The European Public Prosecutor's Office "EPPO"

Will it change the position of Belgian Custom Agents and Freight Forwarders in criminal customs proceedings?

Now that the European Public Prosecutor's Office (EPPO) has been operational for several months, it is appropriate to review its practical implications for several logistic players. Although it is still too early to analyze concrete case law, the legislative changes that the EPPO legislation has brought about already suggest several practical changes in (sometimes unavoidable) criminal proceedings. In this article we already stress some possible implications.

Since, under Belgian law, every customs violation is also at the same time a criminal offense, and the customs administration can always at its own discretion bring these violations before the criminal court, even the most cautious customs agent or forwarder is unfortunately sometimes faced with correctional prosecution (or the threat of such proceedings). In addition, according to Belgian Customs Law, the rule of "guilt by breach of law" still applies in most cases, as a result of which a customs agent and/or the forwarder (who in good faith has merely acted on instructions of its client and was not aware of any infringement) are so faced with a high burden of proof.

Normally, the customs agent will be able to discharge himself by invoking article 135 of the Belgian Customs Act, if he can prove that he only followed his client's instructions. Customs Authorities must currently establish that the customs agent had the intent to cooperate in a criminal act in order to get around this article 135. In recent cases, however, we see that the Courts are finding it increasingly difficult to apply this article.

Freight forwarders who are sued on grounds of their alleged involvement because the Customs Authorities consider that they should have known that there was a customs violation, cannot currently invoke this article 135.

The EU rules on the new European Public Prosecutor's Office might bring some changes for these forwarders, customs agents and shipping agents. Article 3(1) of the so-called PIF Directive states that Member States shall take the necessary measures to ensure that fraud affecting the financial interests of the Union constitutes a criminal offense when committed intentionally. The transposition of this directive in the Belgian Customs Act stipulates (among others) in article 220 that the financial interests of the European Union are in any case to be considered “seriously affected” when there is a damage of more than EUR 100. 000,00.

It would in our opinion therefore be completely contrary to the EU Directive to sentence forwarders, customs agents or shipping agents with criminal sanctions for fiscal evasions of more than EUR 100 000,00 without requiring any proof of intent. Moreover, in the light of the above mentioned legislation, it seems unconstitutional to impose a guilt-based penalty for all customs offenses with a value of less than EUR 100,000.

We consider that it will be interesting to see how the Belgian and European case law will deal with this.

In addition, we are waiting in suspense for the first legislative texts on the announced reform of the Belgian Customs Code.

In any case, the new law will have to seek a better balance between supranational EU law on customs duties and the national Belgian implementation modalities. A study has already been commissioned and delivered by the University of Antwerp. The first drafts of the new Customs Code should be presented in the spring of 2022.