Customs inspection practice: a declarant’s rights and obligations

On 20 September 2023, the Supreme Court’s Chamber for Commercial Disputes confirmed the legality of a customs authority’s refusal to release goods due to the declarant’s failure to present the goods for customs inspection (Case No. А56-17901/2022).

For more details on the court’s conclusions on the declarant’s rights and obligations to ensure a special place for the customs inspection of goods requiring special conditions for their integrity, please see our brief or detailed overview below.

Brief overview

Detailed overview

According to the case materials, during customs control procedures using the risk management system prior to the release of goods, the customs clearance post determined the need to inspect the goods by weighing and counting them.

The relevant notification was delivered to the actual control post, i.e. the customs post where the goods were physically located.

For customs inspection purposes, the importer was required to present the goods to the customs control zone, open the packaging, provide tare for weighing, as well as take measures to ensure the integrity of goods during inspection.

In response to this requirement, the importer presented the goods to the customs control zone and notified the customs post that opening the packaging would compromise the integrity of the goods and that no other tare or equipment was available that would allow the goods to be weighed without damaging them.

The actual control post did not actually weigh the goods, since the importer neither opened the packaging nor provided special containers for weighing.

Therefore, the customs clearance post refused to release the goods due to their non-presentation for customs control purposes.

The first-instance court found the customs authority’s refusal to release the goods to be lawful, given that:

• Pursuant to clause 1.5 of Article 125 of the EEU Customs Code, failure to present goods at the request of a customs authority within the established timeframe constitutes grounds for refusing to release them.
• Although the goods required special storage conditions after opening, this does not in itself mean that they cannot be opened for customs control purposes, but indicates the need to take additional measures to ensure their integrity after opening.
• The importer had the ability to ensure that customs control procedures were performed in a place of temporary storage, where appropriate measures for their integrity could be taken.

However, the appeals court, together with the cassation court, did not agree with the ruling of the first-instance court and concluded that the opening of the packaging would make it impossible for the importer to further use the goods in production.

The courts reached this conclusion based on a written explanation from the goods manufacturer stating that the packaging may be slightly opened to inspect the goods, but it is strictly forbidden to remove the goods from the original packaging since this will lead to their damage.

The Supreme Court’s Chamber for Commercial Disputes ruled in favor of the customs authority, upholding the first-instance court’s decision.

According to the Chamber for Commercial Disputes, the customs authority did not deny the need for special conditions during inspection (place, temperature and environment). The customs authority asked that the importer not only present the goods for control procedures, but also ensure appropriate conditions for their integrity during inspection.

It is the importer’s obligation to present goods and take measures to ensure their integrity during customs control procedures, so the importer should have proposed another place for customs inspection where these measures could be taken.

Outlook

The position of the Supreme Court’s Chamber for Commercial Disputes that customs laws provide for special mechanisms to perform customs control procedures taking into account the specifics of goods, including those requiring special storage conditions, is undisputed.

It should be noted, however, that these mechanisms vest the importer with rights and obligations to propose a place where customs control procedures can be carried out by the customs authority and where the integrity of goods can be ensured.

In practice, ensuring such special storage conditions for goods may entail significant costs.
Therefore, it would be fair to assess the limits of such cooperation based on principles of reasonableness, as well as to establish a mechanism of reciprocal cooperation on the part of customs authorities.

In practice, however, the customs authorities are increasingly imposing their control duties on foreign trade operators (e.g., in the form of proposals for voluntary adjustments to goods declarations before a customs audit report is issued), and the courts are currently asking operators to cooperate.

How we can help

• Comprehensive assistance during customs audits
• Development of a strategy of cooperation with customs authorities during audits
• Arrangement of meetings with customs authorities
• Preparation of legal opinions on the appropriateness of challenging decisions of customs authorities
• Preparation of court claims, appeals or responses to appeals, statements, clarifications, requests and other trial documents for appealing decisions of customs authorities
• Representation of clients’ interests in arbitration court when appealing decisions of customs authorities