In a decision dated 11 February 2026, the French Supreme Court overturned a ruling of the Paris Court of Appeal that had held FedEx jointly and severally liable for import VAT on Apple products shipped from the US and incorrectly declared as low‑value consignments to benefit from a VAT exemption. The Supreme Court held that a customs broker may be held jointly and severally liable only where it has been expressly appointed as an indirect representative. (In direct representation, the agent acts in the name of and on behalf of the importer; and in indirect representation, it acts in their own name but on behalf of the importer, bearing joint liability.)
The Court of Appeal reasoned that, because the exporter was established outside the EU, FedEx could only have acted as an indirect customs representative and therefore should be held jointly liable for the payment of import VAT under article 293 A of the French Tax Code. This conclusion rested on a presumption drawn from the factual circumstances, without regard to whether any express power of attorney existed.
The Supreme Court rejected that approach, confirming that customs representation—whether direct or indirect—must be expressly conferred and cannot be presumed. Such representation cannot be inferred solely from factual circumstances or from the mere fact that the economic operator is established outside the EU. The court’s position is aligned with the Union Customs Code and with the settled case law of the Court of Justice of the European Union.
Absent an express mandate, the declarant cannot be considered an indirect customs representative and, therefore, cannot be held jointly and severally liable for import VAT. However, this interpretation introduces a customs-related risk: without a mandate, the customs broker is deemed to have acted in its own name and for its own account, exposing it to potential reassessments of customs duties by the authorities.
While the Supreme Court decision places clear limits on administrative practices relating to the presumption of indirect representation, it highlights the asymmetry of risk borne by customs brokers and importers in the EU and underscores the critical importance of properly formalising customs representation mandates.
David Hirsch
Andréa Lopes
Billel Tazamoucht
BDO in France
The Court of Appeal reasoned that, because the exporter was established outside the EU, FedEx could only have acted as an indirect customs representative and therefore should be held jointly liable for the payment of import VAT under article 293 A of the French Tax Code. This conclusion rested on a presumption drawn from the factual circumstances, without regard to whether any express power of attorney existed.
The Supreme Court rejected that approach, confirming that customs representation—whether direct or indirect—must be expressly conferred and cannot be presumed. Such representation cannot be inferred solely from factual circumstances or from the mere fact that the economic operator is established outside the EU. The court’s position is aligned with the Union Customs Code and with the settled case law of the Court of Justice of the European Union.
Absent an express mandate, the declarant cannot be considered an indirect customs representative and, therefore, cannot be held jointly and severally liable for import VAT. However, this interpretation introduces a customs-related risk: without a mandate, the customs broker is deemed to have acted in its own name and for its own account, exposing it to potential reassessments of customs duties by the authorities.
BDO Perspective
While the Supreme Court decision places clear limits on administrative practices relating to the presumption of indirect representation, it highlights the asymmetry of risk borne by customs brokers and importers in the EU and underscores the critical importance of properly formalising customs representation mandates.David Hirsch
Andréa Lopes
Billel Tazamoucht
BDO in France