Amendments and dietary supplements to the Customs Legislation, enacted in December 2022, amended the misdemeanour provisions for violations of this legislation. The amendments introduce better certainty relating to the misdemeanour legal responsibility of importers and customs representatives for submitting customs declarations and accompanying paperwork with the aim of reputable conducting of customs procedures. On this article we current our interpretation of the respective amendments.
Within the following articles we intend to further analyse apply of the misdemeanour courts of the Republic of Serbia and EU courts in relation to the legal responsibility of importers and customs representatives for actions or omissions that would lead to incorrect tariffing of products.
1. The Idea of Incorrect Tariffing of Items
Pursuant to the Article 139 of the Customs Legislation (“Official Gazette of the RS”, no. br. 95/2018, 91/2019 – different legislation, 144/2020, 118/2021 and 138/2022; henceforth: CL) all items supposed to be positioned in a customs process, besides within the free zone process, have to be included in a declaration for the respective customs process.
When importing items into the customs territory of the Republic of Serbia with the intention of putting the products into free circulation on the Serbian market, a declaration for putting the products into free circulation have to be submitted. A declarant should possess all knowledge required for reputable conducting of customs process (circumstances of submission of normal and simplified customs declaration). Since putting of products into free circulation could also be topic to cost of customs duties, whereby the customs debt happens in the mean time of acceptance of the declaration by the customs authorities (Article 65 Paragraph 2 of CL), the declaration to be submitted on this event should embody all of components, required for figuring out customs duties.
That’s, above all, the tariff code of products from the legitimate Customs Tariff Nomenclature, which the Authorities of the Republic of Serbia, on the idea of the Article 8 paragraph 3 of the Legislation on Customs Tariff (“Official Gazette of the RS”, no. 62/2005, 61/2007, 5/2009, 95 /2018 – different legislation and 91/2019), harmonizes with the Mixed Nomenclature of the European Union by means of adopting an ordinance no later than in November of the present yr for the next yr (at the moment in power is the Ordinance on Harmonization of the Customs Tariff Nomenclature for the yr 2023 (“Official Gazette of the RS”, no. 132/2022 and 141/2022 – corr.).
The tariff code to be entered within the customs declaration should correspond to the character of products that are topic of the customs process of free circulation. If this isn’t the case, we’re coping with classification of products beneath the wrong tariff code – classification of the products in tariff code with decrease customs price ends in assortment of decrease quantity of customs duties and VAT by customs authorities (incorrect tariffing of products).
Import formalities by the import of products, together with filling and submission of the customs declaration, are in enterprise apply performed by customs representatives on behalf of importers. Because the legislation units forth misdemeanor sanctions for incorrect tariffing of products, the query is, who within the occasion of such misconduct bears misdemeanor duty – the importer, the customs consultant or each.
2. Earlier Customs Legislation and Court docket Observe
In courtroom apply, rendered within the interval of validity of the earlier Customs Legislation (“Official Gazette of the RS”, no. 18/2010, 111/2012, 29/2015, 108/2016 and 113/2017 – different legislation; henceforth: Earlier CL), misdemeanor courts, in circumstances the place direct customs illustration was contracted, frequently declared importers accountable for incorrect tariffing, as a result of they acted within the capability of declarants (e.g. judgment of the Misdemeanor Appellate Court docket, no. Prž 908/2020 as of 27 January 2020).
Nonetheless, in our apply we additionally got here throughout judgments during which completely different standpoints on this situation have been taken in comparison with the sooner courtroom apply. In all of those circumstances the importer has contracted direct illustration with the customs consultant.
The earlier CZ in its Article 294 Paragraph 1 Merchandise 5 prescribed as a misdemeanor failure to insert within the declaration all the info on the products, that are decisive for figuring out the tariff classification in keeping with the nomenclature, or getting into within the declaration a tariff code that’s insufficient in relation to the info on nature of the respective items, whereby such actions trigger or could trigger cost of import duties or different charges in a decrease quantity.
In two newer judgments that we obtained, the courtroom took a stance that solely the customs consultant may be held answerable for the aforementioned misdemeanor, since he was the one who accomplished the customs declaration and entered the tariff code therein, which was subsequently decided as incorrect, respectively that the importer and the approved particular person of the importer didn’t take part within the customs clearance process and consequently they might not be held answerable for such violations, since they didn’t even enter the info of the products within the declaration.
Within the third judgment that we obtained, the courtroom not directly took the place that in case of contracting direct illustration each the customs consultant and the importer are to be held accountable for incorrect tariffing of products respectively getting into inright knowledge within the customs declaration.
Such a stance, though taken whereas applying the Earlier CL, as a matter of truth already mirrored options, enacted by the brand new/present CL.
3.The Present Customs Legislation
Article 12 Paragraph 2 Merchandise 1 of the CL prescribes that the particular person lodging declaration, non permanent storage declaration, entry abstract declaration, exit abstract declaration, re-export declaration, re-export notification, request for an authorization or every other resolution, shall be answerable for accuracy and completeness of the knowledge given within the declaration, notification or request.
Merchandise 2 of the identical paragraph of the identical Article prescribes that obligation from paragraph 1 can be associated to the authenticity, accuracy and validity of any doc accompanying the declaration, notification or request.
Additional, the Article 12 Paragraph 4 of the CL envisages that within the occasion, when the declaration, notification or request is submitted or data is offered by the customs consultant according to the Article 13 of the CL, the customs consultant shall be sure by the obligations from the Article 12 Paragraph 2 of the CL. Therefore, the customs consultant shall even be held accountable for accuracy and completeness of the info included within the declaration.
Relating to customs illustration, Article 13 of the present CL, equally to the Earlier CL, distinguishes between direct and oblique customs illustration. Whereas within the first case the customs consultant acts within the identify and on behalf of one other particular person (principal/importer), within the second case the customs consultant acts in his personal identify and on behalf of one other particular person.
Our understanding is that the intention of the legislator is to harmonize CL with Regulation (EU) no. 952/2013 of the European Parliament and Council as of 9 October 2013 laying down the Union Customs Code (henceforth: EU Customs Code).
The present CL encompasses within the respective provisions almost similar options as envisaged by the EU Customs Code.
EU Customs Code, in Article 15, prescribes that obligation of offering correct and truthful data within the goal of right utility of the customs rules have all individuals, who’re both straight or not directly concerned in performing customs formalities, therefore importers in addition to the customs representatives. It’s explicitly said that the customs representatives, when lodging customs declaration, are additionally sure by obligations associated to accuracy and completeness of knowledge in customs declarations in addition to authenticity, accuracy and validity of paperwork accompanying the declaration.
This provision is rooted within the nature of relationship between the importers and customs representatives which fill out and submit customs declarations to the customs authority, respectively within the obligation between to the 2 to cooperate and ship to one another full and correct knowledge and knowledge for the aim of right utility of customs rules.
To emphasize this correlation, EU Customs Code makes use of formulation “shall be additionally sure by obligations…”, whereby this formulation signifies that duty of each importers and customs representatives for achievement of the stated obligations could exist.
In different phrases, in case of lodging a customs declaration duty for accuracy and completeness of the info contained therein and for authenticity, accuracy and validity of paperwork, duty could in precept be borne by each the importer and the customs consultant, respectively neither of them will a priori be exempted from such duty merely on account of the truth that the events have contracted customs illustration, no matter whether or not illustration is direct or oblique or the truth that customs consultant bodily submits customs declaration to customs authority.
Relying on the circumstances of particular person case, both solely the importer or solely the customs consultant or each will likely be held accountable for incorrect tariffing of the imported items.
Previous to the amendments enacted in December 2022 CL prescribed legal responsibility of a authorized entity and accountable particular person in a authorized entity in circumstances of:
engaging in or trying to perform cost of duties in a decrease quantity, preferential tariff therapy, exemption from cost of import duties, aid in cost of import duties and different charges, cost of diminished quantity, refund or remission of duties or every other aid by means of presenting incorrect or untruthful knowledge or in every other method persuading the customs authority to a incorrect conclusion (Article 266 Paragraph 1 Merchandise 1 in reference to the Article 12 Paragraph 3 of CL earlier than its amendments); engaging in cost of duties in a decrease quantity, preferential tariff therapy, exemption from cost of import duties, aid in cost of import duties and different charges, cost of diminished quantity, refund or remission of duties or every other aid by means of presenting incorrect or untruthful knowledge or in every other method (Article 267 Paragraph 1 Merchandise 2 in reference to the Article 12 Paragraph 3 of CL earlier than its amendments).
Because of dietary supplements and amendments to the CL enacted in December 2022:
a. Article 266 Paragraph 1 merchandise 1 turned Article 265 Paragraph 1 Merchandise 3;
b. Article 267 Paragraph 1 merchandise 2 was deleted and CZ, after the amendments, prescribes in regard to conducting customs formalities the next actions as violations that would lead to lowering the customs duties or engaging in different reliefs (Article 266 Paragraph 1 Gadgets 2 and three).
lodging a declaration or a short lived storage declaration, re-export declaration or a request for an authorization or every other resolution, with incorrect or incomplete knowledge said within the declaration or with incorrect knowledge said within the request, besides in case when such knowledge haven’t any affect on the process, initiated upon the declaration or request, respectively in case of adjustments or dietary supplements to the info within the declaration or adjustments to the info within the request, earlier than endeavor any motion by the customs authority in reference to the motion or omission, i.e. earlier than beginning customs management; enclosing unauthentic, incorrect or invalid doc to the declaration, non permanent storage declaration, re-export declaration or to the request for authorization or different resolution.
In response to the judgment of the Misdemeanour Appellate Court docket, Division in Novi Unhappy, III-306 Prž no. 18618/21, dated September 7, 2021, the wording within the Article 267 Paragraph 1 Merchandise 2 (CL previous to the amendments enacted in December 2022) “presenting incorrect or untruthful knowledge” implies potential legal responsibility of each the customs agent and the importer. The time period “presenting” signifies an motion or omission of the customs agent and the importer leading to cost of customs duties in a decrease quantity.
On this particular case, the courtroom took the stance that the importer shouldn’t be accountable since he offered the oblique customs consultant with all the knowledge and paperwork of relevance for proper tariffing of the products. Such stance signifies that the importer could be liable, had he not delivered all the required data and paperwork to the customs consultant.
CZ, after the 2022 amendments, in its Article 266 Paragraph 1 Merchandise 2 as a substitute of the wording “presentation of incorrect or untruthful knowledge” encompasses the phraseing “lodging of a declaration or non permanent storage declaration, re-export declaration or request for authorization or different decision, with incorrect or incomplete knowledge offered within the declaration”. This wording signifies that both the customs representative who submits the customs declaration on behalf of the importer or the importer himself within the occasion of submitting the customs declaration by himself, might be held answerable for the act of lodging the customs declaration.
The importer might be held liable in circumstances of failure to supply the customs representative with the required paperwork or information of relevance for proper tariffing of products (Article 266 Paragraph 1 Merchandise 3 of CL) and failure to carry out different obligations associated to fulfilment of the tariffing of goods-related customs formalities.
Relating to the misdemeanour from the Article 265 Paragraph 1 Merchandise 3 of CL each the customs consultant and the importer might be held liable in case of intent of individuals engaged by the customs consultant and the importer to perform cost of duties in a decrease quantity by means of an motion or omission that results in lodging of a declaration with incorrect or untruthful knowledge (complicity – Article 23 of the Legislation on Misdemeanours (“Official Gazette of the RS”, no. 65/2013, 13/2016, 98/2016 – CC resolution, 91/2019, 91/2019 – different legislation and 112/2022 – CC resolution; henceforth: LM) , incitement – Article 24 of LM or aiding – Article 25 of LM).
Right utility of rules will largely depend upon how the customs authorities will formulate requests for instigating misdemeanour proceedings, the evidences submitted together with the request in addition to on how the courts will decide the related info and the extent of duty of importers and customs representatives.