Legal incentives in customs law

Kleimenova Anastasiia Nikolaevna PhD in Law Associate Professor of the Department of Customs Law, Russian Customs Academy 140015, Russia, Moscow region, Lyubertsy, Komsomolsky Prospekt, 4 a.shashkina@customs-academy.ru Other publications by this author

The strategy for the development of the Customs Service of the Russian Federation (hereinafter – the Russian Federation) calls the strategic goal of the development of the Federal Customs Service (hereinafter – the FCS) the formation of a customs service that is invisible to law-abiding business and effective for the state. To achieve this goal, the targets for its achievement are outlined, including the creation of competitive advantages for bona fide participants in foreign economic activity and authorized economic operators (hereinafter referred to as AEO), stimulating the development of foreign economic activity (hereinafter referred to as FEA) (Decree of the Government of the Russian Federation dated 05/23/2020 No. 1388-r <Strategy for the development of the Customs Service of the Russian Federation until 2030> // Collection of Legislation of the Russian Federation.2020, No. 22, Article 3572.). Of course, we are talking about maintaining a balance of private and public interests when moving goods across the customs border of the Eurasian Economic Union (hereinafter – The EAEU).

The methodological basis of the study was the dialectical method and the system of general scientific and private scientific methods based on it, in particular the logical method – when presenting the entire material of a scientific article, formulating conclusions and proposals; the method of system-structural analysis – when studying concepts and provisions related to the legal stimulation of customs relations; content analysis - when sampling and analysis of certain provisions of the customs legislation of the EAEU and the legislation of the Russian Federation on customs regulation.

Conscientious, i.e. lawful behavior of persons initiating the movement of goods and subjects of activity in the field of customs affairs, is ensured by customs authorities by various legal means, primarily using such legal categories as legal incentives and legal restrictions, as well as, more narrowly speaking, legal incentives and legal penalties. Rewards and punishments are types of incentives and restrictions brought to the opposite (to the extreme), between which other varieties are located (on the one hand, benefits, privileges, immunities, subjective rights, freedoms, legitimate interests, etc., and on the other – prohibitions, duties, suspensions, limits, liability measures, measures protection, etc.) ^[4].

A.V. Malko's scientific research had a special influence on the formation of the author's scientific position. The subject of his fundamental works are incentives and restrictions in law, their essence, types, functions, mechanism of action and effectiveness, as well as the ratio of these legal categories ^[4,5]. 

The works of O.Y. Bakaeva ^[1], N.E. Buvaeva ^[3], E.G. Belikov ^[2], A.N. Shashkina (Kleimenova) ^[3] are devoted to certain aspects of legal incentives in customs law, but a comprehensive analysis of the concept and content of legal incentives for public relations in the field of customs is currently underway it was not carried out.

Legal restrictions in customs law include measures of non-tariff regulation, duties of subjects of activity in the field of customs affairs, suspension of their activities in cases established by law, measures of administrative responsibility for violation of customs rules, etc. Of course, as in other public branches of law, the mandatory method of legal regulation prevails in customs law, and therefore the use of legal restrictions.

But currently, in accordance with the general trend in the development of law, and in particular, with the established Strategies for the Development of the customs service until 2030, along with restrictions, legal incentives also play an important role.

We agree with E.G. Belikov that the provision by the state of legal incentives in the customs sphere (customs incentives) contributes to improving the investment climate in the country as a whole and in its individual regions in particular, technological modernization of the economy and, ultimately, improving the welfare of the population ^[2].

D. I. Provalinsky rightly interprets the legal incentive as "the legal motivation of the subject of public relations to legitimate activities that meet the interests of the state and society by creating an interest in achieving the expected result" ^[7].

S.V. Miroshnik defines legal incentives from the point of view of a functional approach as a complex legal institution, i.e. a set of legal norms that affect the consciousness of subjects in order to form stable motives for lawful and super-lawful behavior ^[6]. We share the author's position regarding the final result of the application of incentive norms: not only lawful behavior, but also ultra-lawful, i.e. state-approved behavior based on voluntariness, transparency of activities, cooperation with government agencies.

The issue of encouraging persons moving goods across the customs border of the EAEU to behave lawfully was considered by O.Y. Bakayeva from the point of view of stimulating customs payers to comply with financial discipline. The author considers the following groups of relationships to be stimulating:

1) relations aimed at reducing the costs of payers of customs payments (customs privileges, the possibility of changing the terms of payment of customs payments);

2) the relations motivating the payer to timely and full payment of customs duties (application of measures of financial and legal coercion: penalties, fines);

3) relations that encourage the payer of customs payments to simplify relations with customs authorities (personal account of a participant in foreign economic activity, the right to free information and advice);

4) relations allowing the payers of customs payments to compensate in full the losses caused by illegal acts of customs authorities ^[1].

We believe that O.Y. Bakayeva's position is debatable, since we consider some of the measures named by the author not stimulating, but restrictive (measures of financial and legal coercion: penalties, fines) by their legal nature (they are negative, not positive).

N.E. Buvaeva and A.N. Shashkina formulated the principles of applying measures that stimulate the conscientious behavior of participants in customs relations, these include:

 1. The principle of simplification of customs control through the development of trust relations between customs authorities and other participants in customs relations.

 2. The principle of balancing public and private interests or the principle of mutually beneficial cooperation.

 3. The principle of following international standards in the field of customs regulation ^[3].

We agree with the authors, because the proposed principles reflect the fundamental ideas, as well as the goals of applying legal incentives in customs law.

Legal incentives in customs law may be of a financial and non-financial nature. Financial legal incentives in customs law include customs privileges, a potential obligation to pay customs duties, etc. Non-financial are the categorization of participants in foreign economic activity, simplifications provided for authorized economic operators, etc.

Professor A.V. Malko's opinion is fair that the concept of "legal stimulation" was unreasonably expanded at the expense of the concept of "legal restriction", legal incentives were also seen in those phenomena (for example, prohibitions, duties, suspensions, coercive measures, punishments, etc.) that did not relate to them at the informational and psychological level ^[5]. S.V. Miroshnik agrees with this approach: "a person does not commit an offense, because he realizes the need for lawful behavior, or refuses an unlawful act due to fear of punishment, therefore legal liability cannot be recognized as a legal incentive" ^[6]. In this regard, it is controversial to attribute administrative and criminal liability for customs offenses to legal incentives in the customs sphere ^[3].

Thus, legal incentives in customs law are legal norms aimed at encouraging subjects of customs relations to conscious lawful and super–lawful behavior that allows satisfying the interests of the subject by providing him with certain benefits, privileges, simplifications, immunities, deferrals and other benefits.

Legal incentives in customs law should include special simplifications provided to an authorized economic operator. Upon voluntary compliance with the conditions for inclusion in the AEO register established by the customs legislation of the EAEU, a legal entity receives privileges inaccessible to persons without such status, the amount of which depends on the type of certificate received. The conditions for inclusion in the AEO register, among other things, include the absence of unfulfilled: obligations to pay customs duties, tax arrears, as well as the absence of facts of bringing this legal entity to administrative responsibility in all member states for administrative offenses in the field of customs affairs within 1 year before the date of registration by the customs authority of the application (sub-item.3-5 paragraph 1 of Article 433 of the Customs Code of the Eurasian Economic Union (hereinafter referred to as the EAEU Customs Code)). Thus, a person motivated by his goal and desire to have AEO status, which allows him to use simplifications in customs operations and customs control, voluntarily complies with the norms of customs law. Special AEO simplifications include the right to perform customs operations related to the arrival of goods into the customs territory of the EAEU, the departure of goods from the customs territory of the EAEU, customs declaration and release of goods on a priority basis, the right not to provide enforcement of the obligation to pay customs duties, taxes, special, anti-dumping, countervailing duties during customs transit, etc. (Article 437 of the EAEU Labor Code). As of December 21, 2023, 163 legal entities have AEO status in the Russian Federation.

Another stimulating measure is a subject-oriented approach to persons moving goods across the customs border of the EAEU, i.e. the division (categorization) by the customs authorities of these persons into categories of low, medium or high risk. In essence, categorization consists in an automated analysis of information about the activities of persons for two calendar years preceding the month of its holding, using certain criteria characterizing the activities of these persons (Order of the Ministry of Finance of the Russian Federation dated 02/21/2020 No. 29n "On approval of the Procedure for categorizing Persons Performing Customs Operations, the frequency and form of its conduct, a list of criteria characterizing the activities of persons performing customs operations, the conditions for classifying persons performing customs operations as low, medium or high risk, the conditions for the differentiated application of risk minimization measures to them, as well as the procedure for monitoring compliance with criteria by persons performing customs operations classified as low risk" // Official Internet-legal information portal http://pravo.gov.ru , 05/20/2020.).

The conditions for classifying a person as a high-risk level include, for example, the presence of a person in the stage of liquidation or termination of activity; the presence of an unfulfilled obligation to pay an administrative fine within a period exceeding 10 (ten) calendar days from the date of expiration of the payment of an administrative fine in accordance with the decision on an administrative offense that has entered into force, etc. A low-risk category is assigned to a person if certain conditions are met, for example: the total number of declarations for goods with a decision on release in accordance with customs procedures for release for domestic consumption and (or) export in the reporting period is at least 70 units, provided that the total number of goods declared in them together is not less than less than 100; absence on the day of categorization of the obligation not fulfilled by the person to pay customs duties, etc.

Thus, a mutually beneficial "agreement" is achieved, which allows us to approach the desired balance of private and public interests: the importer/exporter of goods complies with the stipulated conditions that satisfy the interests of the state, in response, he receives minimization of administrative barriers when moving goods across the customs border of the EAEU. So, for example, by the end of 2022, the share of goods shipments moved by low–risk foreign trade participants, for which customs inspection was carried out, amounted to 0.5%, additional documents and information were requested in 1.6% of cases, customs expertise was appointed - 0.1%, at the same time, participants in medium and high-risk foreign trade have indicators of more than more than three times higher: with customs inspection – 3.1% and 6.5%, with the request for additional documents and information – 9.4% and 33.1%, with customs expertise – 0.2%.

Let's add to the list of legal incentives in customs law with Note 2 to Article 16.2 of the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation): "in the case of a voluntary notification by the declarant and (or) the customs representative to the customs authority that issued the goods about the non-declaration of goods with the simultaneous submission of a customs declaration or document necessary for making changes and (or) additions to the information specified in the previously submitted customs declaration, and containing information about goods whose customs declaration was not made, and documents on the basis of which the specified customs declaration or document was filled out, provided for by the law of the EAEU, the person who committed an administrative offense, established by ch.1 of this article, is exempt from administrative responsibility for the specified offense" (Code of the Russian Federation on Administrative Offenses dated 12/30/2001 No. 195-FZ // Collection of Legislation of the Russian Federation, 07.01.2002, No. 1 (part 1), art. 1). There are conditions under which it is possible to use this norm, their essence is that at the time of the declarant's communication of the specified information, the customs authority had not independently identified non-declaration or false declaration of goods, customs control had not been initiated against this person after the release of goods, and there was also no arrears in the payment of customs duties. Thus, when committing an administrative offense, the declarant has an incentive to voluntarily report this to the state authorities, while satisfying his interest – getting an exemption from administrative responsibility.

In addition to those discussed in this article, customs law contains a large number of stimulating legal norms that encourage participants in foreign economic activity to behave lawfully. These include: a potential obligation to pay customs duties, the possibility of changing the information specified in the customs declaration, informing and advising participants in customs relations, etc.

Thus, in the results of the conducted research, we formulate the following main provisions on legal incentives governing customs legal relations:

1. The role of legal incentives in customs legislation will increase, since the creation of competitive advantages for bona fide participants in foreign economic activity is one of the strategic goals of the Federal Customs Service until 2030. Stimulating norms make it possible to achieve mutual benefits for the state and business, therefore, the future belongs to them.

2.                 Legal incentives in customs law are legal norms aimed at encouraging subjects of customs legal relations to conscious lawful and super–lawful behavior that allows satisfying the interests of the subject by providing him with certain benefits, privileges, simplifications, immunities, deferrals and other benefits.

3.                 Legal incentives include:

1) obtaining AEO status, since upon voluntary compliance with the conditions for inclusion in the AEO register established by the customs legislation of the EAEU, a legal entity receives privileges inaccessible to persons without such status, the amount of which depends on the type of certificate received;

2) categorization of participants in foreign economic activity into risk levels, the essence of which is the scope of control measures applicable to specific persons, depending on their performance of lawful actions beneficial to the state;

3) voluntary notification by the declarant (customs representative) of the fact of an offense committed by him under Part 1 of Article 16.2 of the Administrative Code of the Russian Federation before the start of verification measures by customs authorities as an opportunity to be released from administrative responsibility.

4. The use of legal incentives in customs law will allow us to build a model of behavior of participants in foreign economic activity, in which conscientious adherence to legal regulations will become part of the legal culture of society, as they guarantee the reduction of administrative barriers on the part of state bodies. In this regard, it seems necessary to further scientific research and understanding of such a legal category as a legal incentive in customs law.