Comparative legal analysis of administrative responsibility in the field of customs in the Eurasian Economic Union

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 study of this topic was conducted by the author in 2016 ^{[1, pp.76-82]}, now, after seven years, the purpose of this article is to analyze the current state of legal regulation of administrative penalties in the member states of the Eurasian Economic Union (EAEU), applied for administrative offenses in the field of customs. A single customs legislation is in force on the territory of the Eurasian Economic Union, at the same time, in each EAEU state there is national legislation establishing administrative responsibility for customs offenses and a subject of foreign economic activity who violated customs rules in the Russian Federation and a subject of foreign economic activity who committed a similar offense in another country of the Union will be brought to administrative responsibility according to various norms (different administrative sanctions will be applied to them) ^{[1, p.77]}.   We share the point of view of Rylskaya M.A. and Gumenyuk V.P. that the implementation of proceedings on administrative offenses in accordance with the current national legislations of the EAEU member states clearly contradicts the goals of the creation of the EAEU ^{[2, p.185]}. In this regard, persons violating customs legislation have a benefit, explained by the difference in the amount of responsibility for the same act in different EAEU countries ^{[3, p.184]}. Unified customs legislation should imply uniform punishment for the commission of similar violations of the customs legislation of the EAEU.  As Kalmykova A.V. rightly notes: "for the construction of an integrated single economic space, coordination of the national legislations of the EAEU member states is of particular importance, otherwise the single market formed within the Union may be saturated with unsafe products, and entities violating the requirements of legislation on technical regulation, due to a different approach in sentencing and different sanctions for offenses in the area under consideration can avoid punishment" ^{[4, p.78]}. The process of unification and harmonization within the EAEU is of particular importance, since for the Russian Federation the transition to an in-depth model of regional cooperation within the framework of friendly international organizations and interstate integration associations has become an effective response to sanctions pressure from a number of states ^{[5, p.18]}.

In addition, in accordance with Article 3 of the Treaty on the Specifics of Criminal and Administrative Liability for Violations of the Customs Legislation of the Customs Union and the member States of the Customs Union: "each Party undertakes to take measures to amend its legislation providing for criminal and administrative liability for violations of the customs legislation of the Customs Union and the legislation of the Parties, and to bring to a uniform determination of the illegality of such acts" (Agreement on the Specifics of Criminal and Administrative Liability for Violations of the Customs Legislation of the Customs Union and the member States of the Customs Union (signed in Astana on 05.07.2010)). We will analyze the legislation on administrative responsibility in the EAEU states in order to identify the uniformity and proportionality of administrative penalties for violations of customs rules in the EAEU. The legal basis of the comparative analysis was the Customs Code of the EAEU, as well as the Code of the Russian Federation on Administrative Offenses (Administrative Code of the Russian Federation), the Code of the Republic of Belarus on Administrative Offenses (Administrative Code of the Republic of Belarus), the Code of the Republic of Kazakhstan on Administrative Offenses (Administrative Code of the Republic of Kazakhstan), the Code of the Kyrgyz Republic on Offenses (Code of the Kyrgyz Republic).  Thus, all the EAEU members, with the exception of Armenia, will be analyzed due to the absence of the relevant legislation of the named state in official open sources.

The key stage of the movement of goods across the customs border of the EAEU is the declaration of goods. According to the EAEU Customs Code, goods are subject to customs declaration: 1) when they are placed under the customs procedure (paragraph 1 of Article 104 of the EAEU Customs Code); 2) goods for personal use (paragraph 4 of Article 258 of the EAEU Customs Code); 3) international transportation vehicles in cases provided for in paragraph 4 of Article 272 of the EAEU Customs Code; 4) supplies in accordance with paragraph 2 of Article 281 The EAEU TC. The duty to carry out the customs declaration of goods is assigned to the declarant (sub-item 1, item 2, Article 84 of the EAEU Customs Code). Let's analyze the administrative penalties for non-declaration of goods in the prescribed form in the EAEU member states (Table 1).

Table 1. Administrative responsibility for non-declaration of goods in the EAEU Member States

Comparative legal analysis of administrative responsibility for non-declaration of goods in the EAEU states allowed us to formulate the following conclusions:

1) the most "severe" sanctions are established by the administrative legislation of the Russian Federation, since, in addition to a fine, a court for non-declaration of goods may order the confiscation of an instrument or an object of an administrative offense. The Code of the Republic of Kazakhstan provides that the seized goods are subject to return to the offender in case of voluntary payment of the customs duties due in double amount, including penalties, but only when moving goods and vehicles in addition to customs control (note to Article 372-1 of the Code of the Republic of Kazakhstan), such a sanction is not provided for non-declaration;

2) the measures of administrative responsibility established in Kazakhstan and Kyrgyzstan for non-declaration appear to be "ultra-liberal". We consider the difference in fines to be fundamental: for example, in the amount of one second to two times the value of undeclared goods (Russia, for individuals) and 20200 rubles (Kyrgyzstan, for individuals);

3) different subject composition. In all EAEU countries, except Kazakhstan, sanctions are differentiated for individuals and legal entities. The Administrative Code of the Republic of Kazakhstan establishes liability for individuals, small, medium, large businesses, as well as non-profit organizations.

In addition to the disproportionality of administrative penalties provided for by the administrative legislations of the EAEU member states, the need to unify the composition of administrative offenses in the field of customs affairs, i.e. the establishment of a general list of articles providing for administrative liability for violation of customs rules, was also revealed (Table 2).

Table 2. Sample analysis of articles of the Administrative Code of the Russian Federation and the Code of the Kyrgyz Republic establishing administrative responsibility for violation of customs legislation

Also of interest is Note 2 to Chapter 15 of the Administrative Code of the Republic of Belarus, according to which, if there are reasons and grounds for initiating administrative proceedings against a legal entity for committing an administrative customs offense or initiating administrative proceedings against such a person, conducting administrative proceedings against an individual is excluded. In the Russian Federation, bringing a legal entity to administrative responsibility does not exempt an individual from responsibility for this act (Part 3 of art.2.1 Administrative Code of the Russian Federation). In practice, the courts and customs authorities of the Russian Federation in most cases involve only guilty legal entities.

The main conclusion of the analysis is the revealed underestimated importance of the importance of legal regulation of administrative responsibility in the field of customs in the EAEU states. Administrative responsibility is a tool for ensuring compliance with the customs legislation of the EAEU and the legislation on customs regulation of each individual state. This is the foundation, the basis, why follow the rules if a disproportionately lenient punishment is established for their violation or such a measure is not established at all?

Several solutions to this problem are presented in scientific publications. Thus, representatives of the Belarusian State University propose to unify the legislation on customs offenses by creating a single unified act in the form of the Administrative and Criminal Codes of the EAEU on Customs Offenses, which would contain common principles, deadlines, criteria for bringing persons to administrative and criminal responsibility for committing customs offenses ^{[3, p.184]}.

Some Russian legal scholars consider the application of model legislation to be the most successful method of harmonization, which, on the one hand, will allow, if necessary, to abandon the full implementation of model provisions, and on the other, is a recognized flexible legal instrument aimed primarily at improving their own legislation ^{[2, p.190]}.  In any case, the use of the model law may require the transformation of the current legislation ^{[6, p.381]}.

The most effective solution to the existing problem is the harmonization of the administrative legislation of the EAEU member states, i.e. the harmonization and harmonization of the norms establishing administrative responsibility in the field of customs in the following areas:

1) inventory of the composition of administrative offenses in the field of customs affairs by correlating the Codes of Administrative Offenses of the EAEU countries in order to avoid situations where responsibility is provided for a similar act in one country, but not in another.  For example, in the Russian Federation, administrative responsibility is established for failure to submit reports to the customs authority, but in the Kyrgyz Republic – not;

2) bringing administrative penalties into uniformity, in particular, administrative fines. The amount of fines, as well as at present, can be determined in the equivalents established by national legislation (ruble, base values, monthly calculation indices, etc.), but the difference in fines cannot be so significant. Since the level of well-being of the population in the EAEU countries varies, it seems most fair for the "key" compositions (illegal movement of goods; non-declaration or false declaration of goods; non-compliance with prohibitions and restrictions) to establish, following the example of the Russian Federation, fines that are multiples of the cost of goods. For the rest of the compositions, come to a compromise on the minimum amount of fines and make appropriate changes to national legislation;

3) bringing administrative legislation in line with the customs legislation of the EAEU;

4) unification of the limitation periods for bringing to administrative responsibility for offenses in the field of customs affairs. For example, in the Russian Federation, the statute of limitations is 2 years from the date of the commission of an administrative offense. In Kyrgyzstan, the statute of limitations varies depending on the subject: for individuals – 6 months from the date of the offense; for officials and legal entities – within 1 year from the date of the offense.