Customs cooperation and the functional mutation of administrative data: challenges to procedural guarantees in the transnational circulation of customs information

1.Introdução

Customs cooperation is one of the most important pillars of 21st-century customs. The intensification of cross-border flows of goods, associated with the increasing sophistication of transnational economic crimes, (1)It has demanded new forms of coordinated action from customs administrations, structured on the permanent exchange of information.

Various multilateral and bilateral instruments have strengthened mutual administrative assistance, primarily focused on verifying import and export declarations. Simultaneously, a profound transformation in customs clearance procedures is underway as a result of the implementation of artificial intelligence-based systems.

The combination of these realities allowed the data produced within the scope of this procedure to begin circulating internationally, and could even form the basis for criminal charges in a jurisdiction other than the one in which they were produced.
In this line of thought, the present work is based on the hypothesis that customs cooperation, coupled with the circulation of information derived from algorithmic processing, inaugurates the phenomenon of the functional mutation of administrative data. Data collected for purely administrative purposes can be reused for sanctioning purposes, operating a transition between different normative spheres without clearly defined criteria governing this conversion.

The problem under investigation is not simply the use of digital evidence or the abstract protection of personal data. It is an issue that arises from the very normative structure of Customs Law, but also highlights the multidisciplinary nature of the subject.

The analysis is developed from a dogmatic and prospective approach. It begins with the conceptualization of the phenomenon of the functional mutation of administrative data, moves on to the normative structure of customs cooperation, examines the constitutive nature of the clearance procedure and its informational dimension, explores the typology and valuation of the data produced during customs control, and finally, analyzes the compatibility of this phenomenon with the guarantees of the customs sanctioning process.

The study's contribution lies in demonstrating that the transnational reuse of customs data is not a merely technical phenomenon; due to the lack of awareness of all the legal consequences it may generate, it is a problem that deserves careful examination by customs doctrine.

2. Conceptualization of the functional mutation of administrative data

The analysis developed in this study starts from the premise that the transnational processing of data in the field of customs administrations reveals a phenomenon that can be described as a functional mutation of administrative data.

The idea is close to the notion of Funktionswan (2) of, developed in German legal theory, according to which legal institutions can undergo transformations in their systemic function by virtue of structural changes in the social, technological or institutional organization, even when they remain formally unaltered.

From this theoretical perspective, in which Niklas Luhmann is one of the main proponents, legal structures fulfill specific functions in the stabilization of social systems and can assume different attributions according to the evolution of the environment in which they operate. (3).

Similarly, Gunther Teubner demonstrates that organizational and technological transformations can alter the functions performed by certain institutions within the legal system, requiring a dogmatic reinterpretation capable of accommodating them, without this implying a break with the guarantees of the legal order. (4)

This perspective also engages with the functional conception of law developed by Norberto Bobbio, according to which legal norms and institutions must be understood not only from their formal structure, but also in terms of their role within the system. (5)

A change in function can profoundly transform the legal effects of a given institution, even when its form remains apparently identical.

The functional mutation described here does not correspond, therefore, to a formal normative alteration, but rather to a transformation of the position that a given element occupies within the structure of the legal system. This phenomenon occurs when the same piece of information comes to operate under different legal regimes, producing different effects depending on the context in which it is used.

It is precisely this transformation that is observed in the exercise of modern customs control. The data initially provided by the economic operator for the purpose of verifying the import or export declaration are now integrated into international information exchange networks and, in certain circumstances, can serve as the basis for sanctioning procedures.

Initially, in the context of customs clearance, the data plays a predominantly administrative role, aimed at verifying the regularity of the declaration submitted by the economic operator and determining the customs destination of the goods. The functional shift described here does not, therefore, correspond to a formal regulatory change, but rather to a transformation of the position that a given element occupies within the structure of the legal system. This phenomenon occurs when the same data comes to operate under different legal regimes, producing different effects depending on the context in which it is used.

It is precisely this transformation that is observed in the exercise of modern customs control. The data initially provided by the economic operator for the purpose of verifying the import or export declaration are now integrated into international information exchange networks and, in certain circumstances, can serve as the basis for sanctioning procedures.

Initially, in the context of customs clearance, the data plays a predominantly administrative role, intended to verify the regularity of the declaration submitted by the economic operator and to determine the customs destination of the goods.

In a second stage, when it is integrated into cooperation mechanisms, that same data then fulfills an informative function of exchange between different customs administrations, aimed at the mere confirmation or prevention of irregularities.

However, in certain circumstances, the data thus shared may be mobilized in the context of investigations or sanctioning procedures, assuming a potential evidentiary function in the imputation of customs offenses.

Although the data remains substantially the same, this phenomenon reveals a progressive alteration of the legal framework governing its use. The data originates in a collaborative and non-contentious environment.(6) It can subsequently be integrated into contexts characterized by more rigorous evidentiary requirements and procedural guarantees.

To properly understand the scope of this phenomenon, it is necessary to recognize that the functional mutation of administrative data does not result solely from technological evolution or the expansion of the analytical capabilities of customs administrations, but also from the existence of an international regulatory framework that governs and legitimizes the exchange of information between customs authorities, which will be examined below.

3. Regulatory structure of customs cooperation

Customs cooperation is structured on a set of international regulatory instruments that govern the exchange of information between customs and define the conditions for the transnational circulation of data produced in the field of foreign trade.(7)

In addition to multilateral agreements, these mechanisms are often regulated through bilateral or regional instruments of mutual administrative assistance. (8)

From an operational point of view, cooperation between customs administrations can take different means and forms. (9) In some cases, such as the agreement signed by the member countries of MERCOSUR (10)The data is automatically shared through electronic information exchange systems.(11)

Regarding its nature, the data exchanged refers to the records contained in the import or export declarations submitted by economic operators, including information on the value of the goods, the tariff classification, the country of origin, the identification of the exporter or importer and the commercial documents associated with the operation.
Some international agreements even include glossaries that define the scope of shared information, stating that the term “information” can encompass data, documents, reports or any other means of communication in any format, including authenticated copies of documents submitted to customs authorities.
The following is a summary of the main multilateral instruments of cooperation and mutual administrative assistance that structure the international exchange of customs information.

3.1. Nairobi Convention

The International Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, conceived in 1977 within the framework of the World Customs Organization (12)It constitutes one of the main international instruments aimed at cooperation between customs administrations for the fight against infringements.

It is a modular instrument, composed of different annexes that regulate specific forms of assistance, allowing States to selectively adhere to one or more of them, which explains the heterogeneity observed in the implementation of the treaty among member countries.(13)

Among its various mechanisms, the following stand out: the exchange of data on suspicious transactions, the exchange of information relating to companies, cargo, or trade routes, as well as the transmission of customs and commercial documents. This exchange can take place either at the request of another administration or spontaneously, when an authority identifies elements that may be of interest to another country.(14)

The convention also provides for investigations to be carried out upon request. (15)allowing one administration to request another to verify the authenticity of documents, carry out internal investigations, or identify individuals and companies involved in fraud.
In addition, it contemplates the possibility of special surveillance, including the monitoring of suspected persons, means of transport or movements of goods.

It is, therefore, a predominantly reactive cooperation model, activated from the identification of indications of irregularity and operationalized through formal requests for assistance between customs authorities.

3.2. Trade Facilitation Agreement

The Trade Facilitation Agreement, created within the framework of the World Trade Organization, is also presented as one of the main regulatory frameworks for international cooperation.(16)

Article 12 of the instrument establishes guidelines for the exchange of information between customs, providing mechanisms for verifying the truthfulness or accuracy of import or export declarations. (17)

One of the premises of the regime established by this provision lies in the material delimitation of the information exchange itself. The article states, from its heading, that customs cooperation must take place “in specific cases where there are reasonable grounds to doubt the veracity or accuracy of an import or export declaration,” thus excluding the idea of ​​an indiscriminate or automatic exchange of data between customs administrations.

Here, we observe a more guarantee-oriented and denser legal framework, as the text prioritizes due administrative process and the need to justify the control measures adopted by the requesting States.

Furthermore, unlike the Nairobi Convention, the cooperation provided for in the TFA is not presented as a general monitoring clause, but rather as an instrument specifically aimed at verifying the compliance of transactions controlled through the customs clearance procedure. This is evidenced by the repeated mention of the need to verify the accuracy of import and export declarations. (18)The instrument indicates that the exchange is organized around a formal act of the economic operator —the registration of the declaration— and, consequently, around the entire administrative procedure of customs clearance.

This premise becomes even more evident when examining the safeguards related to the protection of shared information. Paragraph 4.1(f) of Article 12 requires that “the requesting State indicate the provisions of its domestic law that regulate the collection, protection, use, disclosure, retention, and disposal of confidential information and personal data.” This rule demonstrates that the legitimacy of the exchange will depend, strictly speaking, on the compatibility between international cooperation instruments and the legal guarantees provided for in domestic legal systems.

Similarly, paragraph 5 of Article 12 establishes a limitation on the purpose of the shared information: “(…) the data received will be used exclusively for the stated purposes, will not be disclosed without the authorization of the requested State, and the conditions imposed at the time of the provision of the information will be respected.”

Despite the recognition of the guarantees associated with data protection and the legal security of economic operators, the agreement concluded within the framework of the World Trade Organization left gaps regarding issues related to the epistemic quality of the data transmitted and its possible reuse in sanctioning contexts.

As cooperation comes to involve structured databases, risk profiles, and probabilistic inferences produced by automated systems, the problem lies not only in determining whether the data can be shared, but in defining how it will be interpreted, reused, and eventually transformed into a basis for imposing customs sanctions.

Finally, paragraph 6.2 of Article 12 regulates one of the most sensitive aspects of the legal regime of customs cooperation, which is of particular interest to the development of this study: this provision allows the requested State to condition the supply of information on the commitment that it will not be used as evidence in criminal investigations without specific authorization, establishing a distinction between administrative cooperation and criminal prosecution.

This distinction shows that the data shared in the context of customs clearance —a typically non-contentious procedure— cannot be automatically converted into evidence in sanctioning processes, under penalty of violating the principle of purpose and misuse of the administrative data.(19)

Furthermore, the provision establishes explicit material limits to the duty of cooperation, allowing the requested State to refuse the exchange of information when its disclosure is contrary to the public interest, incompatible with domestic law, likely to interfere with ongoing investigations, or dependent on the consent of the data subject.

Finally, Article 12 itself recognizes the possibility of entering into bilateral or regional agreements that establish broader forms of cooperation, including automatic information exchange mechanisms. This provision reveals that the TFA functions as a minimum standard for information flow, rather than as a comprehensive regulation of customs cooperation.

In other words, the multilateral agreement defines basic limits and guarantees, but allows States to expand the scope of cooperation through specific regulatory instruments, the compatibility of which with internal data protection regimes. (20) It should also be observed.

Having defined the regulatory framework governing the international flow of customs information, it is necessary to examine the environment in which this data is originally produced, since understanding the legal limits of customs cooperation depends on analyzing the procedure that generates it. This leads to a study of the informational dimension of customs clearance.

4. Customs clearance and its informational dimension

Among the diversity of customs controls and the administrative powers that support them, customs clearance is traditionally the most prominent, known as the backbone of import activity or even as the primary, cornerstone and foundation of Customs Law, since without it it would be impossible to state the consummation of its object: the international movement of goods. (21)

Rosaldo Trevisan defines it as a procedure intended to verify compliance with the requirements necessary for the assignment of a customs destination —a definitive import or a special customs regime—.(22) João dos Santos Bizelli defines it as the fiscal administrative procedure, initiated by the importer, which aims, through the verification of the accuracy of the data declared in relation to the imported goods, the documents presented and the customs legislation, to clear the goods from abroad, whether they have been imported permanently or not.

According to Enrique Barreira(23)It is through customs clearance that the importer sets the Public Administration in motion, with the ultimate goal of issuing an administrative act that authorizes or rejects the registration request.
Beyond the different perspectives of analysis, it is worth highlighting a common characteristic identified in the aforementioned doctrinal formulations: the request or initiative of the administered party.(24)

The party whose objective is to promote an import operation is the one who initiates the customs clearance, during which they make available to customs all the necessary elements so that the tariff classification of the goods, the correct determination of the taxable base of the taxes, their origin, among other information required in this stage of customs control can be controlled.

4.1. Customs clearance as a data production environment

With the digitization of foreign trade operations, the progressive replacement of physical documents with electronic declaration systems profoundly transformed the dynamics of this process. Information that previously circulated on printed documents is now recorded in structured databases, allowing for its storage, processing, and cross-referencing on a large scale.

Customs clearance thus became an important administrative data production environment (25)whose relevance transcends the limits of the procedure in which said information is initially collected.

Each import or export declaration generates a set of data, which can be processed and analyzed for various customs purposes. One of the most frequent uses of this data is in risk management systems, which utilize historical records to identify patterns of behavior and select declarations that are more likely to contain irregularities.(26)

These systems, as is well known, are based on the automated analysis of large volumes of data. The processing and cross-referencing of this data allows for the identification of discrepancies, atypical patterns, or inconsistencies in the declarations submitted by economic operators. Based on this processing, the systems generate indicators that can guide the selection of declarations for further auditing.

It can be inferred that such data cease to fulfill a merely administrative function, becoming part of complex informational ecosystems oriented towards the production of information and coordinated action between administrations, which reinforces the understanding that they are subject to processes of functional reconfiguration throughout their circulation chain.

In this respect, the distinction between data, information, and analytical inferences is particularly useful. Data corresponds to the basic records produced during the administrative procedure, such as declared values, tariff classifications, or identification of economic operators.(27)

When this data is organized and compared with other administrative databases, it generates insights Useful for the exercise of customs authority. From this processing, analytical systems can produce inferences regarding the regularity of the operation or the behavior of the operators involved.

A simple example illustrates this dynamic. The value of certain goods in the import declaration constitutes a date administrative data produced within the customs clearance process. When this value is compared with records of similar transactions or with price databases used by the customs administration, it can generate information about the accuracy of the declared value. (28)

From this processing, risk management systems can even produce analytical inferences through probabilistic scores and profiles generated by automated systems (29), indicating a possible risk of under-invoicing and guiding the selection of the operation for auditing.

For these reasons, it is understood that modern customs clearance is not only an administrative verification procedure, but a true environment for the production of administrative data.

4.2 Types of data produced in the office

Understanding the phenomenon of functional mutation of administrative data It is necessary to distinguish between the different categories of records produced in the context of customs clearance. Although all are generically treated as administrative data, these records do not have the same origin, the same function, or the same level of analytical processing.

First, one can identify what is referred to here as primary declarative dataThese are understood as the data provided directly by the economic operator during the procedure. This category includes the description of the goods, the customs value, the classification, the origin, the requested customs procedure, among others. These records are initially intended to verify the regularity of the operation according to the required customs destination.

Secondly, there are the derived administrative dataresulting from the processing carried out by the customs administration based on the originally declared data. This category may include physical inspection records, the operator's compliance history, parameterization results, records of selection for control channels, internal communications, and other elements produced in the course of the audit activity.

This data no longer corresponds solely to what the operator declares, but rather reflects how the customs administration interprets, organizes, and processes the available information, often through the automated cross-referencing of databases and the application of analytical models to existing administrative records. These records do not, in themselves, constitute proof of an irregularity, but rather statistical probability projections intended to guide administrative action.

Each of these categories can undergo functional change, but this transformation does not produce the same legal effects in all cases. In primary declarative data, the change occurs when information provided for administrative verification purposes is reused in investigations or sanctioning procedures.

In the derived administrative data, the problem shifts to the way in which customs records, interprets and rates the elements produced in the course of the control procedure, which makes the issue even more sensitive, since probabilistic classifications can acquire a disproportionate decisive weight when used to justify restrictive measures or infraction charges in other jurisdictions.

For this reason, the distinction between these categories is not merely descriptive. It allows us to identify different levels of functional reconfiguration of administrative data and to define, more precisely, the legal risks associated with its transnational circulation. The greater the degree of analytical processing of the data, the greater the caution that must be exercised regarding its use in sanctioning contexts, especially when its origin is linked to automated analysis systems or probabilistic risk management models.

5. Functional mutation of administrative data and the challenges to the guarantees of the customs sanctioning process

As has been demonstrated throughout this study, the customs administration that uses certain informational records to impute an infraction to an administered party may not have participated in its original collection, nor have ensured, at that initial moment, the guarantees of a sanctioning process.

However, it is known that the configuration of the customs infraction requires the concrete demonstration of the occurrence of the typical act and the responsibility of the subject, and the automatic construction of responsibility based solely on formal inconsistencies or statistical inferences derived from administrative data is not admissible.

The complexity of foreign trade operations and the increasing sophistication of customs control mechanisms do not, in themselves, justify relaxing the safeguards that condition the exercise of the State's punitive power. For these reasons, Diogo Bianchi Fazolo argues that Customs Sanctioning Law must be interpreted in light of a constitutional framework that guarantees rights, especially with regard to strict legality, specificity of offenses, and the need for adequate verification of the infraction.(30)

It is important to note that the reuse of administrative data for sanctioning purposes is not, strictly speaking, a completely new phenomenon (31). The novelty lies in the combination of the massive production of digital data, automated processing through algorithmic systems, and the transnational exchange of information in virtually instantaneous time. It is this new paradigm that challenges the exercise of customs sanctioning powers.(32)

5.1. Functional mutation of administrative data and due legal process

As Pablo Labandera points out, the imposition of sanctions cannot be conceived as a simple extension of administrative control activities, but as the exercise of a qualified legal power, whose legitimacy depends on the observance of its own legal limits.

According to the author, the exercise of the power to impose sanctions presupposes the carrying out of imputation judgments intended to verify whether the legal prerequisites for responsibility are present and whether there are normative limits that prevent the imposition of the sanction.(33)

It is duly noted that the requirement of said imputation judgment does not constitute a mere procedural formality, but a direct expression of the procedural nature of punitive relations in the Democratic State of Law, whether in the administrative or criminal sphere.

According to the teachings of Juan Patricio Cotter, due process constitutes a generic guarantee encompassing various constitutional guarantees, all of which are designed, together, to ensure that individuals can effectively exercise their rights in the face of the State's jurisdictional power. According to the author, it is the State's responsibility to provide individuals with an appropriate procedural framework that allows for the effective defense of their rights.(34)

Similarly, Fábio Medina Osório teaches, noting that fundamental rights and guarantees derive from due legal process, regardless of whether they do so directly or indirectly, or whether such rights come from combinations of devices, new readings, meanings and contents, or from other normative functions of the clauses in question, fostered by their different normative effectiveness.(35)

Consider, by way of illustration, how due process and all inherent procedural guarantees (36) These rights can be compromised due to the phenomenon of the functional mutation of administrative data: a primary data, such as the declared value in an import transaction, can be converted into derived data through administrative inspection records and subsequently integrated into risk classification models.

When that same data, originally produced for administrative verification purposes, becomes the basis for imputing an infraction in a sanctioning procedure, the functional mutation occurs.

At that point, the requesting customs authority cannot automatically presume the economic operator's responsibility based on the existence of the data or the risk classification assigned by the system of the requested customs administration. In reality, none of the customs administrations involved exercises comprehensive control over all phases of the production, circulation, and assessment of information.(37)

It is possible to admit, even on a hypothetical level, that such fragmentation may violate procedural guarantees such as the adversarial process, the broad defense and even the principle of presumption of innocence, due to the normative indeterminacy regarding the scope of the applicable guarantees and the authority responsible for their observance.

The challenge, therefore, is to ensure that the transnational circulation of data does not create gaps in legal protection, in which customs liability is established without adequate correspondence with the guarantees of the Democratic Rule of Law.

5.2. Functional mutation of administrative data and the search for material truth

It is well established that the core of any legal system of sanctions lies in the search for material truth, that is, in verifying facts that actually occurred and that can justify the imposition of sanctions. This requirement is not a mere procedural formality, but a direct expression of the protective nature of this subsystem of law, which conditions the exercise of the State's punitive power on the concrete demonstration of the occurrence of the infraction and the responsibility of the individual.

One of the most pertinent criticisms made by Andrés Varela in this regard is the recurring reduction of evidentiary requirements under the simple argument of the difficulty of producing evidence by the Administration, which weakens the guarantee bases inherent in the customs process and increases the risk of arbitrariness in the application of sanctions.(38)

For the author, Customs Sanctioning Law not only implies the definition of customs infractions, but also the set of legally established procedures to verify the occurrence of the facts that authorize the imposition of sanctions —which presupposes the search for the material truth and the observance of fundamental guarantees in the sanctioning procedure.

This reflection takes on even more relevant contours when examined in light of the phenomenon of functional mutation of administrative data, insofar as the transnational circulation of such data may, in certain circumstances, lead to the opening of sanctioning procedures in another jurisdiction without the economic operator having had access to the necessary means of counter-evidence or procedural control over the formation and assessment of that information.

It is important to remember that establishing liability in sanctioning matters requires sufficient proof of the factual and legal elements that characterize the infraction, respecting the principles of legality, specificity, proportionality, and the presumption of innocence. Material truth, therefore, is not simply the availability of data, but rather results from a legal verification process that allows for the reliable reconstruction of the legally relevant events.

Thus, the phenomenon of mutation can directly affect the search for material truth when the conversion of administrative data into evidentiary elements occurs automatically or implicitly, without the necessary procedural reconstruction for the formation of a legitimate sanctioning judgment.

In this sense, the ascertainment of the truth ceases to be the result of a structured evidentiary activity and is replaced by inferences derived from administrative records or automated analysis, which compromises the rationality and legitimacy of the exercise of the sanctioning power.

The search for material truth must remain an unavoidable requirement of the customs sanctioning process, functioning as a legal limit to the automatic reuse of administrative data and as a guarantee that the transnational circulation of information does not become a mechanism of imputation without the corresponding evidentiary basis.

5.3. Functional mutation of administrative data and the problem of legal presumptions in customs matters

Despite the relentless search for material truth, it is no less true that presumptions They fulfill an important function in the evidentiary structure of customs sanctioning processes, by allowing the customs authority to legally reconstruct certain facts from informational elements made available during the course of administrative control verifications.

As Edmundo Ramírez Pasillas points out, these presumptions can affect various elements of the customs legal relationship. The authorities have the power to determine essential aspects of this relationship, such as the subjective element of the links established between economic operators and the customs administration; the determining temporal aspect for the application of the relevant regulations; the nature and tariff classification of the goods; or even the customs value declared in import and export operations.(39)

In all these cases, the activity frequently relies on presumptive mechanisms that allow certain circumstances to be legally reconstructed from data available in import or export customs declarations or in the documentation accompanying commercial operations.

It so happens that the presence of such presumptions, as Pasillas identifies, becomes even more evident in the context of the customs sanctioning process, in which different categories of presumptions can play a decisive role in the identification of infringements and illegal acts related to international trade.

Among them are presumptions relating to the place where the infringement was committed, the conduct attributed to the economic operator, the regularity of the documentation presented, or the compatibility of the commercial operations with previously authorized import and export programs.(40)

And this scenario raises new questions when examined from the perspective of the functional mutation of data: whether the presumption constitutes a rational mechanism intended to establish legal certainty Regarding a particular fact based on available evidence, what would be the consequences of this presumptive reasoning when the data that serves as the basis for such inferences begins to circulate between different jurisdictions and technological environments for information processing?

It seems reasonable to assume that, in that case, the inferences that support certain legal presumptions depend not only on the legal interpretation made by the administrative authority, but also on algorithmic operations whose decision logic is not always fully transparent or legally controllable.

While traditionally these presumptions were built from the legal interpretation of evidence available in the administrative procedure, customs control based on the transnational circulation of data tends to incorporate analytical processes that operate at informational levels prior to the legal formulation of these inferences. (41)

Therefore, the functional transformation of administrative data does not eliminate the legitimacy of legal presumptions in customs matters, but rather redefines the conditions under which they can be formed and used. As data begins to circulate between different jurisdictions and technological information processing environments, it is essential to ensure that presumptive inferences remain subject to criteria of evidentiary validity and the guarantees that govern the exercise of sanctioning power.

It is precisely this tension between informational expansion and the preservation of procedural guarantees that guides the final reflections of this study.

6.Conclusion

As has been seen throughout this study, the 21st Century Customs It has come to exert control over cross-border flows of goods thanks to the exponential expansion of its informational capacity. Electronic systems, some of them equipped with artificial intelligence, allow access to previously unimaginable volumes of data from customs declarations, logistics records, and international trade databases.

In this hypercomplex society (42)The administrative data has ceased to be a simple instrument of procedural verification, circulating between different jurisdictions and producing legal effects in contexts different from the one in which it was originally generated.

It was precisely to describe this phenomenon that the category of the functional mutation of administrative data, understood as the progressive alteration of the function performed by the same informational record throughout its production, circulation and use chain.

The analysis showed that data originally produced collaboratively by the economic operator can be reused in investigative or sanctioning procedures, operating a transition between different legal regimes without the criteria governing such conversion being clearly defined.

It should be noted, however, that this research did not aim to be exhaustive. On the contrary, it sought to identify a problem and define its initial legal contours, highlighting the need for further doctrinal analysis and openness to dialogue with other fields of knowledge, such as administrative sanctions law, personal data protection law, evidence theory, computer science, and algorithmic governance.

The examples analyzed demonstrate that the phenomenon is not limited to a purely theoretical construct, given that the international circulation of customs data can have concrete impacts on the procedural guarantees of economic operators. In these cases, the risk does not stem from international cooperation itself, but from the possibility that the informational power of customs administrations may implicitly or automatically become a power to impose sanctions.

The distinction between administrative control and sanctioning power thus remains an essential element to ensure that the expansion of the informational capabilities of the administrations does not compromise the integrity of the guarantees that underpin the Democratic Rule of Law.

The informational expansion of administrations must be accompanied by the development of parameters capable of regulating the sanctioning use of administrative data circulating in the international customs cooperation system.

Criteria such as the burden of proof, the search for material truth, and the observance of due legal process are not formalities, but procedural guarantees intended to prevent mere technical inferences, probabilistic classifications, or automated records from becoming the basis for sanctions without an adequate legal reconstruction of the facts.
In summary, the functional mutation of administrative data reveals that modern customs control is no longer limited to the verification of goods, but is structured from the management and circulation of information.

The challenge is not to restrict international cooperation or the use of advanced data analysis technologies, but to ensure that these instruments are used in accordance with the fundamental guarantees that govern the exercise of sanctioning power.

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Notes

1. On the increasing magnitude of frauds in international trade, see FAZOLO, Diogo. Subfaturamento na exportação eo custo da asymmetria sanctionória. The author mentions recent studies that point to significant volumes of trade discrepancies associated with trade misinvoicing practices, frequently used as an indicator of illicit financial flows in international trade. IPDA Magazine – Instituto de Pesquisa em Direito Aduaneiro. Available at: https://institutoaduaneiro.com.br/subfaturamento-na-exportacao-eo-custo da-assimetria-sancionatoria/ Access on March 12. 2026. 
2.  The express Funktionswandel is used to show how a legal institute can undergo a change of function over a long period of time without the text of the law having been altered. Karl Renner and Franz Neumann, precursors of the theory, seemed to have this difference in view when they opted to try a change of function of the idea of ​​the State of direito. It is not about analyzing the difference between the institute and the letter of the law or thematizing the indetermination of the law, but before a structural political alteration. In: TAVOLARI, Bianca Margarita Damin. As origins of juridification: critical theory of law. 2019. Tese de Dutorado. University of São Paulo. Available at: https://www.researchgate.net/profile/Bianca. Tavolari/publication/341380279_Tese_de_doutorado_-_Origens_da_juridificacao_Direito_e_Teoria_Critica/links/5ebd625e92851c11a867a86f/Tese-de-doutorado Origens-da-juridificacao-Direito-e-Teoria-Critica.pdf Access on March 19. 2026.  
3.  LUHMANN, Niklas. Social systems: outline of a general theory. Translation by Antonio Cezar de Almeida. Petrópolis: Vozes, 2016. For the author, social systems operate through communication processes that attribute meaning to information according to the functions they perform in specific contexts, and it is possible that the same informational element is reinterpreted and reused in different subsystems, according to their needs. 
4.  TEUBNER, Gunther. Direito as an autopoietic system. Translation by José Engrácia Antunes. Lisbon: Fundação Calouste Gulbenkian, 1989.
5. BOBBIO, Norberto. Give structure to function: new studies of direct theory. Translation by Daniela Beccaccia Versiani. Barueri: Manole, 2007. The author highlights that legal norms should not be understood only from their formal structure, but also according to the functions that social systems perform, being able to assume new meanings and purposes as the institutional contexts of their application are modified.
6. BARREIRA, Enrique Carlos. Customs Procedure – Its Operational and Contentious Functions as a Safeguard for the Rights of the Subject. In: TREVISAN, Rosaldo (org.). Current Topics in Customs Law III. São Paulo: Aduaneiras, 2022.  
7. Rosaldo Trevisan highlights that the internationalization of customs law constitutes a determining factor for customs to be able to share data related to commercial operations, transport documents, declared values, among other elements for the verification of the regularity of foreign trade operations. In: TREVISAN, Rosaldo. The Import Tax and the International Customs Directorate. São Paulo: Aduaneiras, 2018. p. 83.
8.  Brazil maintains natural agreements with various countries and economic blocks, allowing the sharing of information intended for the application of customs legislation and the prevention of fraud in international trade. Among the cooperation instruments concluded, we find agreements with countries such as the United States, France, India, Israel, the Netherlands, the United Kingdom and Russia, in addition to regional mechanisms in the field of MERCOSUL and other cooperation initiatives between customs administrations. These agreements are available at: https://www.gov.br/receitafederal/pt-br/acesso-a-informacao/legislacao/acordos internacionais/acordos-de-cooperacao-aduaneira/acordos-de-cooperacao-aduaneira Access on March 12. 2026.  ⁹ The transnational circulation of customs data is also supported by infrastructures developed within the World Customs Organization, for example the WCO Data Model, a set of data standards that aim to harmonize the structure of information used in foreign trade operations. By defining standardized models for the data contained in customs declarations, the system allows different public administrations to use compatible data structures, facilitating the electronic exchange of information between different jurisdictions, even inspiring normative formulation for bilateral cooperation agreements. WCO. Data Model. Available at: https://www.wcoomd.org/DataModel Accessed on March 09. 2026. 
9. The transnational circulation of customs data is also supported by infrastructure developed within the World Customs Organization, for example the WCO Data Model, a set of data standards that aims to harmonize the structure of information used in foreign trade operations. By defining standardized models for the data contained in customs declarations, the system allows different public administrations to use compatible data structures, facilitating the electronic exchange of information between different jurisdictions, even inspiring normative formulation for bilateral cooperation agreements. WCO. Data Model. Available at: https://www.wcoomd.org/DataModel Accessed on March 09. 2026.
10. The agreement signed within the block was materialized through Decision No. 26/2006 of the Common Market Council CMC, called Agreement of Cooperation, Exchange of Information, Consultation of Data and Mutual Assistance between the Customs Administrations of Mercosul. Available at: https://normas.mercosur.int/simfiles/normativas/10403_DEC_026- 2006_PT_Conv%C3%AAnioCoopInterc%C3%A4mbioInfoAduaneira.pdf Accessed on April 20. 2026.
11. An expressive example of the transnational circulation of administrative data not controlled by modern customs can be observed in the Customs Registry Information Interchange System (INDIRA), developed in the MERCOSUL area. The system allows the electronic exchange of data relating to the export and import declarations registered in the member countries, enabling the customs administration of the importing country to verify the constant information of the declaration presented by the economic operator from two existing records in the customs of the exporting country. In: ALLENDE, Héctor Juárez. INDIRA. The Non-MERCOSUL Customs Registry Information Exchange System. Customs News. Customs, transport and foreign trade law journal. Buenos Aires. Available at: https://aduananews.com/pt/el-sistema-de-intercambio-de-informacion-de-los-registros-aduaneros-en-el-mercosur/ Accessed on 09 Mar. 2026.
12. WCO. Nairobi Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Criminal Offences. Available in: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.wcoomd.org/-/media/wco/public/global/pdf/about-us/legal-instruments/conventions-and-agreements/nairobi/naireng1.pdf?la=em Access on March 11. 2026.
13. It is estimated that a little more than fifty countries are parties to the Convention, in a universe greater than one hundred and eighty members of the OMA, or that it represents a tax on accession less than one third of the existing customs administrations. Furthermore, the addition to the instrument is not given in a uniform manner, once the legal regime of the Convention is structured by optional annexes, allowing States to use only certain mechanisms of administrative assistance, such as the exchange of information through request, spontaneous assistance or the conduct of joint investigations. This scenario contributed to the fact that, in practice, international customs cooperation developed predominantly through bilateral, regional agreements and soft law instruments, rather than a uniform multilateral regime of administrative assistance. Please note, however, that Brazil is not among the States parties to the Nairobi Convention, operating international customs cooperation mainly on the basis of specific administrative assistance agreements and commitments assumed within the scope of other international instruments. In: PEREPOLKIN, Serhii Mykhailovych. The progressive development and codification of international customs law. World Customs Journal, 2025. Available at: https://www.worldcustomsjournal.org/article/159127-the-progressive-development-and-codification-of-international-customs-law?utm_source=chatgpt.com The progressive development and codification of international customs law. World Customs Journal, 2025. Available at: https://www.worldcustomsjournal.org/article/159127-the-progressive-development-and-codification-of-international-customs-law?utm_source=chatgpt.comAccessed on April 19. 2026.
14. Articles 2, 3 and 5.
15. Articles 6 and 7.
16. The comparison between the two international legal instruments reveals a functional extension of cooperation: while the Nairobi Convention structures a predominantly investigative and reactive model of assistance between administrations, the Agreement on Trade Facilitation integrates the exchange of information into the ordinary functioning of international trade, establishing parameters for verification of the accuracy of import and export declarations, conditioned on the existence of “reasonable reasons” to doubt the veracity of the declared information and accompanied by safeguards relating to confidentiality, limitation of purpose and respect for the internal direito of the requested State. The agreement, however, remains essentially administrative and does not discipline in detail the criteria relating to the epistêmic quality of shared data and the limits of their eventual reuse in sanctioning contexts. WCO. Nairobi Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Criminal Offences. Available in: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.wcoomd.org/-/media/wco/public/global/pdf/about-us/legal-instruments/conventions-and agreements/nairobi/naireng1.pdf?la=em Access on March 11. 2026.
17. WTO. The Trade Facilitation Agreement: An overview. Available in: Access in: .https://www.wto.org/english/tratop_e/tradfa_e/tradfatheagreement_e.htm 08 Mar. 2026.
18. Article 12, paragraphs 2, 4 and 5 of the Agreement on the Facilitação do Comércio.
19. The legal control of the sanctioned reuse of administrative data requires observance of the principle of purpose, secondly, that the data must be used in accordance with the purpose that justified its original purpose. RODOTÀ, Stefano. Life in a surveillance society: leaf privacy. Rio de Janeiro: Renew, 2008; DONEDA, Danilo. Provides privacy and protection of personal data. 2nd ed. São Paulo: Revista dos Tribunais, 2020. For this author, the principle of purpose establishes that the processing of data must remain linked to the specific purpose that justified its collection, functioning as a legal limit to the reuse of information in different contexts.
20. MENDES, Laura Schertel. Privacy, data protection and consumer protection. São Paulo: Saraiva,2014.
21. YEBRA, Felipe Moreno. Customs Clearance in Community and Mexican Law. In: PARDO CARRERO, Germán; YEBRA, Felipe Moreno. (Coord.). Customs Law and International Trade. Selected Topics. Mexico City: Porrúa, 2016. p. 238.
22. TREVISAN, Rosaldo. Customs Clearance. In: SEHN, Solon; PEIXOTO, Marcelo Magalhães (coord.). Customs and foreign trade tax regulations. São Paulo: MP, 2023. p. 103.
23. 23 BARREIRA, Enrique Carlos. Customs Procedure – Its Operational and Contentious Functions as a Safeguard of the Rights of the Administered.In: Rosaldo Trevisan (Org) Temas Atuais de Direito Aduaneiro III. São Paulo: Aduaneiras, 2022. p. 130.
24. BIZELLI, João dos Santos. Importation: Administrative, Exchange and Fiscal Systematics. São Paulo: Aduaneiras, 2013. p. 159. Legal definitions are also found in the Brazilian Customs Law (Decree-Lei 37/66, article 44), as well as in the Customs Regulation (Decree 6.759/2009, article 542).
25. The characterization of the customs office as “administrative data production environment” is not intended to replace its traditional dogmatic qualification as a customs administrative procedure intended to verify the regularity of foreign trade operations. This is used in this work in an analytical sense, to highlight the informational dimension that the procedure has taken to assume the context of digitalization of international trade operations and the increasing use of risk analysis systems for customs administrations. It is, therefore, a complementary perspective of analysis, which seeks to demonstrate the role played by the office in the production of information records that feed broader systems of customs control and cooperation. On the classic characterization of the office as an administrative procedure of a non-contentious nature, see: REIS, Raquel Segalla. Risk Management in Customs Import Clearance: Artificial Intelligence as an instrument and control agent. São Paulo: Caput Libris, 2024.
26. The Brazilian Federal Revenue has been using artificial intelligence in its control activities for more than ten years. Through the use of algorithms and learning by trial and error, SISAM – Customs Seleção System by Machine Learning analyzes the history of registered import declarations, aiming to help the institution reduce the percentage of verified markets in customs clearance of imports — to increase the accuracy of the data. selections, wanting to help customs agents decide which of them will be selected, or also, automatically deciding their place. The aforementioned system has undergone recent modifications, such as even the infringement notifications and the consultation solutions in its database, so that, from them, the machine can infer, for example, the nomenclatures that should be attributed to the markets that will be the subject of future declarations customs REIS, Raquel Segalla. Artificial Intelligence and digital training: the future of customs and two customs agents. In: FANTINI, Maria Carmen; RAMOS, Fernando (coord). Customs Challenges: North-South Dialogue. Economic Life: 2025.
27. The World Customs Organization is developing guidelines aimed at strengthening institutional capacities for data analysis, as inferred from the Framework for Data Analytics Capacity Building. This document to OMA expressly acknowledges that modern customs management depends on the collection, integration and exploration of large volumes of data coming from multiple sources. Available at: https://www.wcoomd.org/-/media/wco/public/es/pdf/topics/capacity-building/instruments-and-tools/capacity-building-framework-on-data-analytics_es.pdf?db=web Access on April 24. 2026.
28. There is, at this moment, a full adversarial structure and no typical contradictories of the sanctioning process. The eventual transformation of these data on the basis of imputation represents a transition between different regulatory spheres. This transition — and not the existence of computerized control in itself — constitutes the core of the problem examined here.
29. These latter do not represent the confirmation of irregularity, but rather a statistical projection of probability. This distinction is essential because the functional mutation of the data can operate differently according to its nature.
30. Based on an analysis of the internationalization of Customs Administration, Diogo Fazolo warns that the reading of these international instruments allows the identification of various principles with application in sanctioning matters, such as: legality, typicality, proportionality, culpability, due to sanctioning customs process, impartiality, transparency, integrity and motivation of sanctioning customs decisions. FAZOLO, Diogo Bianchi. Customs infringements in light of the International Customs Direito. São Paulo: Caput Libris Editora / NSM Editora, 2024, p. 260.
31. The criminal procedure procedure has increasingly examined the problem of compartmentalization and secondary use of data obtained during investigations or assembled in information bases for the purposes of evidentiary production. The debate arises, above all, in the reason of the expansion of digital testing and mass data processing in investigative activities, which expands the informational circulation between different institutional spheres and places in evidence questions related to the purpose of data processing, informational self-determination and process guarantees. On the topic, see, among others: EILBERG, Daniela Dora. Life cycle two dice in digital criminal evidence: considerations for a general theory of digital evidence in addition to security management. Porto Alegre: Pontifícia Universidade Católica do Rio Grande do Sul, 2024; BADARÓ, Gustavo Henrique. Criminal Process. 9th ed. São Paulo: Revista dos Tribunais, 2023; PRADO, Geraldo. Criminal trial and guarantee system. Rio de Janeiro: Lumen Juris, 2013; CASEY, Eoghan. Digital Evidence and Computer Crime: Forensic Science, Computers and the Internet. 3rd ed. Amsterdam: Elsevier, 2011.
32. The customs sanctioning power can be defined as the specific manifestation of the state's punitive power exercised in the area of ​​foreign trade relations. As Pablo Labandera observes, this power is integrated into the system of administrative sanctioning and its purpose is to resolve the permanent tension between the protection of the public interest and the preservation of the legal guarantees of those subject to the administration. LABANDERA, Pablo. The sanctioning power of the customs administration: the due balance between the duty of control and the guarantees of those subject to the administration. In: Reflections on the regime of customs infractions and sanctions in Peru. Lima: Office of the Taxpayer and Customs User, Ministry of Economy and Finance, 2018, p. 27.
33. Ibidem, p. 33.
34. COTTER, Juan Patricio. Customs Law. Volume II. 1st ed. Autonomous City of Buenos Aires: Abeledo Perrot, 2014, p. 880.
35. OSÓRIO, Fábio Medina. Sanctioning Administrative Direito. 10th ed. rev. current E ampl. São Paulo: Thomson Reuters Brazil, 2025, p. 533.
36. For Fábio Medina Osório, the guarantee of due legal process indicates the need to submiss the sanctioning process to the Democratic State of Direito, to legality, to legal security and to all the constitutional clauses that shelter fundamental rights intertwined in the punitive relations submetidas to procedural dimensions, ou seja; faced from the point of view of its processualization, such as adequate forms, prazos razoáveis, contraditório, defesa, publicidade, ônus proof distributed in an equitable and reasonable manner, presumption of innocence, rights of information and publicity. OSÓRIO, Fábio Medina. Sanctioning Administrative Direito. 10th ed. rev. current E ampl. São Paulo: Thomson Reuters Brazil, 2025, p. 536.
37. The legal treatment of data can be understood as a process functionally structured in different stages, which includes the collection and production of information, its circulation between different institutional actors and, finally, its use for evidentiary or decision-making purposes. As Daniela Dora Eilberg observes, the flow of data in investigative and evidentiary environments involves not only the legitimacy of obtaining information, but also control over its transmission and over the secondary use of data for purposes other than those that justify its original purpose. The author highlights that the production of evidence must be analyzed from functionally differentiated phases - such as proposal, admission, production and assessment - each subject to its own requirements of validity and legitimacy, or that it shows that the alteration of the purpose of use of data implies a change in the legal regime applicable to its treatment. EILBERG, Daniela Dora. Flow of data, trial and criminal process. Revista da Faculdade Mineira de Direito, v. 27, no. 54, 2024.
38. VARELA, Andrés. An invitation to rethink the customs sanctioning direito starting from the truth. In:Customs News. Available at: https://aduananews.com/pt/una-invitacion-a-repensar-el-derecho-aduanero-sancionatorio- desde-la- Verdad/ Access on April 20. 2026.
39. PASILLAS, Edmundo Ramírez. Customs Law. Presumptions and fictions. Ubijus Editorial: Mexico City, 2025, p. 18.
40. PASILLAS, Edmundo Ramírez. Customs Law. Presumptions and Fictions. Ubijus Editorial: Mexico City, 2025, p. 229. WCO. Implications of Big Data for Customs – How It Can Support Risk Management Capabilities. Research
41. Paper No. 39, March 2017. Available at: chromextension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.wcoomd.org/-/media/wco/public/global/pdf/topics/research/research-paper-series/39_okazaki_big-data.pdf Accessed on March 12, 2026.
42. One of the two main factors of social hypercomplexity is digital technologies, either as a cause of complexity, or as a solution. There, technology is proposed by Ulrich Beck as two characterizing elements of what he calls risk society. BECK, Ulrich. Risco Society: Rumo a uma other modernidade. Available at: https://edisciplinas.usp.br/pluginfile.php/5299999/mod_resource/content/1/Ulrich%20Beck%20%20Sociedade%20de%20risco_%20Rumo%20a%20uma%20Outra%20Modernidade.pdf Accessed: April 20, 2026.
    

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