The Customs Broker, in his role as foreign trade assistant, is responsible for declaring operations in accordance with the regulations that govern his professional activity. Undoubtedly, with the advancement and competence of this professional activity, today the Broker represents much more than a mere intermediary between the operator (Importer/Exporter) and the Customs Service. And so his knowledge places him, on more than one occasion, as an advisor to his client, in addition to being in charge of the operational tasks inherent to his profession.
The Dispatcher and his professional practice
In writing in relation to this professional, we have indicated that the Customs Broker is not a mere link between Customs and the importer/exporter, nor a principal to manage the verification of merchandise. He is the professional who safeguards all foreign trade activity, taking it to levels of high professionalism, with full and detailed advice for those who need to comply with all the requirements mandated by the regulatory framework for the introduction and/or extraction of merchandise. Their work is carried out before the merchandise enters the customs territory, making it possible, in many cases, to consult customs on the type and species of the merchandise that their client reports as the object of the possible customs operation, continuing with their declaration in accordance with the documentation provided, participating in the verification act and providing everything related to the needs that best dictate the scope of customs inspection until the release of the merchandise and even after that, in the face of controls that may be required by Customs. Without forgetting that the law positions them as the first control arm of Customs and by designating them as “customs auxiliary” they are entrusted with this level of participation and responsibility. Not for nothing is they internationally known as Private Agent of Public Interest and are recognized as Minister of Faith.
It is evident that international trade is one of the economic activities with a constant evolution, subject to “variable State policies”; “international agreements”; “regulatory changes”; “modernization systems throughout the entire transfer mechanism”; “control”; “variation in quality and type of merchandise”; “classification and valuation frameworks and criteria”; “new systems and digitalization of their mechanisms”. This dynamism implies the need for those who carry out such activity to be permanently aligned with the updating of customs regimes, both international and national, being relevant to be a suitable and trained professional.
Based on this, it is important to look at the Forwarder as what he is, that is to say, a professional and the main link in the activity of international trade, allowing, from the beginning, the facilitation through the clear framework of his suitability, which with his action promotes agility in the stage of entry or exit of the goods, even in times of modernization and digitalization of customs.
In this sense, the Clearing Agent should not be seen as an intermediary and far from certain, it would be trying to distance him from his due action in the import and/or export activities. In this line, we consider that Customs should remember that the Clearing Agent is the first control arm that it holds, the customs assistant who, prior to the knowledge of the customs service, carries out the due control exercises regarding the determination of compliance with all the regimes that a merchandise must be subjected to, allowing to control and advise the importer/exporter, generating transparency, facilitation and agility. A task that should not rest on the improvisation of third parties even through new digital systems and/or facilitating regimes that can promote simplified operating mechanisms.
Therefore, in order to streamline international trade, the presence of both Customs and the Clearing Agent must always be essential to achieve the facilitation promoted by the World Trade Organization and the World Customs Organization itself.
Limited liability of the Shipper
However, such work of fundamental scope for international trade should not be confused with the activity carried out by the importer or exporter in his capacity as buyer or seller and therefore responsible for the commercial transaction between the parties that lead to the business exchange agreement. Where the components that are deployed in such agreements between the seller and buyer, such as the price, condition, place of shipment, issuance of documents, transport contracts, certifications, turn out to be outside the scope of the customs broker. They cannot be transferred, nor considered part of the responsibility of a subject, as we have pointed out of immense importance for foreign trade, but limited to its operational customs function.
That said, it is clear that the concern about their legal responsibilities in customs declarations is nothing new for the Clearing Agents. Obviously, since they provide their service and knowledge for the customs declaration, it must be understood that the specialty of their subject matter, added to their experience, makes them true professionals with their logical responsibility.
The issue becomes more complex when analyzing the well-known formula referring to the fulfillment of the obligations under its responsibility, as referred to in article 908 of the Customs Code in the framework of Customs Violations. Formula that is also used to assign criminal liability for the crime of smuggling. And so in many cases the Forwarder is affected by the liability of its client (Importer or Exporter), on aspects that are not its conduct.
Furthermore, with the enactment of Law 25.986 (BO05.01.2005) by which several articles of the Customs Code were amended, article 957 of said legal body was repealed, which provided for exemption from punishment in those cases in which the inaccuracy arose from the tariff classification of the operation. Thus, responsibility has become somewhat more complex for the universe of the Dispatchers, since it is more risky for the exercise of their profession given the possibility not only of an administrative sanction, but directly of criminal prosecution.
And this is so, because in the event of the entry of merchandise for which the Customs Service deems there to be an irregularity in the documentation, given the existence of apocryphal commercial invoices, the Clearing Agent would be considered to be guilty of the crime of aggravated smuggling in accordance with art. 865, paragraphs b and f of the Customs Code. Of course, for this, regardless of the trick or deception concocted to hinder or impede the Customs Service, the intention of the accused to achieve his goal must be considered.
In light of this, it is often noted that, in accordance with the professional duties of Customs Brokers, said professional is not exempt from properly verifying the documentation of the operation that he declares, putting the Broker beyond logical knowledge to place himself almost as a private investigator of the operation in charge of him before Customs.
Of course, according to his correct knowledge and above all his experience, the Dispatcher has the ability to discern the possibility of some irregularity, but this is not automatically sufficient to impose criminal liability on him, in which, paradoxically, he must prove his innocence. And this is so because the Dispatcher's responsibility is mostly operational, being unrelated to his client's business, unless there could really be collusion between the two or some act that truly compromises him. But demanding that, due to his ability, he should be responsible for something that he is not aware of, is dangerous.
As indicated, the judiciary must exercise caution in conducting a broad investigation of the evidence submitted to the case prior to issuing a prosecution, as this seriously affects the customs agent's continued employment. Remembering that a judicial measure of this kind - prosecution -, despite the fact that the guarantee of presumption of innocence that protects all citizens by the National Constitution still persists, the customs assistant will be subject to the suspension of his registration with the General Directorate of Customs, and with it, to the impossibility of exercising his activity until a sentence is handed down that acquits him, which can lead to such long times that it directly leads to the loss of his profession forever, even when the accusation is ultimately reversed.
It should also be noted that technological advances have brought about new criminal methods through which deception is carried out more quickly and with greater rigor, so that sometimes the knowledge and experience of a foreign trade assistant is not enough to ensure the veracity of the documentation provided to him, imposing on him a responsibility that is sometimes merely objective for prosecution.
The responsibility of the Forwarder must be limited to the fulfillment of the obligations imposed by the law, leaving somewhat out of place the requirement to control the value of the invoices, the market prices, the presence of transfers abroad, the conditions of such commercial transactions, aspects on which professional knowledge cannot be required. Furthermore, and just as the responsibility of the Forwarder is sometimes upheld by mere imposition of what he should know, with the same yardstick or greater reason, the responsibility falls on the customs agents who intervened in the relevant operation. Even more so when the Forwarder operates in a context of speed typical of international trade, which prevents a rigorous examination of each documentation specific to the operation in question and which is sent to him, in many cases, by mere digital action for the preparation of the dispatches to formalize the import/export request, through the systems enabled for such purposes. Being far from being able to carry out a review like those that can be carried out by the customs bodies or the same judicial investigative areas, which have, not only more time but also the use of instruments at their service that allow them to carry out effective investigations, which the customs broker clearly does not have.
In those cases where an insignificant value is considered in the preparation of an invoice, the presumption of falsehood will occasionally depend on a question of fact, and in such a case the reversal of the burden of proof that requires the Dispatcher to provide a certain justification of the value recorded in the transaction or the fact that such an instrument may be observed as apocryphal does not apply.
Given the accumulation of operations, new forms of trade and a greater burden of responsibilities on the Dispatchers, it is important that such professionals have training to be aware of the risks inherent to the professional practice that concerns them; such as cases in which certain products may have an effect on health, cases of trademark fraud, cases of entry and exit of works of art and goods protected by special laws and obviously, cases of under-invoicing and over-invoicing; to name a few.
Conclusion
In this context, we consider that the role of the Customs Broker should be exalted, on the one hand by the broker himself through constant training, and on the other hand by Customs itself, who, remembering that it is its assistant in customs operations, must protect his activity, respecting and ensuring it is respected, safeguarding his function through concrete actions that tend to discourage mere accusations regarding conduct that is not his own responsibility, discouraging the wrong combination of the concept of suitability and experience as prerequisites for reproach for acts that are unrelated to his function.
Last but not least, it is worth noting the creation of the College of Shipping Agents, which will give priority to this significant profession for international trade, and can act as an entity with the power to control and sanction the professional practice, as well as serving as support against the attacks that Shipping Agents must sometimes endure in the daily performance of their tasks.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
