SUNAT Could Suspend or Cancel the Authorized Economic Operator Certification
As we know, obtaining the AEO (Authorized Economic Operator) certification is a significant investment for a company, not only financially, but also in terms of the time it takes to establish a security structure that allows the applicant to have comprehensive traceability of the entire logistics chain. This represents a significant challenge for any company applying for this certification.
Because the AEO is based on a certification granted by SUNAT, after accrediting compliance with numerous requirements, this status can be suspended or even canceled, in accordance with the AEO Regulations approved by Supreme Decree No. 184-2016-EF.
The problem lies in how “easily” an AEO can be suspended or canceled.
In this regard, Article 11 of the Regulations establishes the following as grounds for suspension:
- Failure to provide the Customs Administration with the facilities to verify compliance with the conditions and requirements of an AEO.
- Failure to comply with the conditions and requirements for maintaining AEO certification.
- Misuse of the certification or facilities obtained as an AEO.
- Merger with other operators not certified as AEO.
- Submitting a request for suspension of AEO certification.
As we can see, items 1, 3, 4, and 5 have something in common: these causes represent a single action that can lead to the AEO having its certification suspended. It could even be suggested that suspension may be a “logical” sanction for the actions described above.
However, item 2 expands the possibilities for AEO certification to be suspended, since failure to comply with just one (1) of the one hundred and fifteen (115) requirements is enough for SUNAT to suspend the certification, with the option to cancel it later. That is, numeral 2 encompasses not just one action or obligation, but many actions or obligations.
The fact that the Regulations establish “Failure to comply with the conditions and requirements to maintain certification as an AEO” as a cause for suspension means that, in practice, SUNAT can suspend and subsequently cancel the AEO simply by finding non-compliance with just one of 115 requirements. We can clearly see that there is disproportionate application of the suspension with respect to Section 2. While the AEO applicant must meet 115 requirements to be accredited, it is disproportionate to incur suspension and subsequent cancellation if only one requirement is failed to be met.
The Regulations would be correct to establish which requirements, due to their relevance or nature, if failed to be met, would lead to suspension of the AEO certification. Thus, not every non-compliance would necessarily lead to suspension or cancellation, as there are certain requirements that can be remedied without the need to suspend or cancel the AEO certification.
As always, at Thorne, Echeandía & Lema Abogados, we welcome any questions, comments, or additional clarifications you may have regarding the legal and customs impact of the information contained in this newsletter. If so, please do not hesitate to contact our customs team.
José Luis Sorogastúa Ruffner
