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2016 OAS Guidelines

4.I.2. Consultation procedure

In accordance with Article 31(1) of the CAU EA, "the customs authority competent to take the decision may consult the customs authorities of the other Member States which are competent in respect of the place where the necessary information is kept or where controls are to be carried out for the purpose of examining one or more of the criteria set out in Article
of the Code".

As with the information process, the consultation process is usually initiated by the AEE at the beginning of the process, in order to gather information before the authorization is issued. However, this procedure may be initiated at any time the AAE deems it necessary to assess whether the AEO remains compliant. The procedure shall also apply during monitoring (Article 14, paragraph 4, of the AE CAU). In particular, when the EPA decides to initiate a re-evaluation, it must decide whether or not it is necessary to consult with other Member States. If deemed necessary, the AAE launches a consultation and awaits the results; Otherwise, the re-evaluation itself will be carried out and all results (suspensions, revocations, continued validity of the AEO authorisation) will be notified to all Member States after their entry into the SOE system.

According to article 31, section 2 of the AE CAU, this consultation will be mandatory if:

  • The application for obtaining AEO status is submitted in accordance with Article 12(1) of Delegated Regulation (EU) 2015/2446 to the customs authority of the place where the applicant's main accounts for customs purposes are kept or accessible;
  • The application for AEO status is submitted in accordance with Article 27 of Delegated Regulation (EU) 2015/2446 to the customs authorities of the Member State where the applicant has a permanent commercial establishment and where information on its general logistics management activities in the Union is kept or accessible;
  • Some of the records and documentation relevant to the application for AEO status are located in a Member State other than that of the customs authority competent to take a decision;
  • The applicant for AEO status maintains a storage facility or has other customs-related activities in a Member State other than that of the competent customs authority.

For example, it is necessary to initiate an inquiry procedure if the economic operator has one or more premises in another Member State, if part of its customs activities are carried out in other Member States, or to gather information about a key member of management who normally resides in another Member State.
This consultation is mandatory, and the customs authority consulted will respond to the AAE even if the result is positive and the applicant meets the criteria for which verification has been requested. This ensures that the AEE has the relevant information to support its final decision.

The EAA, which has an overview of the applicant and is competent to decide on compliance with the criteria across the economic operator's entire activity, will take due account of the responses from the Member States consulted.
It may happen that the Member State consulted considers that the criteria are not met, but that the EFA is satisfied with a clarification from the applicant. In this case, the Member State concerned will be consulted again.

If no response is received within this period, the EEA will assume that the criteria referred to in the consultation are met in the Member State consulted (Article 14, paragraph 3, of the EEC-UAC).

Pursuant to Article 31(3) of the CAU Agreement, "customs authorities must complete the consultation process within eighty days of the date on which the customs authority competent to take the decision communicates the necessary conditions and criteria to be examined by the consulted customs authority."

In accordance with Article 14, paragraph 2 of the AE CAU, the period established for the consultation may be extended in any of the following cases:

  • When, due to the nature of the examinations to be carried out, the consulted authority requests more time.
  • At the request of the applicant to the consulted customs authority and once the approval of the consulting customs authority has been obtained. During this extended period, the applicant will make the necessary adjustments to meet the criteria for obtaining AEO status and will be required to notify the customs authority concerned of such adjustments.

The consultation periods, extension of the period, and termination in the event of a failure to respond to the consultation may also apply for the purposes of re-evaluating and monitoring a decision under Article 14(4) of the CAU AE.