized by the interaction of European and national law. In principle, the principle of primacy of application applies. However, even when national law is applied, it is influenced by principles and rules of Community law. The starting point of the scientific discussions were judgements of the European Court of Justice from 1980, in which for the first time the application of national procedural law, which is recognised in principle, was made subject to the proviso that it must not result in the exercise of rights conferred by Community law being made practically impossible. On the basis of the current state of dogmatics, the present study works out whether and, if so, how administrative procedural law differs in the scope of application of the Dual Use Regulation on the one hand and in the area of the Foreign Trade Act and the Foreign Trade Regulation on the other, in other words, whether, in other words, the law of administrative procedure in this area is single-track or dual-track.
For more information, please click here. For the whole dissertation, please click here.
OLAF’s controls in Germany
by Dr. Heiko Gemmel
Since the European Anti-Fraud Office (OLAF) was set up in 1999, there is, for the first time at European level, a single contact point for all measures to protect the Community’s financial interests. One of OLAF’s most important tasks is to carry out on-the-spot investigations or checks on economic operators in the various Member States. The present paper deals specifically with the implementation of OLAF controls in Germany. It is intended to clarify, not only for the investigators of OLAF, but also, and in particular, for the economic operators concerned in Germany, what specific investigative powers OLAF staff have in such checks and what rights of defence are available to economic operators in this connection. Due to the very complicated references to national law in the relevant EC regulations, one focus of this work is to elaborate in detail and interpret in detail the relevant European and national procedural regulations within the framework of OLAF inspections in Germany.
For more information, please click here. For the whole dissertation, please click here.
The performance of checks by the European Anti-Fraud Office (OLAF) in Ireland
by Hendrik Horn
Since 1999, the European Anti-Fraud Office (OLAF) has been entrusted with the task of uncovering irregularities affecting the budget of the European Communities. In doing so, OLAF is exposed to a constant field of tension, as a legal framework has been created that is unrivalled in the previous structure of the implementation of Community law: One has only partially standardised its powers and the procedural rights to be observed; instead, reference is predominantly made to the provisions existing in the law of the respective Member State concerned. Although this legal framework preserves the Member States’ reservation of sovereignty, this is also the main problem for OLAF, as it has to deal with a large number of different legal and procedural systems. This study analyses the powers that OLAF has in Ireland and the procedural rights that must be observed.
For more information, please click here. To download the whole dissertation, please click here.
Tariff preferences and protection of confidence
by Dr. Thomas Kirchhoff
Large parts of the European Community’s (EC) import and export trade are carried out with states with which the EC has concluded preferential agreements. These preferential agreements are international treaties in which either unilaterally or reciprocally customs concessions are granted for the import of certain goods. In addition to these preferential agreements, there are also a number of preferential regulations which the EC has unilaterally adopted. These contractual and autonomous preferential arrangements create free trade zones or customs unions between the respective partner states and the EC, which primarily serve trade, development and integration policy objectives.
In order to be able to apply the preferential tariff concessions to goods imports, most preferential regulations of the EC contain rules of origin. These rules of origin serve as a means of differentiation to limit preferential tariff concessions to products originating from the respective partner state. Proof that the rules of origin of the respective preferential arrangements have been observed is provided by the importers of the products into the EC by means of proofs of origin issued by the exporters of the products in the partner states or by the competent authorities of the partner states on the basis of information provided by the exporters. However, in the course of verifications carried out in recent years, it has been found that thousands of proofs of origin presented in the EC were forged or incorrect in content. This led to subsequent customs demands on the importers of the goods, which led to a loss of confidence in the functioning of the preferential arrangements and in some cases even threatened their economic existence. This also jeopardized the achievement of the above-mentioned goals through the preferential agreements.
On the basis of these cases, the present study examines the granting of protection of confidence to importers under the Customs Code and shows the development of this protection of confidence through the amendment of Art. 220 (2) (b) Customs Code and the more recent case law of the European courts.
For more information, please click here. To download the whole dissertation, please click here.
Indonesia on the way to becoming a federal state?
by Henning Lustermann
Indonesia has been in a state of political upheaval since May 1998. Individual provinces striving for autonomy are demanding their independence and the associated withdrawal from the existing unitary state. However, the government has so far regarded the preservation of the strictly unitary principle as indispensable. In order to find a balance between the federal interests of the provinces and the unitary constraints of the central government, the vertical state organisation of the Republic of Indonesia was reformed in 1999 and 2000. These reforms are rejected by a broad political front as “too federal” because of what they see as the associated secessionist dangers. But are the reforms actually transforming Indonesia into a fundamentally federal state structure model, a federal state? The author examines Indonesia’s reformed vertical state organisation and assigns it to a specific structural model according to the criteria of general state theory.
For more information, please click here. To download the whole dissertation, please click here.
The powers of the European Anti-Fraud Office (OLAF) in relation to checks on economic operators in Portugal
by Dr. Christoph Billwiller
The increasing number of cases of fraud and other irregularities affecting the financial budget of the European Community led to the establishment of the European Anti-Fraud Office (OLAF) in 1999. OLAF’s task is to carry out on-the-spot checks on economic operators, either autonomously or in cooperation with the national authorities in the Member States, in order to detect and prevent damage to the Community budget. The establishment of OLAF as an independent office has given rise to various problems, particularly from a procedural point of view, since OLAF staff are required to comply with national procedural rules, subject to the applicable Community law.
The present paper deals specifically with OLAF’s powers to carry out such checks in Portugal and is intended to provide information to OLAF staff, but also to the economic operators concerned, on OLAF’s investigative powers. The main focus of the work is to present the European and national procedural rules that are important in Portugal.
For more information, please click here. For the whole dissertation, please click here
European Commission decisions on remission, repayment and post-clearance recovery of import duties
by Leopold Baumann
European Community customs law contains provisions according to which import duties owed per se are to be remitted, refunded or not subsequently levied if certain conditions are met in order to take account of the severity of the customs debt. For unforeseen individual cases, the law also gives the legislator the option of achieving the same result for reasons of equity within the scope of a margin of judgement and discretion. In order to ensure that these cases are treated equally throughout the Community, the national customs authorities must submit them to the European Commission for a decision.
Over the years, the Commission has decided a large number of such cases. The European courts have also developed case law in this area.
In this work, the cases and decisions of the Commission and, where applicable, the courts are presented, systematically organised into case groups and evaluated. In addition, the work contains explanations on the self-binding nature of the Commission through its previous decisions, on the judicial reviewability of the decisions, furthermore an assessment of the decision-making procedures to be applied by the Commission and finally conclusions for the legal field in the future.
For more information, please click here. For the whole dissertation, please click here
Legal assessment of foreign economic relations and compatibility with the world trade system
by Dr. Arnd Haller
Mercosur is now part of the economic and political reality, as well as the legal reality in the four contracting states Argentina, Brazil, Paraguay and Uruguay.
The author presents the legal background of the merger and sheds light on its organizational structure, legislation and dispute settlement mechanism. The central theme is Mercosur’s foreign economic relations with other states and groups of states within the region, on the American continent and at the global level. Particular attention is paid to relations with the EU. In addition, the legal relationship between Mercosur on the one hand and the WTO and GATT on the other is analyzed and critically evaluated.
European customs law in the Dutch jurisdiction
by. Dr. Robert Figgener
Within the European Community there is uniform legislation in the field of customs law in the form of the Customs Code and other directly applicable regulations. However, the enforcement of these EC standards and judicial review of the application of the law is a national competence. If disputes do not reach the European Court of Justice by way of the preliminary ruling procedure, they may be cited as precedents in the respective Member State itself, but in the other Member States they regularly remain unknown due to language and factual barriers. Despite uniform law, this can therefore lead to divergent application and interpretation practices from one Member State to another. The present work contains a comprehensive analysis of Dutch and German case law on customs law with regard to the corresponding differences and similarities. The main focus of the analysis is on case law in the areas of post-clearance recovery, repayment/remission, customs value and duty exemptions.
For more information, please click here. For the whole dissertation, please click here.
The system for protecting the Community’s financial interests in export refund legislation
by Dr. Stefan Feit
The granting of export refunds, through which the exporter recovers what he has previously paid in the form of an artificially high price for the raw material, is subject to an increasingly complex and complex set of rules which the Community has established over the years. The central element of these rules is to prevent fraud as far as possible and to ensure that funds are properly used. Anti-fraud rules start with the clearance of market-regulated goods and physical checks, and go on to include the procedure for proving compliance with the conditions for refunds, proof of export from the EU and import into a third country, checks on compliance with the conditions for refunds by the national paying agency, ex post market-regulation checks at the exporter’s premises, etc., and checks by the European Anti-Fraud Office (OLAF). With this multitude of rules, the Community has created a system to protect the Community’s financial interests. The book explains this system and highlights the legal problems associated with the non-payment and recovery of export refunds and the imposition of sanctions.
For more information, please click here. For the whole dissertation, please click here.
European approval law for industrial plants
by Dr. Peter Aertker
Directive 96/61/EC on integrated pollution prevention and control concerns the most important industrial, mostly large-scale, plants in Germany. Like hardly any other European Community legal act, it will have a significant impact on German law because of its requirement for integrated environmental protection. The aim of the directive is, in addition to the joint assessment of the environmental media air, water and soil and a consideration of the production process based on environmental aspects, to achieve a far-reaching concentration of official approval in one procedure. In Germany, integrated environmental protection has so far been more of a vision than a reality. What is required is the conversion of existing structures in accordance with the guidelines or the creation of a new law. Both encounter considerable practical problems.
For more information, please click here.
Settlement of disputes within the World Trade Organization (WTO)
by Dr. Hans-Joachim Letzel
With the founding of the World Trade Organization (WTO) in 1994, the dispute settlement procedure previously known from the General Agreement on Tariffs and Trade (GATT) was fundamentally reformed.
After presenting the historical development of the GATT and the GATT dispute settlement procedure, the author explains the course of a WTO dispute settlement procedure as well as the essential innovations compared to the GATT dispute settlement procedure by the WTO Dispute Settlement Understanding (DSU 1994). Furthermore, he examines the question to what extent the WTO dispute settlement procedure has a judicial character, in particular whether the newly established review body can be qualified as an international court of justice.
Systematics and structure of performance obligations in the wage tax deduction procedure
by Prof. Dr. Bernd Heuermann
The thesis analyzes the structure and system of the wage tax procedural law. Irrespective of the legal as well as economic significance of this field of law – wage tax is the most productive source of tax revenue – many issues remain unresolved, such as the legal structure of wage tax registration, liability debt and liability assessment and, last but not least, the position of the employer in the deduction procedure. In this regard, the work takes a firm stand and develops its own proposals – joint and several debt, the constituent elements of the wage tax declaration; legislative proposal: waiver of the employer’s wage tax liability, etc. A new methodological approach incorporates system-theoretical considerations into the structural analysis of tax law.
Publications by Prof. Dr. Wolffgang
- Kommentar zum Außenwirtschaftsrecht (Hrsg. gemeinsam mit Rogmann und Pietsch), Loseblattwerk, Köln seit 2002
- Kommentar zum Europäischen Abgaben- und Abgabenverfahrensrecht (in Hübschmann/Hepp/Spitaler), (Erstverfasser gemeinsam mit Beermann), Loseblatt, Köln seit 2004
- Kommentar zum Unionszollkodex, 1. Aufl., Köln 2021 (gemeinsam mit Jatzke).
- Lehrbuch des Europäischen Zollrechts, 10. Auflage 2021 (gemeinsam mit Witte).
- Die Fortgeltung von Kreditermächtigungen nach § 13 Abs 2 Satz 1 HGrG – Grundlage für eine “Schattenkreditwirtschaft”?, in: DVBl. 1984, pp. 1049-1054
- Präferenzrecht (Abkommen EG-EFTA, Ursprungsbegründung, Verfahrenserleichterungen, Prüfungsschema), in: DDZ 1991, F1
- Neue Formen der Parteiarbeit (together with Birk), in: DÖV 1991, pp. 481-486
- Reform und Perspektive der außenwirtschaftlichen Exportkontrollen, IWB 1992, p. 865
- Auswirkungen des EG-Zollkodex auf den Rechtsweg im Außenwirtschaftsrecht, DStZ 1994, p. 485
- Der Rechtsweg bei Ausfuhrbeschränkungen, in: DDZ 1994, F77-F78
- Rückforderung von Ausfuhrerstattungen bei Verletzung von Erklärungspflichten , in: ZfZ 1994, pp. 84-85
- Der EG-Zollkodex im Überblick, AW-Prax 1995, p. 35 (together with Witte).
- Zollpräferenzen bei Import und Export, AW-Prax 1995, p. 69
- Folgen der Unterlassungen von Behörden des Ausfuhrstaates , in: AW-Prax 1996, p. 66
- Das Ausfuhrverfahren nach dem Zollkodex, IWB 1996, p. 135
- Europäisches Exportkontrollrecht, Deutsches Verwaltungsblatt 1996, p. 277
- The New European Law of Export Controls in an International Perspective, World Competition Vol. 20 No. 2 December 1996 (together with Hölscher).
- Die EG-Bananenmarktordnung im Spannungsverhältnis von Völkerrecht, Europarecht und Verfassungsrecht, ZfZ 1996, p. 162
- Zoll- und Außenwirtschaftsberatung durch Steuerberater?; Die Steuerberatung 96, p. 402
- Ausfuhrbeschränkungen im Handelsverkehr mit Drittländern; AW-Prax 97, p. 208 , p. 247 (together with Renneberg).
- Informantenschutz im Steuerrecht; DStZ 1998, p. 102
- Das Ausfuhrverfahren (gemeinsam mit Renneber), in: AW-Prax 1998, pp. 67-71
- The Wassenaar-Arrangement between International Trade, Non-Proliferation, and Export Controls; Journal of World Trade Vol. 32 No. 1 February 1998 (gemeinsam mit Hölscher).
- Betrugsbekämpfung im Marktordnungsrecht, in: Rechtsfragen der europäischen Marktordnungen (Hrsg. Ehlers/ Wolffgang), Köln/ Münster 1998.
- Schutz der finanziellen Interessen der Europäischen Gemeinschaften, Europarecht 1998, p. 615 (together with Ulrich)
- Kann –oder soll- das internationale Handelsrecht eine internationale Sozialordnung ersetzen?, in: Internationaler Wettbewerb – nationale Sozialpolitik?, (Hrsg. Aufderheide/ Dabrowski), Berlin 1999, p. 147 (together with Feuerhake)
- Europäische Marktordnung zwischen Markt und Plan, in: Festschrift Hoppe, München 2000, p. 949
- Formal- und Nachweispflichten im Zollrecht, in: Aktuelles zum Finanzstrafrecht, (Hrsg. Leitner), Wien 2000, S. 31 ff. (together with Stüwe)
- Rezension des Werkes Steuerrechtsprechung, Steuergesetz, Steuerreform – herausgegeben von Prof. Dr. Paul Kirchhof u.a., in: AW-Prax 2000, p. 411
- Sicherer Umgang mit Zollpräferenzen, in: AW-Prax 2001, p. 277
- Core Labour Standards in World Trade Law – The Necessity for Incorporation of Core Labour Standards in the World Trade Organization, in: Journal of World Trade Vol. 36 No. 5 October 2002 (together with Feuerhake)
- Türkische Farbfernsehgeräte – Urteil des EuG zu ablehnenden Entscheidungen der Kommission über einen Erlass aus Billigkeitsgründen bei der Vorlage fehlerhafter Präferenznachweise (together with Kirchhoff), in: AW-Prax 2002, pp. 189-192
- Klausur: Künstler im Eis (together with Daroussis), in: NWVBl. 2003, pp. 281-289
- Laudatio – Dr. Albert Beermann zum 70. Geburtstag, in: DStZ 2003, pp. 9-10
- Die Ausfuhranmeldung – Teile 1 und 2 und 3 (together with Weerth), AW-Prax 2003, pp. 195-199
- Die revidierte Kyoto-Konvention, in: ZfZ 2003, pp. 84, pp. 114 (together with Fischer-Zach)
- Der enteignungsgleiche Eingriff im Außenwirtschaftsrecht, in: ZfZ 2004, p. 82 (together with Tervooren)
- European Customs Law, in: Monitor Prawa Celnego i Podatkowego – Taxation and Customs Law Monitor 2004 (together with Ovie)
- Teil 1: pp. 290 – 293
- Teil 2: pp. 340 – 345
- Teil 3: pp. 390 – 394
- Teil 4: pp. 443 – 446
- Teil 5: pp. 486 – 489
- Exportkontrolle unter dem Einfluss des Europäischen und des Deutschen Verwaltungsrechts, in: Risikomanagement im Exportkontrollrecht, Schriften zum Außenwirtschaftsrecht (Hrsg. gemeinsam mit Ehlers), Heidelberg 2004, pp. 39 – 76
- Authorized Economic Operator Status – part one: from Granting to Revocating the Status, in: Customs and Tax Law Monitor 2005, Nr. 12/2005 (together with Makowicz)
- Authorized Economic Operator Status – part two: solutions in third countries and the WCO program, in: Customs and Tax Law Monitor, 2006, Nr. 1/2006, pp. 4-7 (together with Makowicz)
- Authorized Economic Operator Status – part three: analysis in comparision to other countries and future perspectives, in: Customs and Tax Law Monitor, 2006, Nr. 2/2006, pp. 50-52 (together with Makowicz)
- Die Außenhandelsregelungen der EU, in: Harmonization of Law in the Baltic Sea Region in the Turn of the 20th and 21th Centuries, Riga 2006, pp. 585-614
- Der zugelassene Wirtschaftsbeteiligte, in: ZfZ 2006, pp. 357-364
- Grundregeln globalen Zolls in Kraft, in: AW-Prax 2006, pp. 45
- Emerging issues in European customs law, in: World Customs Journal 2007, pp. 3-10; (www.worldcustomsjournal.com)
- The Autorized Economic Operator in the European Union, in: Global Trade and Customs Journal 2007, pp. 377-384;
- Zoll- und Verbrauchsteuerberatung durch Steuerberater – Der „Fachberater für Zölle und Verbrauchsteuern” verbessert die Beratungsqualität, in: Deutsches Steuerrecht 2007, pp. 1550-1552
- Fortentwicklung des Zollrechts durch Sicherheitsänderung und Modernisierten Zollkodex, in: EuZW 2008, pp. 39-44;
- Fortentwicklung des Zollrechts durch Sicherheitsänderung und Modernisierten Zollkodex, in: Journal of the Japanese Institute of International Business Law, Vol. 36, No. 8, August 2008, pp. 981-990, (together with Natzel)
- Customs Union in Europe: Quo Vadis?, in: Administration and Customs in the Environment of Single Market of European Communities, Riga 2008, pp. 56-66.
- Die Verzahnung von Exportkontroll- und Zollrecht, in: AW-Prax 2010, pp. 180-182
- US-Exportkontrolle in der Reform, in: AW-Prax 2011, p. 69.
- Neue Entwicklungen in den EU-Präferenzmaßnahmen, (together with Felderhoff), in: AW-Prax 2011, p. 105
- Ursprungswirrwarr ohne Ende?, in: AW-Prax 2012, p. 1.
- Gegenseitige Anerkennung AEO –C-TPAT, in: AW-Prax 2012, p.219.
- The World Customs Organization and its Role in the System of World Trade: An Overview (together with Christopher Dallimore), in: European Yearbook of International Economic Law 2012 (Hg. Herrmann/Terhechte), p. 613
- Offenlegungsprivileg im Außenwirtschaftsrecht belohnt Complianceprogramme, in: Der Betrieb 2013, p. M1
- Handels- und Sicherheitspolitik unter einem Dach, in: AW-Prax 2013, p. 339.
- The Valuation of Goods for Customs Purposes (together with Christopher Dallimore), in: European Yearbook of International Economic Law 2013 (Hg. Herrmann/Krajewski/Terhechte), p. 391
- Harmonisierung der Sanktionen in der Zollunion, in: AW-Prax 2014, p. 1
- EU-Freihandelsabkommen (together with Henning Felderhoff), in: AW-Prax 2014, Nr. 1, p. 3
- The Eurasian Customs Union in transition (together with Gennadiy Brovka and Igor Belozerov) in: World Customs Journal 2014, p. 93
- Legal thoughts on how to merge trade facilitation and safety & security (together with Edward Kafeero) in: World Customs Journal 2014, p. 3
- Old Wine in new skins: analysis of the Trade Facilitation Agreement vis-à-vis the Revised Kyoto Convention (together with Edward Kafeero) in: World Customs Journal 2014, p. 27
- The WCO’s Framework of Standards and the Internationalization of Supply Chain Security (together with Christopher Dallimore), in: European Yearbook of International Economic Law 2014 (Hg. Herrmann/Krajewski/Terhechte), p. 379
- Compliance in der Exportkontrolle (together with Robert Witte), in: Compliance Berater 2015, p. 138
- Das neue europäische Zollrecht (together with Kerstin Harden), in: Spektrum der Steuerwissenschaften und des Außenwirtschaftsrechts 2/2016, p. 85
- Der zugelassene Wirtschaftsbeteiligte nach dem Unionszollkodex (together with Kerstin Harden), in: ZfZ 2016, pp. 178-187
- Zum nachträglichen Erlöschen der Zollschuld (together with Henning Felderhoff), in: AW-Prax 2016, pp. 337-341
- Einfuhrumsatzsteuerschuld: Abhängig von der Zollschuld?, in: Umsatzsteuer-Rundschau 2017, pp. 845-852
- Brexit – Hinweise der Europäischen Kommission, in: AW-Prax 2018, p. 35
- Freihandelsabkommen mit den USA, in: AW-Prax 2018, p. 133
- 50 Jahre Zollunion, 25 Jahre Binnenmarkt: Wohlstand und Frieden, in: AW-Prax 2018, p. 175
- JEFTA – EU und Japan bekräftigen Freihandel, in: AW-Prax 2018, p. 311
- “Freihandel” in Nordamerika, in: AW-Prax 2018, p. 353
- Zukunft der Revidierten Kyoto Konvention, in: AW-Prax 2018, p. 475
- Bisherige EuGH-Zollrechtsprechung im Licht des UZK – Eine Analyse ausgewählter EuGH-Entscheidungen zum Zollkodex in Bezug auf ihre Übertragbarkeit auf den Unionszollkodex – Teil I (together with Kerstin Harden and Annika Verhorst), in: ZfZ 2018, pp. 2-14
- Bisherige EuGH-Zollrechtsprechung im Licht des UZK – Eine Analyse ausgewählter EuGH-Entscheidungen zum Zollkodex in Bezug auf ihre Übertragbarkeit auf den Unionszollkodex – Teil II (together with Kerstin Harden and Annika Verhorst), in: ZfZ 2018, pp. 26-31
- Zollwertrecht auf der Grundlage der WTO- und WCO-Regelungen – unter besonderer Berücksichtigung von Lizenzgebühren und Verrechnungspreisen, in: ZfZ 2018, pp. 142-154
- Erlöschenstatbestände im Zollrecht – Konnexität zwischen Zoll und Einfuhrumsatzsteuer?, in: 100 Jahre Umsatzsteuer in Deutschland: 1918 – 2018: Festschrift (Hg. UmsatzstuerForum e. V., Bundesministerium der Finanzen), p. 239
- What makes the EU Customs Union Unique?, in: The EU Customs Union @ 50 Concept to Continuum (Hg. Malta Customs/European Commission), 2018, pp. 18-20
- Die Bemessungsgrundlage und das WCO-/WTO-Recht, in: Der Wert bei Drittstaatslieferungen (Hg. Summersberger), 2019, pp. 41-69
- Globalisierung gestalten!, in: AW-Prax 2019, p. 1
- On the future of the WCO Revised Kyoto Convention (together with Rogmann), in: WCO News 88, February 2019. Please click here to read the article.
- Stopp vor der Klippe?, in: AW-Prax 2019, p. 81
- Projekt zur Zukunft des Zollwesens in der EU, In: AW-Prax 2019, p. 165
- Freihandel und Zölle – Ein Beitrag zu aktuellen Entwicklungen auf europäischer und internationaler Ebene, in: AD LEGENDUM 2019, pp. 297-306
- Zoll in der EU 2040, in: AW-Prax 2019, p. 479
- WTO in der Krise, in: AW-Prax 2020, p. 99
- Pandemie und Globalisierung, in: AW-Prax 2020, p. 143
- Zoll in Zeiten der Pandemie, in: AW-Prax 2020, p. 361
- Why the future Revised Kyoto Convention should contain comprehensive rules of customs debt, in: World Customs Journal, Volume 14, Number 2 (together with Prof. Rogmann and Kerstin Harden)
- Aktionsplan für die Zollunion 2020-2024, in: AW-Prax 2020, p.415
- Exportkontrolle in China: Das Dilemma rückt näher, in: AW-Prax 2020, p.461
- Freihandel in Asien auf dem Vormarsch, in: AW-Prax 2020, p.513
- Kurz vor der Klippe gestoppt, in: AW-Prax 2021, p.1
- Aktionsplan für die EU-Zollunion: Harmonisierung im Schneckentempo, in AW-Prax 2021, p.295
- Renaissance der Zölle? Gedanken zu aktuellen Entwicklungen auf europäischer und internationaler Ebene vor dem Hintergrund der historischen Entwicklung des Freihandels, in: Jahrbuch des öffentlichen Rechts der Gegenwart (Hrsg.: Oliver Lepsius, Angelika Nußberger, Christoph Schönberger, Christian Waldhoff und Christian Walter), Band 70 (2022), pp. 691-714
- IPEF: USA zurück in Asien, in: AW-Prax 2022, p.327
- USA versus China: Zur geopolitischen Rolle der EU, in: AW-Prax 2022, p. 379
- Weckruf statt Zeitenwende, in: AW-Prax 2022, p. 589
- Verbindliche Zollwertauskunft in Sicht, in: AW-Prax 2023, p. 1
- Green-Deal-Industrieplan der EU, in: AW-Prax 2023, p. 37
- Defizite der Zollunion bei der Einfuhr, in: AW-Prax 2023, p. 93
- Interplay between customs valuation and transfer pricing in the EU: general observations and administrative practices in four countries after the Hamamatsu case, in: World Customs Journal, Volume 17 (2023), Number 1 ( together with Giangiacomo D’Angelo, Federico Tarini, Walter de Witt, Martijn Schippers, Santiago Ibáñez Marsilla, Jorge Juan Milla Ibañez and Benedikt Wemmer)
- The European Commission’s Proposal for a Modernised Union Customs Code: A Brief Introduction, in: World Customs Journal, Volume 17 (2023), Number 2 (together with Eric Pickett)
- Rechtsschutz in Zollsachen, in: Steuerrechtschutz im Wandel der Zeit, Festschrift 75 Jahre Finanzgericht Münster, 2024, pp. 527-541
- Das Ende der Globalisierung? Geopolitische Unsicherheiten und außenwirtschaftsrechtliche Reaktionen, in: comply 3/2024, pp. 11-15
