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EU Court of Justice: amendment of the identity of the declarant in a customs declaration is possible

27 July 2020
Customs, Trade & Logistics - Customs

Can the identity of the declarant in the customs declaration be changed after goods are released for free circulation? The EU Court of Justice answered this interesting question on 16 July 2020 in the affirmative[1]. This means that a customs declaration may be revised under Article 78 CCC[2] to replace the original declarant with the name of another person. An interesting statement, because it is contrary to existing case law of the Dutch Supreme Court and may offer new possibilities for importers to amend declarations retrospectively.

Customs debtors

The basic principle in customs law is that the declarant is regarded as the customs debtor. After import and declaration to customs, the declarant will therefore be held responsible by customs for the customs duties owed.

The declarant is the person who submits a customs declaration in his own name, or the person in  whose name a customs declaration is made[3]. In the latter case, there is so-called “direct representation”. The customs representative (usually a customs agent) is then authorized to submit the declaration in the name and on behalf of his principal (often: the importer). This means that the principal of the customs agent is the declarant in the customs declaration and is therefore liable to customs for customs duties. Another option that is regularly used is the so-called “indirect representation”. In that case, the customs representative (“customs agent”) has received authorization from his client to submit the customs declaration in his own name, but on behalf of the client as his principal. The customs agent then remains the declarant in the customs declaration. In the case of indirect representation, customs may hold both the declarant and the principal liable for the customs duties owed.

Judgment of the Court of Justice

In this case, (subsidiary) company Zaharul Oradea, established in Romania (“Oradea”), bought cane sugar from Brazil, which was destined to be refined in the German-based factory of (parent) company Pfeifer & Langen (“Pfeifer”) with the intent to sell it to Pfeifer subsequently. Since Oradea had a so-called import licence, it was able to import cane sugar at a reduced import duty. It therefore authorized Pfeifer to submit the customs declaration on behalf of Oradea. Pfeifer filed the declaration in his own name and on its own behalf – despite the authorization given – but did use the import licence of Oradea. However, it did provide a copy of the authorization granted with the declaration. Customs accepted the declaration and applied the reduced rate. Pfeifer then requested an amendment to the customs declaration, to the effect that it had made the declaration as an representative of the declarant Oradea, as it was not certain that it could benefit from the reduced customs tariff.

Customs did not accept the request for revision, and subsequently recovered customs duties from Pfeifer for the difference between the normal customs tariff and the reduced tariff based on the import licence. After all, according to German customs, Pfeifer was the declarant in the customs declaration (acting in its own name and on its own behalf) and did not have an import license.

The question that the EU Court of Justice had to answer is whether a customs declaration must be corrected under Article 78 CCC in such a way that the particulars relating to the declarant (in this case Pfeifer) are replaced by the designation of the person to whom an import license was issued for the imported goods (in this case Oradea). AG-Hogan had already answered this question in the affirmative[4].

In its final decision, the EU Court of Justice reaches the same conclusion. If a declarant (by means of the declaration) has declared to act exclusively in his own name and on its own behalf, while he was instructed to make the customs declaration on behalf of a third party, the declaration may be corrected under Article 78 CCC. However, it was established in this case that, before the customs declaration was submitted, an authorization had already been issued to Pfeifer to submit the customs declaration on behalf of Oradea (and that it had also been provided to customs).

An interesting judgment of the EU Court of Justice, in which the Court rightly points out that the text of Article 78 CCC does not preclude this situation from falling under this provision and that, moreover, the purpose of this provision is to make the customs procedure reflect the actual situation.

Practical relevance

The EU Court of Justice has issued an opinion that deviates from the existing case law of the Dutch Supreme Court. The Supreme Court ruled in 2015 that a change of the declarant is not possible, because this would lead to the replacement of the original declaration by another person’s declaration.[5] According to the Supreme Court, the replacement of the declarant cannot be compared with the modification of other data in the customs declaration, such as the customs value.

As per 1 May 2016, the CCC was replaced by the Union Customs Code (“UCC”). The article regarding  possibility to amend the customs declaration has a different wording than the former Article 78 CCC. Under the UCC, an amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his obligations relating to the placing of the goods under the customs procedure concerned (Article 173 (3) UCC). It is unclear how this provision should be interpreted and what its scope is.

The EU Court of Justice will undoubtedly have to consider the interpretation of this provision in the future.

[1] EU Court of Justice, C-97/19, dated 16 July 2020.

[2] Article 78 of the CCC was valid until 1 May 2016 and allowed customs to change the declaration after the goods were released.

[3] Article 5 (15) Union Customs Code – formerly Article 5 Community Customs Code.

[4] Opinion A-G CJEU, no. C-97/19 (Pfeifer & Langen), 25 February 2020 (ECLI: EU: C: 2020: 108).

[5] Supreme Court no. 13/04052 and 14/04224 of March 13, 2015 (ECLI: NL: HR: 2015: 550 and ECLI: NL: HR: 2015: 519).

More information

Arjan Wolkers

M +31 6 8013 8048
E a.wolkers@ploum.nl

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