MENU

Letter of the Federal Customs Service of Russia No. 01-11/50898 dated May 15.05.2018, XNUMX on the initiation of proceedings on administrative offenses in connection with non-compliance with technical regulation measures

In order to ensure a uniform law enforcement practice of initiating cases of administrative offenses (hereinafter referred to as AA) in connection with the submission of invalid documents confirming compliance with technical regulation measures during customs operations, as well as the absence of a single sign of product circulation on the market of the Eurasian Economic Union (hereinafter referred to as the EAC sign), we propose to be guided by the following.

Prohibitions and restrictions based on subparagraph 10 of paragraph 1 of Article 2 of the Customs Code of the EAEU, include, among other things, technical regulation measures applied to goods transported across the customs border EAEU.

Article 51 of the Treaty on the EAEU establishes that technical regulation within the EAEU includes the establishment of uniform mandatory requirements in the technical regulations of the EAEU or national mandatory requirements in the legislation of the Member States for products included in the single list of products for which mandatory requirements are established within the EAEU, as well as the application and implementation of technical regulations in Member States without exemptions.

Compliance with technical response measures in accordance with paragraph 2 7 articles TC EAEU confirmed in the cases and in the manner specified ECE or the legislation of the Member States in accordance with the Treaty on the EAEU, by submitting relevant documents and (or) information about these documents.

Depending on the categories of goods in accordance with paragraph 2 of the Regulations on the procedure for importing products (goods) into the customs territory of the Customs Union, in respect of which mandatory requirements are established within the framework of the Customs Union, approved by the Decision of the EEC Board No. 294 dated 25.12.2012/XNUMX/XNUMX, various technical regulations of the EAEU requirements have been established for the submission, in order to comply with technical regulation measures, of documents on assessing compliance with the requirements of the technical regulations of the EAEU (certificates of conformity, declarations of conformity and other documents provided for by the legislation of the Russian Federation (hereinafter referred to as documents of conformity) when performing customs operations in relation to imported goods.

These requirements correspond with subparagraph 7 of paragraph 1 of Article 106, subparagraph 4 of paragraph 1 of Article 108, subparagraph 1 of paragraph 1 of Article 118, other provisions of the Customs Code of the EAEU, according to which, when declaring goods at customs, depending on the chosen customs procedure, information about documents confirming compliance with technical regulation measures, and the decision to release is made in case of confirmation of compliance with the prohibitions and restrictions, which include technical regulation measures.

In this regard, the powers of the customs authorities include checking, within the framework of customs control, documents and information specified in the declaration for goods or an application for the release of goods before filing a declaration for goods in order to confirm compliance with prohibitions and restrictions, including technical regulation measures.

Part 3 of Article 16.2 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) establishes liability for the submission of invalid documents if such documents served or could serve as a basis for non-compliance with established prohibitions and restrictions, including technical regulation measures. In addition, for the submission by the declarant to the customs representative of invalid documents that resulted in non-compliance with prohibitions, restrictions, administrative liability is established by Article 16.7 of the Code of Administrative Offenses of the Russian Federation, and when goods are released before the declaration for goods is submitted - by Article 16.17 of the Code of Administrative Offenses of the Russian Federation.

At the same time, invalid documents, according to Note 2 to Article 16.1 of the Code of Administrative Offenses of the Russian Federation, are understood to be fake documents, as well as documents obtained illegally, containing false information related to other goods, and other documents that have no legal force.

When deciding whether to initiate cases of AP under these articles of the Code of Administrative Offenses of the Russian Federation, the following circumstances must be taken into account.

1. Verification of the accuracy of the information specified in the certificates of conformity and declarations of conformity is carried out by comparing them with the information contained in unified register of issued certificates of conformity and registered declarations of conformity (hereinafter referred to as the Unified Register).

Registration of a certificate of conformity, a declaration of conformity in the Unified Register is a necessary element of confirming the compliance of products with the requirements of the technical regulations of the EAEU. This conclusion follows from the analysis of the provisions of paragraph 22.1.8 of the Regulations on the procedure for applying standard schemes for assessing (confirming) compliance in the technical regulations of the Customs Union (approved by the Decision of the Commission of the Customs Union No. 621 of 07.04.2011), paragraph 2 of the Procedure for registration, suspension, renewal and termination the validity of declarations of conformity of products with the requirements of the technical regulations of the Eurasian Economic Union (approved by the Decision of the EEC Board No. 41 dated March 20.03.2018, 319), as well as the Regulations on the procedure for the formation and maintenance of a unified register of issued certificates of conformity and registered declarations of conformity drawn up in a single form (approved by the Decision Commission of the Customs Union No. 18.06.2010 dated 293/25.12.2012/XNUMX), Rules for issuing a certificate of compliance with the requirements of the technical regulation of the EAEU (approved by the Decision of the EEC Board No. XNUMX dated XNUMX/XNUMX/XNUMX).

In the absence of such registration Certificate of Conformity, declaration of conformity cannot be accepted as documents confirming the conformity of products to the established requirements, since such documents have no legal force. A similar approach is applicable in the absence of an accredited testing laboratory that conducted testing (research) of products, or a certification body that issued a certificate of conformity, in the Unified Register of Certification Bodies and Testing Laboratories (Centers). The same category of invalid documents includes documents on compliance, in which there are forgeries, erasures, additions confirmed by appropriate evidence.

The customs authorities, within the framework of customs control, when checking the submitted documents of conformity (information about them), may reveal signs indicating violations committed during their issuance (registration, acceptance), such as the lack of proper accreditation from certification bodies and testing laboratories, non-confirmation of the fact of import of product samples for testing (research), inconsistency of the form of the document on compliance with the approved sample, etc..

These circumstances can be used as the basis for initiating cases of AP under the indicated articles of Chapter 16 of the Code of Administrative Offenses of the Russian Federation. only in the event of their cancellation, termination, invalidation. Such decisions may be taken by a court or by an appropriate body of state control (supervision) over compliance with the requirements of technical regulations (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare, the Ministry of the Russian Federation for Civil Defense, Emergency Situations and Elimination of Consequences of Natural Disasters, the Federal Service for on supervision in the field of healthcare, the Federal Agency for Technical Regulation and Metrology, etc.), certification body, the person who accepted the declaration of conformity.

2. In the case of submission to the customs authority of documents confirming compliance with technical regulation measures, or information about them and the absence of markings on the goods, their packaging, shipping or shipping documents, the mandatory presence of which is provided for by the law of the EAEU (technical regulations of the EAEU (Customs Union), legislation of the Russian Federation, a document on conformity assessment may be invalidated for the purposes of customs operations, if presented to the customs authority product cannot be identified with the goods specified in the document of conformity, i.e. as for other goods.

At the same time, it should be taken into account that for the purpose of qualifying the offense committed under the specified articles of the Code of Administrative Offenses of the Russian Federation, it is not enough just for a discrepancy between the marking on the product and the information specified in the conformity assessment document (including the lack of translation of the marking into Russian, the presence of typos, errors, inconsistency marking forms). In addition to labeling, it is necessary to examine the shipping documents, technical documentation and other documents related to the imported goods in aggregate. If the results of customs inspection confirm the identity of the information about the goods specified in the declaration for goods, shipping documents, shipping documents and other documents specified in Article 108 of the Customs Code of the EAEU, documents received as part of customs control, the document on assessing compliance with the requirements of the technical regulations of the EAEU, the latter is invalid (related to other goods) cannot be recognized.

3. The absence of only marking with the EAC mark on goods transported across the customs border of the EAEU, included in the List of products in respect of which the filing of a customs declaration is accompanied by the submission of a document on assessing compliance with the requirements of the technical regulations of the EAEU, in itself does not constitute an administrative offense, liability for which is provided for by Part 3 of Article 16.2, Articles 16.7, 16.17 of the Code of Administrative Offenses of the Russian Federation.

In accordance with the Protocol on Technical Regulation within the EAEU (Appendix No. 9 to the Treaty on the EAEU), the EAC mark is a designation that informs purchasers and consumers about the compliance of products put into circulation with the requirements of technical regulations.

According to paragraphs 2, 4 of the Regulations on a single mark of circulation of products on the market of the states - members of the Customs Union, approved Decision of the Commission of the Customs Union No. 711 dated 15.07.2011, the presence of the EAC mark indicates that the product has passed all the procedures for assessing (confirming) conformity established in the technical regulations of the EAEU and meets the established requirements. Its application is carried out before the release of products into circulation on the EAEU market.

In accordance with the technical regulations of the EAEU (Customs Union) (for example, paragraph 100 "On the safety of wheeled vehicles" (TP TS 018/2011), products are marked with the EAC mark after the issuance of certificates of conformity or a declaration of conformity.

Thus, the application of the EAC mark is not related to the procedure for obtaining documents of conformity; therefore, its absence does not entail the recognition of such documents submitted during customs declaration in order to confirm the fact of compliance with the established prohibitions and restrictions as invalid.

Please note that the issue of the presence of the composition of the AP and the initiation of an AP case should be resolved in each specific case separately, taking into account the requirements of the EAEU law (technical regulations of the EAEU (Customs Union) applicable to a certain category of goods, as well as circumstances indicating measures documents on conformity assessment accepted by the person for checking the validity, their relevance to a particular product, participation of the declarant in the procedure for obtaining them.

Upon detection of violations of the requirements of technical regulations, rules for performing certification work, the procedure for labeling products subject to mandatory confirmation of conformity, submission of inaccurate research (test) results, inaccurate declaration of product conformity, administrative responsibility for which is established by Articles 14.43, 14.44, 14.46, 14.46.1 , 14.47, 14.48, 15.12 of the Code of Administrative Offenses of the Russian Federation, and other violations in the field of technical regulation that are not within the competence of the customs authorities, documents and information confirming such violations must be sent to the relevant state control (supervision) bodies for compliance with the requirements of technical regulations to attract persons to administrative responsibility.

 

Acting Head Colonel-General of the Customs Service R.V. Davydov