Newsletter
No 63 – March – April 2026

Vincent Courcelle-Labrousse commented in *Dalloz AJ Pénal*, March 2026 (pp. 143–144) on a ruling by the Criminal Chamber of the Court of Cassation dated February 4, 2026 (appeal no. 25-85.316) concerning a search of business premises conducted improperly because it took place too early in the morning under Article 63 ter of the Customs Code.

On March 24, 2026, Stéphane Le Roy spoke at the annual conference of the Institute of Tax Lawyers (IACF), organized by the IACF’s Customs and Energy and Environmental Taxation Commission, on the topic “The Challenges of Data and Customs Compliance: A New Era in Risk Management” at the headquarters of the National Bar Council. Stéphane Le Roy presented ways to enhance corporate protection through team organization (delegation of authority, compliance programs, etc.) and improved contractual provisions..

Stéphane Le Roy is co-author of a column titled “Customs: Inspections – Penalties – Litigation” in the journal TVA Douane Environnement, No. 1-2026, Section 11 (Editions JFA Juristes & Fiscalistes Associés). Stéphane Le Roy commented on a ruling by the Court of Justice of the European Union (CJEU) dated December 18, 2025 (C-259/24) declaring inadmissible preliminary questions concerning a request for remission of customs duties (§§ 27–32, pp. 254–256) and a ruling by the Criminal Chamber of the Court of Cassation dated October 29, 2025 (No. 24-84.234, published in the Bulletin) regarding customs laundering (§§ 33–41, pp. 256–258).

The recodified Customs Code has been published. The previous code dated from 1948 and its structure was outdated. Ordinance No. 2026-265 of April 8, 2026, containing the legislative provisions of the Customs Code, Decree No. 2026-266 of the same date containing the regulatory provisions (decree of the Council of State), and a codifying order incorporating the scattered by-law regulations were published in the Official Journal of the French Republic (JORF) No. 86 on April 11, 2026.

All of these provisions will take effect on May 1st, 2026.

During a transport by sea, the cargo was contaminated by rust resulting from the oxidation of the hold panels. The cargo insurers’ surveyor recommended a decontamination treatment. However, damage to the goods was observed after the treatment, and it was established that the damage had been caused by this decontamination treatment. The cargo insurers refused to compensate for the damage caused by the treatment on the grounds that the cover only extended to damage occurring during transport.

In a judgment dated 4 March 2026 (No. 24-18.472), the Commercial Chamber of the Court of Cassation rejected their argument and ruled that, as the treatment of the goods had been made necessary by the damage occurring during transport, the harmful consequences of that treatment must be compensated by the cargo insurers, failing which the principle of full compensation would be breached.

On January 29, 2026, the Court of Justice of the European Union issued a judgment in Joined Cases C-72/24 and C-73/24, resolving a contentious issue regarding customs value.

1. The international customs valuation system, which has been largely harmonized worldwide through successive GATT/WTO agreements, is a cornerstone of customs law. It was designed to prioritize valuation based on the transaction value. This value must be increased by all sums paid or payable by the buyer to the seller. This system must reflect the actual value of the goods and exclude any arbitrary or fictitious elements.

The drafters had from the outset anticipated that this transaction value might be disregarded, for example, due to ties between the buyer and the seller. Thus, successive provisions—specifically Article 30 of the 1992 Community Customs Code (“CCC,” Regulation No. 2913/92 of October 12, 1992), as incorporated into Article 74 of the Union Customs Code (“UCC,” Regulation No. 952/2013 of October 9, 2013), have established alternative methods for customs valuation, all of which are subsidiary to one another. The customs authority must demonstrate that the first alternative method is inapplicable (based on the simultaneous importation of goods identical to those being valued) before the second method (similar goods), then the third method (deductive value), and finally the last method (computed value) can be invoked in turn. However, there remain cases in which none of these methods can be usefully applied.

Customs authorities are faced with the massive growth of international trade and the immense difficulty of conducting complex reconstructions based on market assessments or the comparability of goods and trade flows, as well as the unreliability of economic calculations used to identify the components of production costs necessary to verify or recalculate customs values. Customs authorities are tempted to take the easy way out.

In fact, over the past decade, an extremely extensive database has been built at the initiative of the European Anti-Fraud Office (OLAF), known as “AFIS-AMT,” to compile data on the valuation of trade flows. From this database, Cleaned Everage Prices (CAP) are derived for each tariff heading. Based on this average price, a 50% discount is applied, known as the Lowest Acceptable Price (LAP), below which the value of the goods is considered fraudulent. The sometimes hasty use of this type of database has given rise to legal disputes.

The CJEU has addressed this issue gradually in its case law. In an initial judgment of November 9, 2017 (C-46/16, see our Newsletter No. 25, September–November 2017), the CJEU required customs authorities to carefully state the reasons why each alternative method had to be successively ruled out in order to arrive at a so-called “method of last resort” provided for in Article 31 of the UCC, thereby satisfying the requirement for administrative acts to be supported by a statement of reasons.

As the legal dispute intensified, the CJEU subsequently used the “AFIS-AMT” database in a high-profile case pitting the United Kingdom against the European Union.

The Court of Justice had been referred an action for failure to fulfill EU law obligations brought by the European Commission involving more than two billion euros, accusing the British customs administration of failing to adequately monitor fraudulently undervalued imports.

In a judgment dated March 8, 2022 (C-213/19), the Court of Justice accepted OLAF’s method as a valid basis for the decision, holding the United Kingdom liable for the amount of duties calculated using “AFIS-AMT.”

Finally, in a standard customs dispute, the CJEU issued another judgment on June 9, 2022 (C-187/21, see our Newsletter No. 43, May–June 2022) in which the Court of Justice had given its approval in principle for the collection authority to determine whether the declared value was abnormally low in light of the national databases to which it had access at the time (in Hungary).

2. The ruling of January 29, 2026, provides important clarifications.

The case involved criminal proceedings against two employees of different Greek companies that imported textile products originating in and coming from Turkey, which were exempt from customs duties but subject to import VAT, which is based on customs value. These individuals had been subject to criminal prosecution in Greece for smuggling following significant undervaluations of “textile products,” which were not precisely identified.

During customs clearance, the companies had been granted the option to use the simplified declaration procedure: when dealing with numerous items falling under different tariff headings, it is possible to opt for a single tariff classification for all items based on the tariff code carrying the highest tax rate.
The Greek customs authorities were therefore unable to identify identical or similar goods. It had reconstructed “deductive values” based on statistical values. It had not used the “method of last resort” / “fallback method” provided for in Article 31 of the CDC and then in Article 74(3) UCC, which provides that “Where the customs value cannot be determined under paragraph 1 [the alternative methods], it shall be determined on the basis of data available in the customs territory of the Union, using reasonable means consistent with the principles and general provisions .. “.

The events had unfolded successively under the provisions of these two codes. The CJEU therefore issued a well-reasoned judgment based on preliminary questions posed by a Greek administrative court, which were remarkably well-formulated. The Advocate General’s Opinion had grouped the issues together “into three topics”:

“Those questions concern (i) the possibility of using statistical values where it has not been possible to establish the customs value in accordance with Article 29 of the CCC and Article 70 of the UCC, (ii) the compatibility of threshold values established on the basis of statistical data with the prohibition on the use of minimum customs values, and (iii) the maximum permitted interval between the imports used to derive the statistical result and the imports checked.” (paragraph 36)

3. The first issue—whether statistical data could be used—was examined at length.

The CJEU reviewed the case method by method and concluded that none of the secondary methods provided for in Article 30 of the Customs Code and subsequently in Article 74(1) and (2) of the Customs Union Code were applicable. It ruled out the possibility of applying any of these methods using statistical data.
Indeed, each of these secondary methods requires determination of the unit value of the goods, whereas such statistical data are aggregated and of a confidential nature (paragraphs 87 and 88). The Greek adjustment is therefore invalid.

However, it held that the aforementioned LAP could be invoked within the framework of the “fallback method.” The Court of Justice answered this question in the affirmative, emphasizing “states that the valuation methods to be used under that provision should be those defined in Article 29 to Article 30(2) of that code, but that ‘reasonable flexibility’ in the application of those methods is consistent with the objectives and provisions of Article 31(2) of that code.” (paragraph 92). Thus, once data on similar flows of goods (again, subject to the requirement of “reasonable flexibility” in interpretation) are included in the administration’s database, their assessment constitutes “data available within the Union” within the meaning of Article 31(5), which may therefore be relied upon (paragraphs 94–96).

The CJEU considers that this pragmatic approach is justified by the protection of the Union’s financial interests against fraud, which Member States are required to safeguard under Article 325(1) of the Treaty on the Functioning of the European Union. As the Court of Justice notes “It follows that the customs authorities must establish a customs value in cases where the declarant does not provide sufficiently accurate or reliable information concerning the customs value of the goods concerned.” (paragraph 96).

4. The second issue raised by the Advocate General concerned the need to avoid customs values that are both minimal and arbitrary or fictitious. The CJEU held that “LAPs are set on the basis of CAPs, calculated on the basis of the monthly import prices of the products concerned from Türkiye extracted from Comext. Therefore, they do not appear to be arbitrary, but rather based on objective and neutral criteria” (paragraph 100).

With regard to the prohibition on minimum customs clearance values, customs authorities are prohibited from systematically imposing minimum values for the clearance of goods. The Court of Justice resolves this issue by placing the obligation on the national court to “ascertain whether, in the context of the use of the statistical data compiled by the LAPs, the customs authorities offered the applicants in the main proceedings the opportunity to justify the lower prices indicated in their customs declarations and to provide additional information in the context of the administrative procedure before those authorities.” (paragraph 103)

The CJEU thus confirms the possibility of using the LAP with “reasonable flexibility” as a “fallback method.”

This concept of “reasonable flexibility” was incorporated into Article 144 of Commission Implementing Regulation (EU) No. 2447/2015 of November 24, 2015.

The CJEU concludes that “it must be held that data such as the LAPs calculated on the basis of aggregated statistical values established at EU level constitute data available in the customs territory of the European Union, within the meaning of Article 74(3) of the Union Customs Code, which may, a priori, be used for determining the customs value of the goods concerned. Where imports have been released for free circulation, since those goods cannot now be recalled for checks to establish their real value, and the documents accompanying the customs declarations are drafted in general and imprecise terms, only a statistical method may be used to estimate the value of those goods.” (paragraph 108)
The CJEU then reiterates the principles set out in the judgment of November 9, 2017 (paragraphs 40–45) regarding the obligation to state reasons (paragraphs 110–116).

In this case, providing a statement of reasons by referring to statistical data poses complex problems, given, on the one hand, the confidential nature of these databases and, on the other hand, their aggregated nature. The major drawback of these databases is that they are designed to perform “risk analyses” and identify transactions that may constitute fraud.

The CJEU has, however, held that “ in so far as LAPs must be used only as a last resort, their ad hoc transmission and within the strict limits of what is necessary to economic operators remains conceivable, exceptionally, in order to enable the Member States to fulfil the obligations which, as is apparent from the case-law cited in paragraph 73 above, are imposed on them…” to fight against fraud (paragraph 120).

5. The third “issue” raised by the Advocate General concerns the “timeliness” of the statistical data used against the economic operator in applying the “fallback method.” Article 152 of the Implementing Regulation of the 1992 EU Customs Code (No. 2454/93 of July 2, 1993, known as the “IR-CCC”) and Article 142 of Regulation 2447/2015 provide that imports of identical or similar goods made at the time of importation of the goods in question or, at the latest, within 90 days following the contested imports, are to be taken into account.

The Greek national court asked the Court of Justice about the application of this time frame to determine which statistical value could be used (paragraph 126). However, the CJEU emphasizes that, even when applying the “fallback method,” “that value must be determined in the manner that is most accurate and closest to the actual value. Accordingly, the data used must, in principle, relate to the time closest to when the goods being valued were imported.” (paragraph 134).

Note 2 of the interpretative note concerning Article 31(1) of the CDC also applies the principle of “reasonable flexibility,” under which “the 90-day period” provided for in Article 152(1)(b) IR-CCC could be ‘administered flexibly.’” The CJEU had held in its judgment of June 9, 2022 (C-187/21, cited above) that a longer comparative period could be used, provided that “the commercial practices and market conditions affecting the prices of those goods have remained substantially the same.”

The statistical data in OLAF’s “AFIS-AMT” database are organized into 48-month periods. In principle, the CJEU has held that “the application of a 48-month time limit is liable to undermine the objective of enabling the customs value of the goods concerned to be determined in the manner that is most accurate and closest to the actual value, …“ (paragraph 139). It now appears that it is possible to extract monthly data.

The need to protect financial interests comes to the rescue of customs officials: “the setting of such a long time [48 months] limit can be justified exceptionally and as a last resort where more reliable information is not available and, as is apparent from paragraph 73 above, the objective of protecting the financial interests of the European Union, as recognized in Article 325 TFEU, cannot otherwise be achieved, especially in a matter involving ensuring the effective and comprehensive collection of traditional own resources, namely customs duties and VAT.” (paragraph 140).

These controversies over whether the data is “up-to-date” or not highlight the difficulty companies and the court face in verifying these databases, whose results the government can present as it sees fit.

6. The final point of interest in this lengthy judgment (spanning 168 paragraphs) concerned the question of whether the aforementioned simplification procedure (under which all goods subject to customs clearance are classified under the tariff heading with the highest duty rate), requested by the importer when filing the initial import declarations, still applied in the event of a reassessment. The CJEU held that “it should be noted that, if the economic operator concerned has expressly requested that customs duties be charged to it on the whole consignment of goods concerned under the tariff heading of the goods which are subject to the highest rate of duty, it is reasonable to assume that it has also consented to the redetermination of the customs value of those goods following the same simplification rules.” (paragraph 152)

7. We will now need to pay close attention to how customs authorities in LAP’s apply the rule when “it is not possible to physically check the imported goods” and when “the description of the goods in the documents accompanying the import declaration is general and vague” (final, 1). Care must be taken not to open the door too wide to the use of statistical databases, which may contain analytical biases that are difficult to detect. The administration’s use of such databases could be selective and based on insufficient justification, with little oversight by importers or judges. This concept of “reasonable flexibility” will undoubtedly continue to spark debate… That said, the tendency to rely on statistical databases is undoubtedly the inevitable corollary of the massification of trade flows, and particularly a remedy for the excesses of e-commerce.

A Bulgarian company had imported a vehicle originating in Canada that had been involved in a traffic accident in Bulgaria.

The Bulgarian authorities had determined that the transaction value declared at the time of purchase in Canada was too low to be acceptable.

The Bulgarian authorities had consulted Canada under a customs cooperation agreement between Canada and the European Union dated November 27, 1997, which provides for mutual assistance in customs matters. The Canadian customs authorities provided the Bulgarian authorities with a file containing a detailed list of vehicles exported to the EU, including the one in question, indicating the value declared at the time of export from Canada. The export price was 15,889 Canadian dollars, whereas the vehicle had been declared in Bulgaria at only the equivalent of 3,310 Canadian dollars.

The importer had been asked to confirm the accuracy of the declared value—which was significantly discounted. The importer had not provided any additional information. The Bulgarian authorities therefore rejected the transaction value.

Since the vehicle had been involved in an accident, it was impractical to compare it with identical or similar vehicles using the substitution methods provided for in Article 74(2). The Bulgarian customs authorities therefore applied Article 74(3) of the Customs Code.
The authorities fixed a slightly reduced value of €9,500 instead of €10,100 (equivalent to 15,889 Canadian dollars).

The litigation over this reassessment reached the Bulgarian Supreme Court, which referred the matter to the Court of Justice.

In a judgment dated March 25, 2026 (T-296/25), the General Court of the European Union, to which the case had been referred by the Court, therefore ruled on the issue. The General Court held that the fact that the data used to establish the new customs value originated in Canada posed no difficulty. Indeed, once obtained by the Bulgarian authorities, the data were now “available within the customs territory of the European Union” within the meaning of Article 74(3) UCC.

The General Court rejected the conditions under which the importer proposed to subject the classification of “data available within the customs territory of the Union.”

In fact, according to the Court, this classification “ … cannot depend, contrary to what [the importer] alleges in its observations on the request for a preliminary ruling, on the accessibility to customs declarants of the database of the third country from which the data transmitted to the customs authorities of the European Union originate, nor on the existence of a request from those authorities specifically for the transmission of those data, when they have been made available to them.” (paragraph 29)

The General Court then ruled on the question of whether the information provided in the context of international mutual assistance constituted a “reasonable means” within the meaning of Article 74(3) UCC.

Citing the exercise of “reasonable flexibility” by which the CJEU had proceeded in the judgment of January 29, 2026, discussed above, the General Court concluded that “It must therefore be recognized that the authorities have a margin of discretion in applying the residual method (or ‘fall-back’ method), which must be implemented in accordance with the principles and provisions set out in Article 74(3)” UCC (paragraph 32).

The Court enforces one of the principles governing customs value, as set forth in Article 7(2)(e) of the WTO Agreement on Customs Valuation, which prohibits “the customs value from being determined on the basis of the price of goods sold for export to a country other than the country of importation” (paragraph 33).

As note the Court, Union law incorporated that provision within “Article 144(2)(e) of Implementing Regulation 2015/2447, which provides that ‘the customs value shall not be determined on the basis of … prices for export to a third country’” (para. 33).

Consequently, the use of the vehicle’s export value to the importing country itself—rather than to another country—could be accepted. As the Tribunal notes, “the use of the price declared in a third country for the export of goods to the European Union may constitute reasonable means for determining the customs value of those goods pursuant to Article 74(3) of the Union Customs Code”. (paragraph 34)

The Court assumes that the declared export price of a good reflects its actual value, which makes sense since no duties are associated with it, and therefore the risk of undervaluation is lower. The Court adds that “the use of that price does not contravene the prohibition on determining the customs value on the basis of arbitrary or fictitious values. “ (paragraph 37).

In a judgment dated March 26, 2026 (C-307/23), the CJEU ruled on an assessment initiated by German customs authorities. An importer had cleared canned food products through customs in Germany. These cans naturally bore labels. The declared customs values included, in addition to the cost of the foodstuffs, the cost of the retail packaging in the form of cans and the cost associated with printing and affixing the labels.

However, the buyer had provided its suppliers with mock-ups of the labels to be printed free of charge. These designs had been created by design agencies in Germany on behalf of and at the expense of the buyer. This was the basis for the adjustment.

The tax authorities considered that, in accordance with Article 32 of the Customs Code applicable at the time of the events, these design costs should be added as “the cost of containers which are treated as being one, for customs purposes, with the goods in question. “(i.e. (ii) of (a) of 1 of article 32 CCC). One could also argue—though this time in a manner more favorable to the importer—that this was “engineering, development, artwork, design work, and plans and sketches (…) and necessary for the production of the imported goods. “ (i.e. (iv) of (b) of 1) of article 32 CCC).

In fact, this point (iv) included a significant restriction: the work had to be “undertaken elsewhere than in the Community” whereas, in this case, they had been produced in Germany.
If the designs fell under that classification, the adjustment would be disallowed. However, if the label designs were linked to the “containers,” the design costs for the designs could be included in the customs value.

This is the solution the CJEU adopted:

“ … In so far as the intangible services linked to the design of the templates for the labels referred to in the order for reference are intended for the printing of the labels affixed on the imported cans, the wording of Article 32(1)(a)(ii) of the Customs Code does not preclude the costs which they entail from possibly relating to ‘containers’, within the meaning of that provision, provided that those templates actually constitute an element closely linked to those containers.. “ (paragraph 26)

By allocating the costs of developing label designs “to the containers,” the CJEU can achieve the overall objective it is pursuing “of introducing a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. The customs value must reflect the real economic value of an imported good and take into account all of the elements of that good that have economic value.” (paragraph 39). The CJEU held that the intangible services for the design of templates for labels affixed on cans “have a certain and quantifiable economic value” (paragraph 40).

The national court will now have to verify that “the labels in question constitute an element closely linked to those containers of the imported goods.”

This should not be too difficult, since these labels were apparently designed solely to be affixed to the cans.

A different solution could indeed be considered, if these labels were intended to be affixed to packaging—namely, large boxes or items that are not directly the “containers” of the food products.

“Preferential origin” rules allow for the granting of preferential tariff treatment to facilitate the development of countries with which the European Union has concluded trade agreements or unilaterally (Generalized System of Preferences, or “GSP”). Proof of specific processing operations carried out in the country in question must be provided.

This evidence gives rise to recurring documentation issues. For a long time, separate certificates had to be issued by chambers of commerce and endorsed by the customs authorities of the exporting countries (“EUR1” certificates for most preferences granted through agreements or “FORM A” certificates for the “GSP”).

The complexity of managing these documents led the EU to accept that proof of the preferential treatment could be provided in the form of a “statement on origin” with a standard statement affixed to the exporter’s invoice.

In an appeal (No. 24-17.623) against a ruling by the Rouen Court of Appeal, which the firm Godin Associés won, the Commercial Chamber of the Court of Cassation ruled on February 11, 2026, on a disputed statement on origin. A customs broker had cleared goods without claiming any preferential treatment and paid the duty at its plain rate.
He subsequently realized that the goods originated in Myanmar (Burma), a country eligible for the GSP.

The declarant had therefore submitted an invoice issued by the exporter—a Korean company—that included the REX number (“Registered Exporter System”) of a registered exporter in Myanmar, in this case a company named Lu Thai. Customs had refused to process the refund because Korea was not part of the GSP. The preferential scheme applicable to Myanmar could not be used by the Korean company. A new invoice was submitted to the authorities, on which the Myanmar company was listed as the exporter. Customs maintained its refusal but was subsequently overruled by a court of appeal, which granted the refund. Customs filed an appeal, arguing that the preferential statement on origin was undated and therefore invalid.

The Court of Cassation dismissed the appeal. It noted that Annex 22-07 of Implementing Regulation No. 2015/2447 provides that “the statement on origin must be issued on any commercial document, stating the name and full address of the exporter and the consignee, as well as the description of the goods and the date of issuance. ” (paragraph 9).

The Court concludes that “it follows that the certificate of origin issued pursuant to paragraphs 1 and 2 of the implementing regulation may be drawn up on the invoice issued by the exporter of the goods. If it is not dated, it is deemed to have been issued on the date appearing on the invoice.” (paragraph 10).

The Court of Cassation upheld the Court of Appeal’s findings “that the certificate of origin had been issued by the exporter on an invoice dated November 30, 2018, from which it followed that its date of issuance corresponded to the date of issuance of that commercial document …” (par 12)

A well-known rule among customs law practitioners is General Rule of Interpretation 3(b) of the European Union’s Combined Nomenclature, which provides that “mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.”

However, the nomenclature contains specific rules regarding product groups, notably Note 3 of Section VI of the Harmonized System, which covers Chapters 28 through 38 (products of the chemical and allied industries).

Note 3 of Section VI provides that “Goods put up in sets consisting of two or more separate constituents, some or all of which fall in this section and are intended to be mixed together to obtain a product of Section VI or VII, are to be classified in the heading appropriate to that product, provided that the constituents are:

(a) having regard to the manner in which they are put up, clearly identifiable as being intended to be used together without first being repacked;
(b) presented together; and
(c) identifiable, whether by their nature or by the relative proportions in which they are present, as being complementary one to another.’”

A German company had requested a Binding Tariff Information (BTI) for a capsule system containing two components—namely, alloy powder and liquid mercury—placed in separate compartments, for dental use. As stated in the German court’s referral decision, “These compartments cannot be separated without destroying the capsule that contains them. Indeed, separating the compartments directly results in the components mixing once the barrier separating them is damaged.”

The German company claimed a binding tariff classification under CN subheading 3006 40 00, which is exempt from customs duties, while the customs authorities, in the BTI issued, classified the goods under heading 2843 90 10, subject to a 5.3% duty, on the grounds that it constituted an assortment within the meaning of the aforementioned Note 3. The importer had challenged the BTI. A German court therefore referred the matter to the CJEU, which remanded the preliminary ruling questions to the General Court.

The General Court of the European Union thus issued its judgment (T-69/25) on February 25, 2026. It first held that Note 3 constituted “a specific provision which sets its own conditions for application, separate from those laid down in General Rule 3(b) for the interpretation of the CN. The note, as a special rule, takes precedence over General Rule 3(b) for the interpretation of the CN.” (point 33).

The Court ruled that, in this case, the product in question did indeed constitute an assortment within the meaning of Note 3 of Section VI and that “the inseparability of the constituents is not a relevant criterion for determining whether the system of capsules at issue may be classified as ‘goods put up in sets’ “ (paragraph 40).
According to the Court, “the objective of Note 3 to Section VI of the CN, which aims to ensure that tariff classification is based on the product which results from the mixture, where the separate constituents are identifiable as being intended, once released for free circulation, to be assembled into a finished product” (paragraph 41). The Court held that it was not necessary for both constituent elements to fall under Section VI, especially since the note allows the finished product to also fall under Section VII. It is therefore sufficient that “one of the constituents falls under that section” VI (paragraph 47).

The Court then ruled that the three cumulative conditions of Note 3 were met. These products were intended to be used together without prior repackaging; after mixing the two components (using small machines), a dentist obtained a silver dental amalgam for filling cavities. Furthermore, these constituent elements were presented simultaneously at customs clearance, and the products were recognizable as complementary from that moment on.

Indeed, “their dosage already corresponds precisely to that which is needed to make a portion…” (paragraph 55). The Court therefore ruled that Note 3 of Section VI of the CN must be interpreted “as applying to systems of capsules in which two components, namely alloy powder and liquid mercury, for mixing in order to obtain silver amalgam dental fillings, are contained in separate chambers which cannot be separated without destroying the capsule containing them.”

The BTI was then valid.

The tariff classification system is rife with ramifications and applications of all kinds. It is not merely used to determine customs duties upon entry into the European Union, but also—and often—to determine the applicable national excise tax rates.

In this case, the Romanian subsidiary of the Heineken Group had acquired a stock of a product that it had released for consumption in Romania under heading 2206 00 51 of the Combined Nomenclature, corresponding to the description “cider and perry” in accordance with the tariff classification provided by the Bulgarian producer and by another Slovak producer, which was a sister company. The Romanian authorities reclassified the product under codes 2206 00 39 or 2206 00 59 since these products were “mixtures containing cider and other substances, the cider, in turn, being a product obtained from a mixture of raw material undergoing fermentation, namely 25% of apple juice and glucose. The certificates of analysis also revealed the presence of a significant proportion of alcohol from plants other than apples. Those products could therefore not be qualified, according to that proposal, as beverages obtained from the fermentation of apple juice.”

When questioned as part of the administrative assistance process, the Bulgarian customs authorities supported also the Romanian reclassification.
The appeal was brought before the Romanian Court of Cassation, which referred the matter to the General Court of the EU.

The General Court issued a judgment on March 4, 2026 (T-691/24). It noted that a judicial expert opinion had been obtained during the administrative proceedings. The expert had opined that the product was cider. The expert had concluded that, notwithstanding the presence of alcohols derived primarily from plants other than apples, the product retained the “organoleptic characteristics of cider.” The General Court noted that the scope of CN heading 2206 extended to all beverages that retained the characteristics of fermented beverages, excluding spirits derived from distillation falling under heading 2208.

There were numerous tariff subheadings within heading 2206, each of which appeared equally valid. General Rule of Interpretation No. 1 of the tariff, which provides for classification based on the tariff wording, therefore did not settle the matter.

It was necessary to apply the subsidiary rules, specifically General Rule No. 3. General Rule No. 3(a) was no more effective: every conceivable classification heading was also specific or provided a description as complete as the alternative one, since the product could be either “cider” or other “fermented beverages” (paragraph 50).

Rule 3(b) was applied (see the previous article). It was therefore necessary to identify, “among the materials of which [the product] is composed, the one that gives it its essential character.” Several criteria could be used to determine this essential character, for example “nature of the material or component, by its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of those goods” (paragraph 55).
The Court therefore examined the origin and proportion of each type of alcohol that made up the beverage. The percentage of alcohol derived from sources other than apples ranged from 48% to 53%, depending on the specific beverages in question.

However, since the alcohol derived from apples was equivalent and the designation “cider” did not require a specific percentage of alcohol derived from the fermentation of apples, the slight predominance of alcohol derived from plants other than apples was not sufficient to overturn the classification as “cider.”

On the other hand, the Court found that the organoleptic characteristics identified by the expert did indeed characterize a cider. It was therefore this position that was upheld. Furthermore, it was established that, from a commercial standpoint, this product was indeed sold as a cider.

The Romanian tax reassessment is therefore set to be annulled.

In March and April 2019, a Belgian company shipped two shipments of bulk ethyl alcohol by sea from a tax warehouse in Belgium to another warehouse in the Netherlands. The transport took place under excise duty suspension in accordance with Directive 2008/118/EC of December 16, 2008. However, the consignee had received quantities of alcohol that were less than expected. There were missing quantities of 9,239 and 4,732 liters.

The Dutch authorities had therefore requested that the authorized warehousekeeper acting as the consignor pay an amount of excise duty for each of these two missing quantities. The authorized warehousekeeper complied, but Belgium subsequently collected the excise duties on the missing quantity for the first shipment. The question thus arose as to which Member State was ultimately entitled to the excise duties.

The Dutch court hearing the dispute had referred a question for a preliminary ruling, demonstrating a meticulous analysis of Article 10 of Directive 2018/118. This article governs the rules of territorial jurisdiction among Member States for the cross-border recovery of excise duties.

The Dutch judge (Court of Appeal) “expresses doubts as to whether the excise duty relating to the missing quantity of ethyl alcohol delivered was chargeable in the Netherlands under Article 10(2) of Directive 2008/118 or in Belgium under Article 10(4) thereof. In particular, it essentially enquires whether the detection of a missing quantity of excise goods moving under a duty suspension arrangement when unloading the means of transport containing those goods should be regarded as the detection of an irregularity during a movement of excise goods, in accordance with Article 10(2) of Directive 2008/118, or rather as a situation in which excise goods have not arrived at their destination and no irregularity has been detected during that movement, for the purposes of Article 10(4) thereof.” (paragraph 19)

The General Court’s judgment of November 26, 2025 (T-690/24) reiterates, based on the case law of the CJEU—particularly the judgment of January 28, 2016, in BP Europa case (C-75/15)—that the existence of a missing quantity constitutes an irregularity within the meaning of Article 10(6) of the Directive.
The division of “jurisdiction” between Member States depends on whether the irregularity was detected during the movement or subsequently (paragraph 30).

The General Court held that the arrival of the means of transport at the consignee’s premises did not in itself constitute the “end of the movement,” since the consignee had not yet been able to verify that the product was compliant and complete.

According to the General Court, “… the EU legislature intended to place that end at a time when such goods had actually been received by the warehousekeeper and when their quantity could be measured accurately with a view to their entry into the warehouse’s records” (paragraph 35).

Therefore, the discovery of the missing quantity must be considered “as still occurring during the movement of such goods, within the meaning of Article 10(2) of Directive 2008/118.”

The irregularity is therefore deemed to have been committed in the country of arrival (where it was “detected”) pursuant to Article 10(2).

Excise duties were therefore due in the Netherlands. The Belgian authorities must refund the excise duties they collected.

In a ruling dated February 11, 2026 (Appeal No. 24-18.748), the Commercial Chamber of the Court of Cassation ruled on exports of Apple products that had been shipped by a U.S. company from the United States to logistics hubs.
FedEx transported the goods and filed the import declarations during the period from December 2013 to May 2017.

The tax authorities had initiated a reassessment based on false declarations of tariff classification and value. They had charged customs duties to FedEx in its capacity as the declarant, as well as import VAT pursuant to Article 293 A of the General Tax Code, on the grounds that FedEx had cleared the goods through “indirect representation.”

Under the terms of this article, import VAT is jointly and severally owed by the consignee of the goods and by the customs declarant acting under a mandate of “indirect representation” as defined by Article 5 of the CDC (Regulation No. 2913/92 cited above). “Indirect representation” applies to declarations filed by a representative acting in their own name but on behalf of another party.

Direct representation, which is generally practiced by customs representatives, refers to declarations made in the name and on behalf of another party. The represented party is then solely the “declarant” liable for duties and VAT. FedEx did not have a power of attorney and disputed that it had acted as an indirect representative; consequently, it contested the VAT assessment.

Apparently, FedEx had agreed to pay the customs duties, since—in the absence of a power of attorney—the company appeared to have acted as the declarant “on its own behalf.”

The Court of Cassation cites the case law of the CJEU, particularly the principle of customs representation, which “must be express and cannot be presumed” (point 15).

The Court of Cassation overturned the Court of Appeal’s decision:

“16. In rejecting the request for partial annulment of the AMR, regarding import VAT and the related late payment interest, the judgment notes that the company denied having any direct or indirect authorization but observes that, since the exporter was a company incorporated under U.S. law that could not be considered a declarant within the meaning of Article 5 of the Union Customs Code, it had to engage FedEx, a company established within the European Union, which is therefore a declarant within the meaning of Article 5 of the Union Code. It concludes that FedEx is deemed to have acted in a capacity of indirect representation.

17. In so ruling, the Court of Appeal, which relied on mere presumptions, whereas representation must be express, violated the aforementioned provisions.”

As part of the establishment of the European Public Prosecutor’s Office in France, customs procedures have undergone several changes (Ordinance No. 2018-963 of September 18, 2019, ratified by Law No. 2020-1672 of December 24, 2020, with amendments; see our Newsletter No. 38, January–March 2021).

The scope of the alleged intentional offense under Article 414 of the Customs Code has been narrowed. A new Article 414-2 has introduced an intentional criminal offense that specifically punishes fraud against the financial interests of the European Union. Paragraphs 3 and 4 of Article 426 have been repealed and rewritten, respectively.

The issue of the temporal application of the new law arose in connection with a home search conducted on February 6, 2024, to investigate violations of anti-dumping legislation committed prior to the aforementioned laws. The judicial search warrant had been upheld by the Court of Appeal.

The Court of Appeal’s decision was in turn upheld by the Commercial Chamber of the Court of Cassation (judgment of February 11, 2026, No. 24-20.992): “10. Having correctly held that the act of intentionally making false declarations intended to evade anti-dumping duties constituted, until the entry into force of the law of December 24, 2020, the offense provided for in paragraphs 3 or 4 of Article 426 of the Customs Code, depending on the method used, and punishable under Article 414 of that Code, the goods in question being treated, for the purposes of that provision, as prohibited goods, and that this act constitutes, since the entry into force of the Order of September 18, 2019, the offense provided for in Article 414-2 of that Code, the order correctly concludes that the ground for annulment of the order of the judge of liberties and detention, based on a lack of legal basis, must be dismissed.”

This case law is not recent; the Criminal Chamber of the Court of Cassation had already adopted a broad application of the new provisions, holding that they did not alter anything except the penalty, which remains that previously provided for in cases prior to the reform (September 7, 2022, Appeal No. 21-80.397; see our Newsletter No. 44, July–October 2022, November 9, 2022, Appeal No. 21-85-747; see Vincent Courcelle-Labrousse’s article in *Dalloz AJ Pénal*, January 2023, pp. 40–41; April 19, 2023, Appeal No. 21-86.213).