1. Be on time!
The submission of an objection is subject to strict deadlines. This deadline is six weeks and starts from the date of the notice or the invitation to pay (UTB). The objection must be submitted to Customs within this deadline. It is essential that the objection is sent within this period and received within a week after the expiration of the deadline. Delays in the post or other reasons are the responsibility of the interested party. The burden of proof for timely sending generally lies with the objector. If someone else is submitting the objection on your behalf, ensure that the objection arrives on time.
2. Who is the interested party?
Only the 'interested party' can file an objection against a UTB. Is the objection filed on someone else’s name, it is deemed inadmissible. Depending on how the customs declaration was made – the form of representation – a party may or may not be an interested party. If the declaration was made by a customs agent (or by someone else) in their own name and behalf, they are the interested party. If the declaration was made using direct representation, the represented party (the client) is considered the interested party.
It is possible for someone other than the interested party to submit the objection, but they must do so on behalf of the interested party.
3. Immediately meet all formal requirements
The objection must comply with certain legal requirements. Although Customs must give you the opportunity to correct certain defects, it is wise to ensure the objection meets all requirements directly when filing it. The following requirements apply:
· The objection must include a date;
· The objection must be signed;
· The objection must clearly indicate against which decision the objection is made. It is preferable to attach a copy of the decision;
· If you are an authorised representative, include a power of attorney;
· The objection must be submitted in Dutch;
· The objection must include the grounds or reasons for the objection. If necessary, submit the objection on additional grounds.
4. Be professional and clear
Many objections are submitted by employees of companies who are not professionals in this field. This is fine, but it often results in objections that are overly polite and formal. For example: "I hope it pleases you to grant the objection." or "It cannot be that we do not win while others do"). We advise to use a professional and direct writing style. Clearly describe what you want and what you think. A sentence like “I would like to request that you agree with me and grant this objection procedure” is less convincing than “Therefore, I am of the opinion that the UTB cannot stay in place and the objection should be granted.”
5. Justify your objection: being right is not the same as winning
Even if you are confident of being right, it does not always mean you will win. In some cases, it is obvious that the inspector has made an incorrect decision, for example because additional documentation later comes to light or because there has been a change in perspective. However, in most cases, there is something to be said for both positions (the inspector’s and the interested party). You therefore need to provide a solid justification for why you believe you are right. Often, a simple assertion is insufficient. It is usually necessary to refer to specific facts and circumstances, legislation, and case law.
6. Cast multiple anchors
An objection can consist of mentioning one ground, but it is also permissible to present several different grounds. Just as with a ship, success is more likely when multiple anchors are cast in the objection procedure (or on appeal).
In practice, we find that most interested parties pay attention to the substantive aspects but less or not at all to the formal aspects. The substantive aspects include classification, customs value, or origin, while the formal aspects relate to how the UTB was issued. For instance, if a physical inspection took place, was the declarant notified? Was a pre-announcement sent before the UTB was imposed? Was the UTB imposed on the correct legal entity? Formal aspects can lead to the annulment of the UTB even if the interested party is substantively wrong.
7. Request deferral of payment
“The submission of an objection does not suspend the effect of the decision,” this statement is written in our legislation. This means that the amount of an invitation to pay must be paid during the objection procedure or security must be provided. Only in exceptional cases, the Customs Collector can waive the requirement for providing security. Our experience shows that this is indeed very exceptional.
Formally, a request for deferral of payment must be included in the objection. To avoid disputes on this matter, it is preferable to clearly state in the objection that a deferral of payment is requested and for what amount.
8. Request access to the case file and request for a hearing
It is often said that people find the objection procedure a “ritual dance.” This may be the case in some instances. To gain a proper and complete understanding of what the inspector has done in the objection procedure – and often of what occurred in the previous phase – it is useful to inspect the case file. The case file should contain all the information and documentation the inspector used in their reconsideration to impose an UTB. Copies of documents from the file can be requested if necessary.
Subsequently, before the inspector issues a final decision, a hearing can be conducted. In this hearing, the interested party – or their representative – can orally explain their objection once again and engage in dialogue with the inspector. It is also wise to thoroughly prepare for the hearing and take notes as a guideline for the topics (and justification) you wish to discuss.
Please note that it is now also possible to conduct a hearing by telephone or via a conference call.
9. There are other options
Filing an objection is often the standard and necessary legal remedy, but there are other options that may sometimes be better. Consider applying for a BTI (Binding Tariff Information) or requesting a refund for paid customs duties. Sometimes, it is useful to have another discussion with the official who issued the UTB. A well-motivated conversation can even lead to the avoidance of issuing a UTB altogether. So, consider which option works best for you.
10. Stick to your expertise
Some cases and files require specialized knowledge and it is advisable to have an expert handle your interests. We often see that a company first submits the objection and handle the procedure themselves before later engaging a specialized lawyer. This can be done, but it is not always ideal. In an objection, statements may already have been made that later prove less fortunate. Or certain grounds were not presented at all and thus not considered in the inspector's reconsideration, resulting in the objection being rejected, even though it later turns out that the objection was valid.