Dutch Supreme Court: use of customs value ‘doubt procedure’ barred pending judicial appeal, but Customs may still prove delivery term DDP was not genuinely agreed

The background: Indonesian Form A, DDP on paper and OLAF in practice

In 2012, a consignment of fasteners was declared as having preferential Indonesian origin on the basis of a Form A, while the commercial invoice referred to a DDP delivery. Following an investigation, the European Anti‑Fraud Office (OLAF) concluded that the goods were in fact of Chinese origin and that the Indonesian exporter had no genuine production capacity, but rather channeled Chinese fasteners through Indonesia into the EU. As a result, Customs considered that customs duties (3.7%) and—under Regulation (EC) No. 91/2009—anti-dumping duties (85%) were payable and issued a post‑clearance demand.

The inspector of Dutch Customs refused to deduct these duties from the customs value declared under the transaction value method. The District Court of North Holland sided with the importer, but the Amsterdam Court of Appeal ultimately concluded that the goods were of Chinese origin and upheld the post‑clearance demand, albeit based on a reduced customs value.

The procedure of Article 181bis CCC-IA / Article 140 UCC‑IA

Before turning to the judgment of the Supreme Court, it is useful to consider the procedural core of the dispute on the correct application of Article 181bis CCC Implementing Regulation procedure. This ‘doubt procedure’ is now included in Article 140 UCC Implementing Regulation.

This procedure is intended for situations in which the customs authorities doubt the correctness of a customs value declared on the basis of the transaction value method (Article 29 CCC / Article 70 UCC). The procedure obliges Customs to take a number of steps:

• request additional information from the declarant
• communicate the reasons for the doubt (such doubt must be reasonable)
• give the declarant the opportunity to respond
• only then take a decision on whether to reject the declared transaction value

Thus, this procedure is a preparatory instrument: it must be completed before the decision in which the transaction value is rejected.

Application of Article 181bis CCC-IA / Article 140 UCC‑IA also provides the inspector with a more favorable evidentiary position, because he may reject the transaction value based on unresolved doubt. However, the procedure does not apply where the inspector does not reject the transaction value itself, but merely argues that Article 33(f) CCC / Article 72(1)(f) UCC does not permit a deduction—for example, because no genuine DDP delivery was agreed. In that scenario, the dispute remains within the scope of Article 29 CCC / Article 70 UCC, without triggering Article 181bis CCC-IA / Article 140 UC-IA.

What does the Supreme Court decide?

The Supreme Court corrects the Amsterdam Court of Appeal on an essential point.

DDP must be examined as a matter of fact

The Court of Appeal should have examined whether the parties had actually agreed on DDP. This question belongs squarely within the system of Article 29 CCC / Article 70 UCC and the adjustments prescribed by Article 33(f) CCC / Article 72(1)(f) UCC. It is therefore not a question that can only be addressed through an Article 181bis CCIP / Article 140 UCC‑DA procedure.

The Supreme Court holds that the Court of Appeal applied an incorrect interpretation of the law. And to the extent the Court of Appeal did apply the correct interpretation, its reasoning was inadequate: it failed to explain why it did not address Customs’ argument that the buyer and the Indonesian exporter had not in reality agreed on DDP delivery.

Thus, the State Secretary’s first ground of cassation succeeds.

The ‘doubt procedure’ under Article 181bis CCC-IA / Article 140 UCC‑IA may not be initiated retrospectively

However, the Court of Appeal of Amsterdam was correct in finding that the inspector may not initiate an Article 140 UCC‑DA procedure after communicating the customs debt and after judicial proceedings have begun, and then use the information obtained through that late procedure against the importer.

During the judicial phase, the right of defense applies, and the inspector of Customs may not compel the importer to provide information that can only be demanded during the administrative (pre‑appeal) phase as set out in Article 44 UCC.

The State Secretary’s second ground of cassation therefore fails.

The importer’s incidental appeal concerning the origin is dismissed by the Supreme Court. This means the Court of Appeal’s finding—based on OLAF reports—that the fasteners were likely of Chinese origin remains in place.

DDP and Article 33(f) CCC / Article 72(1)(f) UCC: contractual reality is decisive

The core of the dispute concerns a classic customs valuation issue: should the post‑cleared duties be deducted from the customs value in a DDP scenario?

Article 33(f) CCC / Article 72(1)(f) UCC provides that duties payable upon importation are not part of the customs value, provided they can be distinguished from the transaction value. In DDP situations, the seller contractually bears these duties, meaning they are included in the price and can therefore be excluded from the customs value. This may apply even when the parties were mistaken about the origin: what matters is the agreement, not the factual non‑preferential treatment.

The crucial factual question is therefore: did the parties genuinely agree on DDP?
The Supreme Court makes clear that this requires factual investigation, which the Court of Appeal must now carry out.

The boundary between a valuation adjustment and rejection of the transaction value

The Advocate General already explained that a distinction must be made between:

• a valuation adjustment within Article 29 CCC / Article 70 UCC
  (e.g., DDP was not agreed—therefore no deduction under Article 33(f) CCC / Article 72(1)(f) UCC), and
• rejection of the transaction value, for which Article 181bis CCIP / Article 140 UCC‑DA is mandatory

The Supreme Court confirms this distinction. This means that courts and practitioners must always determine, in valuation disputes, which category is relevant.

The role of OLAF and the Form A

The Court of Appeal had already concluded that OLAF’s findings were compelling and that the Indonesian exporter lacked the production capacity to justify the export volumes. The fact that the Form A was not withdrawn by the third‑country authorities does not bind EU customs authorities in the context of autonomous arrangements such as the Generalised System of Preferences. The Supreme Court upholds the Court of Appeal’s conclusion regarding origin.

Anti‑dumping duty: 85% is the default rate

The regulation prescribes an individual anti‑dumping duty rate that applies only if a correct commercial invoice from the relevant Chinese company (as listed in Annex II) is provided. If not, the residual rate of 85% applies. The Court of Appeal rightly applied that rate.

Some practical lessons for importers

• Clearly document, for any DDP arrangement, who bears the import duties, why, and how those duties are reflected in the price.
• Retain all contract documents, Incoterms specifications, email correspondence and logistical evidence.

What exactly does the Supreme Court affirm?

The Supreme Court provides strong legal clarity on three points.

First, contractual reality governs the transaction value: the seller–buyer agreement on delivery terms must be carefully examined.
 

This is logical. The EU customs requirement that the declarant must be established in the EU often means the buyer takes on the role of the declarant. That does not prevent the seller and buyer from agreeing on DDP—including EU import duties. These duties can be unpredictable if, for example after an OLAF investigation, a post‑clearance demand follows.

The inspector had argued that the seller had “nothing to do with Customs” because it was not the declarant and had no intention of paying EU import duties. But this overlooks commercial and legal reality: the EU‑based buyer who legitimately believed the goods originated in a preferential country (and that no anti‑dumping duties applied) also did not anticipate a large post‑clearance assessment. The issue is not what either party expected to pay, but what they contractually agreed. Under DDP, the seller must handle import formalities in the country of destination and bear the import duties. The agreed sales price is therefore deemed to include those duties—even if neither party foresaw them. Under customs law the declarant must be EU-established, but that is customs law. In their sales contract under civil law the seller and buyer can decide to agree on DDP as a matter of allocation of rights, obligations and risks.

Second, the Supreme Court confirms that Article 33(f) CCC / Article 72(1)(f) UCC has real effect: import duties may be excluded from the customs value when this is contractually agreed.

Third, the Court confirms that the Article 181bis CCC-IA / Article 140 UCC‑IA procedure cannot be deployed as an emergency tool once judicial proceedings are underway. General principles of procedural fairness prevent this.

Next steps: back to the Amsterdam Court of Appeal

The Amsterdam Court of Appeal must now determine anew whether DDP was genuinely agreed. In doing so, it may not use any information obtained from the belated Article 140 UCC‑IA procedure. It will be interesting to see which party ultimately prevails on the evidentiary front.

Ploum’s customs practice

Ploum’s customs practice advises companies on complex customs matters, including origin, valuation, classification, anti‑dumping, export control and sanctions regimes. We also litigate against customs decisions and assist with recourse and liability matters arising from customs claims. For questions, please contact Jikke Biermasz or Arjan Wolkers.