1. The number of administrative customs offenses has decreased. Some of the acts that were previously considered administrative offenses were decriminalized. Some articles were dropped due to being out of date. for example, earlier, the carrier could be brought to administrative responsibility for failure to take measures in the event of an accident, force majeure or other circumstances that impede the transportation of goods in accordance with the customs transit procedure (Article 14.11 of the Administrative Code). According to the old code, if you did not report your problem on the way, the condition of the goods and its location to the nearest customs authority, and also did not ensure the transportation of the consignment to the designated place, you would be fined.
In practice, the carriers themselves were maximally interested in notifying customs, for example, of a road traffic accident, in order to record the destruction of the transported goods, since in this case they are exempted from paying import customs duties, taxes, special anti-dumping taxes, countervailing duties on foreign goods placed under the customs procedure of customs transit (Article 153 of the Customs Code of the EAEU).
Of course, any decriminalization is a positive moment for business.
The task of the Administrative Code is not only to protect business, but also to protect the legitimate interests of an individual, society, and the state.
Therefore, there must be a balanced approach.
2. “Double responsibility” disappeared. In the new Code of Administrative Offenses, Note 2 to Chapter 14 appeared, which excludes simultaneously bringing to administrative responsibility both a legal entity (individual entrepreneur) and its employee for the same offense. Photo: rtlogistic.by for examplePreviously, for non-declaration of goods in the customs transit procedure (part 1 of article 14.5 of the Code of Administrative Offenses), not only the carrier (as a legal entity), but also his employee, the driver, was brought to administrative responsibility. I see this as a positive change for the business. Since the controversial issue of “double responsibility” for the same offense has ceased to be relevant.
Also, drivers of carriers will no longer be brought to administrative responsibility. This is important, since a large number of “administrative offices” for foreign drivers can lead to restrictions or prohibitions on their entry into Belarus, which may ultimately lead to job loss.
3. Eliminated administrative liability for legal entities and individual entrepreneurs in a number of cases. for example, in the previous version of the code, individual entrepreneurs, individuals and legal entities could be held liable for leaving the point of entry or export before the start or completion of customs operations in respect of goods subject to declaration (Article 14.3 of the Administrative Code).
In the new Code of Administrative Offenses, the subjects of such an offense are only individuals, including employees of companies (Article 15.3 of the Code of Administrative Offenses).
I also rate this change as positive. After all, it is always important in practice to correctly determine who is to blame. That is, the subject of administrative responsibility: is it a legal entity or an employee of a legal entity. In this particular case, the legislator decided for the law enforcement officer that only individuals should be held liable for such violations. 4. Clarified in which cases the carrier will not have to pay a fine if the goods are lost. Earlier in part 2 of Art. 14.2 of the Administrative Code dealt with the loss of goods under customs control, but the method of loss was not specified.
The very concept of “loss of goods” – the absence of goods in stock due to their destruction, theft, illegal disposal of them, as well as as a result of natural loss under normal conditions of transportation and storage – is enshrined in the law “On customs regulation in the Republic of Belarus”. It follows from the above that the loss can be committed in several ways.
In the new Code of Administrative Offenses, the legislator clearly stated that the carrier is not brought to administrative responsibility only if the consignment of goods is lost precisely as a result of destruction.
for example, the carrier was moving apples, the vehicle got into an accident, overturned from the impact, apples spilled out and broke. Of course, given the shelf life of such a product, apples must be destroyed. In such circumstances, the carrier does not have to pay customs duties. The situation is different if during the transportation some part of the consignment was stolen. I see this as a benefit, as entrepreneurs will have fewer controversial situations.
And in certain cases it is not required to additionally provide evidence of the destruction of the goods.
Photo: tut.by 5. If you do not declare the goods, it does not mean that you have committed an offense and will receive a fine. According to Part 1 of Art. 15.5 of the new Code, non-declaration of goods is recognized as an administrative offense if it served or could serve as a basis for exemption from payment of payments (or understatement of their amount) levied by customs authorities, and (or) violated Belarusian legislation or international legal acts of the Eurasian Economic Union.
I also rate these changes as positive for the business.
In general, this should lead to greater freedom of importers and carriers, since not every discrepancy between the goods actually transported and indicated in the documents will be punished with a fine.
For example, according to the documents, the carrier moves a batch of dresses in the amount of 5,000 pieces and 5,000 jeans. Indicates this in the transit declaration. At the same time, the risk management system is triggered, and the customs officer decides to conduct an inspection.
As a result, it turns out that the vehicle contains 3,000 dresses and 7,000 jeans.
Next, 2 calculations of customs payments to be paid are made:
Calculation No. 1: The amount of goods specified in the documents (5000 dresses and 5000 jeans) Calculation No. 2: The actual amount of imported goods (3000 dresses and 7000 jeans).
The obtained values are compared. If calculation No. 2 does not exceed the amount of calculation No. 1, then there are no grounds for initiating an administrative offense case, while under the previous Code of Administrative Offenses, the case could have ended with a fine.
6. Differentiated responsibility for non-declaration and submission of false information about the goods (Art. 15.5)… If such offenses are committed on a large scale (the total value of the items of an administrative offense is 100 times or more higher than the base amount), then the fine cannot be less than 10% of the value of undeclared goods. In my opinion, such a restriction is not in favor of business, since previously the amount of the fine was entirely at the discretion of the court. That is, they could appoint both 1% and 5% of the value of the objects of an administrative offense. And now, whatever the circumstances of the violation, the nature of the harm caused, as well as the financial and economic situation, the court is obliged to impose a fine on the legal entity in the amount of at least 10%.
In the new Administrative Code, Art. 7.8, according to which, in exceptional circumstances, the court can reduce the amount of the fine to a lower limit, but I do not think that this rule will be widespread in relation to administrative customs offenses.
Photo: oborot.ru A separate item I would like to remind entrepreneurs about Art. 15.1 of the Administrative Code, according to which the court can order the confiscation of goods. According to the law, the property of an entrepreneur can only be taken if he tried to transport or transported it across the border of the Eurasian Economic Union illegally (in the wrong place, outside the working hours of the customs authorities, he hid part of the goods or “disguised” it as another product). True, the confiscation is alternative, that is, it may or may not be applied at the discretion of the court.
Unfortunately, my practice shows that under Art. 15.1 of the Code of Administrative Offenses, the courts very rarely do not order confiscation. In my opinion, reducing the number of confiscations will improve the business environment and increase the attractiveness of Belarus, including as a transit country.
Instead of output
As we can see, there have not been any fundamental changes in the area of administrative responsibility for customs offenses.
If we evaluate the new version of the code from the point of view of business benefits, then the innovations can be called modern and necessary. At the same time, the new Administrative Code did not resolve a number of painful issues, leaving everything as it is.
Here we are primarily talking about the increased responsibility of carriers, who, since the beginning of 2018, have become more often brought to administrative responsibility for non-declaration or inaccurate declaration.