Background
Société X-Trême Vidéo specialised in importing and selling “GoPro”-type cameras in France and began importing a “Hero3” camera range in October 2012. Société Ganertrans, acting as an indirect customs agent (commissionnaire de transports), made the required customs declarations on its behalf. In April 2013, the regional customs investigations unit opened an audit covering twenty-nine declarations filed between 29 October 2012 and 5 April 2013, challenging the tariff classification used.
On 25 January 2017, customs sent Ganertrans an investigation result notice (avis de résultat d’enquête). Ganertrans wrote to customs on 17 and 24 March 2017 requesting access to the underlying documents. Customs replied on 5 April 2017 and subsequently drew up an infringement report on 14 April 2017. On 14 September 2017, customs issued a recovery notice (avis de mise en recouvrement, AMR) demanding payment of €1,258,330 for the under-declared duties. Ganertrans challenged the AMR in court, arguing that customs had violated the adversarial principle by refusing to provide the requested documents before issuing the infringement report.
The Pau Court of Appeal agreed with Ganertrans and, by judgment of 19 November 2024, annulled the AMR on the ground that customs had breached the principle of contradiction by failing to communicate the documents referenced in the investigation result notice before drawing up the infringement report. The customs authorities appealed to the Court of Cassation.
The Court’s Holding
The Court of Cassation quashed the Pau Court of Appeal’s judgment in its entirety. Applying Article 22(6) of EU Regulation No 952/2013 (the Union Customs Code), Article 8(1)(c) of Commission Implementing Regulation No 2015/2447, Article 67 A of the French Customs Code, and the general principle of respect for the rights of the defence, the Court held that customs authorities satisfy their adversarial obligation by informing the person concerned that they may have access to the documents and information on which the authority intends to base its decision — they are not required to proactively transmit those documents.
The Court found that the Pau court had annulled the AMR without examining a key factual question to which its attention had been expressly drawn: whether the investigation result notice of 25 January 2017 itself already contained a statement of Ganertrans’s right to consult the relevant documents at the customs office in the relevant locality. According to the customs authorities, that notice — and a follow-up letter of 5 April 2017 — both informed Ganertrans that the complete file of documents could be consulted, and copies obtained, at the regional customs office on simple request. By failing to investigate that point, the court of appeal deprived its decision of adequate legal foundation (défaut de base légale).
The case is remanded to the Bordeaux Court of Appeal. Ganertrans was also ordered to pay the customs authorities €3,000 in litigation costs under Article 700 of the Code of Civil Procedure and to bear all court costs.
Key Takeaways
- Under the Union Customs Code (Article 22(6)) and its implementing regulation (Article 8(1)(c) of Regulation 2015/2447), customs authorities discharge the adversarial/contradictoire requirement by notifying the taxpayer of its right to access the underlying documents — physical transmission of those documents is not mandated.
- When assessing whether the adversarial principle has been respected, courts must examine whether the investigation result notice itself contained a statement of the right of access; annulling a recovery notice without conducting that inquiry constitutes a défaut de base légale.
- An indirect customs agent acting under a mandate of indirect representation (commissionnaire de transports) bears direct liability for customs duties and is bound by the same procedural obligations as the importer itself.
- Ganertrans was ordered to pay €3,000 in Article 700 costs, signalling that the cassation court found the appeal of the lower court ruling to be well-founded.
Why It Matters
This ruling clarifies the precise content of the adversarial obligation that French and EU customs law imposes before a recovery notice can validly be issued. It confirms that the right to be heard does not require customs to deliver documents spontaneously: making them available for inspection and copying at the competent office, after informing the taxpayer of that right, is sufficient. Importers and their customs agents who receive investigation result notices must therefore act on any access-to-documents indication and actively request inspection — they cannot later claim a procedural violation simply because documents were not sent to them automatically.
The decision also illustrates the Court of Cassation’s strict approach to the duty of lower courts to examine all arguments put before them: the failure to address a factual claim that was squarely raised by a party — here, the content of the January 2017 notice — is itself a ground for cassation, regardless of the ultimate merits of that claim.