Supreme Court ruling
On 15 February 2019, the Supreme Court issued an interesting ruling, which is relevant for proceedings in customs matters.
What was the case about?
What was this case about? An interested party filed a declaration for a consignment of fresh garlic bulbs on 20 November 2007. The import declaration listed Pakistan as the country of origin. However, the Inspector considered that the garlic bulbs came from China and, as a result, imposed an invitation for payment, also referred to as a post-tax assessment.
Interested party disagreed with this assessment. Proceedings followed. The case eventually ended up before the Customs Chamber of the Amsterdam Court of Appeal.
If and to the extent that the Inspector imposes an invitation for payment, in this case because, according to the Inspector, the garlic bulbs came from China, the Inspector bears the burden of proof. Thus, in this case, the Inspector had to prove that the garlic bulbs did not come from Pakistan but from China.
At first instance, the Customs Chamber ruled that the invitation to pay was rightly imposed. The Inspector would have sufficiently proved that the garlic bulbs originated in China, referring to a report from a US laboratory. The court agreed with the Inspector's contention and ruled, in short, that the Inspector had sufficiently proved that the garlic bulbs came from China.
The Supreme Court cased this decision of the Customs Chamber. Among other things, the Supreme Court ruled that the judgment of the Customs Chamber was insufficiently reasoned and therefore incomprehensible. The Supreme Court referred the case back to this same Customs Chamber to rule again on whether the Inspector had sufficiently proved that the garlic bulbs came from China.
It is important to note that the Netherlands has only one Customs Chamber with a small number of members c.q. counselors that rules on cases like this one. The rule in practice is that as soon as a judgment or ruling of a court of appeal is (partially) annulled by the Supreme Court, the case is referred to another court of appeal. For example, if the annulled judgment is delivered by the Amsterdam Court of Appeal, the case is referred to the 's-Hertogenbosch Court of Appeal. The rationale behind this is that another court without (prior) knowledge of the case will hear the case again taking into account the Supreme Court judgment.
However, the above case involved an invitation to pay as a result of an import declaration. A customs case, therefore. Such cases automatically end up before the Customs Chamber. The Netherlands therefore has only one Customs Chamber, which meant that after the Supreme Court ruling, the case ended up before the same Customs Chamber again. The Customs Chamber, which had thus previously delivered a judgment that was annulled by the Supreme Court because its rulings were insufficiently reasoned and incomprehensible, had to deliver another judgment on the same question, namely whether the Inspector had sufficiently demonstrated that the garlic bulbs came from China.
This thus effectively created the situation of the same Customs Chamber inspecting its own meat.
A butcher inspecting his own meat
The Customs Chamber's first ruling was delivered by Messrs Vrouwenvelder, Van Brummelen and Van Norden. The case thus came before the Customs Chamber again. What transpired? The second hearing of the case involved a counsel who had previously been involved in the annulled judgment.
The Customs Chamber again ruled that the Inspector had sufficiently proved that the garlic bulbs came from China. This ruling was delivered by mrs Bijlma, Hummel and again the aforementioned Van Brummelen.
Interested parties again could not agree and went to the Supreme Court for the second time. The Supreme Court ruled that the Court of Appeal had again rendered an incomprehensible judgment. The Supreme Court also ruled somewhat differently:
"With a view to the post-referral proceedings, the following remarks are worthy of note. The Court delivered the first judgment in partly the same composition as the contested judgment. The contested judgment is set aside on the same ground on which the first judgment was set aside. From the point of view of due process, the Court should hear and decide this case after referral in a completely different composition, that is, without counsel involved in the first or the contested judgment."
.... which is not desired even by the Supreme Court
The Supreme Court has thus instructed the Customs Chamber to re-examine whether the Inspector has met his burden of proof, but this should be examined by counsel who were not involved in the earlier hearing of the case. In doing so, the Supreme Court draws attention to due process. The undersigned fully agree with this judgment of the Supreme Court.
Mr C. Dion, former counsel to the Supreme Court, wrote about this earlier:
"If the case then lands back on the plate of exactly the same judges who previously had their own view of the case, it does not always seem easy for them to arrive at a different perspective because of the mere fact that the higher court ruled differently. If that is the case, the outcome after setting aside and referral is sometimes still judged from the old perspective again. This is not easy to digest for the party that was successful in the higher court, but thus still loses the case. In such cases, it will not always be possible to achieve a paradigm shift again in a second appeal (or cassation). A party that thus still gets the member on the nose sometimes feels that it would have been better if the case, after setting aside and referral, was not (re)adjudicated by the (largely) original formation, but by a newly composed formation. The Supreme Court has long ensured this by referring to another court as a matter of principle by default (for the possibility, see art. 423 Rv).
From the perspective that the law is not only there for the winner in a
proceedings, but that it is equally important that the loser has felt heard (always freshly), I would argue that, as a starting point, judges should rule in these kinds of cases in an entirely new composition after referral (or in second cassation). It may go without saying that such a new composition need not necessarily accept the paradigm of the other judge, such follows from our principle of independent judicial decision-making, but a new formation would avoid the appearance of bias, of a perhaps not very fresh perspective. So how should it be done? Simple, I would think, by always making it possible, after verníetisation and referral, for the parties to express their views on whether a different composition is desirable and by adopting the principle that a new formation is appropriate if one of the parties argues for it with good reason."
The authors of this blog are in full agreement with the above.
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