All goods imported into or exported from the customs territory of the European Union must be declared and classified in conformity with the Combined Nomenclature (CN). In accordance with the so-called 'Basic Tariff Regulation', the European Commission ('the Commission') can approve explanatory notes and tariff classification regulations in order to classify a given set of goods in the CN. Their practical retroactive application however creates many problems both under EU law and the GATT 1994. The present paper analyzes such practical problems and sets forth possible solutions in light of the case-law of the Court of Justice of the European Union and of the so-called 'counter-limits doctrine' by the Italian and German Constitutional Courts. We argue that the retroactive application of explanatory notes and tariff classification regulations coupled with possible criminal and administrative sanctions against traders must be addressed by both the European Commission and the Court of Justice. We also argue that should the EU institutions fail to correct the above shortcomings, national constitutional courts, basing themselves on the counter-limits doctrine, must step in and set aside such aspects of EU tariff classification law and the national sanctions breaching fundamental freedoms.
Global Trade and Customs Journal