Introduction of the Institute of "Authorized Economic Operator". Step forward, two backwards

Thursday, 19 December 2019, 14:23
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On November 7, after signing by the President of Ukraine and publishing, Law No. 141-IX “On Amendments to the Customs Code on Certain Issues of Authorized Economic Operators”, came into force (except for some provisions), adopted on October 2. The Customs Code establishes special simplifications and benefits for authorized economic operators - selected by certain criteria of resident enterprises that perform any role in the international supply chain (manufacturer, exporter, importer, customs representative, carrier, freight forwarder, warehouse owner). Within 6 months, the Ministry of Finance (the central executive body that provides for the formation and implementation of the state financial policy) and the State Customs Service (the central executive body that implements the state customs policy) should set up a customs audit unit at customs and ensure its functioning in the context of customs clearance. European Union customs legislation and the recommendations of the World Customs Organization.
 
The law is adopted within the framework of the European integration course of Ukraine and aims at several goals: the main goal is to implement the European Union norms into Ukrainian legislation, which aim at simplification for certain categories of enterprises - residents of customs clearance of goods by introducing the institute of "automated economic operator".
 
It should be noted that "automated economic operator" is not a novelty of Law No. 141-IX. He was preceded by the Institute of "Authorized Economic Operator", which had its place in the first edition of the Customs Code of 13.03.2012. “Authorized Economic Operator” had the right to use special simplifications, which by their nature and nature are identical to those currently granted to “Automated Economic Operator”, the procedure of which was approved by the Decree of the Cabinet of Ministers of Ukraine of May 21, 2012 No. 447.
 
But, as is often the case, the institute existed, but had no practical implementation - except for the aforementioned order, no subordinate regulatory act was adopted that would regulate the procedure for obtaining the status of "authorized economic operator", its activity, control over the execution of customs operations ( compliance with the eligibility criteria). A song in which there are no couplets besides the chorus.
 
Unlike its "predecessor", the "automated economic operator" has acquired a more specific definition: the procedure for acquiring such status has been disclosed, the mechanism for carrying out the procedure of checking the compliance of the applicant with the established criteria has been determined by the controlling bodies. Although the articles in the new wording are more meaningful, they also need a mechanism for implementation in the by-laws, which in turn gives the rules a suspensory character - until they can actually be applied.
 
Specify, do not limit.
Part 1. Article 12 of the Customs Code specifies that an Authorized Economic Operator is a resident enterprise that performs any role in the international supply chain of goods (manufacturer, exporter, importer, customs representative, carrier, freight forwarder, warehouse holder) and is authorized. Also, the same article describes the terms used to disclose the term “resident enterprise that plays any role in the international supply chain”. In the understanding of СK Ukraine, an enterprise is any legal entity, as well as a citizen-entrepreneur. That is, the possibility of obtaining the status of an authorized economic operator and an individual entrepreneur who meets all the criteria provided for by law is enshrined in law.
In its turn, the "WCO Framework Standards and Facilitation of World Trade", which were adopted as of 1 June 2005, contains at the same time a similar and different concept of "Authorized Economic Operator". The Authorized Economic Operator is a participant in a foreign economic activity whose activity has been approved by the Customs Administration as being in conformity with WTO or security standards for the supply chain. UEOs include, in particular: manufacturers, importers, exporters, brokers, carriers, consolidators, intermediaries, port operators, airports, terminals, integration operators, warehouse operators and distributors.
 
It is unclear why the lawmakers guided the change from one concept to another, because the concept of authorized customs operator version 2012, by its legal nature, corresponds to the "World Customs Framework for Security and Trade Facilitation", although it does not fully disclose its meaning. The problem of "authorized economic operator" in the period of existence was not in the specification of concepts, but in the absence of real mechanisms of implementation.
 
Methodological Guidelines of the World Customs Organization for the Authorized Economic Operator, developed and published in May 2010, provide a clear picture of the implementation of the institute, defining nine stages of the introduction of WEO at the national level. If European integrators adhered to WMO recommendations, then the authorized economic operator would not need resuscitation and transformation from an authorized economic operator, and for several years it was not only on paper.
 
Lawmakers, defining a "new" authorized economic operator, clearly identified that the benefits of the AEО will be able to use a resident enterprise that performs any role in the international supply chain and outline the range of entities that, in his opinion, fully determine of the same enterprises - residents, and for a transitional period (during the first - the third year from the date of entry into force of the Law of Ukraine "On Amendments to the Customs Code of Ukraine on Certain Issues of Authorized Economic Operators), narrowing it further by combining manufacturers and exporters (importers) to obtain AEO-C status.
 
That is, for the first three years, exporters and importers who are not producers of products will not be able to apply for the status of Authorized Economic Operator and benefit from special simplifications.
 
Prior to the implementation of such a grand project, prior to its legalization, it was necessary to develop an extensive program of such introduction, not to limit the number of persons who can apply for AEO status and to quantify the simultaneous qualification of applicants for AEO status (10 - the first year, 20- second year, 30- third year).
 
What is the reason for this lack of vision? After all, any restriction of activity, granting a privileged position to a limited number of persons, always leads to monopoly and corruption.
 
European integration in Ukrainian.
Will the “Authorized Economic Operator” become the next hit, or will the fate of its predecessor - remain an unfinished tune? Time will tell: half a year of the Cabinet of Ministers of Ukraine for bringing its normative-legal acts in compliance with the Law, issuing acts arising from the Law and ensuring revision and bringing relevant normative-legal acts in accordance with the Law by the respective central executive bodies; half a year to the Central Executive Body, which provides for the formation and implementation of the public financial policy, and the Central Executive Body, which implements the State Customs Policy to ensure the establishment of customs audit units and their functioning in accordance with the customs legislation of the European Union and recommendations of the European Union organizations; to June 1, 2021 to the Central Executive Body, which implements the state customs policy, for the development and implementation of the procedure for submission and processing in electronic form of documents annexed to the customs declaration; three years for the revenue and experience collecting bodies to assess the compliance of enterprises with AEO criteria, to interact with AEOs and to monitor their activities.
 
So, it is seven years since the “first introduction” of the Institute of the Authorized Economic Operator, and Ukraine is at 3 of the 9 stages of the introduction of WEO at the national level. How many years does it take to reach the last one?
 
Conclusion.
As always, the intentions of the legislators are the best: to bring the national legislation in line with the European and the world ones, to improve the investment attractiveness of Ukraine, to simplify the procedure of customs clearance of goods, thereby reducing corruption schemes in the customs authorities, to stimulate the economy of the country and economic entities.
The benefits that a resident enterprise that has been granted AEO-C and / or AEO-B may enjoy are attractive and reassuring:
1) Receive notification to the Revenue Authority that the relevant goods and vehicles for commercial purposes, based on the results of the risk analysis of the general arrival declaration, have been selected for customs inspection at the checkpoint (checkpoint) across the state border of Ukraine until they are moved through customs border of Ukraine (AOE-B);
2) the completion of customs formalities for goods, vehicles for commercial purposes in the first order (AOE-B and AOE-C);
3) reduction of the automated system of customs clearance of the degree of risk to determine the list of customs formalities during the implementation of customs clearance of goods, commercial vehicles (AOE-B and AOE-C);
4) the use of a specially designated (if any) lane at the border crossing point of Ukraine for the movement of commercial vehicles (AOE-B and AOE-C).
5) use of the national AEO logo (AOE-B and AOE-C)
 
But who will actually be able to authorize and reap the benefits that will have a significant impact on the logistics market?
Belief in the legislative and executive branches of power and hope for a better, European future (enduring optimism) convince that not for six months, but for the year it takes for the introduction and operation of an institute of an authorized economic operator in a pilot but "fit for life" mode, this status will be granted to the best representatives of the international supply of goods segment, and not to persons close to the legislative and executive body.
And the realities of Ukrainian life are asked to wait with final conclusions.
To be continued.
 
Lawyer of LLC "FTP" Yevheniia Mayorova

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