Reform of the Belgian legislation on customs and excise duties

Imagine returning from a trip. Upon your arrival at Brussels Airport, customs officers stop you for an inspection.

You realize that you have not declared goods that should have been declared. The General Administration of Customs and Excise intends to impose a penalty on you and offers a settlement to resolve the dispute. That’s when the trouble begins...

Is there an appeal available against the administration’s decision? If you refuse the settlement offer, what are the risks? A simple administrative fine that you could contest before a civil judge, or will you face criminal proceedings?

A hybrid system of penalties and appeals

The sanction and appeal mechanism for breaches of customs regulations is unique because of its hybrid system. It allows both an administrative appeal against the administration’s decisions and access to a civil judge while also permitting the administration to initiate criminal proceedings for any infractions it oversees.

Indeed, as the Regional Director controls public action regarding customs offenses, they have full discretion over whether to initiate prosecutions.

The administration may also propose a settlement instead of taking the matter to court. In practice, this discretionary power is often applied pragmatically, except in cases of serious or organized offenses.

At the same time, everyone has the right to contest the decisions of customs authorities. This right of appeal, guaranteed by Article 44 of the Union Customs Code and Article 211 of the General Law on Customs and Excise, is exercised first at the administrative level and then, if necessary, before an independent court.

Situation before the 2024 reform

If the administration proposed a settlement, no appeal was possible —or at least, that’s what they wrongfully claimed by relying on article 213 of the law, which excluded the right to contest a settlement offer.  However, this article violated Article 44 of the Union Customs Code, which guarantees an unconditional right of appeal.

As a result, the administration would outright reject the appeal and summon you to appear before the criminal court to recover its claim. In other words, for simply forgetting (or being unaware) to declare goods whose value exceeded the duty-free limit (430 euros), you could find yourself entangled in a shameful criminal procedure where:

• You were presumed guilty due to the reversal of the burden of proof for this type of infraction
• You faced severe penalties (confiscation, fines, imprisonment)
• You lost your right to the administrative appeal phase.

Current situation

It was long overdue to revamp the penalty system for customs and excise, which until now made all customs offenses subject to criminal penalties regardless of their seriousness or intent. Today, that has been rectified!

Article 22 of the law of April 14, 2024, which came into effect on May 13, 2024, expanded the system of administrative penalties by introducing a new Article 266/3 into the law.

This new article provides that an administrative fine will be incurred for any error or failure to comply with a customs obligation if the following conditions are met:

1. The offense was not committed knowingly and willingly
2. The error or non-compliance does not give rise to a customs debt, or if it does, the amount does not exceed 10,000 euros.

The fine ranges between 250 and 5,000 euros, depending on the nature and severity of the offense, based on a scale set by the King.

It may be waived for individuals who can prove that they acted as any normal, prudent, and reasonable person would under the same circumstances (which is reminiscent of the invincible error defense that can be demonstrated before a criminal judge to obtain an exemption from criminal liability).

Appeals against the fine can only be lodged with the competent tax court in the area where the error or offense occurred. Under penalty of forfeiture, the appeal must be filed within three months from the third working day following the notification date of the decision. The filing of the appeal suspends any enforcement measures.

Finally, the electronic platform currently being developed by the Federal Public Service Finance will be used to facilitate the management of administrative fines (on this subject, see our latest article “The Digitalization of Relations between the Tax Authorities and Taxpayers: Towards a New Era” available on our website).

Conclusion

The scenario where a simple return from a trip turns into a nightmare due to a customs declaration omission, once punishable by criminal penalties, is now a thing of the past.

The 2024 reform limits the discretionary power of the administration, which previously could prosecute all offenses criminally without distinction.

From now on, minor errors or non-compliance without criminal intent will be handled proportionately through an administrative procedure with access to the tax judge. This allows for a more measured debate, away from criminal penalties.

At Vanbelle Law Boutique, we would be happy to assist you in your customs disputes and offer solutions tailored to your needs.

Walid JAAFARI

Junior Associate