Supreme Court considers validity of customs seizure in absence of company representative

The Supreme Court has ruled that a customs seizure on company premises is valid as long as it takes place in the presence of someone who behaves as a company representative with regard to the customs agents, even if he or she is not a representative of the company and even if the real representative is not there.

In 2009 customs agents in Marseilles visited the premises of a company and seized various goods imported from China by the company, pursuant to the Customs Code.

After the seizure, the company at issue and its manager were sued before the French criminal courts for trademark infringement and breach of the Customs Code. The criminal court of first instance found the defendants guilty. The defendants lodged an appeal before the Aix-en-Provence Court of Appeal by claiming, in particular, that the seizure was not valid because it was not performed in the presence of the company representative.

In its September 11 2012 decision, the Aix-en-Provence Court of Appeal upheld the first-instance decision by ruling that the seizure was valid. The court then sentenced both defendants to fines and the individual to suspended prison terms.

On further appeal, the Supreme Court confirmed the decision of the Aix-en-Provence Court of Appeal. The Supreme Court found, in particular, that the father of the manager of the company had presented himself as the company representative to the customs agents, who believed that they were in the presence of a company representative during the seizure.

It is therefore important that employees who have no power to represent their company do not behave as if they have such power. This also applies in case of infringement seizure (saisie-contrefaçon) performed by a French court bailiff.

Camille Pecnard, Hogan Lovells International LLP, Paris