Customs duties and contracts: AG Ćapeta clarifies Article 5 CRD (C-488/24)

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Last Thursday, AG Ćapeta delivered her opinion in Kigas (C-488/24), which primarily addresses the scope of information obligations under Article 5 of the Consumer Rights Directive. In this case, a consumer arranged for the transport of goods, such as motorcycles and washing machines, from Norway to Lithuania using a small transport company. They agreed price for the service was EUR 450. Based on the facts, both parties were taken by surprise when the shipment was stopped at the Swedish border and customs duties of approximately EUR 3,900 were imposed. The transport company paid these charges, delivered part of the shipment to the consumer, and withheld the remainder until the consumer reimbursed the customs payment. This raised the key question: Who bears the cost of customs duties when the contract is silent on the matter and how far service providers' duties to inform (about the main characteristics of the service and the price) stretch in this respect? 

The first part of AG's reasoning is unsurprising. It is evident that the potential payment of customs duties is one of the main characteristics of a contract for the international carriage of goods. After all, the physical transport of goods across borders requires carriers to ensure successful passage through border and customs checks (as reflected in para 62 of the opinion). Since Article 5(1)(a) CRD obliges traders to provide consumers with information on the main characteristics of the service prior to the conclusion of the contract, the carrier should indeed have informed the consumer that customs duties might be payable. 

The referring Lithuanian court views this a broader interpretation of the concept of an international carriage of goods contract (para 52), but in light of the CRD's objective, such an interpretation appears necessary (para 54). 

Based on the facts outlined in the opinion, this seems to have occurred in practice. There is mention that an employee of the carrier raised the issue of customs duties with the consumer, and that the consumer reassured them that no duties would be payable (para 7).

This brings us to the second part of the opinion: how detailed should the duty to inform be? Is the carrier obliged to verify whether customs duties will apply, identify the documents required by customs authorities, and estimate the potential charges? AG Ćapeta concludes that the scope of this duty depends on the nature of the carriage contract (para 67). If the carrier undertakes to act on consumers' behalf regarding customs - effectively concluding a brokerage agreement, they must liaise with the consumer on the specific documents required and provide an advance estimate of customs charges (para 72). AG Ćapeta acknowledges that custom tariffs for international carriage are not always predictable or fixed, but this does not absolve the carrier from providing a reasonable estimate and examples of applicable tariffs (para 76).

If, however, as in the present case, the contract is narrower in scope and limited to transportation, the carrier's information are correspondingly limited (para 82). This reflects the operational constraints faced by smaller carriers and the complexity of verifying the customs status of each item transported. Nevertheless, as AG notes (para 68), the carrier must inform the consumer, prior to contract formation, whether brokerage services are offered and who will be responsible for customs formalities. I agree that this enables consumers to make an informed choice, either to contract with the carrier or seek one that provides brokerage services (para 69). 

However, even smaller carriers occupy a stronger transactional and informational position than consumers, given their experience and repeated engagement in this market. Therefore, more should be required of them than merely stating that customs compliance is the consumers' responsibility. At a minimum, carriers should inform consumers of the types of documents typically required by customs, such as proof of the value of the goods. This duty does not extend to providing an exhaustive and detailed list of documents (para 88). Where brokerage service are not included, the carrier is not obliged to incorporate customs tariffs into the service price (para 89).

Overall, I find AG Ćapeta's opinion well-reasoned, striking an appropriate balance between consumer and trader interests. The applicability of Article 5 CRD is clear, but the scope of information duties often remains ambiguous under EU consumer law. Linking this scope to the breadth of the service provided is a sensible step towards greater legal certainty. Accordingly, where brokerage services are included, custom tariffs should be treated as part of the price to be disclosed, and carriers should assume greater responsibility for obtaining relevant information. Where brokerage services are absent, consumer should be clearly informed that they bear responsibility for customs compliance. Consumer protection objectives are nonetheless upheld if carriers remain obliged to guide consumers on the documents likely to be required and to warn them in advance that customs duties may apply.