Bartosz Rakoczy
Ph.D. at Environmental Law
Professor of the University of Gdańsk
Head of the Environmental Law Department
UMK in Toruń
Assistant Professor at the Public Economic and
Environmental Law Department
University of Gdańsk
Legal Counsel
DUTIES
OF CUSTOMS AUTHORITIES RELATED TO ENVIRONMENTAL PROTECTION
At first glance,
there seems to be no relation between customs authorities and environmental
protection. Since customs authorities perform basic duties related to customs
trading, which are connected mainly with the collection of customs charges.
However, such an assessment of customs authorities is not justified and it is
possible, and even advisable, to evaluate their activities in terms of
environmental protection, as well.
This article discusses
the role and meaning of customs authorities in environmental protection. Its
purpose is to characterise customs authorities’ duties related to environmental
protection, appraise them and propose solutions for future.
The structure of
customs authorities is defined in Art. 69 of the Customs Law of 19 March 2004[1].
It provides that „1. In customs procedure, competent authorities shall be:
1) the head of the customs office
– as the first instance authority;
2) the head of the customs inspectorate (Izba Celna) – as:
a) an authority receiving appeals against
decisions of the customs office head,
b) the first instance authority in cases set forth
in customs and separate regulations,
c) an authority receiving appeals against
decisions made thereby at the first instance, unless special regulations
provide otherwise;
3) a minister in charge of public finance – as:
a) the first instance authority in cases related
the ex officio pronouncement of the
invalidity of a final decision of the customs inspectorate head,
b) an authority receiving appeals against
decisions made thereby at the first instance and decisions referred to in Art.
70(2)(2).
2. Higher level authorities are courts of appeals.”
Thus the structure
of customs authorities comprises organisations referred above. However, such
authorities are not considered as environmental protection authorities.
Pursuant to Art. 3(15) of the Environmental Protection Law of 27 April 2001[2], environmental protection authorities ”shall mean administrative
authorities appointed to perform public duties related to environmental
protection in accordance with their characteristics defined in Title VII,
Chapter I”. Art. 376 of Title VII, Chapter I reads that “Subject to Art. 377,
environmental protection authorities shall be:
1) leaders of communes (gmina), towns and cities[3],
2) leaders of counties (powiat),
2a) regional councils (sejmik) of voivodships,
2b) marshals (marszałek) of voivodships,
3)
governors of voivodships (wojewoda),
4) a minister in charge of environmental
issues”.
While Art. 377 of the Environmental Law states that “Environmental
Protection Inspection Authorities acting on the basis of the Environmental
Protection Inspection Act shall perform environmental protection duties unless
the act provides otherwise”.
The doctrine of the environmental protection law points out that the
catalogue of those authorities is closed. Thus, environmental protection authorities
are only units named by legislators in Art. 377 of the Environmental Protection
Law[4].
While W. Radecki presents a different approach since in his opinion the
catalogue is open[5]. Such a
position is supported by K. Gruszecki, who considers the catalogue of
authorities as open[6].
We may also assume an intermediate solution and allow for the separation of
sensu stricto environmental
protection authorities from sensu largo environmental
protection authorities. Indeed, the first group includes those authorities that
legislators specify in Art. 376 and 377 of the Environmental Protection Law.
However, we should also agree with W. Radecki and K. Gruszecki that
environmental protection duties are performed by other authorities that are not
referred therein, as well.
The catalogue of environmental protection authorities does not name customs
authorities. However, this does not mean that such authorities do not perform
any environmental protection tasks and thereby are not environmental protection
authorities. They may be considered as environmental protection authorities sensu largo.
There arises a question which duties customs authorities perform in
relation to environmental protection if they may be considered as environmental
protection authorities in the wide sense of the word.
At the beginning, let’s note that customs authorities are responsible for
environmental issues while performing other of their duties related to customs
administration. Polish legislators assume that certain actions relating to
environmental protection may be performed while taking up actions accompanying
customs administration. These authorities have the best opportunity to take up
environmental protection actions related to foreign legal trading because they
are institutions which an entity trading with abroad contacts most frequently.
Therefore, the consolidation of environmental duties and customs administration
duties may be considered as justified. It is also correct to entrust
environmental protection duties to customs authorities.
Duties of customs authorities may be broken down into preventive and
repressive measures. In the former case, customs authorities carry out only
preventive activities that take the form of control. While in the case of
repressive duties resulting from controls conducted, customs authorities may
seize a given thing and impose defined sanctions on entities.
Control duties of customs authorities related to environmental protection
should be considered as core activities. Since customs authorities carry out control
activities mainly in relation to environmental protection.
The example of control authorities taken by customs authorities in relation
to environmental protection are regulations adopted in the act on protecting
the health of animals and counteracting contagious diseases of animals of 11
March 2004[7]. Pursuant to Art. 24b thereof, ”1. Customs authorities
carry out controls referred to in Art. 12(a) of the Regulation 998/2003 at
selected border crossings.
4. Should any
failure to fulfil requirements related to the transport of domestic animals
accompanying travellers from third countries be observed, customs authorities
shall notify a county veterinary surgeon having jurisdiction over the location
of a given border crossing.
6. Should the
requirements referred to in clause 4 not be fulfilled, domestic animals
accompanying travellers shall be held in the custody of customs authorities
until measures set forth in the Regulation 998/2003 are applied”.
The above case
refers to control competences ensuring that domestic animals imported to the
territory of the European Community from other third country are subject to
documentary control and identification in the case of less than five domestic
animals or requirements and controls defined in the European law in the case of
more than five domestic animals.
Legislators also
defined such control activities relating to environmental protection in the
animal product act of 16 December 2005[8]. Pursuant to Art. 9a thereof ”1. Animal
products exported from the territory of the Republic of Poland to third countries
shall be equipped with health certificates or other documents unless required
by the third country of such product destination.
2. Health certificates or other documents shall be shipped together
with animal products and presented at each requests of customs authorities.
3. Veterinary inspection authorities shall seal means of transport
used to export animal products from the territory of the Republic of Poland to
third countries immediately after each animal product loading.
4. Veterinarian inspection authorities’ right to affix seals shall
not infringe customs authorities’ rights and obligations related to customs
inspection”.
Control activities
are also carried out on the basis of the crop plant protection act of 18
December 2003[9].
“Art. 17a. 1. Plants, vegetable products or objects exported
from the territory of the Republic of Poland to third countries shall be
equipped with phytosanitary certificates or re-export phytosanitary
certificates, if required by the state of destination or transit states.
2. Phytosanitary certificates or re-export phytosanitary
certificates referred to in clause 1 above shall be attached to plants,
vegetable products or objects which they have been issued to at each stage of
transport and presented at each request of customs authorities.”
While, the example
of repressive activities that customs authorities may take up on the basis of
international agreements comprises solutions provided in the Convention on
International Trade in Endangered Species of Wild Fauna and Flora adopted in
Washington on 3 March 1973[10].
Art VIII thereof reads as follows: ”1. The Parties shall take appropriate
measures to enforce the provisions of the present Convention and to prohibit
trade in specimens in violation thereof. These shall include measures:
(a) to penalize trade
in, or possession of, such specimens, or both; and
(b) to provide for the
confiscation or return to the State of export of such specimens.
3. As far as possible, the Parties shall ensure that specimens shall
pass through any formalities required for trade with a minimum of delay. To
facilitate such passage, a Party may designate ports of exit and ports of entry
at which specimens must be presented for clearance. The Parties shall ensure further
that all living specimens, during any period of transit, holding or shipment,
are properly cared for so as to minimize the risk of injury, damage to health
or cruel treatment.
4.
Where a living specimen is confiscated as a result of measures referred to in
paragraph 1 of this Article:
(a) the specimen shall be entrusted to a Management
Authority of the State of confiscation;
(b) the Management Authority shall, after consultation
with the State of export, return the specimen to that State at the expense of
that State, or to a rescue centre or such other place as the Management
Authority deems appropriate and consistent with the purposes of the present
Convention; and
(c) the Management Authority may obtain the advice of
a Scientific Authority, or may, whenever it considers it desirable, consult the
Secretariat in order to facilitate the decision under sub-paragraph (b) of this
paragraph, including the choice of a rescue centre or other place.”
While pursuant to Art. IX of the Convention, ”1. 1. Each Party shall designate for the purposes of the
present Convention:
(a) one or
more Management Authorities competent to grant permits or certificates on
behalf of that Party; and
(b) one or more Scientific Authorities.
4. Any Management Authority referred to in paragraph 2 of this Article
shall, if so requested by the Secretariat or the Management Authority of
another Party, communicate to it impression of stamps, seals or other devices
used to authenticate permits or certificates.”
We may also
distinguish duties applicable to non-public administration entities and duties
accompanying the cooperation with other public administration authorities.
The aforementioned
duties apply to non-public administration entities. Such entities bear control
and repressive responsibilities of customs authorities. While responsibilities
and duties relating to cooperation apply to other public administration
authorities, mainly authorities performing environmental protection duties.
An example of such
duties is the content of Art. 17 of the Environmental Protection Inspection Act
of 20 July 1991[11]. Art. 17.1
thereof sets forth that ”To perform its control activities, the Environmental
Protection Inspection shall cooperate with other control authorities, including
the National Sanitary Inspection, state and government administration
authorities, local governments, civil defence authorities and social
organisations.
2. Such a cooperation shall comprise in particular:
4) the exchange of information
related to the import of goods whose import is prohibited or limited because of
environmental protection with customs authorities and the Border Guards”.
The regulation that
refers to cooperation duties is also Art. 23 of the aforementioned plant
protection act stating that “1. An entity importing plants, vegetable products
or objects subject to phytosanitary control at the border crossing to the
Republic of Poland through a defined point of entry shall present them to control
to the provincial inspector in charge of such import, and cooperate during such
a control.
3. Customs
authorities shall cooperate with entities carrying out phytosanitary control at
the border crossing with regard to such a control and, in particular, inform
the provincial inspector in charge of such a point of entry about the import or
an intention to import plants, vegetable products or objects subject to
phytosanitary control at the border crossing to the territory of the Republic
of Poland.”
Duties of customs
authorities are also provided in the European Union law. Art. 4(25) of the
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code defines the term of a risk in customs administration’s
activities. “Risk means a probability of an event connected with an entry,
exit, transit, transport and final use of goods traded between the customs
territory of the Community and third countries and the presence of
non-Community goods, which:
– makes an adequate application of
Community or domestic measures impossible, or
– causes danger to financial interests of
the Community and its Member States, or
– threatens the security of the Community,
public health, environment or consumers.”
Thus, actions of
the authorities resulting from the risk also comprises issues related to the
environment and environmental protection.
The above examples
of customs authorities’ responsibilities for environmental protection prove
that those authorities play a significant role in environmental protection.
Duties of such authorities are connected with their major customs trade
competences. Customs authorities perform environmental duties while carrying
out their major tasks because it would be difficult for environmental
protection duties sensu stricto to
perform their control activities in relation to customs trade abroad.
Customs authorities
perform their tasks mainly through controls. However, the very control is not
sufficient since sometimes it is justified to apply repressive measures against
entities infringing the law.
Control competences
of customs authorities are mainly connected with their preventive function.
Since control is to prevent against the import of plants, animals or substances
threatening the environment to the customs territory. This is mainly visible in
solutions implemented in the aforementioned Community Customs Code.
Duties of customs
authorities also refer to their cooperation with other authorities, mainly
those that are in charge of environmental protection. Such cooperation covers
mainly the Environmental Protection Inspection. The main legal instrument is
the exchange of information[12].
Polish legislators apply similar solutions for cooperation in other legal acts,
as well.
An important
element connected with environmental protection is customs authorities’
obligation to take a due care of animals. Even if animals are seized, customs
authorities must ensure an adequate place of storage and due care thereto.
To fulfil the
duties imposed by legislators, customs authorities need special knowledge on
environmental protection, including mainly the knowledge of species of
protected flora and fauna. Customs authorities should also be aware of basic
aspects of animal maintenance, know animal needs, feeding methods, etc.
[1] Journal of Laws No 68, item 622 as
amended, hereinafter referred to as the Customs Law.
[2] Journal of Laws No 25, item 150, as
amended, hereinafter referred to as the Environmental Protection Law.
[3] [translator’s note] Wójt, burmistrz, prezydent.
[4] See, for example, Z. Bukowski [in:] J. Ciechanowicz – McLean, Z. Bukowski, B. Rakoczy, Prawo ochrony środowiska. Komentarz (Environmental Protection Law. Comments), Warsaw 2008, p. 596.
[5] W. Radecki, Organy administracji
oraz instytucje ochrony środowiska - tytuł VII ustawy Prawo ochrony
środowiska. Komentarz. (Environmental Protection Administrative
Authorities and Institutions – Title VII of the Environmental Protection Law.
Comments), Wrocław 2002, p. 9.
[6] K. Gruszecki, Prawo ochrony
środowiska. Komentarz (Environmental Protection Law. Comments), ed. 2, Warsaw 2008, p.
741.
[7] Journal of Laws of 2008, No 213, item
1342.
[8] Journal of Laws of 2006, No 17, item
127, as amended.
[9] Journal of Laws of 2008, No 133, item
849.
[10] Journal of Laws of 1991, No 27, item
112, as amended.
[11] Journal of Laws of 2007, No 44, item
287, as amended.
[12] W. Radecki, Ustawa o Inspekcji Ochrony Środowiska z komentarzem (Environmental Protection Inspection Law with Comments), Wrocław 2000.