Background

On 26 March 2026, the Amsterdam Court of Appeal ruled that assessments for import VAT, customs duties and interest were correctly issued to a customs agent. The case concerned the importation of e-commerce goods into the Netherlands, where the customs agent used its own GPA licence and included the VAT number of a logistics service provider holding an Article 23 import VAT deferment licence. 

The judgment is relevant for customs representatives, logistics service providers, fulfilment operators and businesses using Article 23 import VAT deferment in the Netherlands. The Court makes clear that the use of an Article 23 licence is not merely an administrative matter. The goods must actually be destined for the licence holder and the role of the customs representative must be properly reflected in the customs declaration.

Facts and circumstances

The taxpayer was a customs agent that handled import and export formalities for its customers. It held a GPA licence allowing goods to be released for free circulation through entry in its records, followed by periodic supplementary declarations. This licence had been applied for and granted on the basis that declarations would be made in the customs agent’s own name and for its own account.

The customs agent filed import declarations for e-commerce goods on behalf of a logistics service provider. The logistics service provider held an Article 23 licence. Under Article 23 of the Dutch VAT Act, import VAT may, subject to conditions, be shifted to the periodic Dutch VAT return of the licence holder instead of being collected by Dutch Customs at import. 

However, the logistics service provider was not the purchaser or seller of the goods. It did not receive payments for the goods, the goods were not invoiced to it and it did not use the goods in its own business activities. Its role was limited to arranging logistics services, including transport, customs clearance and onward distribution to customers in other EU Member States.

The customs agent did have a power of attorney to act as direct representative of the logistics service provider.  However, the declarations did not state that the customs agent acted in the name and on behalf of the logistics service provider. The GPA declarations did include the details and VAT number of the logistics service provider, as a result of which import VAT was initially not collected through a customs assessment. 

Dutch Customs subsequently concluded that Article 23 had been incorrectly applied and issued assessments to the customs agent for import VAT, customs duties and interest. 

Decision of the Court

The Court first held that Article 23 of the Dutch VAT Act can only be applied if two cumulative conditions are met. The taxable person must hold an Article 23 licence and the imported goods must be destined for that taxable person. If those conditions are not met, import VAT is collected under the normal import VAT rules by Dutch Customs. 

According to the Court, the goods were not destined for the logistics service provider. The logistics service provider had not acquired the goods from a third country and did not use the goods in its own business activities when they entered the Netherlands. The facts showed that the logistics service provider only provided logistics services to its customers. It did not purchase the goods, did not sell the goods, did not receive payments for the goods and did not have an economic role in relation to the goods.

The Court therefore held that the Article 23 licence of the logistics service provider could not be applied to these imports. The mere fact that a party holds an Article 23 licence is not sufficient. For each import, it must be assessed whether the goods are actually destined for the licence holder. A customs agent cannot apply the customer’s Article 23 licence more broadly than the licence holder itself could.

The Court then considered who should be regarded as the declarant and debtor. The customs agent argued that it had filed the declarations in the name and on behalf of the logistics service provider, meaning that the assessments should have been issued to the logistics service provider rather than to the customs agent. The Court rejected this argument. 

Although the customs agent held a power of attorney for direct representation, it had not stated in the declarations that it acted as direct representative. Under the Union Customs Code, a customs representative must state in its dealings with the customs authorities that it acts on behalf of the represented person and must indicate whether the representation is direct or indirect. If such a statement is not made, the representative is deemed to act in its own name and for its own account.

It was also relevant that the customs agent’s GPA licence had been applied for and granted for declarations in its own name and for its own account. The declarations therefore reflected the customs agent’s own position as declarant, not a position as direct representative. The fact that Customs was aware of the existence of a power of attorney did not change this. The capacity in which the representative acts must be apparent from the declaration itself. 

The Court therefore confirmed that the customs agent was correctly regarded as the declarant and debtor for both import VAT and customs duties. The assessments were validly issued to the customs agent. 

The arguments based on fiscal neutrality, legal certainty and due care were rejected. According to the Court, the principle of fiscal neutrality cannot override the statutory conditions for applying Article 23. Nor could the customs agent derive legitimate expectations from the mere existence of the Article 23 licence. The fact that the licence had been granted and was later withdrawn did not alter the conclusion that, in this case, the goods were not destined for the licence holder. 

Practical impact

This judgment is a clear warning for customs representatives filing declarations for logistics service providers, fulfilment operators, e-commerce businesses and platform structures. In these supply chains, the party arranging the logistics is not automatically the party for whom the goods are destined. 

Customs representatives must therefore clearly determine for whom they file the declaration and in what capacity they act. If they act as direct representative, this must be expressly and correctly stated in the customs declaration. A power of attorney in the file is not sufficient. The declaration itself must clearly show whether the representative acts as direct or indirect representative. If this is not done, the representative may itself be treated as the declarant and debtor. 

Customs representatives must also critically assess whether an Article 23 licence can actually be used. It is not sufficient that the customer holds an Article 23 licence or that the customer’s VAT number is included in the declaration. The goods must actually be destined for the licence holder. This requires an assessment of the factual and commercial role of the relevant party: does it purchase the goods, sell the goods, bear the economic interest, receive invoices for the goods and use the goods in its business activities? 

For logistics service providers, the judgment is equally important. If they only act as a logistics intermediary, without acquiring or using the goods themselves, their Article 23 licence cannot automatically be used for third-party goods flows. This also applies where they are operationally involved in transport, customs clearance and distribution. 

The judgment underlines that import processes must be properly structured from both a VAT and customs perspective. The combination of GPA declarations, Article 23 deferment and customs representation requires a robust upfront assessment. If the licence used, the actual flow of goods and the declaration data do not align, the financial exposure can be significant. 

Action points

Businesses and customs representatives should review their import processes against the following points: 

  • Is it established for each goods flow who the actual consignee or destined party is? 
  • Where Article 23 is used, is it verified that the goods are actually destined for the licence holder?
  • Does the customs licence used align with the capacity in which the declaration is filed? 
  • Is the declaration clear on whether the customs representative acts as direct or indirect representative?
  • Are powers of attorney, customer instructions and declaration profiles consistent with the actual flow of goods? 
  • For logistics service providers, is it clear whether they act as importer, represented party or only as logistics service provider?

RSM view

This judgment confirms that Dutch Customs will closely assess both the formal and substantive conditions for applying Article 23 deferment and customs representation. The risk is not limited to whether import VAT would ultimately be recoverable. The risk arises earlier, at the level of the customs declaration: who is named as declarant, which licence is used and whether the representation is correctly reflected. 

For customs representatives, this means that reliance on customer instructions, VAT numbers or licences is not enough. They must actively control and document their role in the declaration process. For businesses using import structures involving logistics service providers, the Article 23 position should be tested against the actual flow of goods.

A practical review of import flows, Article 23 usage, GPA processes, powers of attorney and declaration profiles is therefore recommended. This is particularly important for e-commerce, fulfilment and high-volume import flows, where an incorrect set-up can lead to substantial assessments for import VAT, customs duties and interest.

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