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Court of Justice: Member states must pay customs duties to the EU even when they cannot recover those duties from operators

EU Member States must pay customs duties to the EU budget, whether they can collect those duties from importers or not.   It is true when customs authorities cannot collect the duties due to errors, but also in cases where their controls were insufficiently diligent.  The court of Justice recalled that important principle again on 11 April 2024, in Case C 770/22, OSTP Italy Srl.

There is a critical lesson that Member States should learn from this.  It does not help to assign to operators responsibilities and liabilities that they are not able to fulfil (say, CBAM obligations on indirect customs representative …), then prosecute those operators to recover lost revenue. Parties that are liable for duties will not always be able to pay those duties.  Going after representatives and other intermediaries, in order to recover duties that should have been collected upon importation, is a pointless exercise when sums are very large. Intermediaries won't be able to pay, they'll go bankrupt.  And Member States will have to pay the duties to the EU budget anyway.  

With ever more complex rules to enforce at the border, and increased challenges posed by cross-border e-commerce and mandatory supply chain due diligence requirements, an effective control of the EU’s border has become impossible for customs authorities without relying on skilled operators.  For a class of skilled operators to thrive, proper training is a must.  But it is not enough. Operators must also be treated as trusted allies in the fight against fraud, which should include the ability to talk about the fraud they suspect with customs authorities, without fearing retribution.  That safe space currently does not exist, and too often customs authorities by default will treat operators, even the most skilled ones, as fraudsters. That is an approach that is not sustainable for Member States: the risk for their budget is just too high.  If anything, customs authorities undermine the ability of their existing skilled operators to operate, reducing the level of compliance, and in turn increasing the risk that they will have to pay EU revenue from their own budget.  A vicious circle.  

A reset is necessary.  In Belgium, this means an in-depth reform of the antiquated Belgian Law on Customs & Excise (which was inherited from the 1820s, when part of the Netherlands!). At the EU level, it means fully embracing one of the core elements of the reform of the customs code proposed by the Commission, the Trust & Check Traders. Traders should be checked, and trusted. 

The Court has previously had occasion to emphasise that errors committed by the customs authorities of a Member State do not release that Member State from its obligation to make available to the European Union the entitlements it should have established, together with, as the case may be, default interest (see, to that effect, judgment of 11 July 2019, Commission v Italy (Own resources – Recovery of a customs debt), C‑304/18, EU:C:2019:601, paragraph 61). Similarly, a lack of diligence on the part of customs authorities cannot release the Member State from that obligation.


customs, eu, own resources