A few months ago, the Executive, exercising the powers vested in it by Peruvian Congress, modified the General Customs Law through Legislative Decree N° 1235. One of the most noticeable changes is that some sanctions established therein against foreign trade operators like customs brokers and customs warehouses will be punished with the payment of fines (payment of a given sum of money) and not with the suspension of activities (temporary closure).
We believe that it is a positive change which facilitates foreign trade in Peru because a sanction consisting of the suspension of activities, which implies the temporary shutdown of the facilities of an operator, is a sanction that should only be imposed if extremely serious offenses are committed, like any type of crime.
The modifying legal rule will only go into effect once the Regulations under Legislative Decree N° 1235 are published. As a matter of fact, foreign trade operators can, in certain cases specifically related to their activities, involuntarily commit some administrative offenses which can result in the suspension of activities. We believe that this sanction is both disproportionate and unfair because in many cases it has nothing to do with the damage caused or with the economic impact of the offense.
As a matter of fact, we believe that SUNAT, in ordering the suspension of activities, not only affects the interests of the offenders referred to above (customs brokers and warehouses), but could also affect the interests of a series of related actors. For instance, the offenders’ employees who were not even involved in the offense, but could be affected if the temporary suspension of activities results in a definitive suspension and, therefore, in the loss of their job.
This type of measure also affects foreign trade per se because by preventing foreign trade operators from using any given facility (like, for instance, their warehouses), it will also prevent importers or exporters from using or resorting to said space despite the existence of a business agreement which allows them to use it, thereby preventing, in our opinion, the free flow of goods and possibly affecting the contractual conditions agreed upon by private companies.
Finally, the damage caused by the suspension of activities to a company which has a 30% market share cannot be compared with, nor is it the same as, the damage caused to a company which only has a 5% market share. Undoubtedly, there are different consequences which, we repeat, not only affect customs brokers and warehouses, but also third parties. For this reason, we believe that it is a healthy change which we hope will soon become fully effective.