Court of Cassation rules on criminal liability in customs cases

The Belgian Court of Cassation (“court”) continues to shape the legal landscape of criminal law in the field of customs and excise in Belgium with two important judgments delivered on 3 February 2026 (P.25.0383.N and P.25.1326.N) (available in Dutch and French only). The judgments provide clarification regarding the liability of customs representatives and the treatment of inventory discrepancies when goods are held under customs supervision.

Criminal liability of customs representatives

In its ruling in case P.25.1326.N, the court emphasised that the burden of proof required to establish criminal participation by a direct customs representative must not be underestimated.

Although a customs representative “substantially intervenes in the importation of goods by preparing and submitting declarations,” this does not automatically mean that, as a professional agent, the representative always knows or reasonably should know that they are party to a customs offence, such as by declaring an incorrect country of origin. The court explicitly acknowledged that the facts could be misrepresented out of mere negligence or carelessness.

This is a justified and welcome decision for customs representatives who are often automatically prosecuted without concrete evidence of conscious participation. The question remains whether the court would have reached the same judgment if the case had involved indirect representation.

In all cases, article 135 (2) of the Belgian General Law on Customs and Excise (GLCE) provides a safeguard for both direct and indirect representatives, by excluding criminal liability when representatives are acting according to instructions from the client or principal, provided that the client or principal is finally convicted.

Criminal consequences of inventory discrepancies

In case P.25.0383.N, the court further confirmed that even a very minor inventory shortage is sufficient to constitute a criminal removal from customs and excise supervision.

The court held that the fact the shortage was historically accrued and caused by human errors and inaccuracies did not justify acquittal. This ruling underlines the absolute necessity of maintaining inventory records with utmost precision.

In cases of minor discrepancies, voluntary disclosure under article 261-2, 2° of the GLCE can provide a solution, as criminal prosecution is excluded for those who report fraud or irregularities of their own accord.

Conclusion

These judgments together demonstrate the court’s approach on two aspects of criminal law in the customs context: protecting customs representatives from automatic criminal liability in the absence of concrete evidence of intent, while enforcing the need for strict compliance and precision in inventory management.