Burden of proof in European Customs Cases

Last month, the Amsterdam Court of Appeal rendered a decision in a case about anti-dumping levies on energy-saving bulbs. I am quite familiar with that subject. What attracted my attention was an additional remark made by the Court. First, the Court determined that argument wasn’t proven and added:

‘One may require from any reasonably acting government, on which the burden of proof lies, and taking into account the rights of the defendant, that it clarifies on which facts and circumstances the duty assessment is based.’

In fact, the Court argues that all Customs’ decisions—especially when the burden of proof is on Customs—should be well and clearly motivated. Therefore, the Court of Appeal could also refer to article 3:46 of the General Act on Administrative Law, but it chooses for the general terms of a reasonably acting government and the rights of the defendant. That is fair, in my opinion; decisions ought to be well and clearly motivated.

The Court of Appeal proceeds:

‘This implies that a mere referral to the investigative report as a whole, and the accompanying appendixes to the report, do not provide sufficient proof for Customs’ arguments.’

A simple reference to the entire investigative report is not acceptable according to the Court of Appeal. I concur with that.

I am under the impression that, apart from this decision, the rules of evidence are beginning to play an increasingly important part in administrative law. Some will probably think it an ever-increasing juridification of the relation with the government, but I think it is good that the evidence in a case is evaluated carefully. This decision strengthens the importance of evidence because it forces Customs to research thoroughly and to name the actions that contribute to the proof (and, of course, urges the defense to research which actions contradict the proof). Here is the link to the decision (in Dutch): www.rechtspraak.nl/ljn.asp?ljn=BV9876