Authorized economic operator

Author: KONSTANTIN KUROCHKIN,
The head of then Law Bar Customs & Corporate Lawyers

1. Review of the Institute. National regulation.
With the introduction of TC TC Institute of participants of foreign trade activities has been replenished with new face - the authorized economic operator. Earlier preferential treatment is granted in the framework of the TC of the Russian Federation as a «special simplified procedure». The objectives of innovation are: the development of a full-fledged system of interaction of customs and participants of foreign trade activities; * the simplification and acceleration of customs procedures; the weakening of administrative pressure, etc.

In spite of the fact that certain preferential been previously authorized economic operator - this is new for Russia and the countries of the TC institution, with its sources of norms of international law, which applies the concept of authorized consignee» (the international Convention of 18 may 1973, the «On the simplification and harmonization of customs procedures», Russia joined the Convention in 2010), as well as existed before the introduction of certain categories of persons who enjoy privileges.

Authorized economic operator in the Customs Union is a certain category of persons who has the trust of the customs bodies, which are given the opportunity to make use of the special simplified procedures. The use of special customs simplifications gives the possibility to reduce the financial and time costs involved in the Commission of customs operations and optimize the supply chain.

The status of authorized economic operator provides the economic subject of a number of significant benefits. Below the specified privileges (special simplify) will be described in more detail.

At the present time, the legal regulation of the Institute of authorised economic operator is carried out on 2 levels. In the TC TC establishes basic mandatory provisions. At the national level, the Institute of authorised economic operator is regulated by the Federal law «On customs regulation in the Russian Federation» from 27.11.2010 № 311 (Appendix № 1).

Authorized economic operator in the Customs Union is a legal entity, which must meet a list of General requirements (supra-national) requirements and comply with the General conditions, and also comply with the supplementary requirements and comply with the additional terms, which may be established in the country of the Customs Union, in accordance with the legislation which authorized economic operator is established as a legal entity. Under condition of fulfillment of all requirements and compliance with all conditions, and also on inclusion in the register of the legal person acquires the status of authorised economic operator and can make use of the special simplifications provided for in this code.
The status of authorised economic operator shall be only on the territory of the state, which assigns this status.

Authorized economic operator in the Russian Federation should correspond to the to the customs code of the customs Union and the Law «On customs regulation in the Russian Federation» criteria, including to have proper dossier of conformity customs requirements and a satisfactory system of commercial documentation.

In the Law «On customs regulation in the Russian Federation» disclosed (details) the requirements and the conditions stipulated in this code, as well as introducing additional.

So, in order to obtain the status of authorised economic operator in the Russian Federation should:

- for legal persons producing and/or exporting goods which are not dutiable and, if the goods meet the criteria, which are additionally installs the Commission of the customs Union to the present time criteria are not set), the legal entity must provide security in the amount equivalent to 150 thousand. The Euro. If under the terms of a legal person does not fall, the - 1 million. Euro;
- to conduct foreign economic activities not less than 1 year;
- that no arrears in the payment of customs payments and other taxes;
- "that was not in a period of 1 year more than 1 of the fact of bringing to administrative responsibility according to certain articles of the administrative code of the Russian Federation (Appendix № 1), while, provided that the amount of fines in the aggregate amounted to no more than 500 000 rubles;
- "that was determined in the Law «On customs regulation in the Russian Federation» (see Annex) system of accounting of goods, which has the essential features and differences, the statements may be submitted in electronic form, if a person has an electronic digital signature;
- to the taxation system was simplified;
- to there was no convictions for economic crimes as the authorized officials of the legal person applying for the status of authorised economic operator, as well as the customs representative, who will apply simplification in the case of orders him Declaration;
- that in ownership, economic management, operational management or lease were indoor/outdoor areas and other territories, intended for temporary storage of foreign goods. At the same time such territory must meet defined in the Law «On customs regulation in the Russian Federation» requirements.

As regards the procedure for obtaining the status of authorised economic operator, it is, first of all, serious preparatory work and requires a legal entity thoroughness, attention, and of course, the financial costs, secondly, according to expert estimates, the real maximum term of inclusion in the register, not including the time of collection and preparation of a package of documents, but taking into account the timing of exit unscheduled inspection can be about 9 months.

In the end, which gives the legal entity of the status of authorised economic operator:

1. First of all, it is about the ability to store and carry out customs clearance of imported to the Customs Union goods in the squares (warehouses) of the operator, issue and use of foreign goods to feed on them customs Declaration.
2. Authorized economic operator is provided the possibility to implement the delivery of foreign goods directly to the warehouses (premises) without the submission to the customs authority of destination (in the internal customs body).
3. There are no restrictions on the places of Declaration of certain categories of goods.
4. Preliminary customs Declaration, including the submission of incomplete and (or) of the periodic Declaration; periodic customs Declaration.
5. In the application of the authorized economic operator a preliminary Declaration (i.e. submission of a customs Declaration in respect of foreign goods before their arrival on customs territory of the TC) the customs authority may notify the operator about the carrying out of customs inspection prior to the arrival of such goods.
This allows the operator to be ready for the customs examination and plan the time of customs clearance of goods.

6. Moreover, authorized economic operator has the right «to produce the goods prior to the filing of the customs Declaration with the payments of» getting the most for a term from 10 to 40 days interest-free deferral of customs payment.
7. Authorized economic operator may indicate one classification code TN foreign trade activities in respect of goods in non-assembled or unassembled, including in некомплектном or incomplete form, the import or export of which is planned to be several consignments
8. In addition, the possibility of conclusion between the authorized economic operator and the customs body of the special agreement, in which will be determined by the order of their interaction, the regulations of the data exchange, the order of transmission of the customs seals and other issues.
It is important to note that this agreement can be used as a document providing for the terms of application of the operator of customs procedures of processing of goods on customs territory outside the customs territory and for domestic consumption). Thus, this provision exempts the operator from the obligation of preparing a separate package of documents to the customs authority to obtain permission for processing.

9. Regarding customs transit, the authorised economic operator granted the right of delivery of foreign goods, the following in his address from the customs authority in the place of arrival to the local customs authority, on the territory of the authorised economic operator having the status of a zone of customs control and are in the region of activity of customs body of destination, without the delivery of the goods in the place of location of the customs body of destination. Limits of the zone shall be determined in the agreement, which was mentioned above.
10. In the course of customs transit is not provided security for the payment of customs payments.
11. If an authorized economic operator operates, then he will have additional opportunities to the procedure of customs clearance and transit was more simplified.

Optional:
* The government of the Russian Federation in accordance with customs legislation of the Customs Union has the right to determine the list of goods in respect of which may not be subject to special facilitations provided by the authorised economic operator.
* The government of the Russian Federation shall have the right to determine the procedure of prior notice of the authorized economic operator to conduct the inspection of goods exported from the Russian Federation, before they are loaded into a vehicle for the export of goods from the Russian Federation.
* Peculiarities of the completion of the customs transit of foreign goods shall not apply when the customs transit of foreign goods, carried out in accordance with international treaties, the right for establishing that the place of delivery of the goods is the customs authority.
* In case if in accordance with the the risk management system of the customs body will take a decision on carrying out customs control in respect of goods declared in the customs Declaration lodged by the authorized economic operator or the customs representative, on his behalf, the customs control is carried out in the premises, on the open areas and other territories of the authorized economic operator, the location of such goods, as a matter of priority.

Current position.
Now in the list of beneficiaries of the special simplified procedures of customs clearance are 153 of the organization, which, in writing informed of the FCS of Russia till 31.12.2010 expressed their consent to be included in the register of authorized economic operators. 

Such an opportunity is received thanks to the transitional provisions set out in art. 322 of the Law «On customs regulation in the Russian Federation», and the letter FCS of Russia from 17.12.2010 № 01-11/61735.

These organizations may use defined in the labour code of the customs Union and the Law «On customs regulation in the Russian Federation» the special simplified procedures before the expiration of 90 days after the date of entry into force of the above-mentioned Order. 

To date, the procedure of customs bodies of action for the inclusion in the register of persons carrying out activities in the sphere of customs business, and also forms of evidence and procedure of their completion have not been defined. Deadline for the development and introduction of such order - 01.01.2012.

Also not presented to the public familiarization of the standard form of agreement, which may be concluded between the authorised economic operator and customs authorities, and which is an important element in technology relationship authorised economic operator. 

Thus, the Institute of authorised economic operator to the full extent is not yet earned and, respectively, at the present time the assessment stipulated in legislation technologies from the point of view of their effectiveness appears to be premature.

However, undoubtedly, the above-mentioned advantages, which are provided for authorised economic operator, are significant and in case of successful implementation of the short story, can considerably facilitate the activity of a certain category of participants of foreign trade activities.

2. The practice of the status of authorised economic operator in the Republic of Belarus and the Republic of Kazakhstan.
Belarus:

For the Republic of Belarus provided for a temporary position relative to the amount of the 1 million Euro, which will start to operate only with 01.05.2012 year. 

In Belarus acted the Institute of bona fide participants of foreign economic activity, which in fact at the present time continues to act, as he, in fact, was renamed to the Institute of authorised economic operator.
Continues to act the Decree of the President of Belarus from 28.01.2008 g. № 40 «On the status «Conscientious participant of the foreign economic activity» (Appendix № 2).

Kazakhstan:
For Kazakhstan does not provide for transitional provisions in the application of the rules of this code on the authorised economic operator. The provisions of this code on the authorized economic operator has been interpreted and expanded upon in the Code of Kazakhstan on customs Affairs.

There are some differences from the Russian legislation, in particular, a legal entity should conduct foreign economic activities not less than 2 years; the fact of absence of criminal record also important in respect of the founders of the legal person; the fact of involvement of the customs representative to the administrative responsibility does not matter, etc.
Earlier special simplifications in The Republic of Kazakhstan used the persons, referred to as «the participant of foreign trade activities relating to the category of minimal risk», which are authorized economic operators (Order of the Chairman of the customs control Committee of the Ministry of Finance of the Republic of Kazakhstan of June 29, 2005, № 240, Appendix № 4) under the terms of the supranational and the national legislation of the Republic of Kazakhstan.

As has already been noted, in the countries of the European Union a long time and successfully carries out its activity the subject of legal relations as "authorized consignee" - that is, the personauthorized by the customs service to receive goods directly at the place of its location without the need for their submission to the authority of destination.
In addition, in the European Union successfully works "authorized shipper" - a person authorized by the customs service to send the goods directly from the place of its location without the need for their presentation in the body of departure.

The significant difference is the fact that the said categories of persons may provide services on customs clearance of goods in contrast to the authorized economic operator, the rest of the authorized economic operator corresponds to the Institute of Europe of the authorized consignee.

The relations between these subjects with the Supervisory bodies are built on the basis set forth in the Convention «On the simplification and harmonization of customs procedures», as well as the framework of standards to secure and facilitate global trade. The key elements that have to apply the customs administration are:

- minimum administration;
- application of technology risk management (risks of payment of taxes and custom control),
- maximum use of automated systems;
- use of preliminary information about arrival of the cargo for the implementation of programs of selective control;
- the use of electronic data transmission;
- freedom of movement of goods.

3. Problems of unification of the legal regulation in the framework of the Customs Union.
Part of the authority on the legal regulation of the Institute of authorised economic operator transferred to the national level. As it was mentioned above, in the legislation of the three countries there are some differences in the requirements to the authorized economic operator, as well as in his powers.

It is connected including with differences in the approaches to the definition of the liability of the participants of foreign trade activities, features of the existing cooperation of the participants of foreign trade activities with the customs authorities, the development of the real existing infrastructure, transport capacity and etc.

Yet, currently the laws of the TC does not create the need to unify all the regulations on the authorized economic operator. The main condition - this is a compliance with General requirements, including the adoption of standards that would not weaken supranational legislation.

Appendix № 1.

1. In the Federal law «On customs regulation in the Russian Federation» from 27.11.2010 № 311-FZ of an authorized economic operator is devoted to Chapter 6, article 85 of 96.
In the TC TC - articles 38 to 42.
2. Articles. 16.1, 16.2, 16.3, 16.7, 16.9, 16.15, 16.17, 16.20 and 16.22 of KoAP of the Russian Federation, the repeated Commission of offences provided by these articles, makes it impossible to obtain the status of authorised economic operator.
3. Reporting requirements the - art. 96 of the Law «On customs regulation in the Russian Federation».