This novel system, which will be discussed in detail below, has been operational for a mere nine months, making it a newborn structure. Despite its recent establishment, CEJUL represents a substantial advancement in customs law, though it remains in need of further development and refinement to enhance its functionality and effectiveness.
The CEJUL system in Brazil is predicated upon a dual-instance jurisdictional framework. The first instance is monocratic, presided over by a single judge, who is a Tax Auditor, member of the Federal Revenue. The second instance is the Appellate Chamber, Collegiate in nature, composed by multiple Tax Auditors who deliberate collectively, with decisions being rendered based on a majority approval.
Since its inception, approximately 9 months ago, there has been a significant volume of judgements rendered under this system, exceeding a thousand decisions, both monocratic and collegiate. This robust activity reflects a broad-based acceptance within Brazil of resolving such disputes within a non-judicial forum.
Moreover, the system fosters a constructive relationship and rapprochement between taxpayers and tax authorities. This necessitates not only a careful consideration of the individual interests of the taxpayer but also a steadfast commitment to upholding the public interests. This ongoing dialogue transcends the confines of Customs Law, thereby enhancing communication between the Federal Revenue, its taxpayers and society at a large.
Despite its commendable intentions, this system has been the subject of considerable criticism, primarily due to its composition, which consists exclusively of Tax Auditors. This singular composition raises concerns regarding impartiality and fairness in its adjudications. The absence of a more balanced structure calls into question Brazil’s commitment to the International Kyoto Convention on the Simplification and Harmonization of Customs Procedures, concluded in Brussels in 1999. This Convention established international guidelines emphasizing the independence of the appeals chamber, explicitly stipulating that its members should not be affiliated with the Customs Administration of the respective country.
Notwithstanding the obligations enshrined in the Kyoto Convention, the Appeals Chamber remains markedly distant from achieving an equitable composition. When comparing CEJUL's novel system to the well-established CARF (Administrative Council of Tax Appeals), one observes a significant lack of balance.
CARF’s adjudicative body is evenly composed, with an equal number of counselors representing both the National Treasury and the Taxpayers. In stark contrast, CEJUL does not appear to function as a truly paritary body, as it is composed exclusively of members affiliated with the Public Administration, specifically Tax Auditors. It's also severely condemned that CEJUL’s system was created violating Brazilian Constitution, which demands strict adherence to the due process of law. The creation of a new Penalty Trial Center requires the enactment of a formal law, as stipulated by the Constitution. This foundational principle precludes the establishment of such a center through a mere Normative Ordinance, which is a Normative Administrative Act lacking the authority to institute a new judicial or almost-judicial body.
In light of these criticisms, it is important to recognize that CEJUL represents a notable advancement in customs adjudication within Brazil. The establishment of CEJUL aligns with the core principles of the 1999 Kyoto Convention, although a few minor adjustments are still required for its complete implementation within the Brazilian legal framework. As a recently established body, CEJUL is anticipated to undergo further improvements to enhance its effectiveness and ensure full compliance with international standards.
DMAT Advogados
Daniella Maria Alves Tedeschi
Isadora Agra
