Newsletter
n° 57 – March – May 2025

In a judgment without special reasons dated 2 April 2025 (no. 23-14.323), the Court of Cassation dismissed the appeal lodged by the customs authorities against the decision of the Paris Court of Appeal dated 9 January 2023.

 

The latter had accepted the position defended by Vincent Courcelle-Labrousse, concerning the classification of microscopes that the administration wanted to classify under 8525 80 “television cameras, digital cameras and camcorders”, but which in reality came under 9012 “microscopes other than optical“.

 

During a CMR transport of new vehicles on a trailer, their bodies were visibly scratched by tree branches during transport.

 

The shipper then asked the carrier to reimburse the coachbuilder who had restored the vehicles.

 

The carrier objected to the application of Article 17.4. of the CMR, under which the carrier is relieved of liability when the loss or damage results from the special risks inherent in (i) a lack of packing in the case of goods which, by their nature, are liable to wastage or to be damaged when not packed and/or (ii) the nature of certain kinds of goods which particularly exposes them to damage, especially through breakage, rust, decay, normal wastage.

 

In a ruling dated 22 January 2025 (RG no. 22/04409), the Versailles Court of Appeal held that it had been established that the scratches may have been caused during transport by the failure to pack the vehicles, whose bodies were exposed to such damage, so that the carrier was relieved of liability.

 

In this case, the shipper himself had indicated that the vehicles had arrived damaged, obviously as a result of tree branches rubbing against them.

 

Thus, while Article 17.4 of the CMR stipulates that the carrier is relieved of liability when the damage results from special risks inherent in particular in the absence of packaging, the Versailles Court of Appeal was satisfied with the fact that this special risk appeared to be a likely explanation for the damage.

 

It should be noted that these were vehicles transported on trailers, which are very rarely packed. It appears that the shipper would have been better advised not to indicate the possible cause of the damage…

 

In a judgment of 27 March 2025 (C-351/24), the Court of Justice of the European Union ruled on a dispute concerning preferential origin in the context of the regional convention on pan-Euro-Mediterranean preferential rules of origin of 26 March 2012 (Council Decision 2013/94/EU).

 

The dispute was between a Hungarian importer and the authorities in that country concerning fresh mandarins which had been the subject of several EUR-MED preferential origin certificates issued by the Kosovo customs authorities certifying that the mandarins in question were of Turkish origin. The Hungarian authorities carried out an a posteriori check on the import declarations and found that, as the mandarins were an agricultural product, they did not qualify for preferential origin under the regional agreement. This preference was not provided for in the customs union agreement between the European Union and Turkey (which is limited to industrial products), so the certificates were incorrect and could not qualify for any tariff preference in the EU.

 

The Hungarian authorities had simply invalidated the certificates, without asking the Kosovan authorities whether or not the certificates were actually applicable.

 

The importer criticised this approach, arguing that the system of administrative cooperation required the Kosovar authorities to be consulted before any recovery action was taken by the Hungarian authorities.

 

The Hungarian importer, who had requested remission of the customs duties assessed, also argued that the incorrect certificate constituted an “error on the part of the competent authorities themselves” entitling him to repayment or remission of customs duties under Article 119 of the EU Customs Code.

 

The CJEU did not agree with the importer. It ruled that the system of administrative cooperation requires consultation with the authorities of the country of export, who alone have the power to certify the preferential origin of the exported product, only in the event of “reasonable doubts”.

Since, as a matter of principle, this agricultural product could not benefit from a EUR-MED certificate in the context of a Turkish origin, there was no “reasonable doubts” but rather a certainty that these certificates were incorrect. Consequently, the Court of Justice ruled that the regional agreement did not require consultation with the Kosovan authorities.

 

With regard to the remission of customs duties, the Hungarian authorities argued with the importer that even if an error had been made in Kosovo, the Hungarian importer was experienced in international trade and could therefore have detected the error.  The fact that an error on the part of the authorities is detectable is a condition that precludes any remission or reimbursement. The Hungarian Court of First Instance, which had referred the case to the Court of Justice, had clumsily drawn a link between the need or otherwise to consult the authority of the country of export and the validity of a remission.

 

The Court of Justice ruled out any link. First, it found that “there is no obligation to initiate such a procedure [with the exporting authorities] where those customs authorities are able to establish from the outset, without any investigation being necessary, that the proof of origin is incorrect“. (point 33).

 

On the other hand, the CJEU held that the sole purpose of Article 119 is “to protect the legitimate expectations of the debtor and to lay down the conditions under which errors committed by the customs authorities give rise to a legitimate condition on the part of that debtor.” (paragraph 37). The CJEU emphasised that Article 119(3)(1)(a) of the Union Customs Code is not “intended to set out the conditions under which administrative cooperation between the customs authorities concerned must be implemented.”

 

This provision of Article 119(3) is important because it creates a legal presumption that an error concerning the issue of a certificate of preferential origin is deemed not to be detectable by the Community importer.

 

Having thus reframed the debate concerning the scope of Article 119, the CJEU made an incision in its reasoning in paragraph 40: “ So far as is relevant, it should be noted that, where a movement certificate issued by the authorities of a country or territory outside the customs territory of the European Union in connection with the preferential treatment of goods, outside a system of administrative cooperation, proves to be incorrect, the legal presumption laid down in the first subparagraph of Article 119(3) of the Customs Code, in accordance with which the issue of such a certificate is deemed to constitute an error which could not reasonably have been detected by the debtor, does not apply and it is therefore appropriate to ascertain whether or not, in practice, that debtor could reasonably have detected that error, as Article 119(1) of that code provides. ”

 

This clarification is arguable.

 

If we understand the Court of Justice, the words “outside a system of administrative cooperation” would therefore refer to the case of the issue of a certificate for a product which, by its very nature, was not entitled to such a certificate EUR-MED for the origin in question.

 

However, it cannot be disputed that the Kosovan authorities acted within the framework of a system of administrative cooperation, since they are bound by the pan-Euro-Mediterranean regional convention. They simply misapplied it.

 

By playing with words in this way, the Court of Justice referred the unfortunate importer to the application of Article 119(1) of the EU Customs Code, which makes the admission of an “error on the part of the competent authorities themselves” subject to a number of cumulative proofs, including in particular the fact that the error could not have been detected by the importer.

 

Thus, within the very issue of “preferential origin”, we could move away from the favourable legal presumption established by Article 119(3) and fall back on Article 119(1), which is stricter.

 

This approach appears extremely open to criticism, given that Article 119(1) is in fact a codification of the case law of the Court of Justice, which had accepted the possibility of an error by the competent authorities in cases other than the preferential origin of goods.

 

It should be remembered that the first decision of the Court of Justice to rule on the reasonably detectable nature of the error and to lay down three now classic conditions (the nature of the error, the professional experience of the trader concerned and the diligence shown by him) concerned an inward processing dispute. The case in question was Hauptzollamt Giessen v Deutsche Fernsprecher GmbH of 26 June 1990 (Case C-75/89).

 

The CJEU would have been better advised not to complicate once again the understanding of the mechanisms of preferential origin, which can prove formidable in the event of irregularity.

 

In practice, these issues are sufficiently complex for operators to accept that issuing inapplicable certificates cannot lead to them being rectified.

 

The Court of Justice’s decision, designed to protect the legal certainty of traders, creates new uncertainty about the application of preferential rules of origin.

In its judgment of 16 January 2025 (C-376/23), delivered on the opinion of Advocate General Juliane Kokott, the CJEU handed down a decision that appears to have been favourable to a logistics and storage operator in the port of Riga in Latvia who was authorised to operate a storage warehouse located in the port’s free zone. This operator was not responsible for making customs declarations at the same time as the goods left the port.

 

The Latvian customs administration had put in place a practice whereby the international CMR consignment note under cover of which the goods left the warehouse in question was checked by a customs officer at the port, who noted the status of the goods under a letter “C” (for “Community”) and this officer signed the CMR letter. This document was placed in the operator’s records as proof that the free zone regime had been discharged.

 

However, the authorities departed from what had clearly been “constant administrative practice” for many years. It took the view that the document did not prove that the goods had regularly left the free zone to be placed under a new customs procedure (release for free circulation, re-export, etc.).

 

Essentially, the Court of Justice validated the conclusions of 11 July 2024, which began with a quotation from Chekhov: “You must trust and believe in people or life becomes impossible“.

 

The operator of the warehouse located in the free zone had built a system of entries based on a framework that had been approved by the authorities, with content that had also been validated by them. Admittedly, the number of a customs declaration registered by its MRN (Master Reference Number) was missing.

 

However, the Advocate General, followed by the Court, had noted that Article 178 of the applicable Delegated Regulation 2446/2015 of 28 July 2015 did not require reference to this declaration. Moreover, such a reference was not always possible given the ongoing computerisation of the system.

 

Article 178 allowed the authorities to use other evidence to discharge the free zone status. The authorities did not appear to have adopted any measures expressly derogating from Article 178. On the other hand, it had unquestionably intervened to certify the Community status of the goods.

 

The Court, following the Advocate General, held that ” It is true that, as a professional operator, the holder must display a minimum level of vigilance. However, in so far as it is not evident to any professional operator, on examining a consignment note, that the indication which is given by it may be suspect, which, in the main proceedings, it is for the referring court to determine, while taking account of the fact that the reference to the status of the goods concerned on the CMR consignment notes was in addition certified by the stamp of the customs office and signed by a customs official, the holder cannot be criticised for not verifying the accuracy of that reference.” (paragraph 58).

 

Considering then that the authorities had not adopted any particular derogating measure to alleviate the evidential obligations of the operator of the free zone warehouse, the CJEU examined in the alternative whether that operator could have a “legitimate expectation” that his records complied with the obligations arising from Article 178 of the delegated regulation.

 

The Court of Justice thus had the opportunity to review its case law on the principle of legitimate expectations, which is specific to Community law but too often disregarded because of the strict conditions for its application.

 

The Court points out that “the principle of the protection of legitimate expectations forms part of the EU legal order and is binding on every national authority responsible for applying EU law” (paragraph 64), and therefore on customs (paragraph 65).

 

The protection of legitimate expectations is based on the following principles: ” The right to rely on that principle extends, as a corollary of the principle of legal certainty, to any individual in a situation where an authority has caused him or her to entertain legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources is capable of giving rise to such expectations. However, a person may not plead breach of the principle of the protection of legitimate expectations unless he or she has been given precise assurances by the authorities ……”. (paragraph 65).

 

On the other hand, the CJEU points out in paragraph 65 that “ Furthermore, the conduct of a national authority responsible for applying EU law, which acts in breach of a provision of that law or of national law passed pursuant to the latter, cannot give rise to a legitimate expectation on the part of a trader  “.

 

However, since Article 178(3) did not provide for any specific procedure, checking the CMR letter indicating the ‘C’ status of the goods and the signature of an official with the customs stamp was not in itself a method of proof contrary to Community law.

 

The operator could therefore have a legitimate expectation that his records were correct and that he had discharged the free zone properly, particularly since ” the customs authorities have previously shown the holder, in a precise, unconditional and consistent manner, that the inclusion of data in its records allowing the identification of a CMR consignment note carrying that indication was sufficient to consider that it had complied with its obligations under that article. In such a situation, the holder may have a legitimate expectation that the customs authorities have, in accordance with Article 178(3) of Delegated Regulation 2015/2446, waived the requirement to provide some of the information in paragraph 1 of that article. ” (paragraph 67)

 

Finally, an interesting procedural issue arose in that a penalty procedure had taken place before a Latvian criminal court and the same operator had been acquitted of the same offences on the grounds that his conduct was not contrary to Community and Latvian law. The question arose as to whether this final decision could be considered res judicata and be enforced against the administration.

 

National rules, such as the principle of res judicata, may be applied to disputes involving Community law, provided that these rules are those applicable to purely national disputes on the one hand (principle of equivalence), and that they do not make it excessively difficult to invoke Community rules (principle of effectiveness).

 

In this respect, the CJEU states in paragraph 79 that ” the principle of effectiveness cannot prevent observance of the res judicata force of a judicial ruling that has become final on condition that such observance does not produce any effects with regard to proceedings other than those brought against the lawfulness of one and the same administrative decision or with regard to the legal classification of facts concerning the same customs operations “.

 

In this way, the Court of Justice has “circumscribed” its case law to prevent decisions from being overturned in a series of cases. The decision of the criminal court concerning this operator could therefore only have an effect (in a very subsidiary way) in the administrative proceedings concerning the same facts, provided that Latvian law ” lays down a rule that administrative courts are bound by the decisions of criminal courts.” (paragraph 79).

 

This decision is extremely interesting as an illustration of the conditions in which a consistent administrative practice can be challenged, when Community law leaves room for action by Member States.

On 2 April 2025, the Commercial Chamber of the French Supreme Court handed down a ruling (Appeal 23-22.094) concerning the tariff classification of aromatic extracts. The classification within the worldwide Harmonised System nomenclature (first six numbers of the customs nomenclature code, in this case 3302 10) was not contested, but the classification in the EU Combined Nomenclature, which adds two digits, was the subject of a dispute.

 

The company claimed heading 3302 10 40, while the authorities opposed heading 3302 10 10 with a higher rate of customs duty.

 

A Swiss company had manufactured aromatic extracts called “Flavor Keys” in four different formulas for use in flavouring four different types of vodka produced in France by Bacardi.

 

Given the “specialisation” of each aromatic extract formula in relation to a specific beverage, Customs considered that subheading 3302 10 10 including “preparations containing all flavouring agents characterising a beverage” was indeed applicable. The company claimed that the vodkas in which the disputed products were to be incorporated themselves contained additional flavouring agents.

 

Consequently, the importing company contested the application of heading 3302 10 10 with regard to its term “all” and retained the residual heading 3302 10 40.

 

The lower courts and the Court of Cassation did not agree with the company. Account was taken of the manufacturing process used and the fact that vodkas are not flavouring agents classifiable under heading 3302 but alcohols classifiable under heading 2208. It was therefore ruled that “Flavour Keys” were indeed “preparations containing all the flavouring agents which characterise” the vodkas in which these agents were to be incorporated.

A ruling by the CJEU on 13 March 2025 (C-137/23) ruled on an optional exemption provided for in Directive 2003/96/EC of 27 October 2003 (the Energy Tax Directive).

 

Under Article 15(1)(f), States “may apply under fiscal control total or partial exemptions or reductions in the level of taxation. / f to energy products supplied for use as fuel for navigation on inland waterways (including fishing), other than pleasure crafts and electricity generated onboard a craft.

 

A Dutch skipper operating a tanker which benefited from the exemption granted by the Netherlands under Article 15(1)(f) was inspected by the Dutch authorities.

 

It transpired that the diesel he used to propel his vessel on an EU inland waterway (in the Netherlands) was not properly traced. Dutch law required the use of the “Solvent Yellow 124″ marker, which is used to trace exempt diesel fuel. This marker is used throughout the EU. The product had indeed been treated with Solvent Yellow 124, but in a quantity that was insufficient for the minimum required by EU regulations. The authorities therefore claimed that the exemption should be withdrawn.

 

The Court of Justice disagreed with the Netherlands Customs, noting that ” first, it is established that that gas oil is used as fuel for navigation on EU inland waterways and, second, there is no evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse “. (point 51)

 

It was established during the debates that, on the one hand, the fuel had been used on inland waterways and, the other hand, that the supplier of the diesel was approved to sell this fuel for this use and, therefore, had incorporated the tracer “Solvent Yellow 124″ for this purpose. The difficulty was that the quantities incorporated were insufficient. The CJEU points out that ” the fiscal marking of gas oil and kerosene constitutes a measure intended to ensure the proper functioning of the system of harmonised taxation of energy products established by Directive 2003/96 by allowing the tax authorities of Member States to ensure that those mineral oils are taxed in accordance with their actual use “. (point 66)

 

The Court of Justice pointed out that “the general scheme of that directive is based on the principle that energy products are taxed according to their actual use” (paragraph 56).

 

It considers that this principle also applies to optional exemptions such as those provided for in Article 15(1f).

 

We have already commented on this principle on several occasions in our Newsletters, namely the Roz Swit case of 2 June 2016 (C-418/14) and its follow-ups, in particular the judgments of 7 November 2019 (C-68/18 see our Newsletter No 31 – September-December 2019) and 22 December 2022 (C-553/21 see our Newsletter No 46 – January-February 2023).

 

In reality, this dispute had to be resolved because the product had indeed been marked with “Solvent Yellow 124”. This meant that a check could immediately determine that it was a product benefiting from what is known in France as a privileged regime.

 

This welcome case law is therefore an illustration of the fact that customs formalities can come up against the principle of the actual use of the product, which can be proven by various means

 

The most important thing to check is that customs control is not compromised and, above all, that there is no evidence of fraud or abuse.

 

 

In an order of 4 October 2024 (C-214/24), the Court of Justice reiterated the principles that apply when tobacco products have irregularly passed through several Member States before being discovered in a final State. The question arose as to whether transit States could levy excise duty on tobacco products transported through their territory for commercial purposes without having the necessary documents in place.

 

The consignments of tobacco were being transported from Lithuania to the UK via Germany. The goods had been discovered in the UK in an irregular situation by the British customs authorities. The German customs authorities intended to recover the excise duties, but their application was rejected.

 

The CJEU reiterated the principles it had laid down in a Prankl judgment of 5 March 2015 (C-175/14) handed down under Directive 92/12/EC of 25 February 1992. The question was raised in the context of its successor, Directive 2008/118/EC of 16 December 2008.

 

The CJEU pointed out that products subject to excise duty may only be released for consumption once, so that excise duty is levied in the Member State in which the product in question is intended to be consumed.

 

The CJEU therefore ruled that Articles 7 and 33 of Directive 2008/118/EC must be interpreted as meaning that “excise duty on tobacco products irregularly imported into the territory of a Member State and then transported for commercial purposes to another Member State, in transit through several Member States, without having been placed under a duty suspension arrangement, may be levied by only one Member State, namely the Member State of destination to which they have been transported, to the exclusion of the Member States of transit”. (point 44)

In another case, this time concerning pallets of beer, the Commercial Chamber of the Court of Cassation handed down a decision on 12 March 2025 (appeal no. 23-22.447). The Court ruled that excise duty could be charged to a French authorised warehousekeeper in respect of beer that had been irregularly delivered to France from Germany.

 

Several customs inspections carried out between 2016 and 2018 revealed that the operations in question were irregular and that excise duties had not been paid when the goods arrived in France. One of the warehousekeepers did not keep any stock records and did not have the status of “authorised excise warehousekeeper”. The applicant for judicial review was the manager of a company but was also the manager of the offending company and, according to the authorities, had facilitated the fraud.

 

According to the Court of Cassation, there was therefore no double taxation of excise duties in France and Germany, and the claimant should have been aware of the irregular removal of the goods from the duty suspension regime. His cassation recourse was therefore dismissed.

 

A judgment of 21 January 2025 by the CJEU (C-188/23) is worth noting as it was handed down by a Grand Chamber, i.e. by a collegiate assembly of all the Presidents of the Chambers of the Court of Justice of the European Union.

 

It was a major case involving a large container ship that had suffered a devastating fire while sailing the ocean. The ship had been towed as best it could to a German port.

 

It had been unloaded. All the waste that could be removed had been removed, in particular the fire water mixed with sludge and waste residues of all kinds (contents of the containers). This waste was sent to Denmark for reprocessing.

 

Around 24,000 tonnes of waste remained, which had literally melted and stuck to the hull of the ship, which was due to be sent to Romania for dismantling. The company operating the ship considered that it was not obliged to make any notification for the transfer of this waste to Romania. Under pressure from the German authorities, the operator was forced to do so, at considerable expense and delay.  The operator claimed that the German authorities were liable for having imposed this procedure on it, in the operator’s view wrongly.

 

The ship operator thus sought to apply a provision, namely Article 1^° paragraph 3b of Regulation 1013/2006 of 14 June 2006 on transboundary shipments of waste.

 

The ship’s operator considered that, within the meaning of this provision, the waste remaining on board the ship was indeed excluded from the scope of the Regulation as ” waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of “. The German authorities, on the other hand, considered that the waste had already materialised by the time the ship arrived in Germany, so that its shipment from Germany to Romania had to be subject to a (cumbersome) specific notification procedure under Regulation 1013/2006.

 

The Court of Justice had given an initial ruling on 16 March 2019 (C-689/17) which did not settle all the issues.

 

The Court of Justice ruled that this exception to the scope of Regulation 1013/2006 had to be interpreted strictly to allow the widest possible application in the European Union of the Basel Convention, which is the international regulation governing shipments of waste.

 

In particular, the CJEU considered that at the stage the company had reached after removing some of the waste from the ship, its operator had a full understanding and knowledge of the state of the waste and could therefore satisfy the requirements of the notification procedure.

 

Thus, the exception in the Regulation would simply result from a transitional situation in which a ship operator does not know exactly what waste he may have on board, particularly in the event of an emergency. This appears to be the basis on which the Court of Justice reasoned in its 2019 ruling.

 

With regard to the principles of environmental protection pursued by the Basel Convention and Regulation No 1013/2006, the Court notes ” notes the importance of reducing shipments of hazardous waste to a minimum, consistent with the environmentally sound and efficient management of such waste “. (point 63)

 

The Court emphasised that the notification procedure with the prior consent of the country of destination allowed for a complete analysis of the situation on departure and arrival and for full monitoring.

 

Ultimately, the generalisation of the obligation to make such a notification “has the effect of dispelling any uncertainty as to the need to initiate the said procedure in respect of this shipment”. (point 69)

 

With regard to the (supposed) beneficial aspect of this notification, ” After all, the person responsible for the ship having offloaded part of the waste will have to opt for a shipment of the waste remaining on that ship which best meets the requirements of protection of the environment and human health, as that regulation requires.” (point 70).

 

Thus, appearing to go back on its first judgment, in the light of developments in the case, the CJEU considers that ” it may be presumed that, following the offloading of part of the overall mass of waste generated on the Flaminia, the person responsible for the Flaminia was reasonably in a position to have information concerning the quantity and nature of the waste remaining on that ship, with a view to organising its environmentally sound management and ensuring that shipments of it are reduced to a minimum, consistent with such management. » (point 78).

 

It is likely that the liability action will no longer succeed in Germany.

 

For practitioners of ecological taxation and the monitoring of prohibitions affecting international shipments of waste, this ruling illustrates the importance that administrations and courts attach to monitoring these sensitive flows.

The Court of Cassation has handed down a number of decisions concerning customs prerogatives.

In a ruling dated 2 April 2025 (Appeal no. 25-90.001), the Criminal Division of the Court of Cassation rejected a priority question of constitutionality against the new texts resulting from the law reforming rights of access, no. 2023-610 of 18 July 2023 (see our Newsletter no. 49 July-October 2023 and our article in AJ Pénal in a special issue on this law, October 2023). The Constitutional Council declared 1^° of the new Article 60-1 to be constitutional in its decision no. 2024-1124 QPC of 28 February 2025.

 

The question also criticised the new Articles 60 and 61.

 

Article 60 refers to articles 60-1 to 60-10 of the Code concerning the conditions for exercising access rights, without itself ruling on the procedures for exercising these rights.

 

Article 61 requires drivers of means of transport to comply with orders from customs officers.

 

The Court of Cassation pointed out that “the prerogatives provided for by this article [61] can only be exercised when customs officers have a right of inspection under the conditions set out in articles 60-1 et seq. of the Customs Code“. The Court of Cassation deduced that “the contested articles do not therefore themselves define the conditions to which the exercise of the right of inspection by customs officers is subject”. (point 11)

In another case, in a ruling dated 2 April 2025 (Appeal no. 24-80.999 published in the Bulletin), the Criminal Division upheld a customs detention procedure by overturning an appeal ruling in favour of the defendant.

 

This involved a traffic check on a person presenting himself as a numismatist, on whom 40 ancient coins had been found. According to Customs, the coins were the result of a metal detector search.

 

The authorities detained the person, carried out a home inspection and remotely called in an engineer from the Ile-de-France DRAC (regional directorate for cultural affairs), who considered that the goods were “cultural property” subject to restrictions, particularly under the Customs Code, without having seen the goods other than through photographs.

 

The Court of Appeal acquitted the defendant on the grounds that coins are not “cultural goods by nature“. However, the Court of Cassation noted that the defendant had given no indication of how he had obtained the coins.

 

The Criminal Division wiped the slate clean of the Court of Appeal’s favourable reasoning

 

” 23. On the one hand, an opinion issued by a Drac engineer, on seeing photographs of coins that had just been seized, qualifying them as cultural goods within the meaning of the Customs Code, combined with the fact that the person transporting these coins could not prove their origin, characterised, within the meaning of Article 323-1 of the Customs Code, the offence of holding cultural goods without proof of origin while in flagrante delicto.

24. 
    On the other hand, in the event of customs detention for the transport of cultural goods without proof of origin following a stop on the public highway, the mere fact that the goods had already been seized and inventoried at the time they were placed in customs detention is not sufficient to exclude the need for further customs investigations.

 

It should be noted that there was strictly no border dimension to this case, since the DRAC in question was the Ile-de-France DRAC and the defendant had been checked while driving his vehicle.

In an important judgment handed down by the Grand Chamber on 8 April 2025 (C-292/23), the CJEU provided a framework for judicial review of the actions of the European Public Prosecutor’s representative when the latter summons people to appear as witnesses in criminal proceedings.

 

Vincent Courcelle-Labrousse will shortly be publishing an article on this decision in AJ Pénal.

 

Community law is often complex, yet it is characterised by a real ‘nugget’ that has been extremely stable over time and has given rise to fruitful case law, namely Council Regulation No 2988/95 of 18 December 1995 on the protection of the Communities’ financial interests.

 

Article 3 of this regulation lays down specific rules on limitation periods, namely a four-year period that can be interrupted by “legal proceedings”, with a time limit referred to in case law as the “absolute limitation period”, beyond which recovery can no longer be pursued.

 

We have often commented on these decisions (most recently in our Newsletter No. 55 November-December 2024).

 

In a ruling handed down on 6 February 2025 (C-42/24) in a case concerning the Common Agricultural Policy in Greece, in which the Greek administration requested the repayment of aid granted by the European Agricultural Guidance and Guarantee Fund (EAGGF), the CJEU reiterated its case law on the calculation of this period and in particular the possibility for Member States to set a longer period.

 

Referring to the judgment of 2 March 2017, C-595/15, in a case which had been won at the time by the Cabinet, the Court of Justice recalled that the Member States may retain a longer period but which must not be excessive.

 

The thirty-year limitation period used by France until 2008, based on the former article 2262 of the Civil Code repealed by Law no. 2008-561 of 17 June 2008, was disproportionate. The French five-year period, provided for by article 2224 of the Civil Code resulting from the 2008 Act, was then considered acceptable.

 

However, the judgment of 6 February 2025 concerns the starting point of the limitation period. Article 3(1) of the Regulation states that the starting point is the date on which the irregularity was committed.

 

The Court of Justice refused to uphold Greek law in so far as it provided that the starting point for the limitation period was the date on which the administration established the irregularity.

 

The CJEU considered that ” To accept that the limitation period laid down in the first and second subparagraphs of Article 3(1) of Regulation No 2988/95 does not begin to run until the administration has discovered those irregularities could encourage inertia on the part of the national authorities in bringing proceedings in respect of those irregularities “. (point 31)

 

The Court points out that “the principle of legal certainty precludes, in principle, public authorities from being able to make indefinite use of their powers to rectify an unlawful situation “. (paragraph 32).

 

The Court of Justice considers that a starting point depending solely on the date of the customs authorities’ finding would result in “rendering meaningless” “the absolute limitation period equal to twice the limitation period laid down in Article 3(1)(1)^° of that regulation”.

 

The Court of Justice also pointed out in its judgment of 2 March 2017 that if a Member State chooses, as it may do, to apply a longer period than the four-year period, “ the absolute limitation period provided for in the fourth subparagraph of Article 3(1) of that regulation expires, in any event, on the day on which a period equal to twice that longer limitation period expires “.

 

This judgment is a reminder of the fruitfulness of the case law of the Court of Justice on Regulation 2988/95.

 

There have already been cases in which this case law has been applied to customs matters (most recently the judgment of 5 December 2024 C-506/23 discussed in our Letter No 55 above).

 

Moreover, Article 103 of the EU Customs Code itself provides for a period of five years, which may be a maximum of ten years, and thus adopts a system of “absolute time limits”.