In order to ensure uniform law enforcement practice of initiating cases of administrative offenses (hereinafter referred to as AP) 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 product circulation mark on imported goods on the market of the member states of the Eurasian Economic Union (hereinafter referred to as the EAC mark), we suggest following next.
Prohibitions and restrictionsbased on subparagraph 10 of paragraph 1 of Article 2 of the Customs Code of the EAEU, including technical regulation measures applied to goods transported across the customs borderThe EAEU.
Article 51 of the EAEU Treaty establishes thattechnical regulationWithin the framework of the EAEU, it 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 unified list of products for which mandatory requirements are established within the EAEU, as well as the application and enforcement of technical regulations in the member States without exceptions.
Compliance with technical response measures in accordance with paragraph2Articles 7The EAEU TCit is confirmed in the cases and in the order determined byECEor 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 Customs Union, approved by the Decision of the EEC Board No. 294 of December 25, 2012, various technical regulations of the EAEU establish requirements for the submission of documents on assessment of 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 compliance) when performing customs operations in respect of imported goods.
These requirements correspond to 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 customs declaration of goods, depending on the chosen customs procedure, information on documents confirming compliance with technical regulation measures and a decision must be indicated in the goods declaration the release is accepted in case of confirmation of compliance with prohibitions and restrictions, which include measures of technical regulation.
In this regard, the powers of the customs authorities include verification within the framework of customs control of documents and information specified in the declaration for goods or the statement on the release of goods before submitting the 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 Offences of the Russian Federation (hereinafter - the Administrative Code 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 of invalid documents by the declarant to the customs representative, which entailed non-compliance with prohibitions, restrictions, administrative liability is established by Article 16.7 of the Administrative Code of the Russian Federation, and when goods are released before the declaration for goods is filed - by Article 16.17 of the Administrative Code of the Russian Federation.
At the same time, invalid documents according to Note 2 to Article 16.1 of the Administrative Code of the Russian Federation are fake documents, as well as documents obtained illegally, containing false information related to other goods, and other documents that have no legal force.
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 inunified Register of issued certificates of conformity and registered declarations of conformity (hereinafter referred to as the Unified Register).
Registration of the certificate of conformity, declaration of conformity in the Unified Register is a necessary element of confirming the conformity 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 Regulation on the Procedure for Applying Standard Conformity Assessment (Confirmation) Schemes in the Technical Regulations of the Customs Union (approved by the Decision of the Customs Union Commission No. 621 dated 07.04.2011), paragraph 2 of the Procedure for Registration, Suspension, Renewal and Termination of declarations of conformity of products to the Requirements of the Technical Regulations of the Eurasian Economic Union (approved by the Decision EEC Board No. 41 dated 20.03.2018), as well as Regulations on the procedure for forming and Maintaining a unified register of issued certificates of conformity and Registered Declarations of conformity issued in a single form (approved by the Decision of the Customs Union Commission No. 319 dated 18.06.2010), Rules for Issuing a Certificate of Conformity to the requirements of the EAEU Technical Regulations (approved by the Decision of the EEC Board No. 293 dated 25.12.2012 ).
In the absence of such registrationcertificate of conformity,declaration of conformitythey cannot be accepted as documents confirming the conformity of products with 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 product testing (research) 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 of conformity, in which there are forgeries, erasures, additions confirmed by relevant evidence.
Customs authorities within the framework of customs control, when checking the submitted documents on compliance (information about them), signs may be revealed 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), non-compliance with the form of the document of conformity to the approved sample, etc..
These circumstances can be the basis for the initiation of cases on AP under the specified articles of Chapter 16 of the Administrative Code of the Russian Federationonly in case of their cancellation, termination, invalidation. Such decisions may be taken by a court or by the relevant state control (supervision) body for compliance with the requirements of technical regulations (Federal Service for Supervision of Consumer Rights Protection and Human Well-Being, Ministry of Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters, Federal Service for Supervision of Healthcare, Federal Agency for Technical regulation and metrology, etc.), a certification body, a person who has adopted a declaration of conformity.
It should be borne in mind that for the purpose of qualifying the offense committed under the specified articles of the Administrative Code of the Russian Federation, only a discrepancy between the marking on the product and the information specified in the conformity assessment document (including the absence of translation of the marking into Russian, the presence of typos, errors, inconsistency of the marking form) is not enough. In addition to labeling, it is necessary to examine shipping documents, technical documentation and other documents related to the imported goods in aggregate. If the results of the customs inspection confirm the identity of the information about the goods specified in the goods declaration, goods transport, shipping documents and other documents specified in Article 108 of the Customs Code of the EAEU, documents received within the framework of customs control, the document on the assessment of compliance with the requirements of the technical regulations of the EAEU, the latter cannot be recognized as invalid (relating to other goods).
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 for which the submission of a customs declaration is accompanied by the submission of a document on the assessment of compliance with the requirements of the technical regulations of the EAEU, in itselfdoes not constitute an administrative offense, responsibility for which is provided for in part 3 of Article 16.2, Articles 16.7, 16.17 of the Administrative Code of the Russian Federation.
In accordance with the Protocol on Technical Regulation within the EAEU (Annex No. 9 to the EAEU Treaty), the EAC sign is a designation informing 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 the Single mark of circulation of products on the market of the member States of the Customs Union, approved byBy the decision of the Customs Union Commission No. 711 of 15.07.2011, the presence of the EAC mark indicates that the products have passed all the conformity assessment (confirmation) procedures established in the technical regulations of the EAEU and meet 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 CU 018/2011), products are marked with the EAC mark after issuing certificates of conformity or declaration of conformity.
Thus, the application of the EAC mark is not related to the procedure for obtaining compliance documents, in this regard, its absence does not entail the recognition of such documents submitted during customs declaration in order to confirm compliance with the established prohibitions and restrictions, invalid.
Upon detection of violations of the requirements of technical regulations, rules for the performance of certification work, the procedure for labeling products subject to mandatory conformity assessment, submission of false research results (tests), false declaration of conformity of products, administrative responsibility for which is established by articles 14.43, 14.44, 14.46, 14.46.1, 14.47, 14.48, 15.12 Administrative Code of the Russian Federation, and other violations in the field of technical regulation that are not within the competence of customs authorities, documents and information confirming such violations should be sent to the relevant state control (supervision) bodies for compliance with the requirements of technical regulations to bring persons to administrative responsibility.
Acting Head Colonel-General of the Customs Service R.V.Davydov