NEW CUSTOMS SANCTIONING REGIME

According to Ruling C-441/21, in which the Constitutional Court declared numeral 4 of Article 5 of Law 1609 of 2013 unconstitutional, with deferred effects until June 20, 2023, the National Government issued the new Customs Sanctioning Regime on June 6, 2023, which came into effect on June 9, 2023.

Among the main modifications introduced by Decree 920 of 2023, we find the following:

• The first offense committed by a customs obligor within 3 years, classified as minor, will not be subject to a pecuniary sanction if corrected.
• The admonition sanction is introduced.
• A minimum sanction of 10 UVT (Tax Value Unit) is established (UVT for 2023 is COP$42,412).
• The procedure for canceling the customs release is eliminated.
• A Seizure Review Committee is created as a verification instance of this measure, guaranteeing customs obligors’ right to defense. This step is not a procedural instance, so its exhaustion is optional.
• Feasibility of reducing to 80% the sanction applicable to the impossibility of seizure, provided an agreement is reached before the sanction becomes final.
• Five categories of infractions (i.e., blank sanction types) are established. Such categories are applicable in case of breach of the new obligations that will be created once the substantive customs regime is updated. This will allow for sanctioning regulations that can easily adapt to amendments in the substantive regime.
• Electronic notification is established as the preferred notification mechanism. Likewise, the terms and conditions for the electronic submission of appeals and other review mechanisms against administrative decisions are established.
• An expedited procedure is established for applying sanctions related to minor infractions.
• Customs obligors are allowed to waive the right of appeal and directly go to the Administrative Jurisdiction (Per Saltum).
• A transitional regime is established, according to which the applicable sanctioning regime will be the one in force at the time the infraction was committed. However, based on the principle of favorability, ongoing administrative processes will be subject to the provisions of Decree 920 of 2023 if the investigated conduct is considered an infraction subject to administrative sanction in this decree.

Author: Diana Ramírez I dramirez@lloredacamacho.com I Foreign Trade, Logistics & Customs