31 July 2024

Administrative Liability for Customs Violations in Russia & EAEU

July 31, 2024

BRACE Law Firm ©

Compliance with customs legislation is mandated by EAEU legal acts; failure to comply results in administrative liability for the person violating the established customs law.

The Customs Code of the EAEU stipulates that if signs of an administrative offense or crime are identified during a customs audit, customs authorities take measures in accordance with the legislation of the member states. [1] Within the framework of mutual assistance, EAEU participants have entered into regulatory documents regarding violations of customs legislation and the imposition of liability:

Agreement on Peculiarities of Criminal and Administrative Liability for Violations of Customs Legislation of the Customs Union and the Member States of the Customs Union dated July 5, 2010[2] (the "Agreement on Liability Details");
Agreement on Legal Assistance and Interaction of Customs Authorities of the Member States of the Customs Union on Criminal Cases and Cases of Administrative Offenses dated July 5, 2010[3] (the "Agreement on Legal Assistance and Interaction").

The Agreement on Liability Details provides that administrative offenses constitute violations of the customs legislation of the Customs Union and the legislation of EAEU countries, the oversight of which is entrusted to customs authorities, and for which administrative liability is provided by the legislation of EAEU states.[4]

Which Violations of Customs Legislation Entail Administrative Liability?

In Russian legislation, administrative liability for offenses in the field of customs legislation is codified in Chapter 16 of the CAO RF, Administrative Offenses in the Field of Customs (Violation of Customs Rules), and is provided for:

illegal movement of goods and (or) international transport vehicles across the customs border;
non-declaration or inaccurate declaration of goods;
non-compliance with prohibitions and restrictions on the import or export of goods;
non-declaration or inaccurate declaration of cash and (or) monetary instruments by individuals;
violation of the customs control zone regime;
failure to take measures in the event of an accident or force majeure;
submission of invalid documents during customs operations;
mooring to a watercraft or other floating craft under customs control;
non-delivery, release (transfer) without the permission of the customs authority, or loss of goods or non-delivery of documents for them;
non-compliance with the customs transit procedure;
destruction, removal, modification, or replacement of identification means;
non-compliance with deadlines for filing a customs declaration or submitting documents and information;
performance of cargo or other operations with goods under customs control without the permission or notification of the customs authority;
violation of the procedure for placing goods in storage, the procedure for their storage, or the procedure for performing operations with them;
failure to submit reporting to the customs authority;
violation of deadlines for the temporary storage of goods;
submission of invalid documents for the release of goods prior to filing a customs declaration;
failure to export or failure to re-import goods and (or) transport vehicles by individuals;
non-compliance with the customs procedure;
illegal use or disposal of conditionally released goods or seized goods;
illegal use of goods, their acquisition, storage, or transportation;
violation of deadlines for paying customs payments;
illegal performance of activities in the field of customs;
illegal operations with temporarily imported transport vehicles.

An administrative offense is an unlawful, guilty act (omission) of an individual or legal entity for which administrative liability is established by the CAO RF or the laws of Russian constituent entities regarding administrative offenses. [5] The definition of "administrative offense" itself contains the signs of an administrative offense; we reflect them as applied to customs matters:

unlawfulness, i.e., the commission of an act that violates the norms established by customs legislation;
guilt, i.e., guilt must be established and proven, and it is important to note that guilt may take the form of intent or negligence;
punishability, i.e., administrative liability is provided for committing an unlawful act in the field of customs.

It is important to distinguish an administrative offense from a "crime," which is defined as a guiltily committed socially dangerous act prohibited by the Criminal Code of the Russian Federation under threat of punishment. [6] Despite the common sign of guilt, the essential difference between an administrative offense and a crime is the social danger of the crime. Furthermore, the degree of social danger of a crime is established by the court depending on the specific circumstances of the deed, particularly the nature and extent of the consequences, the method of committing the crime, the defendant's role in a crime committed in complicity, the type of intent (direct or indirect), or negligence (recklessness or carelessness). [7]

At the same time, the primary objects of administrative offenses in the field of customs are social relations and acts that arise during customs operations, such as the declaration of goods, payment of customs payments, performance of customs control, etc.

Who May Be a Subject of Administrative Offenses in the Field of Customs?

The subject of an administrative offense in the field of customs is the person guilty of committing an offense in this area. The main subjects of administrative offenses are individuals and legal entities; however, in the field of customs, it is customary to highlight special subjects defined by customs legislation as distinct entities, which include:

the declarant;
the customs representative;
the carrier;
persons possessing authority regarding the goods;
other interested parties.

It is important to note that for administrative offenses in the field of customs legislation, individuals performing entrepreneurial activities without forming a legal entity, i.e., individual entrepreneurs, bear administrative liability as legal entities.

In addition, the subjective side of administrative offenses in the field of customs is characterized by the presence of guilt in the form of intent or negligence.

Statistics of Administrative Offenses in the Field of Customs

Despite the extensive list of offenses in the field of customs for which the CAO RF provides liability, the most frequent cases of being held liable are cases involving:

non-declaration or inaccurate declaration of goods;
non-compliance with prohibitions and restrictions on the import or export of goods;
failure to submit or untimely submission to the customs authority of a statistical form for recording the movement of goods;[8]
violations of the currency legislation of the Russian Federation and acts of currency regulation authorities.[9]

Next, we will separately consider the main compositions of administrative offenses in the field of customs.

Non-declaration or Inaccurate Declaration of Goods [10]

The Customs Code of the EAEU establishes that goods are subject to customs declaration when placed under a customs procedure; [11] however, the non-declaration of goods entails the imposition of administrative liability on the subject of the administrative offense. The object of the offense under Article 16.2 of the CAO RF is the violation of rules for declaring goods moved across the EAEU border. The subjects for being held liable under this article are individuals and legal entities upon whom the duty to declare goods is imposed by customs legislation. Furthermore, for Parts 2 and 3 of Article 16.2, the subjects of the offense also include the declarant and the customs representative.

Non-declaration in the established form entails the imposition of an administrative fine, with or without confiscation of the goods, or the confiscation of the items of the administrative offense.

The declaration by a declarant or customs representative during the customs declaration of goods of inaccurate information regarding their classification code under the Unified TN VED of the EAEU, coupled with the declaration during the description of goods of incomplete or inaccurate information regarding their quantity, properties, and characteristics affecting their classification, or their name, description, country of origin, customs value, or other information, if such information served or could have served as a basis for exemption from the payment of customs duties or taxes or for reducing their amount, entails the imposition of an administrative fine with or without confiscation of the goods that were the items of the administrative offense, or the confiscation of the items of the administrative offense.

Furthermore, the declaration by a declarant or customs representative during the customs declaration of goods of inaccurate information about the goods or the submission of invalid documents, if such information or documents served or could have served as a basis for non-compliance with prohibitions and restrictions established by international treaties of EAEU member states, EAEU decisions, or Russian regulatory legal acts, entails the imposition of an administrative fine with or without confiscation of the goods that were the items of the administrative offense, or the confiscation of the items of the administrative offense.

During the consideration of administrative cases for liability under this article, it is also necessary to establish the subjective side, which may be expressed either in the form of intent to deliberately not perform the necessary actions provided for by customs legislation, or in the form of negligence, for example, due to ignorance of current legislation, failing to properly declare goods moved across the EAEU border.

Given that the customs value includes not only the cost of the goods but also accompanying payments, it is important during the customs clearance of goods to include, among other things, license payments in the customs value. For instance, the customs authority held a customs representative administratively liable [12] for the absence of information regarding a license agreement granting the right to use a trademark and the payments transferred under such an agreement.

Non-compliance with Prohibitions and Restrictions [13]

Goods are moved across the EAEU customs border and placed under customs procedures in compliance with prohibitions and restrictions. [14] The movement of goods across the EAEU customs border must be carried out in compliance with:

non-tariff regulation measures;
sanitary measures;
veterinary and sanitary measures;
quarantine phytosanitary measures;
radiation requirements.

In addition, restrictions of an economic nature include prohibitions and restrictions such as the establishment of quantitative restrictions, the introduction of quotas, licensing, the granting of exclusive rights to the export and (or) import of certain types of goods, as well as special safeguard measures, antidumping measures, and countervailing measures. Compliance with prohibitions and restrictions of an economic nature is required when placing goods under customs procedures for release for internal consumption, export, processing on the customs territory, and processing for internal consumption. [15]

To ensure the security of the Russian Federation, special economic measures in the field of foreign trade may also be adopted, which introduce restrictions on the export and import of products and raw materials. [16] For example, a permissive procedure has been introduced for the export outside of Russia to the territories of EAEU member states [17] of:

certain types of agricultural machinery and parts for them;
certain types of transport vehicles, their parts, and components;
certain types of industrial products;
certain types of telecommunications equipment, parts, and materials;
certain types of laboratory, mining, geological exploration, and geophysical equipment and parts for it;
certain types of medical goods.

Exporting goods outside of the Russian Federation allows customs authorities to initiate an administrative offense case under Article 16.3 of the CAO RF, [18] according to which non-compliance with prohibitions and restrictions on the import of goods into the EAEU customs territory or Russia and (or) the export of goods from the EAEU customs territory established by international treaties of EAEU member states, decisions of the Eurasian Economic Commission, or Russian regulatory legal acts entails administrative liability.

The object of such an offense is the violation of the established procedure and conditions for moving goods across the customs border. The subjects of an administrative offense under this article are recognized as persons upon whom the duty to comply with the established prohibitions and restrictions is imposed; as a rule, such persons include:

carriers;
declarants;
authorized economic operators.

At the same time, the objective side under this article is formed by an act or omission of a person expressed in non-compliance with prohibitions and restrictions on the import of goods into the customs territory and (or) the export of goods from it established by international treaties of EAEU member states, EEC decisions, or Russian regulatory legal acts, and the subjective side of such administrative offenses may be expressed in the form of intent or negligence.

For example, consider a case where the court established that a company exported goods to the Republic of Kazakhstan without obtaining permission from the Ministry of Digital Development, Communications, and Mass Media of the Russian Federation. These circumstances indicate the presence of an administrative offense event in the company's act as provided for by Article 16.3 of the CAO RF. In this case, there was no evidence confirming that the applicant took all measures within its power to properly comply with the requirements of current legislation and prevent the commission of an administrative offense, nor did it submit evidence of applying for permission or for clarification regarding the procedure for issuing an export permit.

Failure to Submit or Untimely Submission to the Customs Authority of a Statistical Form for Recording the Movement of Goods

The statistical form for recording the movement of goods is established by Russian Government Decree No. 891 dated June 19, 2020, On the Procedure for Maintaining Statistics on Mutual Trade of the Russian Federation with Member States of the Eurasian Economic Union and the Invalidation of Russian Government Decree No. 1329 dated December 7, 2015; the failure to submit or untimely submission [19] of this form to the customs authority, or the submission of a statistical form for recording the movement of goods containing inaccurate information, including the repeated commission of an administrative offense, entails the imposition of an administrative fine.

The object of an administrative offense under this article is social relations in the field of statistical recording, and the objective side consists of:

the failure to submit a statistical form for recording the movement of goods;
the submission of a statistical form for recording the movement of goods with inaccurate information.

At the same time, the subjects under Article 19.7.13 of the CAO RF are foreign trade participants upon whom the duty to provide statistical forms to customs authorities is imposed, while the subjective side may be characterized by intent or negligence.

In the event of the voluntary submission by an individual entrepreneur or legal entity to the customs authority that registered a statistical form containing inaccurate information of an application to cancel this statistical form with the simultaneous submission of a new statistical form containing accurate information, the person who committed the administrative offense provided for by this article is exempted from administrative liability for the specified offense if, as of the date preceding the date of receipt of the application to cancel the statistical form and the registration of the new statistical form, the customs authority had not identified the administrative offense in accordance with this Code, the subject of which is the information about the goods specified in the application to cancel the statistical form.

Violation of Russian Currency Legislation and Acts of Currency Regulation Authorities [20]

Foreign trade activity is inextricably linked with the use of foreign currency, as most contracts are concluded and performed in foreign currency. At the same time, within the framework of customs matters, the performance of illegal currency operations — that is, currency operations prohibited by Russian currency legislation or performed in violation of Russian currency legislation — entails the imposition of an administrative fine, the amount of which depends on the size of the amount involved in the violation.

The article contains several compositions of administrative offenses:

the performance of illegal currency operations;
the failure by a resident to submit to the tax authority a report on money transfers without opening a bank account using electronic means of payment;
the submission by a resident to the tax authority in violation of the established deadline and not in the established form of a notification of opening an account or changing account details in a bank;
the failure by a resident to perform within the established deadline the duty to receive foreign currency or the currency of the Russian Federation in their bank accounts in authorized banks;
the failure by a resident to perform within the established deadline the duty to ensure the receipt in their accounts opened in authorized banks and (or) in accounts opened in banks outside the territory of the Russian Federation in accordance with requirements established by Russian currency legislation, under foreign trade contracts for which Russian currency legislation provides for the issuance of a transaction passport, of Russian currency in a share determined by the Russian Government;
the failure by a resident to perform within the established deadline the duty to perform or terminate obligations under a foreign trade agreement (contract) concluded between a resident and a non-resident to which the requirements of Russian currency legislation and acts of currency regulation authorities and currency control authorities apply, by methods permitted by Russian legislation;
the failure by a resident to perform within the established deadline the duty to return to the Russian Federation funds paid to non-residents for goods not imported into Russia, work not performed, services not rendered, or for information or results of intellectual activity not transferred, including exclusive rights to them, etc.

The subjects under this article are individual entrepreneurs, citizens, officials, and legal entities that are residents of the Russian Federation, depending on the composition of the offense. Acts qualified under this article may be committed intentionally or through negligence.

Violation of the Customs Control Zone Regime [21]

The movement of goods and (or) transport vehicles or persons, including officials of state bodies (excluding officials of customs authorities), across the border of a customs control zone or within its limits, or the performance of production or other economic activities without the permission of the customs authority, if such permission is mandatory, entails a warning or the imposition of an administrative fine.

The movement of goods and (or) transport vehicles across the borders of a customs control zone means the physical crossing of these borders by goods and (or) transport vehicles. In this case, if several groups of goods and (or) transport vehicles, each of which has separate accompanying documents, are moved within a single shipment (i.e., at the same time by the same person) without the permission of the customs authority across the specified borders, the violator's actions are to be qualified as one offense regardless of whether there are documents for the shipment as a whole. [22]

The object of an administrative offense under this article is the rules for moving goods and transport vehicles across the customs border and compliance with the established customs control zone regime. The subjects are individuals, legal entities, officials (exceptions are officials of customs authorities), as well as persons performing entrepreneurial activities without forming a legal entity, i.e., individual entrepreneurs.

The objective side on this ground is expressed in the movement of goods and (or) transport vehicles or persons across the border of a customs control zone or within its limits, or the performance of production or other economic activities without the permission of the customs authority, if such is mandatory, and the subjective side may be expressed in the form of intent or negligence.

As an example of being held liable on this ground, a case may be cited where, during a customs inspection, shunting work began and a platform was moved outside the established temporary customs control zone (the "VZTK"), which was recorded by photographic materials. No applications for moving the railway platform across the VZTK borders were received, and no permission to move transport vehicles across the VZTK borders or to perform shunting work was issued. Due to the identified violation, an administrative offense report was drawn up, for which liability is provided by Article 16.5 of the CAO RF. A mandatory sign of such actions is their illegality, i.e., the performance of operations without the permission of customs officials. The oversight body qualified the company's action as a violation of the customs control zone regime, which constitutes the objective side of an administrative offense.

Submission of Invalid Documents during Customs Operations[23]

The submission of documents to the customs authority during customs operations, which resulted in the declaration of inaccurate information about goods to the customs authority, if such information served or could have served as a basis for exemption from the payment of customs duties or taxes or for reducing their amount, and (or) non-compliance with prohibitions and restrictions established by international treaties of EAEU member states, EAEU decisions, or Russian regulatory legal acts, entails the imposition of an administrative fine with or without confiscation of the goods that were the items of the administrative offense, or the confiscation of the items of the administrative offense.

The object of the offense under this article is the violation of the rules for performing customs operations (customs clearance) regarding goods moved across the customs border. The subjects of the offense are the declarant or customs representative who declared inaccurate information during customs operations, customs carriers, authorized economic operators, as well as other persons who may own a temporary storage warehouse or a customs warehouse.

The objective side of such an offense is expressed in the submission by a declarant or other person to a customs representative or other person of documents for their submission to the customs authority during customs operations, which resulted in the declaration of inaccurate information about the goods. The subjective side is expressed in the presence of guilt in the form of intent or negligence.

A mandatory sign of the specified offense is the occurrence of adverse consequences, where inaccurate information served or could have served as a basis for exemption from the payment of customs duties or taxes or for reducing their amount, and (or) non-compliance with established prohibitions and restrictions. As a rule, such an administrative offense covers customs operations related to declaration, arrival, departure, and temporary storage of goods. It is important to note that during customs control, a customs expert examination may be appointed, the results of which reveal the compliance of the declared goods and their properties with actual characteristics.

As an example of liability on this ground, a case may be cited where the customs authority, based on the expert's response from the EKS-Regional Branch of the Central Expert-Criminalistic Customs Administration of the Federal Customs Service of Russia, established that the chemical composition of the goods, according to scientific and technical sources, was characteristic of alumocobaltmolybdenum catalysts, did not correspond to molybdenum oxide MoO3, and did not meet the classification criteria of the commodity sub-heading specified by the company in the goods declaration; [24] instead, it satisfied the criteria for the commodity sub-heading for slag, ash, and residues (except those from the manufacture of iron or steel), containing metals, arsenic, or their compounds: containing mainly aluminum. As a result, the court established that during the customs declaration, documents containing inaccurate information about the TN VED code of the EAEU and the incorrect name of the goods were submitted to the customs authority, which led to the declaration of inaccurate (incomplete) information about the quality characteristics of the goods and served as a basis for reducing the amount of customs payments due.

Non-compliance with the Customs Transit Procedure [25]

Non-compliance by a carrier with the customs transit deadline established by the customs authority or the goods transportation route determined by the customs authority, or the delivery of goods to a customs control zone other than the one determined by the customs authority as the place of delivery, entails a warning or the imposition of an administrative fine.

Customs transit [26] is a customs procedure under which goods are transported (shipped) from the customs office of departure to the customs office of destination without the payment of customs duties, taxes, special, antidumping, or countervailing duties, provided that the conditions for placing goods under this customs procedure are met.

When placing goods under the customs transit procedure, the customs office of departure establishes the deadline within which the goods must be delivered from the customs office of departure to the customs office of destination. [27] The goods transportation route is established by customs authorities to ensure control over the transportation of goods. [28] When placing goods under the customs transit procedure, the customs office of departure determines the place where the goods placed under the customs transit procedure must be delivered. The place of delivery for goods is determined based on information about the destination point specified in the transport (shipping) documents, unless otherwise established. The place of delivery for goods is the customs control zone located in the region of activity of the customs office of destination. [29]

The object of an administrative offense under this article is the mandatory compliance with the established customs transit procedure, and the subject is the carrier.

The objective side of the offense under this article is characterized by:

the delivery of goods to a customs control zone other than the one established by the customs authority as the place of delivery;
non-compliance with the established customs transit deadline;
non-compliance with the goods transportation route.

As with most administrative offenses in the field of customs, the subjective side is characterized by forms of guilt in the form of intent and negligence.

For example, the courts established that an OJSC was found guilty of committing an administrative offense for which liability is provided by Article 16.10 of the CAO RF, with a penalty imposed in the form of a fine of 10,000 rubles due to a violation of the customs transit deadline established by the customs authority by 36 days.[30]

Non-compliance with Deadlines for Filing a Customs Declaration or Submitting Documents and Information [31]

Non-compliance with established deadlines for filing a full customs declaration, filing a customs declaration in violation of established deadlines in cases where declaration is carried out after the actual export of goods, or the failure to submit documents and information necessary for customs control within the deadline established by the customs authority entails the imposition of an administrative fine. The subject of offenses provided for by Article 16.12 of the CAO RF is the person upon whom the duty to perform operations necessary for the release of goods lies, and after the start of the customs declaration procedure — the declarant. [32]

The object of the offense under the article is the rules for placing goods under a specific customs procedure and customs control in the part related to the declaration of goods or during the release of goods prior to filing a customs declaration. The subjects of the administrative offense are officials of customs authorities who failed to ensure the safety of documents received and drawn up during customs audits, the storage of which is mandatory, as well as persons performing activities in the field of customs (for example, customs representatives and carriers, who bear liability as legal entities). The subjective side may be expressed in the form of intent or negligence.

For example, in the case under consideration, [33] the declarant filed an incomplete customs declaration (NTD) in which information about the transport vehicles used for the transportation of the declared goods and the transport invoice was not declared. At the same time, an obligation to provide the missing information within the established deadline was attached, of which a corresponding entry was made, and the customs authority performed the release of goods under the NTD using automatic algorithms. Before the expiration of the established deadline for providing missing documents and information under the NTD (no later than 8 months from the date of release of the goods), information about the transport vehicles used for the transportation of the declared goods was not submitted to the customs authority. The administrative body concluded that the declarant committed an administrative offense under Part 3 of Article 16.12 of the CAO RF.

Failure to Submit Reporting to the Customs Authority [34]

The failure to submit or violation of the deadline for submitting reporting to the customs authority in cases provided for by EAEU customs legislation and (or) Russian legislation on customs matters, or the submission of reporting containing inaccurate information, entails a warning or the imposition of an administrative fine.

The duty to submit reporting to customs authorities is imposed on:

customs representatives;
carriers;
owners of temporary storage warehouses;
owners of customs warehouses, etc.

The subjects of the specified offense are the persons upon whom the duty to maintain records and submit reporting to the customs authority is imposed by customs legislation. The subjective side may be expressed in the form of intent or negligence.

During a desk audit, [35] the customs authority established that goods had arrived in the EAEU customs territory and been placed in temporary storage. However, during customs clearance, the JSC provided the customs authority with a report in Form DO-2 containing inaccurate information about the name of the goods. Upon establishing sufficient signs of an administrative offense in the applicant's actions, the authorized official of the customs authority drew up an administrative offense report against the JSC under Article 16.15 of the CAO RF. It is important to note that when rendering a decision, the court may consider the reduction in the company's turnover, apply the principle of proportionality,[36] and change the amount of the administrative fine. [37]

Non-compliance with the Customs Procedure [38]

The declaration in the goods declaration of inaccurate information about them or the submission of invalid documents, if such information and documents could have served as a basis for placing the goods under a customs procedure providing for full or partial exemption from the payment of customs duties or taxes or the return of paid amounts and (or) the non-application of non-tariff regulation measures, as well as the use or disposal of goods in violation of the customs procedure under which they are placed, including the transfer of the right to use the customs procedure by transferring rights of possession, use, or disposal regarding the goods, if this is allowed in accordance with the customs procedure, to another person without the permission of the customs authority, if such permission is mandatory, as well as the failure to complete within the established deadlines a customs procedure for which a requirement for its completion is established, entails the imposition of an administrative fine with or without confiscation of the goods that were the items of the administrative offense, or the confiscation of the items of the administrative offense.

The object of the violation of customs rules is the procedure for applying customs procedures. The subject of offenses in the specified article is the person upon whom the duties to comply with the conditions and restrictions of the customs procedure and complete its action in accordance with legislative requirements are imposed, i.e., the person who placed the goods under the customs procedure, which may include, for example, the declarant.

The objective side of the offense is formed, for example, by the use or disposal of goods in violation of the customs procedure under which they are placed, or the objective side may be expressed in the failure to complete within the established deadlines a customs procedure for which a requirement for its completion is established. The subjective side of the administrative offense may be expressed in the form of intent or negligence.

For example, in Case No. A40-15724/2023, considered by the Moscow Region Arbitration Court, it was established during customs control[39] that the goods declared under the declaration (DT), located in the region of activity of the Sheremetyevo Airport (Cargo) Customs Post, were placed under the re-export customs procedure. A request was sent to the Sheremetyevo Airport (Cargo) Customs Post for information on placing the goods under the customs transit procedure, the release of which was performed under the DT, or other documents based on which the goods left the customs control zone and were moved to the region of activity of another customs authority. Regarding the shipment of goods, the release of which was performed under the DT for movement across the EAEU territory, the customs transit procedure was not declared. No documents or information on placing the goods under the customs transit procedure were provided. The identified data indicate the presence of an administrative offense event for which liability is established by Part 2 of Article 16.19 of the CAO RF.

Violation of Deadlines for Paying Customs Payments [40]

Customs payments are payments subject to mandatory payment when moving goods across the customs border. Violation of the deadlines for paying customs duties or taxes subject to payment in connection with the movement of goods across the EAEU customs border entails the imposition of an administrative fine.

The objective side of the offense is expressed in the violation of deadlines for paying taxes and fees subject to payment in connection with the movement of goods across the customs border, the duty to pay which arises:

when importing goods into the EAEU customs territory;
when exporting EAEU goods.

The subjects of the administrative offense are the persons upon whom the duty for their payment is imposed, which include the declarant and the customs representative. As in most cases, the subjective side of such an administrative offense may be expressed in the form of intent or negligence.

For example, during the consideration of Case No. A40-132778/2023 in the Moscow District Arbitration Court, it was established that the company was found guilty of committing an administrative offense under Article 16.22 of the CAO RF due to a violation of the deadline for paying periodic customs payments established by Article 225(4)(2) of the Customs Code of the EAEU for the period when the goods declared in the declaration were under the temporary admission (admission) customs procedure, due to the failure to file a timely reasoned application and adjustment of the DT with the need to pay the due customs payments. Since no reasoned application or adjustment of the DT with the need to pay the due customs payments was received from the applicant, the company was assigned an administrative punishment in the form of an administrative fine.[41]

Interaction of EAEU Customs Authorities in Imposing Administrative Liability for Violations of Customs Legislation

The Agreement on Legal Assistance and Interaction of Customs Authorities of the Member States of the Customs Union on Criminal Cases and Cases of Administrative Offenses establishes that legal assistance and interaction of customs authorities of EAEU member states are carried out for the purpose of bringing guilty persons to administrative liability for violations of EAEU customs legislation, the oversight of which is entrusted to customs authorities.[42]

Furthermore, the Agreement on Legal Assistance and Interaction establishes that documents produced or certified by an institution or a specially authorized official within their competence and stamped with a state seal on the territory of one state are accepted on the territories of other states without any special certification. At the same time, correspondence and exchange of information within the framework of the Agreement on Legal Assistance and Interaction are carried out by available means of communication, including facsimile and electronic, with the mandatory subsequent sending of the original by mail. It is also important to note that the Agreement on Legal Assistance and Interaction stipulates that central customs authorities take measures to organize the exchange of information in electronic form regarding administrative offenses and the persons who committed them. Each of the Parties provides, upon the written request of the other Party, information on holding persons administratively liable if these persons are being held administratively liable on the territory of the requesting Party. Central customs authorities send each other information-analytical and methodological materials regarding law enforcement practice in administrative offense cases.

A person who has committed an administrative offense on the customs territory of the Customs Union is subject to administrative liability under the legislation of the EAEU member state on whose territory the administrative offense was identified, and the administrative process is conducted under the legislation of the EAEU member state in which the person is held or is subject to being held administratively liable.[43] It is important to note that within the framework of mutual cooperation, documents produced or certified by an institution or a specially authorized official within their competence and stamped with a state seal on the territory of one EAEU member state are accepted on the territory of other EAEU member states without any special certification.

To exclude being held administratively liable for violations of customs legislation, it is important when conducting foreign trade activities to comply with the norms of both Russian and EAEU customs law, as well as international treaties in this field. Often, conducting customs procedures taking into account the current norms of law allows for a significant reduction in foreign trade costs by reducing or eliminating expenditures on paying fines related to the violation of customs law norms.

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References

[1] Article 331(9) of the Customs Code of the EAEU

[2] Signed in Astana on July 5, 2010.

[3] Concluded in Astana on July 5, 2010.

[4] Article 1 of the Agreement on Liability Details.

[5] Article 2.1(1) of the CAO RF.

[6] Article 14(1) of the Criminal Code of the Russian Federation.

[7] Paragraph 1 of Russian Federation Supreme Court Plenum Resolution No. 58 dated December 22, 2015, On the Practice of Imposing Criminal Punishment by the Courts of the Russian Federation.

[8] Article 19.7.13 of the CAO RF.

[9] Article 15.25 of the CAO RF.

[10] Article 16.2 of the CAO RF.

[11] Article 104(1) of the Customs Code of the EAEU.

[12] Resolution of the Northwestern District Arbitration Court No. F07-7438/2024 dated June 24, 2024, in Case No. A56-68543/2023, On contesting a resolution to hold the applicant (customs representative) liable under Part 2 of Article 16.2 of the CAO RF for declaring inaccurate information about the value of goods during customs declaration, which resulted in a reduction of customs payments due; and on the decision to leave the complaint against the resolution without satisfaction.

[13] Article 16.3 of the CAO RF.

[14] Article 7(1) of the Customs Code of the EAEU.

[15] Paragraph 31 of Russian Federation Supreme Court Plenum Resolution No. 18 dated June 22, 2021, On Certain Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings (the "Plenum Resolution No. 18").

[16] Russian Federation Presidential Decree No. 100 dated March 8, 2022, On the Application of Special Economic Measures in the Field of Foreign Trade Activity to Ensure the Security of the Russian Federation.

[17] Russian Government Decree No. 312 dated March 9, 2022, On the Introduction of a Permissive Procedure for the Export of Certain Types of Goods Outside the Territory of the Russian Federation on a Temporary Basis.

[18] Resolution of the Volga-Vyatka District Arbitration Court No. F01-1884/2024 dated May 21, 2024, in Case No. A31-9187/2023, On changing the customs authority's resolution to hold a company liable under Article 16.3 of the CAO RF for non-compliance with prohibitions and restrictions regarding the export of goods outside the territory of the Russian Federation, in the part of administrative punishment.

[19] Russian Federation Supreme Court Resolution No. 38-AD24-2-K1 dated May 13, 2024.

[20] Article 15.25 of the CAO RF.

[21] Article 16.5 of the CAO RF.

[22] Paragraph 12 of Russian Federation Supreme Arbitration Court Plenum Resolution No. 79 dated November 8, 2013, On Certain Issues of the Application of Customs Legislation.

[23] Article 16.7 of the CAO RF.

[24] Resolution of the Moscow District Arbitration Court No. F05-31913/2022 dated December 26, 2022, in Case No. A41-22629/2022, On the cancellation of a resolution to hold a person liable under Article 16.7 of the CAO RF for submitting invalid documents during customs operations.

[25] Article 16.10 of the CAO RF.

[26] Article 142 of the Customs Code of the EAEU.

[27] Article 144(1) of the Customs Code of the EAEU.

[28] Article 344(1) of the Customs Code of the EAEU.

[29] Article 145 of the Customs Code of the EAEU.

[30] Resolution of the Moscow District Arbitration Court No. F05-4757/2024 dated April 26, 2024, in Case No. A40-180543/2023, On the cancellation of a resolution to hold a person liable under Article 16.10 of the CAO RF for non-compliance with the customs transit procedure.

[31] Article 16.12 of the CAO RF.

[32] Paragraph 32 of Plenum Resolution No. 18.

[33] Resolution of the Volga-Vyatka District Arbitration Court No. F01-6971/2023 dated December 4, 2023, in Case No. A28-11415/2022, On the cancellation of a customs authority's resolution to hold a company (declarant) liable under Part 3 of Article 16.12 of the CAO RF for failure to submit within the deadline established by the customs authority documents (transport invoice) and information (on transport vehicles used for the transportation of declared goods) necessary for customs control during incomplete declaration.

[34] Article 16.15 of the CAO RF.

[35] Resolution of the Moscow District Arbitration Court No. F05-10623/2024 dated July 4, 2024, in Case No. A41-95386/2023, On the cancellation of a resolution to hold a person liable under Article 16.15 of the CAO RF for failure to submit reporting to the customs authority.

[36] Paragraph 5 of Russian Federation Constitutional Court Resolution No. 8-P dated March 11, 1998, On the Case of Testing the Constitutionality of Article 266 of the Customs Code of the Russian Federation, Part Two of Article 85, and Article 222 of the RSFSR Code of Administrative Offenses in connection with the complaints of citizens M.M. Gagloeva and A.B. Pestryakov.

[37] Moscow Region Arbitration Court Decision dated September 30, 2022, in Case No. A41-65093/2022, On the cancellation of a resolution to hold a person administratively liable under Article 16.15 of the CAO RF for failure to submit reporting to the customs authority.

[38] Article 16.19 of the CAO RF.

[39] Resolution of the Moscow District Arbitration Court No. F05-27990/2023 dated November 27, 2023, in Case No. A40-15724/2023, On the cancellation of a resolution to hold a person liable under Part 2 of Article 16.19 of the CAO RF for the use or disposal of goods in violation of the customs procedure under which they are placed.

[40] Article 16.22 of the CAO RF.

[41] Resolution of the Moscow District Arbitration Court No. F05-9952/2024 dated June 10, 2024, in Case No. A40-132778/2023, On the cancellation of a resolution to hold a person liable under Article 16.22 of the CAO RF for violation of deadlines for paying customs payments.

[42] Article 1(1) of the Agreement on Legal Assistance and Interaction.

[43] Article 4 of the Agreement on Liability Details.