Agreements and Disputes with the Customs Agent
Legal assistance in drawing up an contract with a customs broker, representation of interests in disputes with a customs agent
A customs representative is a professional participant in foreign trade activity and, in accordance with the EAEU Customs Code, is a legal entity included in the Register of Customs Agents, carrying out customs operations on behalf and on behalf of the declarant or other interested party.
Relations between the customs representative and declarants or other interested parties are based on a contractual basis. Article 364 of the Federal Law of August 3, 2018 No. 289-FZ “On customs regulation in the Russian Federation and on amendments to certain legislative acts of the Russian Federation” for the provision of services for performing customs operations for placing goods under the customs procedure, an agreement is concluded directly between the customs agent and the declarant or the forwarder if, under the transport expedition agreement, the declarant instructed the forwarder to conclude an agreement with the customs representative. At the same time, the refusal of the customs agent to conclude an agreement with the person he represents, if he has the opportunity to provide a service or perform work, is not allowed, except in cases where the execution of such an agreement will go beyond the scope of activity limited by the customs representative, and also if the customs representative has sufficient grounds to believe that the actions (inaction) of the declarant or other interested party are illegal and entail criminal or administrative liability in the field of customs affairs.
At the same time, it is important to note that the customs agent may pay customs duties, taxes, special, anti-dumping, countervailing duties, interest, penalties, customs duties, if the content of the customs procedure determined for declaring goods provides for their payment and if the terms of the agreement concluded between the declarant and the customs representative, payment of customs duties, taxes, special, anti-dumping, countervailing duties, interest, penalties, customs duties by the customs representative is provided.
Checking the agreement with the customs broker
To provide quality customs brokerage services to a foreign trade participant, it is important to carefully approach the conclusion of an agreement, which, as a rule, should contain the following points:
- preamble, which indicates the legal basis for the activities of the customs representative - a certificate of inclusion in the register of customs representatives and details of such a document;
- the subject of the contract, which defines the main services and their list, which are provided by the customs broker taking into account the requirements of customs legislation;
- the procedure for the provision of services by a customs representative;
- rights and obligations of the parties;
- cost of services of a customs representative, payment procedure and conditions for acceptance of services provided;
- responsibility of the parties (when drawing up an agreement with a customs representative, it is important to pay special attention to the section of responsibility of the parties, and in particular the responsibility of the customs broker, the section of which should include: responsibility for checking the authenticity of documents; responsibility for submitting invalid documents; responsibility for incorrect determination of the customs code EAEU foreign trade activities for goods, etc.);
- settlement of disputes under the contract, including applicable law and jurisdiction;
- additional conditions, such as force majeure, confidentiality of information, anti-corruption clause, entry into force of the contract and the procedure for its termination, exchange of information, including the possibility of using electronic document management;
- addresses, details and signatures of the parties.
Experienced customs representatives, as a rule, conduct a transaction in compliance with the interests of the client, minimizing the main risks, however, there are customs brokers, working with whom can negatively affect the result of foreign economic activity of a participant in foreign economic activity and there is a need to recover losses from the customs representative.
In order to minimize the risks for a foreign trade participant when interacting with a customs broker, it is necessary to conduct a thorough check of the agreement concluded between the parties. This will reduce adverse consequences and protect the foreign trade participant from possible risks, for example, additional charges of customs duties and payments or prosecution.
Recovery of losses from a customs agent
Important conditions for inclusion in the register of customs representatives under Article 405 of the EAEU Customs Code are:
- Availability of an insurance contract for the risk of civil liability of a customs representative, which may occur as a result of damage to the property of represented persons or violation of contracts with these persons, for an insured amount determined by the legislation of the Member States. In accordance with the Federal Law of 03.08.2018 No. 289-FZ “On customs regulation in the Russian Federation and on amendments to certain legislative acts of the Russian Federation”, the amount of the insurance amount within which the insurer undertakes, upon the occurrence of each insured event, to compensate for damage to persons whose it is caused to property interests, in accordance with the insurance contract, the risk of civil liability presented in order to comply with the conditions for inclusion in the register cannot be less than 20 million rubles. The amount of insurance payment is determined in the amount of damage caused, but within the limits of the insured amount.
- Ensuring the fulfillment of the duties of a customs representative in the amount determined by the legislation of the Member States. Security for the performance of duties of a customs representative in accordance with the Decision of the Council of the Eurasian Economic Commission dated September 15, 2017 No. 64 “On the amount of security for the performance of duties of a customs representative” is provided in an amount equivalent to at least 500 thousand euros.
The presence of such conditions for the activities of a customs representative contributes to the proper level of responsibility of customs representatives and allows participants in foreign economic activity, under unfavorable conditions, to recover from the customs representative the resulting losses.
At the same time, it is important to note that Article 405 of the EAEU Customs Code stipulates that in the case of customs operations carried out by a customs representative on behalf of the declarant, the customs representative bears joint and several obligation with such declarant to pay customs duties, taxes, special, anti-dumping, countervailing duties in the full amount due fulfillment of the obligation to pay customs duties, taxes, special, anti-dumping, countervailing duties.
An important aspect of collecting losses from a customs representative is the presence of such conditions when concluding an agreement for the provision of customs broker services. In case of poor-quality provision of services, the customs broker is liable in accordance with civil law in the form of compensation for losses to the participant in foreign trade activities, which, in accordance with Article 15 of the Civil Code of the Russian Federation, are defined as expenses that the person whose right has been violated has made or will have to make to restore the violated right , loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit).
However, in order for a customs broker to compensate a foreign trade participant for losses, it will be necessary to prove a cause-and-effect relationship between the actions of the customs representative and the negative consequences, which can be quite difficult for a foreign trade participant to do independently. In this regard, in order to obtain high-quality customs brokerage services, it is important not only to choose an organization that will provide such a service, but also to competently, taking into account all the features, draw up an agreement with the customs representative, which will allow, in the event of adverse consequences from the activities of the customs agent, to pay damages.
Legal services
- Consultations on drawing up an agreement with a customs agent
- Preparation of an agreement for obtaining customs brokerage services
- Preparation of documents for disputes with a customs broker and representation of interests in disputes