Various (rail) logistics companies are in trouble. Poland is going after them to get hundreds of millions of euros in customs fraud penalties, VAT and other duties. The problem? Poland’s demand comes retrospectively, after the shipments in question had already been cleared by, indeed, Poland itself. Moreover, these logistics companies are not responsible for customs checks, but are still targeted for past fraud by other parties, according to industry representatives.
A group of European associations, including CER, the European Association of Freight Forwarding, Transport and Customs Services (CLECAT), the International Federation of Freight Forwarders Associations (FIATA) and the combined transport association UIRR appealed to the Commission for an urgent intervention in the cases.
The situation is dire, follows from the letter jointly sent by the associations in August. They believe that market parties, among which are rail companies, are being pursued unjustly by Polish authorities. The latter consider the market parties to be jointly liable for fraudulent actions committed by their customers.
The Polish authorities have come to this conclusion after an EU investigation retrospectively found that particular rail imports between 2021 and 2026 through Małaszewicze were fraudulent. These shipments had originally been scanned and cleared by Polish authorities. For example, a case where e-bikes for online sale were declared as spinning bikes to evade anti-dumping duties only came to light years after the initial customs procedure.
Punishment without guilt
To the misfortune of the logistics companies, the responsible importers and warehouse operators are no longer traceable or financially solvent (in the cases reported to the appealing associations). Poland cannot receive customs duties, VAT, anti-dumping duties and penalties from these companies anymore.
As a result, Polish authorities now reason that the logistics companies, who are part of the supply chain, are jointly liable and are now pursuing them. This includes freight forwarders, railway undertakings, border agents, temporary storage authorisation holders, and customs agents.
Additionally, Poland is demanding years of accumulated interest from the targeted companies, claims CLECAT. In some cases, the demanded compensation exceeds the total value of the assets of these companies.
Poland is proceeding with its pursuit regardless of whether the companies had any ability to detect the fraud. This course of action is a threat for companies to operate with legal certainty, say the letter’s signatories. The Commission now needs to intervene to protect logistics operators, they argue.
Some risk insolvency
The total exposure across the sector runs into hundreds of millions of euros, believes CLECAT. Several companies risk insolvency before Polish courts have even examined their cases. Appeals can take up to five years, CLECAT adds.
Few, if any, customs service providers would be willing to make customs declarations at the EU’s external borders without Commission intervention, argue the associations. The consequence would be severe congestion at the borders.
Allocation of responsibility
The associations argue that the issue revolves around a fundamental issue about the allocation of responsibility. Poland seems to want to hold supply chain actors liable for a fraud detection failure by the Polish authorities themselves, the associations explain.
Currently, market operators manage logistics and paperwork, while public authorities are responsible for verification and enforcement. “If this division is altered after the fact because the actual perpetrators are no longer accessible, European logistics companies will struggle to manage, price, or insure against liability risks for fraudulent acts they lacked the legal authority or means to identify”, the associations write.
Ultimately, Poland’s actions risk assigning liability to whichever business remains solvent, solely because it is still reachable within the EU, the letter’s signatories conclude.