Category Archives: Customs

Anything to declare ? Bringing cash into the EU

Judgment
C-17/16
04.05.2017
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Reference for preliminary rulingOussama El Dakkak
v
Administration des douanes et des droits indirects
CJEU1st Ch.R. Silva de LapuertaP. MengozziTransfer of funds
KeywordsReference for a preliminary ruling — Regulation (EC) No 1889/2005 — Controls of cash entering or leaving the European Union — Article 3(1) — Natural person entering or leaving the European Union — Obligation to declare — International transit area of a Member State’s airport
Significant pointsThe CJ was asked by the French Cour de cassation whether the obligation laid down in Regulation (EC) No 1889/2005 on controls of cash entering or leaving the Community to declare any sum greater than €10,000 transported in cash applied to a passenger merely transiting from one non-EU State to another non-EU State via an European airport. The CJ answered in the affirmative and stated that the obligation to declare any cash sum over €10,000 was indistinctively applicable to every person entering or leaving the EU, including international transit areas of airports located in the territory of EU Member States.

In the case, Mr El Dakkak was ordered by the Benin company Intercontinental to transport by aeroplane American dollars (USD) from Cotonou (Benin) to Beirut (Lebanon) via the French airport Roissy-Charles de Gaulle where customs officials checked him and found $1,607,650 (approximately €1,511,545) and €3,900 in cash in his possession, which he had not declared.

Regarding the notion of “entering the EU”, the CJ judged that it entailed in movement of a natural person from a non-EU territory to a territory which is part of the EU. Due to the fact that neither the Regulation (EC) No 1889/2005 nor any provision of the treaties exclude the international transit areas of European airports from the EU territory or even provide any exceptions, Mr El Dekkak was judged to have entered the EU and was therefore subject to the obligation to declare.

In this respect, the CJ referred not only to the usual meaning of a ‘natural person entering or leaving’ the EU, and to the notion of EU territory within the Treaties (which is, as a general rule, of relevance for the interpretation of the scope of an act of secondary legislation) but also to the objective pursued by the Regulation (EC) N° 1889/2005, its international context (recommendations of the FATF) and its practical effect. Notably, the CJ emphasized that the applicability of the obligation at issue was consistent with the objective pursued by Regulation (EC) No 1889/2005, i.e. the discouragement and avoidance of the introduction of illicit money into the financial system and its investment after laundering. In order to guarantee the effectiveness of the control system for cash entering or leaving the EU, the notion of a “natural person entering or leaving” the EU had to be interpreted in a broad manner.
NoteworthyThe free movement of capital and goods within the EU, along with the abolition of systematic internal border checks facilitate significantly the circulation of cash. Accordingly, some legal constraints had to be adopted in order to fight against money laundering and financing of terrorism. The unfortunate recent terrorist attacks which have occurred since the delivery of this judgment are unlikely to soften such an approach.

Customs Code – Right to effective judicial protection

Judgment

C-437/13

23.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a reliminary ruling

Unitrading Ltd

CJEU

6th Ch.

M. Berger

/

Community Customs code

Right to effective judicial protection

Key-words

Recovery of import duties – Origin of goods – Means of proof – Charter of Fundamental Rights – Article 47 – Rights of the defence – Right to effective judicial protection – Procedural autonomy of the Member States

Summary

Article 47 of the Charter of Fundamental Rights of the EU must be interpreted as not precluding proof of origin of imported goods adduced by the customs authorities on the basis of national procedural rules resting on the results of an examination carried out by a third party, with regard to which such third party refuses to disclose further information either to the customs authorities or to the customs declarant, as a result of which it is made difficult or impossible to verify or disprove the correctness of the conclusions reached, under the following conditions:

– it can validly be challenged by the party concerned, in particular by arguing that such evidence may only constitute indirect proof of the facts alleged and by putting forward further evidence to support his assertions;

– the courts seized in turn in the main proceedings are free to assess the relevance of the evidence submitted;

– and the principles of effectiveness and equivalence are upheld in these respects.

Noteworthy

The CJEU is not fully at ease with the interaction between right to effective judicial protection and the limits of procedural autonomy.