Forwarding, or allowing the forwarding of, goods listed on the EU Common Military List without a licence has, in recent years, led to several convictions on the part of the forwarder, airline and handling agent. One could say that it is self-evident that, if a party is active in the transport chain, that party must be aware that any specific formalities have been completed by the time this party takes active part in their section of the transport process, but this is not always the case.
Nonetheless, if a party is indeed involved in the transport process and identifies that a required licence is not available then this is seen as being a criminal offence with fines of up to Euro 80,000 not being exceptional. Whether there was deliberate intent is deemed irrelevant when to comes to a conviction.
Knowledge and intent
In several cases, the public prosecutor argued that intentionality was involved as the handling agent was aware, or could have been aware, of the nature of the goods and therefore should have ascertained if the required licences were present. Upon accepting a shipment, the handling agent however only has the information as cited in the transport agreement between the shipper and the airline, the air waybill, and does not have the underlying information from which it could be ascertained that the goods are on the EU Common Military List. This is different for the (customs) agent who generally undertakes customs formalities for the shipper. As crucial information is generally missing at the time that the handling agent accepts goods, it is therefore, in practice, almost an impossible task for the handling agent to recognise military goods. Nevertheless, in recent years handling agents have been subjected to high fines for the export (or intention to export) of goods without the required licence.
Who is responsible for applying for a licence?
In recent years in addition to the (customs) agents and airlines, handling agents and general sales agents have also been held liable by Customs as a consequence of not having met the required licensing obligations. However, after many years of discussion on the role of the handling agent within the existing legislation and following the acquittal of a General Sales Agent (GSA) in an appeal before the Amsterdam Court, there now appears to be some clarity.
Article 5 Decision Strategic Goods / Article 3 Implementing Rules Strategic Goods:
‘A licence for military goods is to be applied for by the competent person, or by the person who will complete the customs formalities on his behalf or, if no customs formalities are to be undertaken, by the person who will transport the goods’.
Explanation of the terms
Legally, the designated competent person would be the person who, as owner, has the right to decide about the goods. This should not be confused with a party who has the goods under his management at the time that an offence is identified. In practice this applies to the shipper and it is the customs agent who performs the customs formalities on behalf of the shipper. Here too the legislation can easily be misinterpreted by claiming that the handling agent may also be designated as being co-responsible as it is the handling agent who, within the transport chain, completes customs formalities relating to customs storage or, for example, the formalities to complete the customs transit procedure. Last but not least, who transports the goods? The identification within the logistical chain of the relevant parties on the grounds of the current legislation is not always clear to “everyone”.
In any event, on the basis of recent jurisprudence, it has become clear that a GSA is not the transporter of goods. The GSA acts as a sales agent for the airline and is not the party physically transporting the goods.
Also, in Deember 2021, it was revealed that the national Customs office and the POSS team (Team Precursors, Origin, Strategic Goods, Sanction Legislation) have revised their position with respect to customs formalities being performed by a handling agent under the framework of the Decision Strategic Goods. The consequence of this is that various warnings issued to handling agents regarding breaches of the legislation have now been revoked. The handling agent acts as an auxiliary to the transporter and is not the party performing customs formalities on behalf of the competent person.