circular economy,  compliance e AEO,  energie rinnovabili

CBAM authorized declarant: the implementing regulation, serious and repeated infringements.

Ottobre 31, 2024 /

EU Commission shared the draft of the implementing regulation of “…Regulation (EU) 2023/956 of the European Parliament and of the Council as regards the conditions and procedures related to the status of authorised CBAM declaration…”.

On this draft EU Commission is asking for the feedback by means of a survey.

The authorized CBAM declarant has to:

  1. Perform the procedures via CBAM registry in electronic format;
  2. Where the applicant is a legal person established in a third country and is in one of the situations referred to in Article 5, point (31)(b), of Regulation (EU) 952/2013 of the European Parliament and of the Council4 , the applicant shall provide its address in that third county and its address of establishment in the Member State where the application is submitted;
  3. Each application shall automatically be assigned a unique application reference number in the CBAM registry;
  4. The applicant shall inform the competent authority without delay of any changes to the information provided in the application and shall request an adjustment of that information before a decision on the application has been made. The applicant shall submit the request for an adjustment, together with any relevant information and supporting documents, to the competent authority. It important to consider that “Where the requested adjustments are substantial, the competent authority may discard the application and require the submission of a new application”.

The competent authority has to assess the application within 120 days according to article 4 of the mentioned draft which states that: “…The competent authority shall assess the application within 120 calendar days from the date of receipt of the application. 2. For the purposes of evaluating whether the criteria set out in Article 17(2) of Regulation (EU) 2023/956 are met, the competent authority may take into account the following: (a) expert conclusions; (b) third party conclusions; (c) audits provided by the applicant. 3. The competent authority shall document the evaluation of compliance with the criteria set out in Article 17(2) of Regulation (EU) 2023/956 and its results. 4. Where the applicant is not established in the Member State of submission of the application, the competent authority shall refuse the application. The competent authority shall notify the applicant of the refusal and the reasons thereof without delay…”.

The national competent authority can ask for additional data (with a term of 30 days) and, in anycase, must provide the final feedback within 180 days. At his regards, article 5 states that: “Article 5 Request for additional information by the competent authority 1. The competent authority may request additional information from the applicant necessary for the evaluation of the conditions and with the criteria set out in Article 17(2) of Regulation (EU) 2023/956. The applicant shall provide the competent authority with the information requested in accordance with the first subparagraph, including supporting documents where applicable, within the deadline set by the authority. The deadline shall not exceed 30 calendar days from the date of the request for additional information. 2. When the competent authority requests additional information, it may extend the deadline set out to in Article 4(1) by up to 30 calendar days. The competent authority shall inform the applicant of such an extension and the reasons thereof. 3. The assessment of an application in the cases where additional information is requested in accordance with this Article shall not exceed 180 days from the date of receipt of the application…”.

For the electricity field, the importer within the month when lodged the first customs declaration has to provide the data listed by article 8: “ (a) the information referred to in Article 5(5), points (a), (b) and (c), of Regulation (EU) 2023/956; (b) an indication that capacity for the import of electricity has been allocated to them and that they have nominated that capacity for import in accordance with Article 5(4) of Regulation (EU) 2023/956; (c) documents supporting the indication referred to in point (b) of this paragraph…”.

Two prerequirements that should be met by the

  • Serious or repeated infringements (article 10). For this topic, the AEO approach based on the ongoing check of the sanctions can help the compliance with the CBAM requirements.  InArticle 10 lays down that: “… The criteria laid down in Article 17(2), point (a), of Regulation (EU) 2023/956 shall be fulfilled where the applicant, the persons in charge of the applicant’s CBAM matters, the persons in charge of the applicant and the persons exercising control over the management of the applicant meet the following conditions: (a) there is no decision, made after administrative or judicial proceedings, concluding that they have been involved, during the five years preceding the application, in a serious or repeated infringement of customs legislation, taxation rules, market abuse rules or of Regulation (EU) 2023/956 or delegated and implementing acts adopted under that Regulation in relation to their economic activity; (b) they have no record of serious criminal offences in relation to the economic activity of the applicant. 2. Where the applicant has been established for less than 5 years referred to in Article 5(5), point (e), of Regulation (EU) 2023/956 in a Member State, the competent authority of that Member State shall assess the application on the basis of the records and information that are available to it. 3. The competent authority shall request the following information, where necessary to establish that the applicant has not been involved in a serious or repeated infringement referred to in Article 17(2) point (a) of Regulation (EU) 2023/945: (a) the criminal record or any other document that is accepted under national law as a criminal record of the natural person applying for authorisation; (b) the criminal record, or any other document that is accepted under national law as a criminal record, of the beneficial owner of the legal person acting as applicant and the managers of that legal person. 4. Where the competent authority requests the criminal record or any other document that is accepted under national law as a criminal record referred to in paragraph 3, the competent authority shall record the reasons for such request. The competent authority shall not retain the criminal record or any other document accepted under national law as criminal record after the decision to grant or to refuse authorisation has been made, in accordance with the time limit under Article 4(1). The competent authority shall ensure that access to criminal records is limited to persons who are responsible in that competent authority for carrying out the assessment of serious or repeated infringements”.
  • Conditions for financial and operational capacity (article 11): “…The criteria laid down in Article 17(2), point (b), of Regulation (EU) 2023/956 shall be fulfilled where the following conditions are met: (a) the applicant is not subject to bankruptcy proceedings; (b) the applicant is not in arrears with the payment of customs duties, taxes or charges which are collected on or in connection with the import of goods, financial regulatory obligations and all other duties related to its economic activity; (c) the applicant demonstrates, on the basis of supporting documents provided together with the application, a sufficient financial standing to meet its obligations and fulfil commitments having regard to the type and volume of the economic activity performed by indicating the financial figures and any other financial information; (d) the applicant has an administrative organisation suitable for fulfilment of the estimated obligations to surrender CBAM certificates, and has internal controls capable of preventing, detecting and correcting errors in CBAM declarations and CBAM certificates management, and of preventing and detecting illegal or any irregular transactions. 2. If the applicant has been established for less than two years, the financial capacity as referred to in Article 17(2), point (b), of Regulation (EU) 2023/956 shall be checked assessed on the basis of records and information that are available. 3. When examining the conditions referred to in paragraph 1 of this Article, the competent authority shall take into account the specific characteristics of the applicant, including the information on the estimated volume of imports provided by the applicant in accordance with Article 5(5), point (g), of Regulation (EU) 2023/956. 4. Where the competent authority expects that the applicant’s annual estimated obligation to surrender CBAM certificates exceeds the amount of EUR 500 000, when examining the conditions referred to in paragraph 1 of this Article, the competent authority shall request the financial statement audit report, where applicable, in addition to the financial statements referred to in Article 5(5), point (f), of Regulation (EU) 2023/956...”