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2016 OAS Guidelines

2.I.4. Serious violations

When assessing serious violations, the following elements must be taken into account:

  • Deliberate acts : Deliberate will or fraud, which means the demonstrated full knowledge and intent of the applicant, the person in charge of the applicant or controlling his management, or the employee in charge of the applicant's customs affairs, must be considered a more serious infringement than the same case in other circumstances, even if the nature of the error may be considered "minor".
  • Nature of the violation : These are cases in which the infringement, due to its characteristics, may be considered a serious violation of customs and tax legislation and requires the imposition of a significant penalty or the initiation of criminal proceedings.
  • Gross negligence: the European Court of Justice (TJE) (9) has established the following three factors, which must be taken into account when assessing whether an act committed by the economic operator's company has been manifestly negligent: the complexity of customs legislation, the company's diligence and experience. In cases where customs authorities determine that the company has been manifestly negligent, this circumstance may indicate that the violation may be considered serious.
  • Indicator of serious risk in relation to safety and security, or customs, tax regulations and criminal offenses related to economic activity : Serious violations may also be those that, without the applicant's intention to commit fraud, are of great significance and may be considered an indicator of high risk in terms of protection and security, customs, tax regulations, or criminal offenses related to economic activity.

Taking into account the above, and provided that, in each of the cases analyzed, there are no other circumstances that should be considered, the following violations may be proposed as examples of serious violations:

  • Customs legislation
    • smuggling;
    • fraud; for example, deliberate errors in classification, undervaluation and overvaluation or falsely declared origin to avoid payment of customs duties;
    • infringements relating to intellectual property rights (IPR);
    • fraud relating to anti-dumping regulations;
    • violations relating to prohibitions and restrictions;
    • counterfeits;
    • any other offense related to customs requirements.
  • Tax regulations
    • tax fraud;
    • tax evasion;
    • Tax crimes related to excise duties, such as illegal manufacturing or refining of mineral oil and theft;
    • VAT fraud, including movements of goods within the Union.
  • Serious criminal offenses related to the applicant's economic activity
    • fraudulent bankruptcy (insolvency);
    • Any violation of health legislation, such as the marketing of unsafe goods;
    • any violation of environmental legislation, such as the illegal transboundary movement of hazardous waste;
    • fraud related to regulations on dual-use products and technology;
    • belonging to a criminal organization;
    • bribery and corruption;
    • fraud;
    • cybercrime;
    • money laundering;
    • direct or indirect participation in terrorist activities (e.g. e.g., businesses or activities that promote or support internationally recognized terrorist groups);
    • direct or indirect participation in the promotion or support of illegal migration to the EU.

(9) Case law of the European Court of Justice on gross negligence, case C-48/98, Söhl & Söhlke (1999). (Back)