FMX Food Merchants Import Export Co Ltd v Revenue and Customs: SC 29 Jan 2020

This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court now considered the time limits for such demands. The tax payer imported garlic, saying it was from Cambodia and exempt, but the respondent said they were from China and subject to duty. The taxpayer said the demand was issued outside a three year time limit.
Held: The appeal was allowed. The post clearance demand system was in place to allow criminal proceedings to take their full course, and the likelihood of such proceedings disapplied the three year limit. The domestic law doctrines of abuse of process and laches concern the conduct of legal proceedings, not the communication of a customs debt and did not assist. The Limitation Act specifically excluded customs debts. EU law provided that where no limit applied, action was required in a reasonable time, and on the facts here, HMRC had so acted. No reference was required to the ECJ.

Judges:

Lord Reed, Lord Hodge, Lord Briggs, Lady Arden, Lord Kitchin

Citations:

[2020] UKSC 1, [2020] STC 363, [2020] 2 All ER 161, [2020] 1 WLR 757, [2020] WLR(D) 55, UKSC 2018/0218

Links:

Bailii, SC Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2019 Oct 14 am Video, SC 2019 Oct 14 pm Video

Jurisdiction:

England and Wales

Citing:

At FTTTxFMX Food Merchants Ltd v Revenue and Customs FTTTx 29-Nov-2013
FTTTx Customs duty – import of Chinese garlic, falsely declared as Cambodian in origin – late issue of post-clearance demand note for unpaid duty – whether the customs debt was the result of an act which, at the . .
At UTTCRevenue and Customs v FMX Food Merchants Import Export Co Ltd UTTC 10-Dec-2015
Customs Duty – import of Chinese garlic falsely declared as Cambodian origin – Customs Code Art 221 – customs debt resulting from a criminal act – post clearance demand issued after expiry of the three year period – no express provisions in UK law . .
Appeal fromFMX Food Merchants Import Export Co Ltd v HM Revenue and Customs CA 30-Oct-2018
Post-clearance demand for customs duty almost seven years after the taxpayer had imported garlic into the United Kingdom, which had been falsely declared to be of a certain origin, and just under four years after the customs became aware of the . .
CitedRewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment) ECJ 16-Dec-1976
‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’
1. The . .
CitedValsts ienemumu dienests v Veloserviss SIA ECJ 10-Dec-2015
(Judgment) Reference for a preliminary ruling – Community Customs Code – Post-clearance examination of declarations – Principle of the protection of legitimate expectations – National rules placing restrictions on re-examination of the results of a . .
CitedFirma Ernst Kollmer Fleischimport Und -Export v Hauptzollamt Hamburg-Jonas ECJ 6-Oct-2015
Judgment – Reference for a preliminary ruling – Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Article 1(2) and the first subparagraph of Article 3(1) – Recovery of an export refund – Limitation period . .
CitedHaahr Petroleum v Abenra Havn and others ECJ 17-Jul-1997
(Judgment) Maritime transport – Goods duty – Import surcharge . .
CitedSanders And Others v Commission (Staff Regulations) ECFI 5-Oct-2004
Claim for damages for loss sustained as a result of the alleged failure to recruit the applicants as temporary servants of the European Communities during the time they worked for the Joint European Torus (JET) Joint Undertaking. It was, in essence, . .
CitedNencini v Parliament ECJ 19-Jun-2014
ECJ (Advocate General’s Opinion) Appeal – Former Member of the European Parliament – Allowances to cover expenses incurred in the performance of parliamentary duties – Debt resulting from the application of the . .
CitedTest Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
CitedAgra Srl v Agenzia Dogane – Ufficio delle Dogane di Alessandria ECJ 17-Jun-2010
Europa Regulation (EEC) No 2913/92 – Community Customs Code – Article 221(3) and (4) – Post-clearance recovery of the customs debt – Limitation period – Act which could give rise to criminal court proceedings. . .
CitedAllen and Others v Commission (Appeal) ECJ 14-Dec-2011
Appeal – Staff employed at the JET joint undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage suffered – Time-limits for instituting proceedings – Late submission – . .
CitedZe Fu Fleischhandel, Vion Trading GmbH v Hauptzollamt Hamburg-Jonas ECJ 5-May-2011
ECJ Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Article 3 – Recovery of an export refund – 30-year limitation period – Limitation rule forming part of the . .
CitedCoburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
CitedFleming (T/A Bodycraft) v Revenue and Customs HL 23-Jan-2008
The transitional rules introducing time limits for failing to deduct VAT inputs made insufficient allowance for the decisions in Marks and Spencer and Grundig.
Held: Lord Hope said: ‘To be compatible with EU law, taxpayers were entitled to be . .
CitedSwansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
CitedSevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
CitedCoburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, European

Updated: 27 May 2022; Ref: scu.646807