The price of a procedural error in customs law

The case concerned notifications to pay a customs debt (UTBs) that had been imposed years earlier (in 2003) and were subsequently annulled for breach of the rights of defence. At the time, the inspector had not heard the interested party beforehand. Fully in line with the case law of the Court of Justice of the European Union, this led to annulment of the customs debt notifications. But this did not bring the dispute to an end; it marked a new beginning. The inspector issued new customs debt notifications (in 2017), this time after applying the right to be heard (as an expression of the defense principle under EU law).

The interested party did not accept this. After years of litigation, it argued that renewed post-clearance recovery, so long after the facts and following earlier annulment, was contrary to the principle of legal certainty. The question that ultimately reached the Supreme Court was therefore not so much whether the right to be heard had originally been infringed—that was established—but whether the administrative authority was still entitled, after all that time, to levy again.

That was the question the Supreme Court had to answer in December 2025. And the answer was in the affirmative.

An old debate in a new context

Anyone reading the judgment will not see a change of course. The Supreme Court confirms that annulment of an UTB due to a procedural defect does not mean that the underlying customs debt has been extinguished. As long as there has been no substantive determination of the debt, the limitation period has not expired, and the rights of defense are subsequently respected correctly, post-clearance recovery remains possible. The Supreme Court did, however, award compensation for non-material damage due to the excessive duration of the proceedings at the cassation stage.

So why did this case return to the Supreme Court? Because it sat at the intersection of two lines of authority: on the one hand, the settled case law on the rights of defense; on the other, the pointed question of how far legal certainty extends in (extremely) long-running customs proceedings. The interested party sought to play those lines off against each other. The Supreme Court firmly rejected that attempt, but in doing so also made explicit how the system has been designed.

Sopropé and Kamino as the foundation

That system originates in Luxembourg. In Sopropé (CJEU, 18 December 2008, C-349/07), the Court of Justice held that the rights of defense constitute a general principle of EU law. In customs matters too, an interested party must be heard before a decision adversely affecting it is adopted. If that principle is infringed, the decision is unlawful.

In Kamino & Datema (CJEU, 3 July 2014, C-129/13 and C-130/13), that starting point was confirmed, refined and nuanced. The sanction for infringement of the rights of defense is annulment of the contested decision, unless it is established that the infringement could not have affected the outcome. The Court thereby introduced the so-called “different outcome” criterion. Once again, the Court of Justice refrained from ruling on the customs debt itself. But the “unless” condition in itself made clear that there is, apparently, a distinction between the customs debt and the notification thereof (the decision communicating the debt, with the legal effect that it must be paid).

That is not restraint; it is a deliberate delineation. The Court of Justice protected the procedure—not by abandoning substance, but by compelling careful decision-making.

Codification in the UCC

Since mid-2016, this case law has been embedded in the Union Customs Code (UCC). Article 22(6) UCC requires customs authorities to hear an addressee of a decision before adopting a decision that would adversely affect that person. Article 29 UCC provides that this rule also applies to decisions by customs authorities taken without a prior application, such as notifications of a customs debt.

Here too the legislative choice is visible. The legislature does not attach a substantive sanction to a procedural error. The customs debt does not automatically disappear. The system is designed to ensure careful decision-making, not to relinquish claims.

Case law of the Dutch Supreme Court

The Supreme Court has consistently followed this EU-law line since its judgment of 16 September 2016 (ECLI:NL:HR:2016:2077). That judgment implies that annulment of an UTB due to infringement of the rights of defense does not entail that the customs debt is extinguished. The later judgment of 26 June 2020 (ECLI:NL:HR:2020:1144) confirms that principle.

The recent judgment is therefore not novel, but it is a confirmation under pressure. The case reached the Supreme Court because it tested the boundaries of legal certainty and the passage of time. The interested party referred in this context to Article 44(4) UCC, which requires Member States to ensure that the appeal procedure against decisions of the customs authorities under customs law is designed so as to enable a prompt confirmation or correction of those decisions. It argued that this entails an obligation to bring a case to an end, and placed this in the broader context of legal certainty.

The Supreme Court has made clear that the system holds, even in cases of very long duration. Correction is effected through annulment of decisions adopted in breach of the rights of defense and, where appropriate, through an award of compensation for non-material damage due to excessive length of proceedings—but not through extinguishing the debt.

Efficiency and reality

Underlying this case law is a quiet but powerful efficiency consideration. European customs law operates in a context of massive flows of goods and EU own resources. A system in which any procedural error would result in extinction of a customs debt would seriously disrupt that system. The solution chosen is therefore procedurally strict but substantively restrained.

At the same time, this can sit uneasily with practice. The right to be heard is not always meaningfully utilized. In our experience, decisions often make little or no visible mention of whether—and if so, how—the interested party’s submissions were taken into account. The wording of the customs debt notification then reads more or less like a “copy-paste” of the prior notification of the intention to impose the claim. If the interested party responds towards the end of the thirty-day response period to the intention to adopt an adverse decision, the customs debt notification frequently arrives on the doormat the very next day. The question then arises whether there was any time at all to seriously weigh the response in the decision-making process. Formally, that often satisfies Article 22(6) UCC. Substantively, it raises the question whether the rights of defense always receive their full meaning.

This is highly relevant. A merely proverbial “ritual dance” does not help the interested party—certainly not where it must invest time and incur costs to have a decision annulled that was adopted without a (genuine) opportunity to be heard (and lacks substantive engagement), while in the end it gains little because the decision is then re-adopted and an adequate costs order is not forthcoming. Nor should it be overlooked that the passage of time generally does not improve the ability to produce evidence. In that sense, this practice can genuinely prejudice the interested party—not only financially, but also in its procedural position and prospects.

Conclusion

The judgment of the Dutch Supreme Court of 12 December 2025 shows why this discussion keeps returning. Not because the law is unclear, but because it can grate against one’s sense of justice. Customs law protects the procedure without surrendering the substance. That is efficient and predictable, but it requires continued attention to the quality of administrative decision-making. Legal protection is real, but for market operators the outcome can sometimes resemble a Pyrrhic victory.

Not being heard means no valid decision—or at least annulment of that decision where a different outcome could have been possible. Yet even after more than ten years of litigation, the rule remains: breach of the principle of respect for the rights of the defense still does not automatically mean that the customs debt is of the table. That is the hard, but by now settled, line.

About Ploum’s Customs, Trade & Logistics team

Ploum has a specialized Customs, Trade and Logistics team assisting clients with international trade and customs matters, product regulation and transport law. The team advises and litigates, inter alia, on tariff classification, customs value, origin, export controls, sanctions regimes and enforcement by supervisory authorities. If you have any questions following this article, please contact Jikke Biermasz or Arjan Wolkers.