MOST RELEVANT ASPECTS OF THE JUDGMENT ON THE EFFECTIVENESS OF THE GUARANTEE IN CUSTOMS ADMINISTRATIVE PROCEDURES ESTABLISHED THROUGH A COMPLIANCE INSURANCE POLICY AND THE PRESCRIPTION OF THE BENEFICIARY’S ACTION AGAINST THE INSURER
On June 29, 2023, the rapporteur Roberto Augusto Serrato Valdés of the first section of the Administrative Litigation Chamber of the Council of State issued a judgment unifying jurisprudence on the occurrence of the event and the prescription in compliance insurance for legal provisions imposed by administrative sanctions in customs procedures.
Within the judgment, two current and opposing positions regarding the occurrence of the event in customs matters are evident: 1. Since there is a customs violation itself, and 2. When an administrative act of substance is issued. Nevertheless, the judgment acknowledges that Articles 9 of Decree 2685 of 1999 and 496 of Resolution 4240 of 2000 state that guarantees are established to ensure compliance with customs obligations (…). Therefore, in guarantees established in favor of the DIAN (National Tax and Customs Directorate), the insurable interest consists of customs duties, penalties, and other fees that can be covered by an insurance policy.
In the view of the Council of State, it does not adhere to one position; on the contrary, it unifies jurisprudence on both terms, aligning its position based on two very relevant stances:
In this context, it is possible to argue that the event in compliance insurance for legal provisions is triggered by the non-compliance itself with customs obligations, which must occur within the term of the guarantee’s validity, as long as the rule requiring the establishment of the guarantee and the insurance policy established in compliance with such legal provision so dictates. As a result, the administrative act that confirms such non-compliance becomes declarative in nature, and the consequence of this stance regarding prescription is that the administrative act declaring the non-compliance of a guaranteed obligation must be issued within the validity of the policy or within two years following the date on which the administration became aware or reasonably could have become aware of the existence of the insured risk, in order to prevent the occurrence of the prescription phenomenon regulated in Article 1081 of the Commercial Code.
On the other hand, the Council of State establishes that it is possible to support a second stance, which holds that the event in compliance insurance for legal provisions materializes with the issuance of final and enforceable administrative acts imposing sanctions, as long as the rule requiring the establishment of the guarantee and the insurance policy established in compliance with such legal provision so dictates. In any case, these administrative acts must be issued within the term of the insurance contract’s validity.
The consequence regarding prescription with respect to the second stance is the inoperability of this term, as a general rule, in cases where, through final and enforceable administrative acts, the customs authority imposes sanctions and simultaneously orders the respective guarantee to be executed.
In this regard, the unifying judgment, even though it does not adopt a single stance, establishes a rule that the materialization of the event will depend on the content of the insurance contract and the rule requiring the establishment of the guarantee. Additionally, it states that when the interested party believes that the event occurs with the issuance of the administrative act, it will be understood that the countdown of the insurance contract’s prescription term has not yet commenced.
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Written by: Veronica Patrón
