Annotation. Institution of authorized economic operator appeared in Ukrainian legislation about 4 years ago, when amendments were made into the Customs Code of Ukraine. Concurrently with this innovation were raised legal problems and gaps in the custom sphere, as well.
Keywords:Customs Code of Ukraine, authorized economic operator, certificate.
Problem setting.Valid Customs Code of Ukraine regulates question of obtaining the status of authorized economic operator practically superficially. In context in the sphere of free trade zone, the obtaining of aforementioned status is quite topical for enterprises-residents, as it simplifies business transaction during export and import of products, and especially, customs clearance.
The statement of basic material of research. According to the Conceptions of activity reforming of State Customs Service of Ukraine «Face to people», one of the key aspects was to introduce changes into the Customs Code of Ukraine, which directed to adjust it with the European Union customs legislation and international conventions.
Some lawyers and journalists stressed that the Ministry of finance initiates the establishment of authorized economic operator, in February, 2016. Nevertheless, this formulation is not correct, because such especial institution still exists from 2012. Unfortunately, it does not really work in Ukraine now. The Ministry of finance of Ukraine proposed its own view on the improvement of legal regulation of authorized economic operator status in bill «About alteration to the Customs Code of Ukraine (concerning authorized economic operator and easement of customs formalities» in version from 12th February, 2016.
One of the reasons why this institute does not work now is that there is no appropriate explanation in Customs Code of Ukraine about application which must be entered by legal person to the customs authority. In addition, the requirements to certificate which is given by customs authority is also absent in law. For instance, there are no normative and vested rules about application form. There is only a statement, that application form about granting certificate of authorized economic operator status and self-questionnaire form are defined by central organ of executive power, which provides and realizes state customs and tax policies. Indeed, this organ does not define it. Moreover, the Customs Code of Ukraine does not mention anything about the structure of this application, does not add standard form of it. It will be suitable to fix not only the form of application, but also to regulate a question: can a business entity apply for obtaining the status of authorized economic for desired period?
Therefore, it has to regulate a concept about «combined» certificate, which legal person will receive concurrently as for customs simplifications and for safety and defense instead two various certificates.
An open issue in Customs Code of Ukraine and in bill from 12th February, 2016 is whether entity can apply at second time for obtaining the authorized economic operator status if such application was previously annulment. If yes, law-making organ should define terms.
Next disputable issue is that, pursuant to the Customs Code of Ukraine – “entity-resident applies to customs office at the place of its state registration”. Such application also must be signed by chief of legal person and stamp-certified. Indeed, in accordance with p.1 Art. 581 of Economic Code of Ukraine, presence of a stump is not obligatory for legal person. Afterwards, under close interpretation of the Customs Code of Ukraine, entity-resident may get some misunderstandings with customs authority concerning the signing of application.
Under Ukrainian legislation applicant should fill in self-questionnaire information about amount of yearly income, foreign trade partners, degree of entity physical safety etc. Indeed, there are no statements about confidentiality of that information. On the one hand, the customs authority has to save confidential data from other persons, who do not take part in procedure of applying-obtaining-rendering, is absent. On the other hand, if there is Uniform Register of authorized economic operators, so entering information from the application into Register and public access to this data is presumptive. Pursuant to Art.18 of the Customs Code of Ukraine – executive authority maintains Register and provides its publishing on the own official web-site. However, this Register absolutely does not function at present, and in generally does not exist at all.
The bill by Ministry of finance of Ukraine levels a statement in the Customs Code of Ukraine about aforesaid registers. Consequently, it can make a problem about absence of control over the authorized economic operators, database maintenance, and cost accounting and especially about cessation of performing operations as by authorized economic operator and annulment of this status.
Furthermore, the Customs Code of Ukraine mentioned that form and order of issuance of certificate about authorized economic operator status is fixed by central body of executive power, which provides forming and realizes state customs and tax policy. Indeed, Ukrainian legislation does not have such form of certificate.
The issue about payment for the registration procedure of authorized economic operator is not regulated by the Customs Code of Ukraine. Furthermore, there is no information about administrative or registration fee for the issue of certificate. The bill from 12th February, 2016 establishes, that certificate of authorized economic operator will be given out free of charge. The ground will be a direction of central body of execution power, which realizes policy in the sphere of state customs.
Furthermore, there are certain differences in regulation of this institute in European and Customs Unions. In particular, the Customs Code of European Union sets out that authorized economic operator must inform custom authority about all factors, which appear from the obtaining this status. And which can influence on prolongation its functioning or content of this status.
Reasoning from analysis of p.6 Art.13 of the Customs Code of European Union, we can find that the issue is about the reception of extra welfares, which is not prescribed in the Customs Code of European Union and in internal laws of the State, where the authorized economic operator status was obtained. Thus, European Union legislation de jure blocks business entity in realization its special status as authorized economic operator out of customs sphere. Obtaining of extra welfares takes place maximum within the scope of customs simplification or/and in the sphere of safety and defense.
The Customs Code of European Union settles issues about checking legal person regarding the paying capacity, accordance to customs and tax demands et cetera, in the light of appropriation of authorized economic operator status. Therefore, all detailing about obtaining this status lay with law-making body of member States of European Union. Indeed, in the Customs Code of Customs Union is mentioned, that in the case of acquisition of authorized economic operator status by legal entity, the last gets a certificate as in confirmation about inclusion such entity to the special Register of authorized economic operators.
Look back the foreign experience, according to the Customs clearance in France, which was formed in September, 2015 there are 40 concrete measures to support businesses in France. One of these measures is to increase by 80% the number of authorized economic operator certified operator trading with outside EU countries. [1] State bodies in France stressed, that issue of certificate to authorized economic operators let certify the fact, that operators are good in quality and in performance of their obligation inside international trade markets.
Moreover, there are treaties with several countries outside of the EU – exempli gratia Switzerland, Norway, Japan, China and the US – where authorized economic operators status is also recognized.[2] Thus, China has created an application form to obtain status of authorized economic operator. It contains questions which divided into three groups. The first group is about information about type of application (new/renew), and also about type of certificate. The second group has data about entity-resident, in particular, name, business registration number, business address, correspondence and website addresses, information about contact person and line of business. The third group includes entity’s consent and some excerpts from the laws about legal regulation of the authorized economic operator status, his rights and obligations, signature and requisites of applicant, and requisites of state body, which give services, as compulsory element of letterhead.
There is fixed list of documents, which state body must check regarding the issue of the control over applicant. In particular, state body has to verify application form, company profile, self-assessment questionnaire, process maps of supply chain and site plans of premises during documentary examination.
In China accredited local companies will be granted an authorized economic operator certificate with a validity of three years.[3] In Germany the period of validity of the authorized economic operator certificate is unlimited.[4] There is no any norm in valid customs law of Ukraine about the period of validity of this certificate.
Conclusion. Overall, the Customs Code of Ukraine has a lot of reference rules in the regulation of institute of authorized economic operators. Indeed, laws or by-laws which could fill gaps are absent today in Ukrainian legislation. That is why state bodies can be more creative in their decisions. We can find, that institute of authorized economic operator exists on paper, but does not really work in Ukraine.
References:
1. Customs clearance in France, available at http://douane.gouv.fr/Portals/0/fichiers/professionnel/dedouanement/dedouanez-en-france/customs-clearance-in-france-(en).pdf (accessed 27, March, 2016).
2. European Union: Overview Of The Authorized Economic Operator (AEO) Status Under Customs Law, available at http://www.mondaq.com/x/337978/Export+controls+Trade+Investment+Sanctions/Overview+Of+The+Authorized+Economic+Operator+AEO+Status+Under+Customs+Law (accessed 27, March, 2016).
3. AEO in China, available at http://www.customs.gov.hk/en/trade_facilitation/aeo/process/index.html#Documentaryinspection (accessed 27, March, 2016).
4. Overview of the AEO status under customs law, available at http://www.squirepattonboggs.com/~/media/files/insights/publications/2014/04/overview-of-the-authorized-economic-operator-aeo__/files/overviewof-theauthorizedeconomicoperatoraeostatu__/fileattachment/overviewof-theauthorizedeconomicoperatoraeostatu__.pdf (accessed 27, March, 2016).