On 14 April 2026, a customs broker based in Le Havre, with sixty employees, receives a notice of assessment (avis de mise en recouvrement, AMR) for 192,000 euros. The duties and VAT relate to containers of clothing cleared on behalf of a company in Aubervilliers, a client for two years and now in judicial liquidation. The declarations were lodged under indirect representation, because the client had no deferred payment facility and the broker was using its own. The client never paid the duties. The liquidator will not reply for months, and the administration turns to the only solvent debtor it knows.
The broker’s managing director reasons with common sense: he merely passed on documents; he imported nothing, sold nothing and earned nothing other than his fee as a service provider. He is wrong. By choosing indirect representation, the broker became the declarant, and the Union Customs Code draws consequences from this that French case law applies without hesitation. This page explains what the customs representative risks, depending on the type of representation chosen, and what it can do to limit its exposure.
1. Direct or indirect representation: the choice that decides everything
Any person may appoint a representative in dealings with customs (Art. L. 221-4 of the Customs Code, Art. 18 of the Union Customs Code). The customs representative then acts in one of two ways. Under direct representation, it acts in the name and on behalf of its client: the declaration is the client’s, and the client is the declarant. Under indirect representation, it acts in its own name but on behalf of its client: the declaration is its own.
The difference looks formal. It is not at all. The declarant is the person who bears the obligations attached to the declaration, who answers for its accuracy and who becomes the debtor of the debt. Under direct representation, the representative remains an agent, and its errors bind its principal first. Under indirect representation, it is a party to the customs operation. A type of representation is therefore not chosen the way one chooses an invoice format.
Article 19 of the Union Customs Code adds a rule that operators know poorly. The representative must state that it is acting on behalf of the person represented and specify whether the representation is direct or indirect, and it must be able to prove its empowerment. Failing that, a person who states that it is acting as a representative without being empowered to do so is deemed to be acting in its own name and on its own behalf. A broker that clears goods without a written mandate, or on the strength of a mere email, therefore runs the risk of being treated as a fully fledged importer.
This is the first thing to check. What type of representation appears in the declarations? Is there a mandate, and what does it say? Does the mandate cover the period and operations referred to in the notice of assessment? The answers to these three questions determine most of the risk, before any discussion of the merits.
2. Registration of the customs representative
The Customs Code imposes a prerequisite. Any person acting as a customs representative within the meaning of Articles 18 and 19 of the Union Code must first be registered (Art. L. 221-5). The text provides for three exceptions: persons not established in the Union who carry out the formalities referred to in Article 170(3) of the Union Code; persons established in the Union who lodge temporary admission declarations; and persons who lodge declarations occasionally, up to three per year. The conditions for registration, maintenance, suspension and revocation of the status, as well as sub-delegation of the mandate, are matters for regulations (Art. L. 221-6).
Registration is not a mere administrative formality. It comes with transparency obligations towards clients. Article R. 221-28 thus requires the representative to state on invoices issued to its principals, in addition to the particulars required by Article 289 of the General Tax Code, the date on which the duties and taxes paid on importation under Articles L. 321-7 to L. 321-10 were paid to the public accountant. Failure to do so is punishable by a fine of 3,700 euros (Art. R. 515-7, 3°). The rule protects the client against a representative that collects duties without paying them over; it also protects the representative, whose invoice proves what it paid and when.
A freight forwarder that organises transport without lodging declarations itself does not need to be registered. But the line is thin in practice. As soon as the company signs or submits declarations in a client’s name, it acts as a representative, and the questions of its registration, its mandate and its type of representation arise in the same terms as for a declared customs broker.
3. The debt: who is the debtor, and for how much
The Union Customs Code identifies the debtor of the import debt in Article 77(3). The declarant is the debtor. In the event of indirect representation, the person on whose behalf the declaration is made is also a debtor. And where the declaration is based on information leading to all or part of the duties not being collected, the person who provided that information, knowing or reasonably expected to know that it was false, is also a debtor.
The indirect representative and its client are therefore co-debtors, and Article 84 of the Code makes them jointly and severally liable for payment of the debt, which in practice means that the administration may claim the full amount of the duties from either of them, at its choice, without having to divide its claim, without first having to exhaust enforcement against the client, without even having to explain why it is pursuing the broker rather than the importer, and that the representative can rely neither on its client’s default, nor on the length of the business relationship, nor on the fact that it derived no benefit from the operation beyond its fee. The administration is not required to start with the importer, even a solvent one, and it almost never starts with it when it is subject to insolvency proceedings.
The Cour de cassation has extended this reasoning to import VAT. In a published judgment of 24 January 2024 (Cass. com., no. 21-17.776), it held that a broker acting under indirect representation is jointly and severally liable for import VAT and, in return, benefits from the statutory exemption from providing a guarantee for that tax. The same solution applies to a direct representative that used its own deferred payment facility to clear its client’s goods. The Court added that the administration’s failure to require a guarantee is not a fault on its part. The Le Havre broker, which was using its own facility, will therefore not be able to criticise customs for having allowed it to become exposed.
On the same day, the Commercial Chamber delivered a second published judgment completing the picture (Cass. com., 24 January 2024, no. 22-13.103). Where the administration does not challenge the duties declared, and merely recovers amounts that have not been paid, it is not required to organise a prior adversarial exchange before issuing the notice of assessment. A representative that discovers that a client has not paid duties assessed on the basis of its own declarations therefore has, at that stage, no procedural complaint to raise. It is left with the merits, and with its recourse against its client.
Our position is firm, and it is not one that customs clearance professionals like to hear. Indirect representation using the broker’s deferred payment facility amounts, in practice, to guaranteeing the client’s customs and tax debts on importation, without limit and without consideration. It should never be agreed to without an analysis of the client’s solvency, appropriate security and a fee that reflects this risk. Many brokers do it for commercial convenience; it is a mistake that the case law does not forgive.
4. Penalties: declarant, principal and representative
The debt and the fine follow different logics. Duties are payable because goods have been imported; the fine penalises an offence. On this second ground, the Customs Code organises liability in several circles.
The first is that of the declarant. The person who lodged a declaration is liable for the omissions, inaccuracies and irregularities it contains, without prejudice to recourse against its principal; where the declaration was drafted in accordance with the principal’s instructions, the principal is liable to the same penalties as the signatory (Art. L. 522-1, formerly Art. 395). The second is that of the registered customs representative: without prejudice to the previous rule, it is liable for the operations it carries out, but it is liable to prison sentences only in the case of personal fault (Art. L. 522-2, formerly Art. 396).
The third, wider circle is that of persons with an interest in the fraud. Article L. 523-1 includes anyone who has an interest in the fraud, cooperates in a fraudulent scheme, knowingly conceals the conduct of the perpetrators or knowingly buys or holds smuggled goods. Persons convicted of the same act of fraud are jointly and severally liable for the sums in lieu of confiscation, the fines and the costs, as are the owners, importers and exporters of the goods involved in the fraud, interested persons, accomplices and those who adhered to the fraud (Art. L. 524-1).
An uncomfortable position, then, when the client commits fraud. The broker answers for inaccuracies in declarations it drew up itself, even if it did not know that the invoice was understated. Its good faith does not remove the contravention, which is a strict liability offence; it does, however, count for settlement, for the court’s adjustment of penalties and for the exclusion of any prison sentence. Proof of that good faith is built before the inspection, through internal procedures, requests for documents from the client and a record of the instructions received.
5. Turning against the client and protecting oneself in the contract
A broker that pays its client’s debt has recourse against it. Article L. 522-1 expressly preserves that recourse for the consequences of inaccuracies, and the ordinary law of joint and several liability allows a co-debtor that has paid to claim from the other the share it owes, in this case the whole amount where the debt arose from an operation carried out solely on the client’s behalf. The recourse exists. It is sound. It is economically worthless when the client is in liquidation, which is precisely the situation in which the administration turns to the representative.
Protection must therefore be built upstream, in the mandate and in the general terms and conditions. The representation mandate should specify in writing the type of representation adopted, the scope of the operations covered, the duration, the information the client undertakes to provide and its accuracy, the client’s obligation to reimburse duties and taxes advanced without delay, and the security required where the broker commits its own deferred payment facility (bank guarantee, security deposit, credit ceiling, right to suspend operations in the event of non-payment). Nothing exotic. Yet few mandates provide for this with the necessary precision.
Traceability of instructions matters as much as the contract. A broker that can produce the invoice, the technical data sheet and the client’s email indicating the tariff heading to be used has an argument to show that the declaration was drafted in accordance with the principal’s instructions (Art. L. 522-1, para. 2), and to establish that the inaccurate information came from the client, which is a debtor on that basis within the meaning of Article 77(3) of the Union Code. A broker that classified alone, without documents, on the basis of a vague commercial description, bears the risk of the error alone.
6. When customs turn to the representative: the steps to follow
First, rebuild the file. Mandate, declarations, type of representation, deferred payment account statements, exchanges with the client: everything must be gathered before replying. Next, separate what relates to the debt (duties and VAT) from what relates to penalties (fines, confiscation), because the arguments, time limits and interlocutors are not the same.
As regards the debt, the notice of assessment is challenged before the authority that issued it within three years of its notification (Art. L. 331-1), then, where appropriate, before the judicial court (tribunal judiciaire) within two months of the reply or of the expiry of the six-month period available to the regional director (Art. L. 332-2). The challenge does not suspend enforcement, but the person liable may ask to defer payment by offering security (Art. L. 331-2). Limitation should always be checked, declaration by declaration.
As regards penalties, the representative has every interest in asserting its own position very early: declarations drawn up on instructions, documents supplied by the client, absence of personal fault. A settlement can be negotiated separately from the client’s, and it is sometimes agreed on more favourable terms where the representative shows that it was deceived. That still has to be shown with documents, not assertions, which means having kept, for each disputed operation, the invoice and packing list sent by the client, the exchanges in which the client indicated the value, origin or tariff heading to be used, any warnings the declarant sent when a price seemed abnormally low, and a record of the replies received, because it is that chronology, far more than statements of principle about the quality of service, that persuades an investigator or a court that the representative was deceived rather than turning a blind eye. Without documents, there is no good faith.
In the Le Havre case, the analysis leads to an unwelcome conclusion. The broker is jointly and severally liable for the duties and VAT, and the absence of a guarantee gives it no recourse against the administration. It can check limitation, challenge the amount if the basis of assessment is open to question, lodge its claim in its client’s liquidation and, for the future, review its mandates and its policy on the use of its deferred payment facility. That is not nothing. But it is not what it was hoping for.
The firm advises customs brokers, freight forwarders and importers on drafting representation mandates and assists them in challenging notices of assessment and negotiating settlements. Hervé Guyader is co-author of the Guide Lamy des procédures douanières, whose update following the recodification of 1 May 2026 is under way. For an overview of all our work, see our page customs lawyer in Paris; for a current matter, contact the firm, with a reply within 24 business hours.
On the same path: customs fines and settlement; responding to the adversarial exchange within thirty days; limitation of the customs debt; Authorised Economic Operator status.
If the matter turns into a reassessment, see our page on challenging a French customs reassessment.
This analysis is part of the firm’s work in international trade law.
Frequently asked questions
Is the customs broker liable for its client’s duties?
It depends on the type of representation. Under indirect representation, it acts in its own name and becomes a debtor of the debt in the same way as its client (Art. 77(3) of the Union Customs Code), jointly and severally with it (Art. 84). Under direct representation, it acts in its client’s name, and the client is the declarant and the debtor, unless the representative itself knowingly provided inaccurate information.
Must the customs representative pay import VAT?
Yes if it acts under indirect representation: the Cour de cassation holds it jointly and severally liable for import VAT, with the benefit of the statutory exemption from providing a guarantee (Cass. com., 24 January 2024, no. 21-17.776, published). The solution also applies to a direct representative that used its own deferred payment facility. The fact that customs did not require a guarantee is not a fault on the part of the administration.
Must a customs representative be registered?
Yes. Any person acting as a customs representative must first be registered (Art. L. 221-5 of the Customs Code), subject to three exceptions: persons not established in the Union who carry out the formalities of Article 170(3) of the Union Code, temporary admission declarations, and occasional declarants up to three declarations per year.
Does the representative face criminal prosecution?
It is liable for the operations it carries out and may therefore be prosecuted for inaccuracies in the declarations it lodged (Art. L. 522-2 of the Customs Code). It faces a prison sentence, however, only in the case of personal fault. Where the declaration was drafted in accordance with the client’s instructions, the client incurs the same penalties (Art. L. 522-1).
How can a customs broker protect itself?
Through a written mandate specifying the type of representation and the operations covered, the client’s obligation to provide accurate information and to reimburse duties advanced, and security where the broker commits its deferred payment facility. Keeping the instructions and documents supplied by the client is just as important: it makes it possible to show that the error came from the client.
References: Union Customs Code (Regulation (EU) No 952/2013 of 9 October 2013), Art. 18, 19, 77(3), 84, 170(3); Customs Code, Art. L. 221-4 to L. 221-6, L. 331-1, L. 331-2, L. 332-2, L. 522-1, L. 522-2, L. 523-1, L. 524-1, R. 221-28, R. 515-7, in force since 1 May 2026 (Ordinance No. 2026-265 and Decree No. 2026-266 of 8 April 2026); Cass. com., 24 January 2024, no. 21-17.776, published in the Bulletin; Cass. com., 24 January 2024, no. 22-13.103, published in the Bulletin; Doctrine: Guide Lamy des procédures douanières, Wolters Kluwer, co-authored by Hervé Guyader (update in progress).