Problems of public law regulation of customs control (international legal aspects)

Pligin Vladimir Nikolaevich Doctor of Law Head of the Sector of Administrative Law and Administrative Process; Institute of State and Law of the Russian Academy of Sciences 43 Sivtsev Vrazhek str., Moscow, 119002, Russia voltrap2014@yandex.ru Other publications by this author

Introduction

The study of the processes of interaction between the main institutions of the organization of human life – states - shows with enviable constancy that interstate integration processes are replaced by waves of disintegration. This was especially evident at the beginning of the 21st century, when it seemed that the globalization trend was finally leading to the formation of a certain new unified space that would turn states into a "sacrificial animal". However, at present, state isolation has not only been preserved, but has grown significantly, and the victim was the civilizational code, which was created by international law, as well as international law itself.

At the same time, in certain areas, most often providing economic interaction, multilateral regulation is not only preserved, but also significantly supplemented in relation to the formation of new integration associations or the emergence of new economic and financial mechanisms that offer solutions other than existing ones (for example, cryptocurrencies).

The international level of legal regulation is traditionally inherent in many institutions of the customs sphere, among which one can distinguish such as customs value, customs operations, customs procedures, customs control. The latter occupies a special place in customs regulation, including through the international contractual framework. Customs control as a public law institution in these conditions actually permeates all management relations in the cross-border movement of goods. Despite the fact that the basic principles and procedures for its implementation were fixed in universal international standards of customs regulation half a century ago, interest and attention to supranational levels of regulation of the institute of customs control have intensified and received new development in modern conditions characterized by interstate economic integration. The latter generates a relatively new, integrative level of legal regulation of customs control, as well as other institutions in the customs sphere. The highlighted processes require their own theoretical and legal and international legal justification.

The main part

The main objectives of supranational regulation of customs control are the following:

- harmonization and unification of regulation, protection of the rights and legitimate interests of controlled entities;

- establishment of a minimum level of protection, universal standards for the protection of the rights and legitimate interests of controlled persons;

- ensuring regional economic integration.

If the first two goals have traditionally been inherent in the international legal regulation of customs relations, then it is possible to single out the last goal only at the stage of organizational and legal registration of integration processes. For the domestic practice of customs regulation, this is due to Russia's active participation in the formation of integration processes in the post-Soviet space, which, after periods of mutual alienation, again and again penetrate into the spheres of traditional cooperation that has developed under the conditions of division of labor.

At the same time, models of supranational integration regulation of customs control in the Eurasian Economic Union may well be used within the framework of Russia's participation in other integration associations (for example, when forming specific areas of cooperation in the BRICS association, which is only outlining its own models of interaction).

Characterizing the international legal framework for regulating customs control that has developed in modern conditions, we note that there are no special treaties and agreements in this part, but at the same time all universal standards of customs regulation at the supranational level directly or indirectly relate to the regulation of the control activities of the customs authorities of the States parties to these treaties and agreements.

Among such acts, the International Convention on the Simplification and Harmonization of Customs Procedures (done in Kyoto on 05/18/1973) (Kyoto Convention); the International Customs Convention on the A. T. A. Carnet for the Temporary Import of Goods dated 12/06/1961; the Convention on Temporary Importation of June 26, 1990 (Istanbul Convention); the Agreement on Trade-Related Aspects of Intellectual Property Rights property of 1994 (TRIPS) and many others. This is not a complete list of international agreements in which the Russian Federation participates and which in one way or another are related to the passage of customs control during the cross-border movement of goods.

Moreover, in the system of international treaties there are treaties that are devoted to the standards of regulation of large, universal, complex institutions, at first glance, unrelated to the passage of customs formalities. Nevertheless, these institutions are provided, among other things, with customs control measures under certain conditions, especially since customs control today has many directions and varieties, is differentiated by a number of criteria, including the category of goods, and the method of its cross-border movement, and the availability of digital technologies, and the orientation, and the stage of passage, and many others. An example here is the Nairobi Treaty on the Protection of the Olympic Symbol (Signed in Nairobi on 09/26/1981), which defines the priorities and procedural principles of the turnover of goods containing Olympic symbols. Despite the fact that the relevance of taking into account such agreements increases during the period of state participation in international sports events, they are of great importance in general, for the formation of stable, predictable and definite customs practice in the framework of ensuring the main tasks and functions ^[1].

When characterizing the integration level of customs control regulation, the following acts should be highlighted: The Customs Code of the Eurasian Economic Union (Annex No. 1 to the Agreement on the Customs Code of the Eurasian Economic Union); Decision of the Board of the Eurasian Economic Commission No. 42 dated 03/27/2018 "On the specifics of customs control of the customs value of goods imported into the customs territory of the Eurasian Economic Union" (together with the "Regulation on the specifics of customs control of the customs value of goods imported into the customs territory of the Eurasian Economic Union"), Decision of the Board of the Eurasian Economic Commission dated 09/14/2023 No. 140 "On the structure and format of information from documents issued based on the results of customs control in respect of goods and vehicles of international transportation when placing goods under the customs procedure customs transit, placed in the navigation seal for the period of tracking a specific shipment" and many others.

It should be noted that when assessing the integration and national regulation of customs control, it is necessary to distinguish between the norms governing the conduct of control measures themselves (regulation of control and supervisory activities) and the norms establishing mandatory requirements (customs rules) for controlled persons, that is, citizens and organizations (regulation of foreign trade and other activities). The latter category should include a whole system of technical regulations at the EAEU level, which establish requirements for certain categories of goods put into circulation on the territory of the EAEU (Adopted technical regulations. The official website of the Eurasian Economic Commission. https://eec.eaeunion.org/comission/department/deptexreg/tr/TR_general.php (mod. date: 11/29/2024)).

Experts often do not single out a specific aspect of regulation when characterizing the international legal regulation of relations within the framework of the Eurasian economic integration ^[2]. At the same time, today we can talk about relations in the field of migration, energy, transport and other policies, cross-border turnover of goods, other economic and related areas of interaction.

The basis of the national regulatory legal regulation of customs control is Federal Law No. 289-FZ dated 08/03/2018 "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation", Decree of the Government of the Russian Federation No. 486 dated 05/24/1993 "On Urgent measures to strengthen Customs control at the State border of the Russian Federation", Decree of the Government of the Russian Federation dated 03/31/2011 No. 232 "On approval of the Rules for the use of service dogs during customs control, their training and maintenance" and others. Regulatory legal acts of the Ministry of Finance of Russia and the Federal Customs Service of Russia occupy an essential place in this block of regulation. Thus, the departmental database is represented, for example, by Order of the Ministry of Finance of the Russian Federation No. 175n dated 08/26/2020 "On Establishing the Procedure for Customs Control of the Customs Value of Goods Exported from the Russian Federation", Order of the Federal Customs Service of Russia No. 1067 dated 12/27/2020 "On Approval of Forms of documents drawn up by customs authorities during and based on the results of certain forms of Customs Control and measures ensuring the conduct of customs control" and many other acts.

Separately, it should be said about the importance of the so-called model regulation of customs control within the framework of the EAEU. It developed at the initial stages of the Eurasian economic integration and was reflected in the Model Customs Code for the CIS member States of 2008, approved by Resolution No. 31-22 of the Interparliamentary Assembly of the Commonwealth of Independent States Member States on November 25, 2008 in St. Petersburg.

Thus, the international legal regulation of the modern institution of customs control includes universal international and regional levels that establish the basic principles and standards of its regulation. At the level of national regulation, the regulation of control procedures technologies, operational and documentary support of control activities (establishment of the form of the document drawn up during and based on the results of certain forms of customs control), etc. remains. The analysis of different levels of regulation indicates two multidirectional processes in the modern regulation of customs control. On the one hand, the regulation of customs control is maximally unified at the regional level, on the other hand, it remains, and in modern conditions, the administrative, procedural and other specifics of national instruments of control and supervisory activities are strengthened in a certain way. At the same time, the latter process reflects, among other things, the national priorities of reforming the system of state control (supervision), of which customs control is an integral part.

Researchers studying the issues of globalization processes and their legal support rightly note the fact that in the context of regional integration, unification is primarily dominated by industries related to trade in goods, finance, and financial services ^[3], which is quite natural from the point of view of the economic nature of interstate integration at the initial stages of development.

If the Kyoto Convention and other universal standards of customs regulation establish only recommended, proposed contours of control activities of customs authorities, the basics and principles of customs control in the context of all actions within the framework of interaction of citizens and organizations with national customs authorities, trends in the regulation of the modern customs control system (simplification, acceleration, digitalization, based on a risk management system, etc.), then at the integration level, the tools of customs control (forms and measures ensuring customs control), the subject, timing and frequency of customs control forms are clearly fixed (for example, at the EAEU level, the frequency of scheduled on-site customs inspections in respect of the same person being checked is established no more than once a year).

In addition to the technologies of customs control at the exclusively national level, there are issues of liability for violation of customs control requirements. This is quite reasonable from the point of view that the legislation on administrative and criminal liability, which reflects deep historical trends, is significantly tied to the sovereign in which it exists, in the EAEU it is naturally not unified and differs markedly.

International legal regulation of customs control can be differentiated not only by level (international universal and integration), but also by areas of regulation, since customs control today is very diverse and multidirectional. Thus, it is possible to distinguish financial and non-financial components. Taking into account the global function of finance recognized by scientists in the current development of civilization and the need to strengthen state control over cash flows, ensure the stability of the functioning of the national financial market ^[4], the block of regulation of financial turnover is significantly strengthened at the integration level. An example of such regulation at the EAEU level are such acts as the decision of the Supreme Eurasian Economic Council dated 01.10.2019 No. 20 "On the Concept of forming a common financial market of the Eurasian Economic Union", the Agreement on the Exchange of information in the field of countering the legalization (laundering) of proceeds from crime and the financing of terrorism in the movement of cash and (or) monetary instruments across the customs border of the Eurasian Economic Union dated 07/20/2021 and others.

At the same time, it should be recognized that we are witnessing the formation of a new financial market toolkit, which contains not only other solutions related to the form of turnover, but also creates a turnover itself, which is not always controlled by modern state-legal methods of ensuring financial and tax sovereignty.

Another rather isolated block of legal regulation of the cross-border movement of goods and customs control carried out in relation to such goods is, for example, customs control of goods containing intellectual property objects. This area of customs control determines the solution of related problems related to the issue of exhaustion of intellectual property rights in the context of Eurasian economic integration ^[5].

In addition to the level, volume, sphere (aspect) of regulation of the control activities of customs authorities at the EAEU level, there are grounds to single out the method of regulation (traditional and experimental regulation of customs control) as a criterion of differentiation. Thus, an example of reflecting simultaneously the processes of digitalization and the introduction of experimental regimes (or pilot projects) in the regulation of customs operations and customs control should be called acts related to the regulation of foreign electronic commerce (Order of the Council of the Eurasian Economic Commission dated 04/05/2021 No. 7 "On certain issues of conducting a pilot project (experiment) in the member States of the Eurasian Economic Union in the field of foreign electronic trade in goods", decision of the Board of the Eurasian Economic Commission dated 08/03/2021 No. 93 "On the specifics of filling out a declaration for goods for express cargo in respect of goods declared within the framework of a pilot project (experiment) in the field of foreign electronic trade in goods in the member States of the Eurasian Economic Union" and many others). Experimental regulation of customs control also takes place in the national regulation of the use of new customs control tools (an example is the conducted experiment on the use of customs monitoring).

It seems that, taking into account such regulatory innovations, there are grounds for identifying relatively new integration legal institutions, which can be considered the institute of electronic commerce. We believe that the legal institution of electronic commerce has a complex character (combines elements of private law and public law regulation) and can be classified as administrative and legal structures "going beyond national borders" and "originally conceived as supranational" ^{[6, p. 99]}.

Some authors identify similar integration institutions of the EAEU in the field of ensuring the free movement of workers ^[7]. It seems that from the point of view of the formation of such initially integrated legal institutions, there is a problem of their correlation with national regulation, the embeddedness of the norms of integration institutions in the mechanisms of regulation of such and related relations at the national level. Thus, the integration public law institute of customs control should be integrated into the national system of regulation of state control and supervision, and the integration institute of electronic commerce should be integrated into national mechanisms for regulating electronic trade.

Leading scientists also name other problems of legal regulation within the EAEU, in particular the problems of inconsistency of judicial and administrative procedures for challenging and canceling acts of the supreme executive bodies of the EAEU (both normative and non-normative in nature) ^[8].

To understand the complexity that one has to face when formulating a legal position, it should be noted that the modern regulation of the integration level takes into account the specifics of the status of the states participating in economic integration in international legal relations (first of all, we are talking about unprecedented sanctions pressure on Russia and countering it). Unfortunately, it is necessary to recognize the increased impact of geopolitical factors on the law. The trends of simplification and unification inherent in the last decades of legal regulation of customs control are being replaced by a trend of selectivity, selectivity of control action. It seems that the latter act as a kind of reflection of economic retorts, which are applied in the form of establishing excessive requirements for goods and legal entities, quotas, licenses, customs duties, tax payments and other measures in relation to individual states ^{[9, p. 67]}.

Conclusion

To the four factors we highlighted earlier, which in the near future will determine the development of administrative law and are related to the constitutional foundations of the institution of public authority; the digital transformation of public administration; the codification of domestic legislation on administrative responsibility and the development of administrative procedural legislation ^{[10, p. 125]}, we should add the aspect of the embeddedness of national regulation in the integration mechanisms of legal regulation In which Russia participates (the EAEU, BRICS, etc.). In relation to actively formed integration legal institutions, it is reasonable to talk about the opposite process – building a formula for their correlation with the mechanisms of national regulation.

The integration level certainly dominates the international legal regulation of customs control in relation to Russia today. At the same time, as the main problem of the development of the integration level of customs control regulation and at the same time the problem of the ratio of international and national levels of regulation of the institution in question, it is necessary to highlight the contradiction between the action of economic laws, or market laws requiring unification of customs control regulation in a single economic territory of an integration entity, and the need to take into account modern threats and challenges, geopolitical factors that require ensuring national specifics of regulation, a selective approach to control effects depending on the country of origin and the country of departure of goods, and many other factors.