Can a customs authorisation be amended retroactively? The Court of Justice of the European Union will decide.

A brief summary of the case

Since April 2018, a private limited company had held a licence for the inward processing procedure for, among other things, gas oil and biodiesel. In May 2020, it requested an extension of the licence to include several CN codes (2707 5000 and 2707 9999). The inspector approved the amendment with effect from 25 June 2020, but rejected the request for retroactive effect (from 1 May 2020).

The court ruled that the inspector was authorised to grant retroactive effect to the amendment pursuant to Article 22(4) UCC and found that there was no material reason to refuse the request. The Amsterdam Court of Appeal raised the bar even further and considered that the provisions on retroactive effect also apply to a licence amendment. The customs debts that had arisen because goods had been placed under the customs procedure for inward processing without the correct authorisation were therefore still due.

The State Secretary then lodged a cassation appeal with the Supreme Court.

The key question: is a licence amendment equivalent to a new licence?

The case revolves around the question of which regime applies to a change to a licence that has already been granted. As Advocate General Ettema also analyses, there are roughly two possible routes:

• Option 1 (comparison with new licence): The provisions on retroactive effect in Article 211(2) UCC and Article 172 DA-UCC apply mutatis mutandis to amendments. If the strict conditions of Article 211(2) are met, the amendment must be able to have retroactive effect (in principle) from the date of application.
• Option 2 (separate regime for amendments): The amendment is a separate decision within the meaning of Article 22(4) UCC. Customs authorities may then decide for themselves whether and to what extent retroactive effect is granted, without being bound by article 211(2). This would offer more policy freedom.

Advocate General Ettema does not consider the answer to be beyond reasonable doubt and advises the Supreme Court to refer this issue to the Court of Justice.

Significance for practice: regularisation and customs debt

A second crucial question is whether a retroactive amendment actually affects a customs debt that arose earlier. The inspector and State Secretary argue that a customs debt did arise (Article 79(1)(c) UCC) when the goods were placed under inward processing without the correct authorisation. The retroactive authorisation would not provide a solution here, unless formal 'regularisation' takes place via new declarations.

The Advocate General rejects this. In her view, the retroactive authorisation works ex tunc: in retrospect, there is no legal basis for the customs debt. No separate declaration for free circulation and repayment is required. The authorisation legalises the previous situation.

This position is in line with both existing literature as for European guidance documents and is of great importance for implementation practice: retroactive effect must actually have legal consequences, otherwise it is meaningless.

Why preliminary questions are necessary

Because the text of the UCC and the DA-UCC does not explicitly provide for retroactive changes, and the Commission appears to be ambivalent in its guidance documents, European clarification is necessary. The Advocate General therefore proposes three questions for a preliminary ruling:

1. Do articles 211(2) UCC and 172 DA-UCC apply to amendments to existing authorisations?
2. If not, may customs authorities grant retroactive effect to amendments on the basis of article 22(4) of the UCC?
3. And are they even obliged to do so if the conditions for retroactive effect in the case of a new authorisation are met?

Reflection and conclusion

The Advocate General's conclusion highlights the complexity of retroactive effect in customs law. Where practice requires flexibility, predictability and the possibility of regularisation, the European framework continues to raise questions and discussions between customs authorities and market participants. If the Supreme Court follows the opinion and indeed decides to refer questions for a preliminary ruling, the judgment of the Court of Justice will provide clarity on the correct approach.

Until then, it is advisable for licence holders and their advisers to always explicitly state why retroactive effect is desirable when extending licences and on what legal basis this is based. This case provides solid substantive guidance, particularly in discussions with the inspectorate about customs debts.

Do you have any questions about the above? Please feel free to contact Arjan Wolkers (a.wolkers@ploum.nl ) and Jikke Biermasz (j.biermasz@ploum.nl ). The Customs, Trade and Logistics team has all the knowledge in-house to support your company with any questions you may have about changes to customs authorisations. 

Sources:

• ECLI:NL:PHR:2025:758 (conclusion A-G Ettema)
• ECLI:NL:GHAMS:2024:1128
• ECLI:NL:HR:2020:1288
• UCC (Regulation 952/2013), DA-UCC (Regulation 2015/2446)