In the context of deep international economic integration, the role of logistics services, particularly customs procedure agents (including customs clearance services), is increasingly important. For foreign investors seeking opportunities in the Vietnamese market, this sector is promising but concurrently poses specific legal requirements that need thorough study. This article delves into the legal conditions that foreign investors must grasp when intending to establish and operate an enterprise engaged in customs procedure agent activities in Vietnam. 

1. Market Access Conditions for Customs Brokerage Activities 

Currently, Vietnam has made strong commitments regarding the opening of the services market within the framework of the World Trade Organization (WTO) and new-generation Free Trade Agreements (FTAs) such as VJEPA, VKFTA, EVFTA, and CPTPP concerning customs procedure agent services (including customs clearance services). 

• Within the framework of WTO Commitments and Free Trade Agreements (FTAs): Vietnam has opened its market to member countries for customs procedure agent services (including customs clearance services). Specifically, foreign investors are permitted to establish joint ventures where there is no limitation on the foreign party’s ownership stake for operating these services. 

• Furthermore, pursuant to Article 4.3(d) of Decree 163/2017/ND-CP: Vietnamese law regulates market access for foreign investors regarding customs clearance services through business cooperation with domestic investors, with no restriction on the foreign party’s ownership stake. 

Thus, investors from member countries of these trade agreements are fully able to establish foreign-invested enterprises in Vietnam to provide customs procedure services through joint ventures with Vietnamese partners, without limits on the foreign ownership percentage. 

However, this merely represents a necessary condition regarding market access. According to Annex IV of the Law on Investment 2020, “Customs Procedure Agent Services” is listed as a conditional business line for investment and business. Therefore, to be officially licensed to operate in the field of customs procedure agents, an enterprise established (or contributed capital to) by a foreign investor must undergo an inspection process and be recognized by the Director General of the General Department of Vietnam Customs as meeting the operational conditions. This recognition is mandatory and is only granted when the enterprise fully satisfies the specialized conditions stipulated in detail by customs law. 

2. Specialized Conditions for Recognition as a Customs Procedure Agent 

According to Clause 1, Article 20 of the Law on Customs 2014 and Clause 1, Article 5 of Circular 12/2015/TT-BTC (as amended and supplemented by Circular 22/2019/TT-BTC), a customs procedure agents is defined as an enterprise that meets the legal conditions and is authorized by the cargo owner (the person with exported or imported goods) to, on behalf of the cargo owner, fulfill all or part of the obligations of a customs declarant as regulated. 

To be recognized by the General Department of Customs as eligible to operate, an enterprise must meet the following groups of conditions: 

2.1. Conditions applicable to the Enterprise: 

a. Possess an Enterprise Registration Certificate (ERC) or Investment Registration Certificate (IRC) that includes the business line of freight forwarding services or customs brokerage services;  

b. Have customs brokerage staff;  

c. Have Information Technology (IT) infrastructure that meets the conditions for conducting electronic customs declarations and other stipulated conditions. 

2.2. Conditions applicable to Customs Brokerage Staff: 

Customs procedure agent staff must be Vietnamese citizens who meet the following conditions: 

a. Hold a college degree or higher in economics, law, or technical fields;  

b. Possess a Customs Declaration Professional Certificate;  

c. Be granted a customs brokerage staff code by the customs authority. 

2.3. Conditions regarding Dedicated Information Technology Systems: 

Pursuant to Clause 5, Article 6 of Circular 38/2015/TT-BTC, organizations participating in customs declaration, including customs procedure agents, must: 

a. Register to connect to the System to be granted an access account and connection information.  

b. Register a digital signature with the customs authority;  

c. Be fully equipped with technical infrastructure for electronic transactions, ensuring the declaration, transmission, reception, and storage of information when accessing and exchanging information with the System; use electronic customs declaration software provided by the customs authority (if any) or electronic customs declaration software that has been inspected and certified by the General Department of Vietnam Customs as conforming to the professional requirements of the customs authority and compatible with the System. The General Department of Vietnam Customs issues Decisions recognizing electronic customs declaration software and publishes them on the Customs sector’s electronic portal. 

3. Process for Recognition of Eligibility to Operate as a Customs Procedure Agent 

After meeting the above conditions, the enterprise wishing to operate as a customs procedure agents shall submit one set of dossier directly or via postal service to the General Department of Vietnam Customs. The application dossier for recognition includes: 

• A proposal letter for recognition of eligibility to operate as a customs procedure agents, made according to the prescribed form.  

• Dossiers for requesting customs procedure agent staff codes for each individual expected to serve as the enterprise’s customs procedure agent staff. These dossiers include personal identification documents (CCCD/ID Card), academic qualifications (diploma/degree), Customs Declaration Professional Certificate, and photos as regulated. 

Within 05 working days from the date of receiving a complete and valid dossier, the Director General of the General Department of Vietnam Customs shall issue a decision recognizing the enterprise as eligible to operate as a customs procedure agents. Concurrently, the customs authority shall also grant customs procedure agent staff codes to the individuals in the enterprise’s dossier who meet the required conditions. In case of not meeting the conditions, a written response will be provided to the enterprise. 

Customs procedure agent activity is a crucial link in the supply chain and international trade operations of enterprises in Vietnam. For foreign investors, this is a potential sector that demands deep understanding and strict compliance with legal regulations from the investment preparation stage until officially commencing operations. Fully meeting the conditions regarding legal status, personnel capacity, IT infrastructure, and completing the customs authority’s recognition process is a mandatory requirement. 

Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Business and Investment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.