Customs debtor: Clear instructions are of high importance and should be considered carefully

The European Court of Justice has established that the person who introduces goods unlawfully is the person who ought normally to have cleared the goods through customs and performed the declarant’s customs obligations. Therefore any person, being af physical or a legal person, may be regarded as debtor of the customs debt, that is to say the person who is to be regarded as having by his action been responsible for the unlawful introduction o

f the goods. Where the unlawful introduction of goods into EU is carried out by an employee in the name and on behalf of an employer, the employer can be considered debtor and thus the acts of the employee are to be taken into consideration when assessing weather customs relief or exemption can be granted.

In the case referred to the European Court of Justice goods were transported by vessel into EU without the goods being customs declared. The company, Ultra-Brag, exported two transformers and two sets of wheels from EU to Switzerland. After crossing the external boarder the vessels returned – still carrying the previously exported goods – to EU to pick up a turbine. The pilot of the vessel being an employee of Ultra-Brag was instructed by the business manager for export in Ultra-Brag to return without unloading the exported goods. The previously exported goods were not presented to the customs authorities when crossing the border and as a result hereof the authorities claimed from Ultra-Brag customs duties without identifying any debtor other than Ultra-Brag.

The court of justice stated that the pilot is the person should have presented the goods to customs. As a result of this lack of presentation the pilot of the vessel unlawfully introduced the goods into EU which makes the pilot debtor of the customs debt arising from that unlawful introduction. The fact that an employee introduces goods is not, however, sufficient to preclude the legal person employing him from being regarded as the debtor on basis of first indent of the customs code article 202(3).

Where an employee makes an unlawful introduction while fulfilling the assignment entrusted to him by his employer and while carrying out the instructions given to him for that purpose by another employee who is empowered to give such instructions in the performance of his own duties, the first employee merely acts within the scope of his remit, in the name and on behalf of his employer. In a situation as such the employer must be regarded as the person who, by his actions, is responsible for that unlawful introduction and thus debtor of the customs debt arising from the unlawful introduction of goods.

Based upon the judgment clear instructions stipulated by the employer are of high importance and should be considered carefully.