If your business involves shipping goods across borders, you know firsthand the complexities of customs paperwork. And even a good customs broker does not close all the issues. If a dispute arises with customs officials and in a number of other situations, you need a customs lawyer, often as a matter of urgency.

 

The legal foundation of foreign trade (FEA) and customs law are areas that require deep specialisation. Companies that are actively involved in export and import operations should preferably always have a lawyer with this specialisation on hand. We invite managers of such companies to become clients of the Lawrange attorney’s association, and the entrepreneurial activity will be under reliable legal protection.

 

 

The competence of a customs lawyer

 

In providing the processes of foreign economic activity involve, both own and outsourced specialists, each of which is responsible for its area of work. However, while everything is clear with managers, logisticians and freight forwarders, there is often confusion when it comes to determining the competence of a customs declarer, customs broker and customs lawyer.

 

Let’s deal with these concepts in order.

 

 

Customs declarant

A customs clearance agent, that is, an individual or entity that takes care of the clearance of the customs declaration and other documents required to import and export goods. A customs declarant communicates with customs officials, plans and maintains records of customs payments, and prepares and reviews the shipping documentation for customs clearance. This specialist may be employed by an import/export company or may work independently.

 

 

Customs broker

A legal entity (organization) that holds a Customs Assistance License and has been entered in the Customs Enforcement Register. In this context, the term “customs broker” is commonly used to refer to a specialist who represents interested parties in dealings with Customs authorities. A customs broker calculates the customs value, prepares declarations and other documents for customs clearance, and directly clears the goods at customs posts.

 

Such specialist, if necessary, obtains a permit from SSECU (the State Service of Export Control of Ukraine), works with all customs regimes (import, export, temporary import/export) and understands the nuances of passing through various customs terminals in Ukraine.

 

 

Customs lawyer (attorney)

Specialist who: 1) identifies risks of disputes with customs authorities and gives recommendations on how to minimise them; 2) helps select the best customs regime; 3) represents client’s interests in disputes with customs officials during administrative or court proceedings.

 

Notice! The lawyer for customs cases keeps abreast of all the innovations and changes in the customs legislation and knows all the current restrictions and prohibitions. Today this expert knows international law, which is important in the light of the intensification and acceleration of the European integration processes in our country.

 

 

When should I consult a customs lawyer?

 

In addition to import and export companies registered in Ukraine the services of such specialists could be required by foreign companies operating in our country, trademark owners, etc. In many cases, when a dispute arises with customs officials, the customs broker is unable to help. Prolonging such a problematic situation in time leads to losses.

 

Notice! A customs dispute is not always the fault of the business entity (due to an error or wilful misconduct). Customs inspectors and other customs officials also make mistakes, delay customs clearance and sometimes even commit blatant violations of the law. In such cases, the entrepreneur is at a crossroads: the first way is to accept the customs decision and incur losses (in the form of fines, loss of money, damage to goods or failure to meet transaction deadlines); the second is to appeal the decision with the support of a lawyer.

 

For example, an unpleasant consequence in the form of a fine entails a situation where a declarer sets a product code that provides for a lower duty rate. Customs inspectors may consider this to be an intentional evasion of customs duties. Under Article 485 of the Customs Code, such actions are punishable by a fine of 50 to 150% of the unpaid customs duties. Another example is when a declarant gave false or inaccurate information about goods (availability, name, quantity, etc.). According to Article 472 of the Customs Code, such a violation may result in a penalty in the amount of 100% of the value of such goods.

 

At the same time, the time for appealing against the protocol on administrative liability is limited. You should act promptly, i.e. you should contact your lawyer on the day the protocol is drawn up.

 

 

Consultation of a customs lawyer

 

There are several formats in which a customs lawyer works: a consultation is one of them. In an online or telephone consultation, the following questions can be answered:

  • How to get accredited as a foreign trade entity? What documents are required and how do I get permits for exporting products (certificates, opinions, permits)?
  • What is Incoterms 2020? Why does an entrepreneur need to know about it if he is engaged in FEA?
  • How to choose the most favourable customs regime? How to benefit from preferential and special customs treatment?
  • How does Customs declaration of goods work? How to correctly classify goods according to the UCG FEA? How to obtain a prior classification decision?
  • How to determine and justify the Customs value of goods?
  • Why and how are trademarks registered in the Customs Register of Intellectual Property Objects?
  • How to choose the most acceptable terms of delivery of goods? What should be known about foreign trade contracts and invoices?
  • What risks may arise when moving particular goods across the border? How to avoid disputes with customs authorities?
  • What are the chances for a businessman to successfully resolve a customs dispute if it has already arisen? Where should one turn to a superior Customs authority or to a court?
  • What is the status of an authorised economic operator (AEO) and how can one obtain it?

 

This is by no means a complete list of issues that will be discussed at the consultation. Contact us to get an answer to your questions!

 

 

The most common customs disputes

 

Businessmen often use the assistance of a customs lawyer when they face the following problems:

 

 

Customs value adjustment

Customs officials do not agree with the amount stated by the declarant and decide to increase it, which entails additional unforeseen expenses.

 

 

Forced classification of goods in accordance with the Ukrainian Classification of Goods for Foreign Economic Activity

Customs officials assign a code with higher rates of duty (sometimes in defiance of the classification rules and product characteristics). Moreover, misclassification may result in administrative liability in the form of a fine under Article 485 of the Customs Code.

 

 

Delay or refusal to decide on the release of goods

Storing the goods for a longer period of time entails additional costs, possible deterioration of quality or even damage and a breach of the terms of the transaction with the buyer of these goods.

 

 

Refusal to accept the customs declaration

Arguing the absence of the necessary information (documents, mandatory electronic data) or the presence of errors, customs officials reject the declaration (with reference to Article 264 of the Customs Code). In some cases, such a decision can and should be challenged.

 

Besides, customs disputes often arise for reasons such as denial of benefits and quotas, seizure of goods moved across the state border, amending the customs declaration, etc.

 

Important! Most customs disputes that arise are not exceptional. In most cases the attorney is able to apply tried and tested algorithms of actions. Therefore, the chances of success with the involvement of an experienced specialist increase many times over.

 

That said, successful dispute resolution is good, but preventing disputes from arising is even better. To this end, a number of services are available at Lawrange:

  • representation of client’s interests in the course of customs inspections (documentary exit and non-exit), direct participation in communication with officials
  • appealing against actions, decisions or omissions of customs officials, conclusions of inspections
  • preparation of requests and letters for preliminary classification decisions;
  • preparation of recommendations to the company on optimizing the use of customs regimes, drafting internal policies and instructions on the interaction with the customs authorities, conducting training sessions for the staff in this area.

 

 

Intellectual property rights protection

 

A separate big area of the customs lawyer’s work is ensuring protection of intellectual property (IP) rights during the movement of goods across the border. At the same time, the legislation governing this area has been actively reforming over the past few years. Among the latest innovations are “anti-piracy amendments”, the fight against “patent trolling”, and the establishment of the Ukrainian National Office of Intellectual Property and Innovation (UKRINOISI), which became operational on November 8, 2022.

 

Attention! According to the current legislation, among the ways of protecting IP rights in the movement of goods across the customs border

Identification of goods suspected of infringement of IP rights by comparing information on the submitted goods with the data of the customs registry of intellectual property rights (TROIS), through interaction with the right holder and so on;

suspending customs clearance of goods under suspicion of infringement of IP rights;

destruction of counterfeit and pirated goods.

 

Attention! TROIS does not work automatically. To use this IP rights protection tool, the participation of the right holder is required.

 

Although a customs officer is legally responsible for verifying information on the characteristics of the original product, one cannot count on in-depth research under normal circumstances. In order to ensure maximum protection of their IP rights, the right holder or his representative in Ukraine should enter information about the relevant products into the Customs Register of Intellectual Property Objects. This task may be performed either independently or with the assistance of our lawyers.

 

One can enter information into the Register by submitting an appropriate application to a specialized department of the Customs Service of Ukraine. The procedure is as follows:

  1. Submission of an application for inclusion in the register together with a set of documents:
    – confirmation of the rights to the IP object
    – a description of the object, so that it is possible to distinguish the original product from the fake;
    – a sample or reproduction of the original product;
    -a power of attorney, if the owner is represented by a lawyer.
  2. Issuance of the relevant decision by the competent authority within 30 business days (payment of the state duty for entry in the register is not stipulated).
  3. Extending the period of entries in the registry an unlimited number of times (information is entered into the registry at the discretion of the owner for a year or six months).

 

 

Support of customs accreditation of the company

 

To conduct import-export operations the company must be registered with Customs, i.e. be accredited with a unique identification number. You will need the following list of documents and information:

  1. A completed application form;
  2. Extract from the Unified State Register of Legal Entities;
  3. The information about the head of the company (copy of the passport, taxpayer ID, contact phone number);
  4. Data on the chief accountant;
  5. Data on persons who are authorized to work with customs authorities (for example, if the company has a position of customs declarer);
  6. Statement from the bank about the accounts of the company;
  7. an extract from the company’s statute stating the right to conduct FEA;
  8. Certificate of VAT payer, if any.

 

For your information! Registration number of a foreign economic entity is assigned once and is valid for operations throughout the country. Double registration is prohibited by law. In case of change of registered address, directors, authorised persons, beneficiaries, types of activity and contact information the company must be re-accredited.

 

If the solution to the issue of accreditation of the company as a subject of FEA will deal with a customs lawyer Lawrange, then no difficulties are not expected. In this case, those already in the process of carrying out activities may need permits, depending on the goods to be exported or imported. These include a declaration of conformity, a certificate of origin, a phytosanitary certificate and so on.

 

 

Stages of our work

 

The algorithm of our cooperation with the client depends on the tasks that are set for us. Often we begin with a consultation. The customs lawyer clarifies the problem online or by phone and gives you an indicative way of solving it. As an example, let us look at what we do when we appeal against a customs authority’s decision.

 

  1. Consultation.
    We find out what caused the customs dispute.
  2. Administrative appeal against the decision of the customs authority.
    Wherever appropriate, we draw up and lodge an appeal to a higher customs authority. Particularly in the case of customs posts, this is the regional customs office. You may lodge an appeal within 10 days of the decision being made.
  3. Representation in court.
    You can represent a person in court after filing an administrative appeal or immediately. Often, we recommend you to lodge an appeal against the customs authority’s decision directly to the administrative court.

 

 

Advantages of using Lawrange

 

The customs laws have been undergoing major changes in recent years. Only lawyers with relevant expertise can keep up with them. Moreover, with the acceleration of the European integration processes, there will only be more innovations in customs legislation. Applying for legal assistance to Lawrange and becoming our regular clients, you will minimize the risks associated with the movement of goods across the border for your business.

 

Legal support for foreign trade is among the key areas of our specialization. We know how to correctly cooperate with the representatives of the regulatory authorities which increases the chances of settling disputes without going to court.

 

 

The cost of the customs lawyer in Lawrange

 

We provide two types of services: 1) separate task, for example – consultation; 2) service of complex legal support, for example – appeal against the decision of the tax authorities in the administrative order and in court. The price is formed accordingly.

 

In addition, in our lawyers’ association you can order support of your company by a customs lawyer on a subscription basis. This cooperation has the advantage of our customs lawyer reacting promptly to the problem at hand. In particular, our specialist will be able to take care of the annulment of the customs protocol on the day it is drawn up or participate in the settlement of the dispute immediately.

 

 

Conclusions

 

The effective work of a customs lawyer makes it possible to reduce the risks and losses of a company in the course of foreign trade. A customs declarer and even a customs broker do not replace a lawyer as they deal with other tasks. However, not all law firms can offer specialized services of a customs lawyer, as it is a rather narrow and complex area.

 

Lawrange has been specialising in legal support for companies entering international markets for over a decade. Our experience provides you with a wide range of legal advice about import and export procedures, and we can also help you resolve disputes out of court and in court. We look forward to hearing from you today, tomorrow, and always!

 

 

FAQ

 

What does a lawyer for customs cases do? 

The main task of the lawyer is to represent the company in disputes with the customs authorities, particularly while appealing against the adjustment of the customs value, refusal to accept the declaration etc.

 

Can I defend myself in court with the customs authorities?

No, a lawyer will definitely be needed in court. It is to the advantage of the company that its interests are represented by an experienced specialist. It is not advisable to turn to general practitioners in such situations.

 

What is the cost of a customs lawyer?

The cost of our services can be found on our website. You can choose a convenient format of legal assistance: a) one-time consultation or service; b) order comprehensive case management; c) conclude a subscription service agreement with us.

 

 

 

 

 

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