The comprehensive guarantee can be national or EU-wide. An EU-wide guarantee is lodged as a bank guarantee. National guarantees involve more options. Customs defines the acceptable type of guarantee, guarantee documents and the guarantor, and contacts the customer prior to the delivery of the guarantee.
The guarantee document must comply with the template, and it can be drafted in Finnish or Swedish. For the guarantee, the guarantor must provide a notify address for each Member State where the guarantee is valid. Approval of a foreign bank as the guarantee provider must be verified with Customs Tax Collection prior to the delivery of the guarantee.
The national comprehensive guarantee is valid only in Finland. A national guarantee can be lodged as a bank guarantee or as a bank account pledge. On a case-by-case basis, other pledges such as real estate can also be accepted. Mortgages of businesses, vessels, cars and equipment are not accepted as guarantees. The same applies to deposits to the Customs bank account.
An EU-wide guarantee can be used in more than one Member State, and for placing goods under the Union transit procedure. The transit guarantee must be valid throughout the entire EU territory and in optional agreement countries (Norway, Iceland, Switzerland, Macedonia, Turkey, Serbia, Andorra and San Marino). EU-wide guarantees are lodged as bank guarantees in Finland. Only bank guarantees are accepted as comprehensive guarantees for transit.
Points to consider
A national comprehensive guarantee can be lodged as a bank guarantee or as a bank account pledge. In connection with bank account pledges, the bank provides Customs with a notice of pledge and a certificate of waiving the right of set-off. The customer provides a pledge certificate and a record of the board meeting (decision by the board on the pledge). Documents relating to the bank account pledge must be provided in the precise format accordant with Customs templates, and either in Finnish or Swedish. The account to be pledged should be in a Finnish bank or in a Finnish branch office of a bank established in the EU or EEA.
Templates for bank account pledges:
Bank guarantees must be provided to Customs in the exact format compliant with the guarantee templates. The texts may not be changed, and adding anything to them is not allowed. The guarantee templates are based on mandatory EU legislation.
If only the guarantee amount or period of validity changes, a written confirmation on the change is approved for alterations to guarantees. The confirmation of change must have an official signature and must not contain any other conditions. For the sake of clarity, a new guarantee should be lodged in each situation involving a change. Customs is entitled to request an entirely new guarantee.
Bank guarantee templates:
Due to the format of the guarantee templates, it is required that the guarantee is valid until further notice. This means that guarantees must always be lodged as valid until further notice. For specific and justified reasons, Customs has accepted also guarantees of fixed duration. However, Customs reserves the right to change this practice in this regard so that guarantees of a definite duration are no longer accepted after a specific date. As the term of notice in the guarantee templates is short (16 days), banks can very swiftly limit their liabilities, if necessary.
Guarantee templates are available in the official languages of Finland, in Finnish and Swedish, and guarantees must be provided in these languages. Versions in other languages will not be accepted. You can contact Customs Tax Collection for an unofficial English translation of the guarantee text. When necessary, the English-language version can be used as an aid, for example when an international group of companies decides on lodging a guarantee with Finnish Customs. In any possible situations involving contradictions, the Finnish or Swedish version is always decisive. The bank or the customer company cannot cite the English-language version.
In guarantees, the guarantor must give the notice address for each country where the guarantee is valid.
A claim for payment involving an EU-wide guarantee can be sent directly to the bank from the EU Member States where the guarantee is valid. In transit guarantees, non-EU transit agreement countries can also send claims for payment if the guarantee is valid. This is why the guarantee must include the notify addresses for each Member State where claims are made. The office of guarantee referred to in the template means a customs authority or some other authority located in an EU Member State with the competence to handle matters relating to the guarantee. In Finland, the office of guarantee is Finnish Customs, more specifically the Customs Authorisation Centre.
In terms of an EU-wide guarantee, it must be noted that the guarantor accepts the jurisdiction of the courts in the regions where their notify addresses are located. Finnish law is applied only when a notify address in Finland is used for a claim for payment, notice, formality, procedure or some other notification.
An EU-wide template is valid as of the date of approval by Customs. In practice, Customs sends the bank a scanned copy of the guarantee with a mark of approval through secure e-mail.
Guarantees are suretyships based on the falling due of the principal sum owed. This does not involve a first demand guarantee, that is, a guarantee to be paid immediately upon demand, for which the claim for payment does not require a report on any unpaid dues by the beneficiary. The requirement of 30 days referred to in the guarantee templates does not meant that the guarantee is a first demand guarantee. Instead, the period of payment is imposed mainly to prevent any unwanted payment delays. Member States are to account for payments relating to their traditional own funds, i.e. customs duties, without delay to the Commission. In accordance with the guarantee text, Customs may extend the period of payment, and the bank may also deny its claim for payment. If the parties do not reach a mutual understanding on the claim for payment, the process will move forward as litigation.
In guarantee templates, liabilities are limited in two sets of circumstances:
I. Situations where Customs has issued a claim for payment to the bank (second item, national guarantee template)
When Customs issues a claim for payment, the bank must issue a limitation of liability to Customs within 30 days of the receipt of the claim for payment.
Customs always interprets the limitation of liability as a cancellation of the entire bank guarantee, unless the bank specifically states that the limitation of liability concerns only sums paid.
The bank can limit its liability after the first claim for payment up to the maximum guarantee amount. The beneficiary, i.e. Customs, can however issue several claims for payment up to the maximum guarantee amount if the debt was incurred prior to the notice becoming effective, and if it falls under the guarantee. Every standard payment reduces the guarantee sum, given that there is a limitation of liability. It is important for the bank to issue a limitation of liability immediately after the first request for payment.
Example: The maximum amount referred to in the guarantee document is 50 000 euros. The guarantor will receive the first request for payment on 15 January for 40 000 euros and will pay that sum. The guarantor can limit their liability to the remaining 10 000 euros for all customs transactions that have started prior to 14 February. However, the guarantor will again be liable to pay the requested sum up to 50 000 euros if the second request for payment involves a customs transaction that started prior to 14 February or after that date, unless the guarantor has cancelled the guarantee.
II. Situations where a limitation of liability is issued without a request for payment from Customs; general period of notice (third copy of the national guarantee template)
The bank can issue a notification on the limitation of liability which will enter into force 16 days after the date when Customs receives the notification from the guarantor. This applies to cases where Customs has not issued a request for payment to the bank. In such situations, the bank is not responsible for any debt incurred after the entry into force of the limitation of liability.
If the customer conducts only ordinary exports, i.e. if the customs procedure is release into free circulation, normally the aim is to release the guarantee within about six weeks of its closure. For the release to happen, it is required that all customs invoices are paid.
If the customer has any special procedures that have not been discharged, the guarantee can be returned only after those procedures are appropriately discharged. There are no standard time periods that would apply in such situations.
If the customer has a customs warehousing authorisation, Customs will carry out a final inspection of the warehouse prior to releasing the guarantee. If there is some other unfinished customs control that the customer is undergoing, it must be concluded first.
Customs will issue a request for payment or a conditional request for payment to the bank before the guarantee falls due. After Customs has issued a conditional request for payment, this is followed by a final payment request if the debt remains unpaid or a further guarantee amount has not been provided. A final request for payment can be issued after the expiry of the guarantee. If, prior to the expiry of the guarantee, Customs does not issue a request for payment or a conditional request for payment to the bank, Customs can no longer make any claims relating to the guarantee in question after that particular date, but instead the guarantee is regarded as released.