The carrier's liability for customs debts and other changes, import duties or export duties
- Denmark
- 01/01/2006
- Bang + Regnarsen Advokatfirma - Denmark
In a recent judgment the Court of Justice of the European Communities held that a carrier, who under normal circumstances has to guarantee and pay customs debts or other charges according to the so-called Community transit procedure, may in certain circumstances be granted relief of import duties or export duties. According to the EU customs code relief implies the existence of a special situation and absence of deception or obvious negligence on the part of the carrier.
EU – Legal background
The EU customs code provides for a procedure whereby none-community goods brought into the community, which, instead of being immediately subject to import duties, are dealt with under the external transit procedure until they are produced at the customs office of destination. Persons authorized to use the external community transit procedure are defined in the customs code as the principal and are often freight forwarders or carriers who undertake the transport of goods from their arrival in the EU to their final destination. The principal must provide a guarantee in order to ensure payment of any customs debt or other charges.
In case customs import or export duties are not paid due to fraud or other irregularities and the goods do not reach their final destination, the guarantee comes into effect and customs authorities may demand payment under the guarantee from the carrier or the freight forwarder. The carrier is entitled to receive notice from the customs authorities of any irregularity in order for the carrier to avoid incurring further customs debts and to avoid undertaking any further transports for the shipper or consignee suspected of fraud.
In a recent matter argued before the Court of Justice of the European Communities the Court explained what is to be understood by “a special situation” as well as “absence of deception or obvious negligence”. The matter regarded a Dutch carrier, who undertook the transportation of various consignments of meat to Morocco via Spain in 1995. The carrier issued the transport documents (T 1) on behalf of a single commissioning principle. After six months during which the Dutch carrier had arranged a substantial number of transportations, the Dutch customs authorities claimed payment of customs debt that had been incurred by the carrier in view of its status as principal under the external community transit procedure. The carrier, on the other hand, applied for remission of import duties.
At an early stage the Dutch customs authorities had suspected the consignments of being fraudulent and it turned out that the transit documents had been forged. However, the Dutch authorities did not inform the carrier about their suspicion and as a consequence the carrier accepted more orders from the allegedly fraudulent consignee. After further investigations, which took a few years, the Dutch authorities reached the conclusion that the carrier was not involved in fraud and the Dutch authorities applied to the Commission for the carrier to be granted remission of import duties. The Commission refused the application on the grounds that this was not a special situation and that the carrier had shown obvious neglect, in particular because the carrier had not taken all precautions necessary to guard against the risk of fraud, e.g. by monitoring its business partners and taking out the appropriate insurance.
Having received the Commission’s decision the carrier issued proceedings against the Commission before the Court of Justice of the European Communities.
