Customs Compliance Insurance: When is the Insured Event Triggered?
Council of State Ruling: Clarifying Declarative vs. Constitutive Acts in Customs Insurance
For a long time, two opposing interpretations coexisted: one held that the insured event was triggered by the customs infraction itself (a declarative act), while the other contended that it materialized only upon the final and enforceable administrative sanction (a constitutive act). The ruling in question did not dismiss either interpretation but integrated both based on the policy terms and the legal provision mandating its issuance.
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Key Scenarios for Insured Event Trigger in Customs Insurance
The Council of State established two critical scenarios:
Triggered by the Breach Itself (Declarative Act)
The insured event arises from the customs obligation violation.
The policy in force at the time of the infraction applies.
The administrative act confirming the breach is merely declarative.
Limitation Period: 2 years from when the insured knew (or should have known) of the event.
Triggered by Final Administrative Sanction (Constitutive Act)
If the law or policy requires enforceability, the event occurs upon the act’s finality.
The applicable policy is the one active when the act becomes final.
Limitation Period: Does not begin until the act is final and binding.
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Key Excerpt from the Ruling
“153.1. The insured event in legal compliance insurance policies for customs matters materializes as follows:
153.1.1. At the moment the customs legal obligations are breached, in which case the administrative act is declarative and the applicable policy will be the one in force at the time of the event.
153.1.2. When the administrative act that imposes the sanction becomes final and enforceable and orders the insurer to pay the corresponding amount, in which case the act is constitutive and the applicable policy will be the one in force at the time the act became final.
153.1.3. In any case, the materialization of the insured event, according to the above rules, will depend on the content of the insurance contract and the legal provision mandating the issuance of the guarantee.
153.2. If the insured event arises from the breach of customs legal obligations, the limitation period for actions arising from the legal compliance insurance contract will begin from the moment the interested party knew or should have known of the event giving rise to the action.
153.3. The limitation period for actions under a legal compliance insurance contract will not begin if the insured event is constituted by the finality of the administrative act imposing the sanction.“
Practical Implications & Legal Certainty
This ruling unifies the legal standard, clarifying:
✅ When insurance coverage is activated.
✅ Which policy applies (in force at breach vs. final act).
✅ How to calculate the limitation period for claims.
Need Expert Guidance on Customs Compliance?
At GRILLO CORREA CONSULTORÍAS S.A.S., we specialize in:
🔹 Interpreting customs insurance rulings and regulations.
🔹 Defending clients in administrative sanction proceedings.
🔹 Strategic risk management for legal compliance policies.
If you need help understanding the scope of this ruling or require legal support in customs procedures, remember that at GRILLO CORREA CONSULTORÍAS S.A.S., we are ready to assist you.
📌 Contact us for tailored legal support.
Written by: Dra. Verónica Patrón
