Regulation (EU) 2021/444 of the European Parliament and of the Council of 11 March 2021 establishing the Customs programme for cooperation in the field of customs and repealing Regulation (EU) No 1294/2013
Regulation (EU) 2021/444 of the European Parliament and of the Councilof 11 March 2021establishing the Customs programme for cooperation in the field of customs and repealing Regulation (EU) No 1294/2013THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 33, 114, and 207 thereof,Having regard to the proposal from the European Commission,After transmission of the draft legislative act to the national parliaments,Having regard to the opinion of the European Economic and Social CommitteeOJ C 62, 15.2.2019, p. 45.,Acting in accordance with the ordinary legislative procedurePosition of the European Parliament of 16 April 2019 (not yet published in the Official Journal) and Position of the Council at first reading of 1 March 2021 (OJ C 86, 12.3.2021, p. 1). Position of the European Parliament of 10 March 2021 (not yet published in the Official Journal).,Whereas:(1)The Customs 2020 programme set up under Regulation (EU) No 1294/2013Regulation (EU) No 1294/2013 of the European Parliament and of the Council of 11 December 2013 establishing an action programme for customs in the European Union for the period 2014-2020 (Customs 2020) and repealing Decision No 624/2007/EC (OJ L 347, 20.12.2013, p. 209). and its predecessor programmes have significantly contributed to facilitating and enhancing customs cooperation between customs authorities, as well as to building their administrative, human and information technology (IT) capacity. Since many of the activities of the customs authorities are of a cross-border nature, a more effective and efficient way of developing such cooperation is to offer Member States a framework within which it can take place by establishing a customs programme at Union level, implemented by the Commission. Moreover, the Customs 2020 programme has proved to be cost-efficient and has added real value to other customs cooperation frameworks set up on a bilateral or multilateral basis. In addition, the Customs 2020 programme has contributed to safeguarding the financial interests of the Union and of the Member States by supporting the effective collection of customs duties. Furthermore, harmonised customs procedures are important to achieve equivalent results in the prevention of fraud and of illegal cross-border flows of goods. It is therefore appropriate, efficient and in the interest of the Union to continue financing activities in the field of customs cooperation by establishing a new programme, the Customs programme ("the Programme").(2)For 50 years, the customs union has been one of the cornerstones of the Union, which is one of the largest trading blocks in the world. The customs union is a significant example of successful Union integration, and is essential for the proper functioning of the internal market for the benefit of both businesses and citizens. The customs union has evolved considerably over this period and customs authorities are successfully carrying out a wide range of tasks at the borders. Working together, they strive to facilitate legitimate and fair trade, reduce bureaucracy, collect revenue for national and Union budgets, and help to protect the citizens against terrorist, health, environmental and other threats. In particular, by introducing a common risk management framework at Union level and by controlling cash flows to combat money laundering and terrorist financing, the customs authorities play an important role in the fight against terrorism, organised crime and unfair competition. Given their extensive mandate, the customs authorities are effectively the leading authorities for the control of goods at the Union’s external borders. A stronger and a more ambitious Union can only be achieved if the necessary resources are available. In that context, the Programme should not only cover customs cooperation, but should also provide support for the wider mission of customs authorities, as provided for in Article 3 of Regulation (EU) No 952/2013 of the European Parliament and of the CouncilRegulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1)., namely the supervision of the Union’s international trade, thereby contributing to the implementation of the external aspects of the internal market, of the common commercial policy and of the other common Union policies having a bearing on trade, and to overall supply chain security.The legal basis of this Regulation should therefore cover customs cooperation as provided for in Article 33 of the Treaty on the Functioning of the European Union (TFEU), the internal market, as provided for in Article 114 TFEU and the common commercial policy, as provided for in Article 207 TFEU.(3)The Programme should assist the Member States and the Commission by providing a framework for actions that aim to support the customs union and the customs authorities working together and acting as one; to contribute to protecting the financial and economic interests of the Union and its Member States; to ensure the security and safety of the Union and its residents, thereby contributing to consumer protection; to protect the Union from unfair and illicit commercial practices, while facilitating legitimate business activity; and to facilitate legitimate trade so that businesses and citizens can benefit from the full potential of the internal market and world trade.(4)Customs is a dynamic policy area facing new challenges, such as globalisation, new patterns in fraud and smuggling, and digitalisation. These challenges increase the demand for support to customs authorities and call for innovative solutions. They further underline the need to reinforce cooperation between customs authorities.(5)In order to ensure cost-effectiveness, the Programme should exploit possible synergies with other Union measures in related fields, such as the Fiscalis programme, which is to be established by a Regulation of the European Parliament and of the Council establishing the "Fiscalis" programme for cooperation in the field of taxation, the instrument for financial support for customs control equipment, which is to be established by a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for customs control equipment (the "Customs Control Equipment Instrument Regulation"), the Union Anti-Fraud Programme, which is to be established by a Regulation of the European Parliament and of the Council establishing the Union Anti-Fraud Programme, the instrument for financial support for border management and visa, which is to be established by a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for border management and visa (BMVI), the Internal Security Fund, which is to be established by a Regulation of the European Parliament and of the Council establishing the Internal Security Fund, the Single Market Programme, which is to be established by a Regulation of the European Parliament and of the Council establishing the Programme for the internal market, competitiveness of enterprises, including small and medium-sized enterprises, the area of plants, animals, food and feed, and European statistics (Single Market Programme),the Recovery and Resilience Facility established by Regulation (EU) 2021/241 of the European Parliament and of the CouncilRegulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility (OJ L 57, 18.2.2021, p. 17). and the Technical Support Instrument established by Regulation (EU) 2021/240 of the European Parliament and of the CouncilRegulation (EU) 2021/240 of the European Parliament and of the Council of 10 February 2021 establishing a Technical Support Instrument (OJ L 57, 18.2.2021, p. 1)..(6)In view of the importance of tackling climate change, and in line with the Union’s commitments to implement the Paris AgreementOJ L 282, 19.10.2016, p. 4. and to achieve the United Nations Sustainable Development Goals of the 2030 Agenda for Sustainable Development adopted on 25 September 2015, the actions under this Regulation should contribute to the achievement of the Union’s goal of spending at least 30 % of the total amount of Union budget on supporting climate objectives and of the Union’s ambition to spend 7,5 % of the annual Union budget, on biodiversity in 2024 and 10 % in both 2026 and 2027, while considering the existing overlaps between climate and biodiversity goals.(7)This Regulation lays down a financial envelope for the Programme, which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resourcesOJ L 433 I, 22.12.2020, p. 28., for the European Parliament and the Council during the annual budgetary procedure. To be considered eligible for funding, any unforeseen expenditure should be directly related to the objectives of the Programme. The financial envelope of the Programme should cover necessary and duly justified expenses for managing the Programme and evaluating its performance, provided that those activities are related to the general and specific objectives of the Programme.(8)In order to support the process of accession and association by third countries, the Programme should, if certain conditions are fulfilled, be open to the participation of acceding countries, candidate countries, potential candidates and countries covered by the European Neighbourhood Policy. It might also be open to other third countries, in accordance with the conditions laid down in specific agreements between the Union and those countries covering their participation in any Union programme.(9)Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the CouncilRegulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1). (the "Financial Regulation") applies to the Programme. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.(10)Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes, indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget.(11)The actions which applied under the Customs 2020 programme have proved to be adequate and should therefore be maintained. In order to provide greater simplicity and flexibility in the execution of the Programme and thereby better deliver on its objectives, the actions should be defined only in terms of overall categories with a list of illustrative examples of concrete activities. Through cooperation and capacity building, the Programme should also promote and support the uptake and leverage of innovation to further improve the capabilities to deliver on core customs priorities. Actions financed by this Programme should be terminated or adjusted in order to make them more effective or relevant if they prove to be inadequate at any point in time.(12)The Customs Control Equipment Instrument Regulation will be soon adopted. In order to preserve the coherence and horizontal coordination of all cooperation actions relating to customs and customs control equipment, it is appropriate to implement all such actions under a single legal act, namely, this Regulation, containing a single set of rules. Therefore, the instrument for financial support for customs control equipment should support only the purchase, maintenance and upgrade of the eligible customs control equipment, while this Programme should support all other related actions, such as cooperation actions for the assessment of equipment needs or, where appropriate, training in relation to the equipment purchased.(13)The exchange of customs information and other related information is key for the proper functioning of customs and goes well beyond the exchanges within the customs union. Adaptations of, or extensions to, the European electronic systems to enable cooperation with third countries that are not participating in the Programme and with international organisations could be of interest to the Union. Therefore, when duly justified by such an interest, the corresponding adaptations or extensions to the European electronic systems should be eligible for funding under the Programme.(14)Considering the importance of globalisation, the Programme should continue to provide for the possibility of involving external experts within the meaning of Article 238 of the Financial Regulation. Such external experts should mainly include representatives of governmental authorities, including governmental authorities of third countries that are not participating in the Programme, as well as academics and representatives of international organisations, of economic operators or of civil society. The selection of external experts for expert groups should be based on Commission Decision of 30 May 2016 establishing horizontal rules on the creation and operation of Commission expert groups. External experts participating in their personal capacity in ad hoc events under the Programme, such as one-off meetings and conferences, should be selected by the Commission, including from experts proposed by the participating countries. It is necessary to ensure that external experts who are appointed in their personal capacity and required to act independently and in the public interest act impartially and that there is no possible conflict of interest with their professional responsibilities. Information about the selection of all external experts and their participation should be publicly available. The objective of ensuring a balanced representation of stakeholders and the principle of gender equality should be taken into account when selecting external experts.(15)In accordance with the Commission’s commitment to ensure the coherence and simplification of funding programmes, set out in its Communication of 19 October 2010 entitled "The EU Budget Review", resources should be shared with other Union funding instruments if the actions envisaged under the Programme pursue objectives that are common to various funding instruments, provided that this does not result in double financing. Actions under the Programme should ensure coherence in the use of the Union’s resources supporting the customs union and customs authorities.(16)IT capacity-building actions are expected to attract the greatest share of the budget under the Programme. Among those IT capacity-building actions, top priority should be given to those actions related to electronic systems that are necessary for the implementation of the customs union and for customs authorities to carry out their mission. The common and national components of the European electronic systems should be defined in this Regulation. Combinations of common and national components are possible. Moreover, the scope of actions and the responsibilities of the Commission and the Member States should be clearly defined.(17)This Regulation should be implemented by means of work programmes. In view of the mid- to long-term nature of the objectives pursued and building on experience gained over time, it should be possible for work programmes to cover several years. A shift from annual to multiannual work programmes would reduce the administrative burden for both the Commission and the Member States. Multiannual work programmes should be for a maximum of three years.(18)The actions implemented under the Programme should take into account the findings and recommendations of the European Court of Auditors in the field of customs, in particular the special report No 19/2017 of 5 December 2017 entitled "Import procedures: shortcomings in the legal framework and an ineffective implementation impact the financial interests of the EU", and the special report No 26/2018 of 10 October 2018 entitled "A series of delays in Customs IT systems: what went wrong?".(19)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the CouncilRegulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13)..(20)Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-MakingOJ L 123, 12.5.2016, p. 1., the Programme should be evaluated on the basis of information collected in accordance with specific monitoring requirements, while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating, in a comparable and complete manner, the effects of the Programme on the ground. The interim and final evaluations, which should be performed no later than four years after the start of the implementation and the completion of the Programme, respectively, should contribute to the efficient decision-making process concerning cooperation in the field of customs under the next multiannual financial frameworks. It is therefore of the utmost importance that the interim and final evaluations include satisfactory and sufficient information and that those evaluations are delivered in due time. In addition to the interim and final evaluations of the Programme, annual progress reports should, as part of the performance reporting system, be issued to monitor the implementation of the Programme. Those reports should include a summary of the lessons learnt and, where appropriate, of the obstacles and shortfalls encountered, in the context of the activities of the Programme that took place in the year in question. Those annual progress reports should be communicated to the European Parliament and to the Council.(21)In order to respond appropriately to changes in policy priorities, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the list of indicators to measure the achievement of the specific objectives of the Programme and in respect of supplementing this Regulation with provisions on the establishment of a monitoring and evaluation framework. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.(22)In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the CouncilRegulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). and Council Regulations (EC, Euratom) No 2988/95Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ L 312, 23.12.1995, p. 1)., (Euratom, EC) No 2185/96Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2). and (EU) 2017/1939Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office ("the EPPO") (OJ L 283, 31.10.2017, p. 1)., the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The European Public Prosecutor’s Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the CouncilDirective (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29)..In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors, and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights.(23)Third countries may participate in the Programme on the basis of a decision adopted pursuant to an international agreement or on the basis of other legal instruments. A specific provision should be introduced in this Regulation requiring third countries to grant the necessary rights and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences.(24)The eligible costs should be determined by reference to the nature of the eligible actions and including, inter alia, travel and subsistence costs for participants to meetings and similar events or costs linked to the organisation of events. Funding under the Programme should be subject to the principles referred to in the Financial Regulation, such as equal treatment, proportionality, transparency and should ensure the optimal use of its financial resources in achieving its objectives.(25)The types of financing and the methods of implementation under this Regulation should be chosen on the basis of their ability to achieve the specific objectives of the actions and to deliver the intended results, taking into account, in particular, the costs of controls, the administrative burden and the expected risk of non-compliance. Those types of financing and methods of implementation should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation.(26)Since the objective of this Regulation, namely the establishment of a Union programme for cooperation in the field of customs, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.(27)In order to ensure continuity in providing support in the relevant policy area and to allow implementation to start from the beginning of the multi-annual financial framework 2021-2027, this Regulation should enter into force as a matter of urgency and should apply, with retroactive effect, from 1 January 2021.(28)This Regulation replaces Regulation (EU) No 1294/2013, which should therefore be repealed,HAVE ADOPTED THIS REGULATION: