18.—(1) Subject to regulation 20, the Commissioners for Her Majesty's Revenue and Customs may exercise the discretion set out in Article 15(4) of the Commission Implementing Regulation where Conditions A to C are met.
(2) Condition A is that the person whose identifier code is being considered for deactivation—
[F1(a)has failed to comply with regulation 6(1) and this is a second, third or subsequent contravention,]
(b)has failed to comply with a notice under regulation 22 by the deadline for compliance set out in that notice,
(c)has deliberately provided false information in an application to the UK ID Issuer for an identifier code that is required or permitted to be made by that person under Chapter III of the Commission Implementing Regulation,
(d)has a conviction, other than a conviction treated as spent for the purposes of the Rehabilitation of Offenders Act 1974, for an offence under the customs and excise Acts,
(e)has, within the last 12-months, become liable to a penalty or penalties under the customs and excise Acts exceeding £10,000, or
(f)has not used the identifier code in the last 12-months.
(3) Condition B is that the Commissioners have given written notice to the person which—
(a)confirms that the Commissioners are considering exercising the discretion in Article 15(4) of the Commission Implementing Regulation to require the UK ID Issuer to deactivate the economic operator identifier code allocated to that person,
(b)identifies—
(i)in cases where paragraph (2)(a) applies, the requirements with which the person has failed to comply F2...,
(ii)in cases where paragraph (2)(b) applies, the notice under regulation 22 with which the person has failed to comply,
(iii)in cases where paragraph (2)(c) applies, the false information provided in an application,
(iv)in cases where paragraph (2)(d) applies, the offence committed under the customs and excise Acts for which the person has been convicted,
(v)in cases where paragraph (2)(e) applies, the contravention of those Acts in relation to which the person has become liable for a penalty, or
(vi)in cases where paragraph (2)(f) applies, the date on which the identifier code was last used,
(c)states that the recipient may make representations in writing to the Commissioners, and
(d)states the date by which any representations must be received by the Commissioners, being a date no earlier than 14 days after the date on which notice is given.
(4) Condition C is that the Commissioners, on being satisfied that deactivation would be duly justified M1, must give written notice to the person of their decision to exercise the discretion stating—
(a)the date from which the deactivation will have effect, and
(b)the period for which the deactivation is to remain in force, being a period no longer than—
(i)is reasonable to protect the traceability system for tobacco products, or
[F3(ia)in cases where paragraph (2)(a) applies—
(aa)a period of six months in the case of a Category A, B, or C contravention which is a second contravention; or
(bb)a period of five years in any other case; or]
(ii)in cases where paragraph (2)(d) applies, the period before the conviction becomes spent.
(5) For the purposes of paragraph (2)(e), a person does not become liable to a penalty until the latest of—
(a)the date on which the penalty becomes payable under the customs and excise Acts,
(b)the determination of a review of that penalty,
(c)the final determination of an appeal against that penalty, or
(d)the withdrawal of any review or appeal referred to in sub-paragraphs (b) and (c).
(6) In this regulation, “the customs and excise Acts” has the meaning given in section 1 of the Customs and Excise Management Act 1979 M2.
[F4(7) Where paragraph (2)(a) applies, if an appeal is made against the decision to give a deactivation notice, or the period of deactivation, the deactivation must be suspended until the final determination of the appeal, but only in a case to which paragraph (8) applies.
(8) This paragraph applies where the person who is the subject of the deactivation notice satisfies the Commissioners that the primary function of the facility linked to the identifier code in respect of which the deactivation is made is the supply of tobacco products.
(9) For the purposes of paragraph (8), the primary function includes (but is not limited to) a case where more than fifty per cent of the gross income of the facility over the six months immediately preceding the date of the deactivation notice issued under paragraph (4) is derived from the sale of, or services related to, tobacco products.]
Textual Amendments
F1Reg. 18(2)(a) substituted (20.7.2023) by The Tobacco Products (Traceability and Security Features) (Amendment) Regulations 2023 (S.I. 2023/606), regs. 1, 5(2)
F2Words in reg. 18(3)(b)(i) omitted (20.7.2023) by virtue of The Tobacco Products (Traceability and Security Features) (Amendment) Regulations 2023 (S.I. 2023/606), regs. 1, 5(3)
F3Reg. 18(4)(b)(ia) inserted (20.7.2023) by The Tobacco Products (Traceability and Security Features) (Amendment) Regulations 2023 (S.I. 2023/606), regs. 1, 5(4)
F4Reg. 18(7)-(9) inserted (20.7.2023) by The Tobacco Products (Traceability and Security Features) (Amendment) Regulations 2023 (S.I. 2023/606), regs. 1, 5(5)
Commencement Information
Marginal Citations
M1Article 15(4) of the Commission Implementing Regulation provides that Member States may require the ID Issuer to deactivate an economic code in duly justified cases. That discretion may only be exercised in accordance with national laws which this Part, together with Parts 7 and 8 of these Regulations, introduces.