Considering the major (positive) impact the reform of the Dutch Customs Penalty Regime will have on the activities of operators active in the Netherlands, we wanted, as the date of implementation is nearing, draw your attention on the latter.

As of 1 July 2024, the new Dutch customs legislation regarding customs penalties will apply. Under the reformed legislation, operators that unintentionally submit an incorrect or incomplete customs declaration or provide incorrect or incomplete information to the Dutch Customs are no longer subject to criminal liability. Instead, those (unintentional) offences will qualify as administrative offences. This means administrative procedural rules will apply for appealing against imposed (administrative) penalties.

Operators who intentionally submit incorrect or incomplete information will – still – be subject to criminal liability.  

Another consequence of the reform of Dutch customs legislation revolves around the statute of limitation for recovering underpaid customs duties. According to EU Customs Law, the customs debt should be notified to the debtor within 3 years from the date the customs debt was incurred. Nonetheless, EU Member States have the discretion to apply an extended statute of limitation covering a period between a minimum of 5 and a maximum of 10 years in case a customs debt is incurred “as the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings“. On this basis, the Netherlands implemented an extended statute of limitation of 5 years.

Under the current Dutch legislation even unintentional incorrect filings of customs declarations are potentially subject to criminal liability. Hence, Dutch Customs started applying the extended limitation period of 5 years (instead of the ‘regular’ 3-year limitation period) to essentially all retroactive recoveries of import duties. The reform should provide a solution to this issue such that unintentional filings of incorrect or incomplete customs declarations no longer lead to criminal liability.

The new legislation applies as of 1 July 2024. However, due to transitional measures, the current regime remains applicable for offences that occurred before 1 July 2021. For the latter offences, this effectively means that Dutch Customs can still apply the extended statute of limitation period of 5 years – instead of the regular limitation period – until 1 July 2026. We are aware that other National Customs Authorities are also considering the implementation of similar measures. Since our EMEA team is covering all the EU Member States, please do feel free to contact our Baker trade team as we remain at your entire disposal should you want to discuss any of the aforementioned.

Author

Esmee Kooke is a Junior Associate within the Amsterdam Indirect Tax team. She joined the Firm in September 2023.

Author

Lionel has joined Baker McKenzie as Customs Lead in February 2022. Lionel has 20+ years of experience in the field of Customs, International Trade, Excises & Energy Levy.

Author

Jaap Huenges Wajer is a senior associate in the Indirect Tax Team in Baker McKenzie’s Amsterdam office. His practice is focused on advising national and international companies in all value added tax, customs and excise duty related matters. More specific, the emphasis for his advising role regards structuring of international sale and supply chains, optimizing inbound transactions in respect to customs, the litigation in value added tax, customs and excise duty matters. He advises clients across a number of sectors including pharmaceuticals, technology, manufacturing, energy and consumer goods.