REPORT FROM THE COMMISSION on the assessment of customs infringements and penalties in Member States Union Customs Code
Date: 2023-01-06
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: EU Member State, EU customs procedure, customs cooperation, customs harmonisation, customs regulations, customs territory (EU), customs union, sanction (EU)

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 6.1.2023  COM(2023) 5 final  REPORT FROM THE COMMISSION on the assessment of customs infringements and penalties in Member States Union Customs Code {SWD(2023) 2 final}  
 
 
EXECUTIVE SUMMARY1 

The  European  Union´s  customs  legislation  is  harmonised  through  the  Union  Customs  Code 
(“UCC”)  2. The UCC includes  the obligation for  Member States to  provide for penalties for 
failure  to  comply  with  the  customs  legislation  and  establishes  that  such  penalties  shall  be 
effective,  proportionate  and  dissuasive.  Member  States  shall  notify  to  the  Commission  the 
national provisions in force with regard to customs penalties, within a certain timeframe from 
the date of application of such provisions and, without delay, of any subsequent modification 
of those provisions.  

Member States have, therefore, the choice of customs penalties . Drawn directly from national 
legislation  in  Member  States,  the  systems  of  penalties  vary  across  Member  States  and  are 
subject  to  evolution  over  time.  This  report  is  meant  to  provide  a  broad  overview  of  the 
individual  system  of  penalties  in  each  Member  State  in  accordance  with  the  UCC.  It  is  a 
blueprint of the legal  situation in  Member States, based on the input provided by them in  a 
project  Group  established  by  the  Commission  for  this  purpose.  Member  State  submitted 
detailed country reports and validated the accuracy of their legal provisions. 

The report addresses the following issues: 

→ A Project group for collection of data – Staff Working Document linked to the report 

The  Commission  proposed  to  set  up  a  Project  Group.  The  explanatory  memorandum  addresses  the 
structure,  the  methodology  and  the  results  of  the  work  of  the  Project  Group.  These  results  are 
illustrated  in  the  Staff  Working  Document  (“SWD”)  linked  to  this  report  (PART  1  –  General 
comparative table and PART 2 to 4 - Individual Country Sheets).  

→Quantitative assessment / Compliance 

Member  States  have  an  obligation  to  impose  penalties  under  the  relevant  UCC  provisions. 
Title II addresses the issue of compliance with respect to these penalties, more precisely that 
all Member States have adopted new national provisions or updated existing provisions with 
respect to penalties.  

→Qualitative assessment  

In its Title III, the report addresses, in detail, the data provided by Member States according 
to the criteria set out during the work of the Project Group and structured upon the relevant 
UCC provisions.  

→ Conclusions 

Title  V  highlights  the  conclusions  drawn  from  the  assement  of  the  data  provided  by  the 
Member  States  The  differences  of  approach  and  methodology  appear  to  be  extremely 
significant.  The  assessment  shows  very  few  points  of  convergence  from  this  perspective. 

1   The project group and the report were initiated before the current situation on international sanctions against 
Russia  and  Belarus  comes  into  place.  The  project  group  aimed  at  evaluating  the  system  of  penalties  in 
Member  States,  as  per  their  obligation  to  adopt  penalties  under  the  Union  Customs  Code.  Reference  to 
penalties in the context of this report is strictly  relevant to customs offences and not relevant to sanctions 
against Russia and Belarus. 

2   Regulation  (EU)  No  952/2013  of  the  European  Parliament  and  of  the  Council  of  9  October  2013  laying 

down the Union Customs Code, Official Journal of the European Union, L 269/1, 10.10.2013  

1 

 
                                                           
Even where convergence points can be identified amongst a high number of Member States 
(for  instance  those  applying  both  criminal  and  administrative  penalties)  the  differences  are 
still  significant  in  terms  of  severity  of  the  penalties,  amounts  of  the  fines  or  terms  of 
imprisonment. The lack of a common system of infringements and penalties may create legal 
uncertainty for businesses and possible distortions of competition within the internal market, 
resulting in vulnerabilities in revenue collection and weaknesses in policy enforcement.  The 
follow up to this report will be outlined in the upcoming reform of the EU Customs Union.  

EXPLANATORY MEMORANDUM 

1.  HISTORICAL BACKGROUND  
Given the diverse nature of the customs penalties systems  in  Member States, which include 
criminal  penalties  alongside  administrative  ones,  customs  penalties  do  not  form  part  of  the 
Union legislation on customs. As such, penalties in the field of customs are not harmonised.3  

The Treaties include the obligation for Member States to take appropriate measures, whether 
in general or in particular, to ensure fulfilment of the obligations arising from the Treaties or 
resulting from an action taken by the institutions of the Union. 4 

Regulation  (EC,  EURATOM)  N°  2988/95  of  the  Council  of  18  December  1995  concerning 
the protection of financial interests of the Community, set out the principle of administrative 
penalties . 5 

In  2008,  the  Modernised  Customs  Code6  introduced  in  its  article  21,  the  obligation  for 
Member States to notify the Commission of their penalties regimes. A Customs Project Group 
carried out an assessment in the field of infringements and customs penalties7 . Its report was 
issued by the Commission in 20108.  

The Union Customs Code, in force since 2016, reinforced the obligation on Member States to 
notify the Commission of the national provisions in force and any subsequent modifications 
of these national provisions.  

3   Discussions  on  the  issue  of  harmonisation  in  the  field  of  customs  penalties  date  back  to  early  2000. 
Differences in the customs sanctioning systems potentially leading to a different treatment of violations of 
the customs rules in Member States, has been subject to discussions and analysis (for example, in 2004, the 
WTO case against the EU relating to the non-fulfilment of obligations under GATT).  

4  Article  10  of  the  Treaty  on  the  European  Community  (TEC)  –  now  Article  4(3)  of  the  Treaty  on  the 

European Union (TEU) 

5   Council  Regulation  (EC,  Euratom)  No  2988/95  of  18  December  1995  on  the  protection  of  the  European 

Communities financial interests, OJ L 312, 23.12.1995, p. 1–4 

6     Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down 
       the Community Customs Code (Modernised Customs Code), OJ L 145, 4.6.2008, p. 1–64 

7   A  Project  Group  was  created  with  the  purpose  of  gathering  information  from  the  Member  States  with 
respect to their respective penalties regimes. Although the Project Group was not entirely and solely linked 
to the obligation of notification, that obligation remained in the background of the work of the group.   

8   SWD(2013) 514 final 

2 

 
 
 
                                                           
In  its  Communication  “Taking  the  Customs  Union  to  the  Next  Level:  a  Plan  for  Action”  9, 
adopted in September 2020, the Commission highlighted the issues stemming from an uneven 
enforcement of customs rules and proposed, with the support of Member States in a project 
group,  to  draw  up  an  updated  comprehensive  report  on  the  individual  systems  of  customs 
penalties in each Member State.  

Most  recently,  in  the  report  published  in  March  202210,  the  Wise  Persons  Group  on 
Challenges Facing the Customs Union, stressed the divergences and differences in the field of 
customs penalties, but most importantly the consequences these may lead to and the necessity 
to take action in this area.  
2.  LEGAL CONTEXT  
Article  4(3)  TEU  requires  that  Member  States  take  all  necessary  measures  to  ensure 
fulfilment  of  obligations  arising  out  of  the  Treaties  or  resulting  from  the  acts  of  the 
institutions  of  the  Union.  For  that  purpose,  while  the  choice  of  penalties  in  the  field  of 
customs remains within their discretion, they must ensure, in particular, that violations of EU 
law are penalised under conditions, both procedural and substantive, which make the penalty 
effective, proportionate and deterrent.  

Article  42(3)  of  the  UCC  lays  down  the  obligation  for  Member  States  to  “notify  the 
Commission, within 180 days from the date of the application of this Article, as determined in 
accordance with Article 288(2), of the national provisions in force, as envisaged in paragraph 
1 of this Article and shall notify without delay of any subsequent amendment affecting those 
provisions”. 

Article 42(1) of the UCC imposes an obligation on Member States to provide for penalties for 
failure  to  comply  with  the  customs  legislation.  In  the  absence  of  harmonisation  of  the  EU 
legislation  relating  to  customs  penalties,  Member  States  enjoy  a  discretion  to  choose  the 
penalties that seem  appropriate to  them, with  the principles  of proportionality, effectiveness 
and dissuasiveness in mind11,12 . 

The  directive  on  the  protection  of  the  financial  interests  of  the  EU13  (the  “PIF  directive”) 
provides for a number of offences against the EU budget, including evasion of customs duties. 
Although  customs  infringements  may  fall  under  the  scope  of  the  PIF  directive  provided 
certain strict conditions are met, the PIF directive only aims at intentional offences. Customs 
infringements under the UCC of less than EUR 10.000 are not covered by the PIF directive, 
whether intentional or done by negligence.  

3.  KEY CHARACTERISTICS OF THE REPORT  
Description of the UCC infringements and methodology 

9 

COM(2020) 581 final 

10   Report by the Wise Persons Group on the Reform of the EU Customs Union, Ten proposals to make the EU 
Customs  Union  fit  for  a  Geopolitical  Europe.  https://ec.europa.eu/taxation_customs/system/files/2022-
03/TAX-20-002-Future%20customs-REPORT_BIS_v5%20%28WEB%29.pdf  

11          The  case  law  is  very  clear  on  this  matter,  the  Court  of  Justice  recalled  several  times  the  discretion  of 
Member  States  in  terms  of  choice  of  penalties,  but  also  the  framework  within  which  Member  States  can 
exercise their power.  

12   See  Case  C36/94  Siesse  v  Director  da  Alfândega  de  Alcântara  [1995]  ECR  I-3573;  see  C-68/88,  [1989] 

EUECJ C-68/88, [1989] ECR 2965;  

13   Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against 

fraud to the Union's financial interests by means of criminal law; OJ L 198, 28.7.2017 

3 

 
                                                           
The UCC articles providing for an infringement have been identified and listed in the general 
comparative  table  accompanying  the  Report.  The  analysis  of  the  penalties  notified  by  the 
Member States concerning the infringements of those UCC articles has been built around 10 
criteria which gives a clear picture of the application of Article 42(1) of the UCC.  

Quantitative assessment/Compliance 

The  quantitative  data  gathered  in  the  general  comparative  table  shows  that  Member  States 
provide for penalties in case of infringements under the UCC and as such can be considered 
as  compliant  with  their  obligation  to  adopt  penalties.  It  is  important  to  stress  that  these 
penalties are drawn from  national  legislation and not  from  a  common harmonised approach 
and methodology.  

Qualitative assessment / Diversity and divergences 

In  terms  of  qualitative  assessment,  the  situation  across  Member  States  appears  more 
divergent,  in  the  sense  that,  while  every  Member  State  enjoys  a  discretion  to  apply  the 
penalties it feels to be most appropriate for a given UCC infringement, the methodology when 
choosing  and  applying  penalties  differs  both  in  terms  of  the  nature  and  the  severity  of  the 
penalties.  

4.  METHODOLOGY  
The Commission established a project group 14 of its own initiative in order to collect relevant 
data  from  Member  States  for  assessment.  “The  Project  Group”  under  the  Customs  2020 
program. 

The work of the Project Group was built around two objectives: a) fact-finding: the collection 
of  information  from  Member  States  in  order  to  build  a  comprehensive  report,  and  b) 
guidelines15: on the basis of the information gathered, and in co-operation with the Member 
States,  to  attempt  an  assessment,  albeit  in  a  legally  non-binding  way,  of  the  application  of 
penalties in Member States . 

Participation  in  the  Project  Group  was  voluntary  and  all  27  Member  States  enrolled  in  the 
group. Two independent experts were invited to participate in the Project Group.  

The work of the group was conducted in three plenary meetings and 27 individual meetings 
having  regard  to  situations  specific  to  each  country.The  work  of  the  Project  Group  was 
structured as follows:  

a)  Members of the group were provided with a predefined template, the “Country sheet” in 
order for them to provide structured information in relation to infringements as set out in 
the relevant articles of the UCC.  

b)  The country sheet used a common methodology:  

-  List of the relevant UCC Articles providing for an infringement for which Member 
States had to provide the relevant penalties according to their national legislation. 
-  The data collected was structured around ten relevant criteria which allowed for an 

objective assessment and comparison.  

14   Customs Action Plan, COM(2020) 581 final 

15   Due to the upcoming reform of the Customs Union, the need to develop guidelines will be re-assessed in the 

future 

4 

 
                                                           
c)  The  data  collected  was  grouped  into  a  general  common  table  which  followed  the  same 

common methodology as for the individual country sheets.  

The work of the Project Group resulted in the retrieval of a subsequent amount of data, thanks 
to the active participation of the Member States. The individual country sheets (represented in 
the  Staff  Working  Document  (the  “SWD”)  -  Parts  2-4)  show  that  all  Member  States  have 
fulfilled  their  obligations,  by  adopting  penalties  in  the  customs  field,  drawn  from  their 
national legislation.  

The  assessment  of  the  data  was  structured  into  a  general  table,  represented  in  Part  1  of  the 
SWD. This table gathers all provisions related to infringements of the UCC, as set out in the 
national legislation of each Member State, and gives a broad overview of the current situation 
in the Member States.  

The  present  report  is  based  on  detailed  information  provided  by  and  with  the  help  of  the 
Member States. 

ASSESSMENT OF THE NATIONAL PROVISIONS IN FORCE IN MEMBER STATES 

TITLE I.  

GLOSSARY OF TERMS  

For the purposes of this report, Staff Working Document linked to the report and the 
terminology of the criteria used as the basis of the report, the following terms are defined as 
follows:  

1)  Sanctions. Any measure, administrative, criminal, pecuniary etc adopted for an 

infringement of a UCC provision. For this report “sanctions” will be strictly linked to 
the field of Customs.  

2)   Penalty. Any measure, administrative, criminal, pecuniary etc adopted for an 

infringement to a UCC provision.  

3)  Customs offence. Customs offence refers to an infringement of a UCC provision. For 

this report, only Customs infringement will be used. 

4)  Iinfringement. Infringement refers to an infringement to a UCC provision. For this 
report “infringement” will strictly refer to infringements in the field of Customs.  

TITLE II.   PRESENTATION OF THE RELEVANT UCC ARTICLES AND CRITERIA FOR 
ASSESSMENT  

2.1 Relevant UCC articles and criteria used for assessment 

The  assessment  has  been  based  on  the  articles  of  the  UCC  which  impose  obligations  on 
operators that they could potentially infringe on. 16 They are as follows:  

See  PART  1  of  the  Staff  Working  Document  linked  to  the  report  (general  comparative  table)  and 

16 
https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=CELEX:32013R0952&from=EN 

5 

 
 
 
 
                                                           
 
Articles  15,  23,  51,  108,  127,  135,  137,  139,  140,  145,  147,  148,  149,  158,  163,  166,  167, 
177, 179, 182, 185, 192, 211, 233, 241, 242, 244, 244, 245, 257, 262, 263, 267, 270, 271 and 
274 

The analysis of the penalties notified by the Member States concerning the infringements of those 
UCC  articles  has  been  built  around  the following 10 criteria which  gives a clear picture of the 
application of Article 42(1) of the UCC. 

The nature of the sanctions    

 → 

of 

can 

two 

Sanctions 
types: 
be 
administrative  or  criminal.  This  criterion 
determines  which  types  of  sanctions  are 
used  for  a  specific  infringement.  This 
criterion  is  the  most  determinative  as  it 
helps  distinguish  between  the  different 
systems  of sanctions operating in  Member 
States.  

Negligence or intent   

Liability  

The type of sanction    

Thresholds 

Settlement 

The existence of mitigating factors 

 →  According to the type of sanction imposed, 
Member  States  consider  negligence  or 
intent  when  determining  the  nature  of  the 
sanction imposed.  

 → 

→ 

 → 

 → 

The  criterion  determines  whether  legal 
persons  can  be  held  liable  in  Member 
States when imposing sanctions.  

The  criterion  identifies  the  different  types 
of  sanctions,  whether  of  a  pecuniary 
nature,  imprisonment  or  any  other  type  of 
sanction which can be imposed.  

This criterion references the minimum and 
maximum imposed in terms of sanctions.  

In  order  to  avoid  criminal  proceedings,  a 
settlement procedure may be opted for.  

 →  All 

factors  which  contribute 
diminishing the sanction imposed. 

towards 

The existence of aggravating factors  

 →  All  factors  which  may  determine  a  more 

severe sanction. 

The limitation periods 

→ 

All  times  limits  within  which  a  procedure 
can be considered as completed. 

Reference to national provisions in force  → 

Link to national provisions in force. 

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TITLE III.  QUANTITATIVE ASSESSMENT / COMPLIANCE  

4.2 Quantitative assessment  
The overall assessment leads to the conclusion that all Member States impose penalties in the 
field  of  customs,  drawn  either  from  their  national  legislation  or  from  specific  provisions17 
adopted  for  the  purpose  of  infringements  of  the  UCC.  Where  Member  States  have  adopted 
specific provisions in light of the UCC, these provisions are exclusively of an administrative 
nature.  The  first  part  of  the  general  comparative  table  shows  the  nature  of  the  penalties, 
addressed  in  the  following  section  of  this  Report.  Nevertheless,  overall,  it  aims  at  showing 
that Member States are compliant with the obligation laid down in article 42(1) of the UCC. 
The same part of the general table highlights areas in which penalties are not applied, either in 
general  or  according  to  the  specific  situation  in  Member  States.  Two  of  these  areas  are  the 
most prominent:  

  Article 108 of the UCC - Non-payment of import or export duties by the person liable to 
pay  within  the  period  prescribed:  11  Member  States18  did  not  adopt  penalties  for  this 
infringement.  The  non-payment  of 
the 
administrative law nor under the criminal law, but it is subject to enforcement measures. 

is  not  punishable  under 

import  duties 

  Free zones19 - articles 135(2), 244(1) and 245 UCC – do not exist in all Member States 

and therefore those Member States have not adopted penalties in this respect.  

Other  areas  in  which  penalties  are  not  adopted  are  individual  cases  and  are  very  limited  in 
number.  In  those  limited  number  of  cases,  a  generic  Article  in  the  UCC  covers  the 
infringement in question and the Member State did not adopt specific measures in this context 
but rather allow it to be covered by the sanction imposed by the generic Article.  

TITLE IV. 
AND DIVERGENCES 

QUALITATIVE ASSESSMENT OF MEMBER STATES’ PROVISIONS – DIVERSITY 

1.  GENERAL CONSIDERATIONS  
The  diversity  of  national  penalty  systems  does  not  prevent  convergences  between  them.  In 
particular,  the  different  systems  strive  to  provide  for  penalties  that  are  dissuasive,  efficient 
and proportionate as stipulated in the UCC. The Court of Justice ensures that these concepts, 
which are in some ways subjective, are respected by defining their contours. 

In terms of similarities, there are no cases of absolute similarity between all Member States, 
in the sense that each of them apply the exact same penalty, with the same modalities, to the 
same infringement.  

Convergences  may  exist  between  certain  Member  States  or  groups  of  Member  States.  For 
example,  the  majority  of  the  Member  States  have  a  system  that  provides  for  both 

17  An important new element in the  field of penalties. The UCC provides in Article 42(1) for the adoption of 
administrative penalties. Croatia has specific legislation adopted for the purposes of penalties in the field of 
Customs.  

18   These  Member  States  are:  Austria,  Croatia,  Cyprus,  Estonia,  Finland,  Denmark,  Latvia,  Poland,  Portugal, 

Spain, Sweden.  

19  Member  States  which  do  not  have  free  zone  areas:  Austria,  Belgium,  Finland,  the  Netherlands,  Sweden, 

Ireland , Slovakia 

7 

 
 
  
                                                           
administrative  and  criminal  penalties.  Most  of  them  apply  limitation  periods,  most  of  them 
use aggravating or mitigating factors when determining the severity of a sanction imposed, etc 
(a detailed analysis is provided in points 2 to 7 of this report). 

The individual country sheets and the general comparative table show how different measures 
relating  to  penalties  may  differ  from  one  Member  State  to  another.  These  differences  stem 
precisely  from  the  fact  that  each  Member  State  enjoys  a  discretion  in  choosing  the  type  of 
penalty to apply to a specific infringement and that they are drawn from national legislation. 
As such, under the national legislation of one Member State an infringement under the UCC 
may  be  considered  as  simply  administrative  while  in  another  it  may  entail  criminal 
proceedings.  Other  Member  States  may  apply  administrative  penalties  where  a  certain 
threshold is not crossed, and above this threshold, the penalty imposed will be of a criminal 
nature.  

Article 51 UCC provides for the following infringement: “Failure of an economic operator to 
keep the documents and information related to the accomplishment of customs formalities by 
any accessible means for the period of time required by customs”. In this context, 12 Member 
States20 impose an administrative sanction, 5 Member States21 provide for both criminal and 
administrative  penalties  (the  choice  between  the  two  types  of  penalties  in  Member  States 
which provide for both is detailed in point 2 of the present report), one Member State22 does 
not provide for a sanction and 9 Member States23 provide for criminal penalties.  

2.  NATURE OF PENALTIES: CRIMINAL OR ADMINISTRATIVE  
The  nature  of  a  customs  sanction  is  important  for  a  number  of  reasons,  like  the  procedures 
applicable, enforcement, duration and the consequences it may have for operators.  

In terms of consequences, the nature of a customs sanction may have an impact on operators 
concerning the Authorised Economic Operator (“AEO”) status.  One of the requirements  for 
obtaining  and  maintaining  the  AEO  status  is  that  the  operator  has  not  committed  a  serious 
infringement  or  repeated  infringements  of  customs  rules.  The  qualification  of  “serious 
infringement”  or  “repeated  infringement”  are  criteria  for  determining  the  type  of  sanction 
applicable  (see  aggravating  factors)  which  in  this  case  will  become  criminal  in  the  case  of 
Member  States  which  operate  systems  which  allow  for  both  criminal  and  administrative 
penalties. The distinction is not necessary in those Member States which only apply criminal 
penalties.  However,  the  consequence  that  this  aspect  has  on  the  operator  is  that,  in  those 
Member  States  applying  criminal  penalties,  acquiring  or  maintaining  AEO  status  may  be 
more  difficult  as  opposed  to  those  applying  only  administrative  penalties,  thus  creating  an 
unequal playing field. 

The  assessment  of  the  nature  of  penalties  applied  by  the  Member  States  reveals  the 
complexity  of  the  methods  used  by  Member  States  when  defining  a  penalty.  The  data 

20  Member States imposing an administrative sanction: Bulgaria, Croatia, Czech Republic, Greece, Germany, 

Hungary, Italy, Latvia, Portugal, Romania, Slovakia, Spain. 

21  Member  States  imposing  either  an  administrative  or  a  criminal  sanction:  Estonia,  Ireland,  Lithuania,  The 

Netherlands, Sweden. 

22  Member States not imposing a sanction: Finland. 

23  Member  States  imposing  a  criminal  sanction:  Austria,  Belgium,  Cyprus,  Denmark,  France  ,  Luxembourg, 

Malta, Poland, Slovenia.  

8 

 
 
                                                           
provided has shown that those Member States who use a system that operates both criminal 
and administrative penalties, apply those systems for the same infringement  under the same 
UCC  article24.  Those  Member  States  have  been  considered  as  Member  States  with  both 
Criminal  and  Administrative  penalties  (point  a)  below).  Three  Member  States  apply  mostly 
administrative penalties with exceptions for some infringements under the UCC, where they 
only provide for criminal penalties. These 3 Member States have been considered as countries 
with an overall administrative systems of penalties (point d) below) 

The analysis of the data provided in terms of nature of the penalties has shown that: 

a)  14  Member  States  have  a  system  that  provides  for  both  criminal  and  administrative 

penalties ;25 

b)  8 Member States have a system that provides only for criminal penalties ;26  
c)  2 Member States have administrative penalties; 27 
d)  3 Member States operate mostly administrative penalties 28.  

Figure 1: Nature of penalties  

Nature of penalties 

Mostly 
administrative 
sanctions
11%

Administrative 
sanctions 
7%

Criminal and 
administrative 
sanctions
52%

Criminal 
sanctions
30%

Criminal and administrative sanctions

Criminal sanctions

Administrative sanctions

Mostly administrative sanctions

24   This convergence point is shown in the general comparative table, PART I of the SWD 

25   Austria, Greece, Estonia, Finland, Germany, Ireland, Hungary, Lithuania, Latvia, the Netherlands, Portugal, 

Slovenia, Spain, Sweden.  

26  Belgium, Cyprus, France, Luxembourg, Malta, Poland, Italy. Denmark has a system that mostly provides for 
criminal penalties with a few exceptions and for the purpose of this report, Denmark has been considered as 
a Member State with criminal penalties. 

27   Czech Republic and Croatia. With respect to the Czech Republic, if the illegal act fulfils the characteristics 
of a criminal offence (e.g. the amount of damage caused, social danger, etc.), the unlawful conduct may be 
classified as a criminal offence.  It depends on the circumstances of the case. Infringements of the relevant 
provisions of the UCC are, in principle, penalised by administrative penalties under the Czech legal system. 
However, criminal penalties are not excluded.  

28   Romania, Bulgaria, Slovakia. 

9 

 
 
 
 
                                                           
From a legal perspective, a criminal court imposes criminal penalties while an administrative 
body (usually the customs authorities) deals with administrative penalties. 

An important element when Member States deal with administrative penalties is the right to 
appeal defined in the UCC as opposed to the right to appeal in criminal procedures. The right 
to appeal is set out in Article 44 of the UCC. It consists of a two-step procedure: 1) the first 
concerns challenging the decision of the customs authorities from an administrative point of 
view (the operator disagrees officially with the customs decisions directly affecting him) and 
2)  the  second,  provides  for  the  possibility  to  appeal  against  the  decision  in  front  of  an 
administrative national court, according to the provisions in force in Member States. Although 
not  a  criterion  for  the  evaluation  of  the  individual  country  sheet  for  the  collection  of  data, 
Member States have confirmed they all ensure this two-step appeal procedure.  

The graphic above in Figure 1 shows that 52% of the total of 27 Member States use a system 
that  operates  both  criminal  and  administrative  penalties  .  According  to  the  data  provided, 
when applying penalties, the methodology seems to be the same across Member States when 
deciding the nature of the sanction they will apply. This methodology provides for two factors 
to be taken into account: thresholds (with reference to  amount of duties, value of the goods 
etc)  and  aggravating  factors  (where  aggravating  factors  can  either  determine  the  highest 
administrative  fine  or  qualify  the  infringement  as  criminal).  As  this  criterion  was  not 
evaluated for the purpose of this report and even though Member States have provided some 
information  regarding  the  limit,  above  which  a  sanction  will  be  considered  of  a  criminal 
nature, this report will not evaluate this aspect.  

3.   NEGLIGENCE OR INTENT  
In most Member States, a distinction is made between  intentional and negligent breaches of 
customs legislation. However, in the case of two Member States (Czech Republic29, Croatia) 
negligence  or  intent  is  not  a  criterion  for  evaluation  of  the  infringement,  considering  they 
generally apply mostly administrative penalties. 

4.  LIABILITY OF NATURAL AND LEGAL PERSONS 
Liability  of  both  natural  and  legal  persons  is  one  of  the  points  of  convergence  between 
Member States. The assessment of this criterion does not refer to the definition of the liable 
person. Only the prevalence of the liability of natural persons as opposed to legal persons was 
evaluated.  

The  UCC  already  identifies  the  persons  who  may  be  held  liable  in  the  case  of  customs 
infringements.  In  the  case  of  natural  persons,  all  Member  States  seem  to  identify  the  same 
types of persons as identified in the UCC.  

The  overall  assessment  has  led  to  the  conclusion  that  Member  States  may  also  hold  legal 
persons liable for a customs infringement, in addition to natural persons. The data identified 
has shown that the situation is more divergent however, when it comes to legal persons.  

29   See  footnote  23  in  relation  to  the  application  of  penalties  in  the  Czech  Republic.  In  the  case  of  offences 
committed by natural persons, negligence or intent is a criterion for assessing liability for the offence, since 
at least negligent fault must be proved in the case of such persons, and the degree of fault is a criterion for 
determining the amount and type of administrative penalty. 

10 

 
                                                           
 
While legal persons can theoretically be held liable for infringements in all 27 Member States, 
not  all  types  of  infringement  entail  liability  for  legal  persons,  in  all  Member  States.  Some 
infringements can only be committed by natural persons30..31 

  Article 15 UCC – legal persons are held liable except in Malta and Poland 
  Article 23(2) UCC - legal persons are held liable except for Malta, Poland and Sweden 
  As a general feature, Malta, Poland and Lithuania generally do not hold legal persons 

liable, with the exception of limited infringements under the UCC.  

The  assessment  also  showed  that  it  is  the  person  representing  the  legal  person  who  will  be 
liable for the customs penalties Generally, with respect to legal persons, only administrative 
penalties, i.e. a fine, will be imposed (together with some ancillary penalties or not).  

5.  TYPES OF PENALTIES 
The types of penalties are directly linked to their legal nature. The methodology used for the 
assessment of this criterion is identical to the one set out in point 2 of this report:  Nature of 
the penalties applied. 

The  assessment  of  the  data  provided  shows  that two  main  types  of  penalties  are  used  in  all 
Member  States  (as  a  general  principle):  fines  (whether  administrative  or  criminal)  and 
imprisonment.  Figure  2  gives  a  clearer  picture  of  the  types  of  penalties  used  in  Member 
States:  

30 This is represented in the general comparative table, Part I of the SWD, section “Liability” 

31   A  comparison  with  the  past  reports  shows  that,  in  this  precise  domain,  the  situation  has  evolved.  In  2010 

data showed that only 15 Member States provided penalties for legal persons.  

11 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Figure 2: Types of fines  

Administrative and/or 
criminal fines 

Most frequent types of 
penalties for any customs 
infringement 

27 Member States

Both Criminal and 
Administrative penalties 
(this implies administrative 
fines, fines of criminal 
nature, imprisonment) 

Types of penalties used by 
those Member States who 
operate systems that apply 
both administrative and 
criminal penalties

Criminal fines or 
imprisonment

Types of penalties used by 
those Member States who 
operate systems that apply 
criminal penalties

Administrative fines

Types of penalties used by 
those Member States who 
operate systems that apply 
administrative penalties

14 Member States:
Austria, Greece, 
Estonia, Finland, Germany, 
Ireland, Hungary, 
Lithuania, Latvia, the 
Netherlands, Portugal, 
Slovenia, Spain, Sweden.

8 Member States:
Belgium, Cyprus, France, 
Luxembourg, Malta, 
Poland. Denmark has a 
system that mostly 
provides for criminal 
penalties with a few 
exceptions and for the 
purpose of this report, 
Denmark has been 
considered as a Member 
State with criminal 
penalties

2 Member States operate 
exclusively administrative 
penalties: 
Czech Republic and 
Croatia 
Three Member States
operate mostly 
administrative sanctions: 
Romania, Bulgaria, 
Slovakia

In addition to these two main types of penalties, various other penalties (ancillary penalties) 
are used. According to the overall analysis, an ancillary penalty can be defined as a sanction 
which, most commonly, cannot stand alone but is applied together with a main sanction.  

The most common ancillary penalty is the confiscation of the goods and/or measures relating 
to the authorisations. These are concepts also included in the UCC. Under Article 198 of the 
UCC, Member States are empowered to confiscate goods and are able to take measures with 
regard to the authorisations where the requirements of those provisions have been breached.  

Analysis  of  the  data  provided  has  shown  that  17  Member  States  apply  ancillary  penalties 
along with main penalties. Figure 3 illustrates the four types of ancillary penalties used. The 
analysis  in  figure  3  uses  a  common  methodology,  taking  into  account  only  the  number  of 
Member States using the same type of penalty.  

12 

 
 
 
 
 
Figure 3: Ancillary penalties  

Confiscation of goods

Austria, Bulgaria, Belgium, Cyprus, Denmark, Estonia, Germany, Greece, Hungary, Italy, Latvia, 
Lithuania, Luxembourg, Malta, Portugal, Romania, Slovakia, Slovenia, Spain, Czech Republic

Interdiction to exercise 
commercial activity

Belgium, Estonia, Finland, Germany, Hungary, Lithuania, Luxembourg, Poland, Portugal, 
Roamnia, Slovakia, Slovenia, Czech Republic, Spain

Judicial winding up 
order

Cyprus, Finland, Hungary, Belgium, Estonia, Lithuania, Luxembourg, Portugal, Romania, 
Slovakia, Slovenia

Withdrawal of 
authorisation 

Cyprus, Denmark, Estonia, Finland, Hungary, Italy, Belgium, Lithuania, Luxembourg, Poland, 
Slovakia, Slovenia

6.  SETTLEMENT 
Article 42 (2) of the UCC provides that “where administrative penalties are applied, they may 
take,  inter  alia,  one  or  both  of  the  following  forms:  (a)  a  pecuniary  charge  by  the  customs 
authorities,  including,  where  appropriate,  a  settlement  applied  in  place  of  and  in  lieu  of  a 
criminal penalty”.  

Although,  the  settlement  is  an  important  tool  as  it  allows  for  the  possibility  of  avoiding 
criminal  proceedings  or  long  and  costly  legal  procedures,  etc,  only  17  Member  States32  use 
this tool in respect of penalties in the customs field.  

The possibility to settle a case mainly concerns infringements where criminal proceedings can 
be avoided and the possibility to settle implies admission of guilt and payment of a penalty. 

7.  AMOUNT OF FINANCIAL PENALTIES AND IMPRISONMENT 
Based  on  the  data  assessed,  the  amount  of  the  financial  fine,  whether  administrative  or 
criminal,  and  the  years  of  imprisonment  which  may  be  imposed,  is  one  of  the  areas  where 
significant divergences emerge across Member States in terms of severity. 

The assessment uses a common methodology. The tables represented in the SWD allow for a 
detailed overview of the fines and years of imprisonment. The overall assessment takes into 
account the minimum and maximum applied when imposing a penalty, whether through a fine 
or imprisonment.  

  Fixed: from 200 euros to 600.000 euros (in Spain),  
  Calculated  against  a  percentage  of  the  evaded  duties  or  of  the  value  of  goods  (highest 

percentage is up to 600% in Spain) or  

  Per day fines (a day fine is a unit of fine payment that, above a minimum fine, is based on 
the offender's daily personal income.): 733,34 MS use a system of day fines; the maximum 

32  Austria,  Belgium,  Bulgaria,  Cyprus,  Czech  Republic,  Germany,  Greece,  Estonia,  France,  Ireland,  Italy, 

Latvia, Lithuania, Luxembourg, Malta, Slovakia, Spain,. 

33   In  Lithuania  the  fine  is  related  to  the  amount  of  money  approved  by  the  state  as  a  minimum  standard  of 

living   (which is 50 EUR). This approved standard is applied for all persons disregard their income. 

13 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
level of fines for natural persons is up to 6,000 minimum standard of living (50 EUR)in 
Lithuania.  The  maximum  level  of  fines  for  legal  persons  is  up  to  100.000  minimum 
standard of living (50 EUR), also in Lithuania. 

In terms of imprisonment, the time varies from a minimum of 1 to 30 days (in Estonia) to 10 
years (in Romania). 

8.  MITIGATING OR AGGRAVATING CIRCUMSTANCES 
When  determining  whether  and  to  what  extent  a  sanction  must  be  imposed,  the  authorities 
may have to  take into consideration the circumstances surrounding the cases. There may be 
elements for which more severe penalties are considered appropriate, i.e. aggravating factors. 
In  contrast,  authorities  may  also  need  to  take  into  account  mitigating  factors  to  reduce  the 
penalties. Both  of these  considerations are widely  applied in  the Member States, as they all 
take  aggravating  and  mitigating  factors  into  account  when  determining  the  level  of  the 
penalty. 

The overall analysis uses a common methodology by taking into account the Member States 
using the same aggravating or mitigating factors.  

The differences between the Member States are substantial. The analysis shows that there are 
17 different aggravating factors and 19 different mitigating factors, which may be considered 
when imposing penalties.  

The  most  widely  used  aggravating  factors  are  organised  crime  (19  Member  States)35, 
recidivism (24 Member States)36, fraudulent intent (17 Member States)37, amount of evaded 
duties (17 Member States)38, status of the offender (10 Member States)39 and use of violence 
(10 Member States)40. 

In  terms  of  mitigating  factors,  the  most  widely  used  are  cooperation  with  customs  (10 
Member  States)41,  negligence  (no  fraudulent  intent)  (13  Member  States)42,  immediate 

34 

In Denmark day fines range from 1.000 DKK to 100.000 DKK, regardless of income. 

35 Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, 

Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia.  

36   Austria,  Belgium,  Bulgaria,  Cyprus,  Czech  Republic,  Denmark,  Finland,  France,  Germany,  Greece, 
Hungary,  Italy,  Latvia,  Lithuania,  Luxembourg,  Malta,  the  Netherlands,  Poland,  Portugal,  Romania, 
Slovenia, Slovakia, Spain. 

37   Austria,  Bulgaria,  Cyprus,  Czech  Republic,  Denmark,  Estonia,  Finland,  Germany,  Greece,  Hungary, 

Luxembourg, the Netherland, Poland, Portugal, Slovenia, Slovakia.  

38   Austria,  Belgium,  Cyprus,  Czech  Republic,  Denmark,  Germany,  Greece,  Finland,  Hungary,  Italy, 

Luxembourg, The Netherlands, Poland, Portugal, Slovenia, Spain. 

39   Cyprus, Denmark, Estonia, Germany, Czech Republic, Hungary, Malta, Portugal, Slovakia. 

40   Austria, Germany, Estonia, Italy, Czech Republic, Poland, Portugal, Romania, Lithuania, Latvia. 

41   Austria, Cyprus, Estonia, Czech Republic, Finland, Germany, Latvia, Lithuania, Romania. 

42  Cyprus,  Denmark,  Greece,  Czech  Republic,  Luxembourg,  the  Netherlands,  Bulgaria,  Finland,  Germany, 

Portugal, Slovenia and Hungary, Malta. 

14 

 
                                                                                                                                                                                     
payment  (9  Member  States)43,  severity  of  the  infringement  (9  Member  States)44  and  good 
faith (9 Member States)45. 

9.  TIME LIMITS  
Analysis  of  the  data  provided  shows  that  time  limits  remain  one  of  the  most  divergent 
elements across Member States, thereby leading to divergences. Time limits are an important 
aspect  of  customs  penalties  regimes.  Clearly  defined  time  limits  help  to  increase  legal 
certainty and to ensure fair procedures.  

The assessment of time limits uses a common methodology by analysing three categories to 
which time limits may apply: time limit for initiating a procedure, time limit for imposing a 
sanction and time limit for executing a sanction.  

The data assessed shows that virtually all Member States apply time limits  in  their customs 
sanctioning systems. However, the situation is more complicated when it analyses the method 
used  when  imposing  time  limits.  Time  limits  for  initiating  a  procedure  and  time  limits  for 
imposing penalties seem to follow the same principles and limitations in time or, in any case, 
they appear to be interlinked.  

The  description  below  shows  that  some  Member  States  will  apply  the  same  limitations  for 
both categories of time limit (for example, if a procedure has to be initiated within 5 years, the 
sanction  will  have  to  be  imposed  at  the  end  of  these  five  years).  Other  Member  States  will 
grant a certain period for the procedure itself and the imposition of the penalties will benefit 
from a different period which commences at the end of the previous period. Data shows also 
that the calculation of time limits starts from the moment in time when the infringement took 
place.  

The  time  limit  for  initiating  a  procedureprevents  the  customs  authorities  or  the  judicial 
authorities from commencing, after a certain period, a procedure for imposing a penalty on an 
economic operator  for a customs infringement.  Such a time limit  is  in  effect  in  all Member 
States except Cyprus46.  
However, the time limit variations across Member States are quite significant: 

  Up to 5 years in Austria, Belgium, Greece, Finland, France, Croatia, Hungary, Latvia 
(where the lowest time limit applies - 3 days47), the Netherlands, Poland, Portugal and 
Slovakia 

  Between 5  and 10  years in  Czech Republic, Denmark48,  Ireland,  Italy,  Luxembourg, 

Malta, Romania, Spain49 and Slovenia 

43   Austria,  Bulgaria,  Cyprus,  Czech  Republic,  Estonia,  Germany,  Hungary,  Latvia,  Lithuania,  Romania  and 

Slovenia. 

44   Bulgaria, Cyprus, Czech Republic, Germany, Hungary, Romania, the Netherlands, Slovenia. 

45   Cyprus, Finland, Czech Republic, Germany, Hungary, Italy, Latvia Slovenia. 

46   Cyprus does not have specific time limits in the law; they act according to case law and general practice. 

47   The  administrative  offence  proceedings  must  be  initiated  within  three  working  days  from  the  day  of 
obtaining the relevant information, but the proceedings may be initiated not later than within one year from 
the  day  of  committing  the  offence  (in  case  of  a  continuous  offence  -  from  the  day  of  termination  of  the 
offence). (I.e.within 3 days after the information on the infringement has become available to the customs 
administration and no later than one year after the infringement has been committed/terminated). 

48   The time limit in Denmark varies from 2 years to 10 years 

15 

 
 
                                                           
  More than 10 years in Germany, Lithuania50 and Sweden 

As  regards  the  time  limit  for  imposing  a  penalty  after  the  procedure  has  been  initiated,  all 
Member  States  except  Cyprus,  Malta  and  the  Netherlands  use  such  atime  limit..  In  these 
cases, the proceedings have been initiated, but a penalty has not yet been imposed. Generally, 
this time limit is the same as the time limit for initiating a procedure and, as such, the penalty 
needs  to  be  implemented  within  the  time  limit  for  initiating  the  procedure.  There  are  also 
Member  States  where  there  is  no  time  limit  for  imposing  a  penalty  after  the  procedure  has 
been initiated. 

Concerning theTime limit for the execution of a sanction, the principle governing the initial 
time limit is that, once the decision of a penalty is adopted, the sanction should be enforced 
without delay. Ireland, Malta51, and Latvia, do not use such time limits. In Member States like 
Belgium, Estonia52, Finland, Germany, Hungary, Lithuania, Greece, the Netherlands, Poland, 
Portugal, Romania, Slovakia, Slovenia and Spain53, the time limit may vary between 1 to 20 
or 25 years. For the other Member States, the time limit may vary between 6 months (Czech 
Republic) to 15 years (Estonia).  

The  description  above  shows  that  some  Member  States  apply  the  same  limitations  for  both 
categories  of  time  limit  (for  example,  if  a  procedure  has  to  be  initiated  within  5  years,  the 
sanction will have to be imposed at the end of these five years), while other Member States 
grant a certain period for the procedure itself and the imposition of the penalties benefits from 
a different period which commences at the end of the previous period. Data shows also that 
the  calculation  of  time  limits  starts  from  the  moment  in  time  when  the  infringement  took 
place.  

TITLE V :  

CONCLUSIONS 

The  present  report  gives  an  updated  overview  of  the  situation  of  the  customs  systems  of 
penalties  in  Member  States.  The  assessment  is  based  on  the  information  provided  by  the 

49   The  limitation  period  applicable  to  the  crime  offences  is  5  years  or,  in  case  of  the  application  of  certain 
aggravating factors, 10 years. The limitation period applicable to administrative offences is 4 years.  So, in 
Spain the time limit is between 4 and 10 years. 

50   It should be noted that time limit of 10 years is in case of criminal infringement. In case of administrative 
procedure, the time limit is 2 years in Lithuania. So, in Lithuania the time limit is between 2 and more than 
10 years. 

51   In  Malta,  penalties  are  executed  immediately  once  a  decision  is  taken.  Since  there  are  only  criminal 
penalties (or out of court settlements instead of criminal proceedings), the penalty is executed as soon as the 
court pronounces its judgement (or the out of court settlement is reached), (the penalty is immediately paid 
together with the settlement).  

52   A  judgment  shall  not  be  executed  if  the  following  terms  have  expired  after  the  entry  into  force  of  the 
judgment: 1) three years from entry into force of a court judgment made in a matter concerning a criminal 
offence; 2) one year from entry into force of a judgment or decision made with regard to a misdemeanour. 

53   The limitation period applicable to the penalties imposed for the comission of crime offences is 5 years or, 
in  case  of  the  application  of  certain  aggravating  factors,  15  years.  The  limitation  period  applicable  to 
administrative penalties is 4 years. So, in Spain the time limit is between 4 and 15 years. 

16 

 
  
 
                                                                                                                                                                                     
 
Member  States  in  their  individual  country  sheets  and  gathered  in  the  general  comparative 
table.  

The main conclusions which can be drawn are the following:  

1.  Member  States  have  widely  used  their  power  to  apply  penalties  in  respect  of  UCC 
Articles  which  provide  for  an  infringement,  whether  these  are  specific  measures  for 
the purposes of the infringement under the UCC or drawn from national administrative 
or criminal legislation. 

2.  When  imposing  penalties  Member  States  use  systems,  which  allow  them  to  apply 
either  administrative  or  criminal  penalties,  according  to  the  severity  of  the 
infringement. 

3.  The  differences  of  approach  and  methodology  applied  when  choosing  a  sanction,  in 
terms of nature, severity, times limitations, etc, appear to be extremely significant. The 
assessment shows very few points of convergence from this perspective. In addition, a 
brief  comparison  with  previous  past  assessments  shows  that,  although  national 
legislation  has  evolved  across  Member  States,  significant  divergences  between 
Member States still exist. Even where convergence points can be identified amongst a 
high  number  of  Member  States  (for  instance  those  applying  both  criminal  and 
administrative penalties) the differences are still significant in terms of severity of the 
penalties, amounts of the fines or years of imprisonment.  

4.  As already pointed out in the Communication “Taking the Customs Union to the Next 
Level:  a  Plan  for  Action”,  which  was  adopted  in  September  2020,  the  lack  of  a 
common  system  of  infringements  and  penalties  may  create  legal  uncertainty  for 
businesses and possible distortions of competition within the internal market, resulting 
in  vulnerabilities  in  revenue  collection  and  weaknesses  in  policy  enforcement. 
Fraudsters  may  be  inclined  to  pick  and  choose  the  perceived  weakest  system,to  the 
detriment of the entire Customs Union.  

5.  Establishing  a  mechanism  which  would  make  it  possible  to  progress  towards  better 
convergence  of  the  penalty  systems  of  the  Member  States  is  being  considered.  The 
follow up to  this report will be outlined in the upcoming reform  of the  EU Customs 
Union. 

17