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Mandatory declaration of cash over €10.000 or cash seizure even in airport transit zones within the EU

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Mandatory declaration of cash over €10.000 or cash seizure even in airport transit zones within the EU

Travelers Carrying More Than EUR 10,000 in Cash Have to Declare the Money Even in a Transit Country

Mandatory declaration of cash over €10.000 otherwise cash in airport transit zones within the EU

When is it compulsory to declare cash in excess of €10.000 for those travelling by air within the EU?

The obligation to declare all cash of more than €10.000 also applies in the international transit zones of airports located in the territory of the Member States of the European Union, according to the Court of Justice of the EU.

As noted by the CJEU (Judgment C-17/16, El-Dakkak), a person travelling from a non-EU Member State to another non-EU Member State, and passing through an airport located in the territory of the Union, is, during transit, subject to this declaration obligation.

Background

In 2010, Intercontinental, a company incorporated under the law of Benin, entrusted Oussama El Dakkak with the transport of US dollars from Cotonou (Benin) to Beirut (Lebanon) by air, with a stopover at Roissy-Charles-de-Gaulle airport. During his transit through the airport, Mr El Dakkak was checked by customs officials, who found that he was in possession of EUR 3.900 and USD 1.607.650 (approximately EUR 1.511.545) in cash. As a result, O. El Dakkak was charged with violating the obligation of every person entering or leaving the Union to declare cash of a value equal to or greater than 10,000 which he carries. This obligation is provided for by a Union regulation (Regulation (EC) No 1889/2005).

After the criminal proceedings had been closed on the ground of procedural irregularity, Mr El Dakkak and Intercontinental brought an action before the French courts seeking compensation for the damage suffered. In their view, Mr El Dakkak did not breach the obligation to declare laid down in the regulation, since that obligation does not apply to a passenger who, in the course of a journey from a non-member State of the European Union to another non-member State of the European Union, merely passes through the international transit area of an airport located in the European Union.

The French Cour de cassation (Court of Cassation) asks the Court of Justice to clarify whether, in such a case, Mr El Dakkak can be regarded as having entered the European Union and is therefore subject to the obligation to make the declaration provided for in the regulation. Decision

In its judgment, the Court held, first of all, that the concept of entry into the Union defines the movement of a natural person from a place outside the territory of the Union to a place within that territory. Next, the Court points out that the airports of the Member States form part of the territory of the Union, that the regulation does not exclude the possibility of applying the obligation to declare in the international transit zones of those airports and that the provisions of the Treaties do not exclude those zones from the territorial scope of Union law and do not provide for an exception relating to those zones.

Consequently, any person who, like Mr El Dakkak, disembarks from an aircraft from a non-member State of the European Union at an airport situated in the territory of a Member State and remains in the international transit zone of that airport pending transfer to another aircraft bound for another non-member State of the European Union must be regarded as a person who has entered the Union and is subject to the obligation to declare. The Court adds that the possibility of applying the obligation to declare to the international transit zones of airports situated in the territory of the Union is also in accordance with the purpose of the regulation. In particular, the purpose of the declaration requirement laid down in the regulation is to prevent, deter and avoid the introduction of the products of illegal activities into the financial system and their investment after they have been regularised. Having regard to that objective, the Court considers that the concept of ‘natural person entering or leaving the Union’ must be interpreted in a restrictive manner, otherwise there is a risk that the effectiveness of the system for controlling movements of cash entering or leaving the Union provided for in the regulation and, consequently, the achievement of the objective pursued by the regulation will be undermined. Furthermore, the Court states that it is irrelevant whether or not Mr El-Dakkak crossed the external borders of the Union.

The Court concludes that the obligation to declare all cash in excess of EUR 10 000 applies to the international transit zones of airports situated in the territory of the Member States. The seizure of the entire amount of undeclared money at customs violates the principle of proportionality

1°P – Article 1 10/10/2018 11:52 Print 

DECISION

Gyrlyan v. Russia 9.10.2018 (ref. 35943/15) see here

SUMMARY

Seizure of $90,000 at an airport because it was not declared. The interference by the national authorities with the applicant’s right to property was not in accordance with the principle of proportionality, since the lawful origin of the seized cash had not been disputed, the amount seized was undoubtedly significant for him and the State had not suffered any loss as a result of the failure to declare that money. Unfair balance between the general interest and the protection of property rights. Infringement of Article 1 of the First Additional Protocol. ORDER

Article 1 IPP

FACTUAL CIRCUMSTANCES

The applicant, Sergey Gyrlyan, is a Russian national, born in 1972, currently living in Odessa (Ukraine).

The case concerns the seizure of USD 90 000 from him, due to the fact that he did not declare to customs that he was carrying a large quantity of foreign currency.

Mr. Gyrlyan sold a property in 2014 and exchanged Russian rubles for $100,000. In March of that year he travelled with the foreign currency from Moscow’s Domodedovo Airport to Odessa. After his hand luggage passed through airport security, he informed security that he was carrying money. He said he thought customs checks, where he would have to declare amounts over US$10,000, were after security checks.

The domestic courts eventually ordered the seizure of the US$90,000, rejecting his appeals in which he argued that the money had been taken legally and that the penalty was excessive in relation to the offence.

Relying on Article 1 of the First Additional Protocol (protection of property), Mr Gyrlyan complains that the confiscation was excessive and disproportionate to the legitimate aim pursued. STRASBOURG DECIDES….

Article 1 of the First Additional Protocol: The applicant was the legal owner of the $90,000 seized by the authorities. The decision to confiscate that amount constituted an interference with his right to the peaceful enjoyment of his property and that interference had been provided for by law.

A confiscation measure, although involving the deprivation of property, fell within the scope of paragraph 2 of Article 1 of the First Additional Protocol, which allowed States Parties to control the use of property to secure the payment of sanctions.

States had a legitimate interest and, under various international treaties, a duty to implement measures to trace and monitor the movement of cash across their borders, as large amounts of cash could be used for money laundering, drug trafficking, financing of terrorist acts or organised crime, tax evasion or the commission of other serious economic offences. The general declaration requirement of the amounts carried applicable to any person crossing the country’s borders prevents the indiscriminate entry or exit of cash and the confiscation measure is part of the general regulatory framework designed to combat these offences. The forfeiture measure complied with the general interest of the community. The administrative offence for which the applicant was convicted was the failure to declare the total amount of cash he carried to the customs authorities. His case could be distinguished from others in which the confiscation measure applied either to goods whose importation was prohibited or to vehicles used for the transport of prohibited substances or trafficking in human beings.

The legitimate origin of the seized cash was not in doubt. The applicant submitted evidence proving that the money came from the sale of property. There was no indication that the applicant deliberately intended to circumvent customs regulations. When asked during the security check whether he was carrying any cash, he had replied in the affirmative. There was no evidence to suggest that the applicant was suspected or charged with criminal offences in the context of the incident in question or that, by imposing the confiscation measure, the authorities were seeking to prevent other illegal activities such as money laundering, drug trafficking, terrorist financing or tax evasion. The money he was carrying was legally obtained and he was able to take it outside Russia, provided he declared the amount to the customs authorities. Therefore, the only actionable conduct he could be charged with was failing to make a written declaration to that effect to the customs authorities. In order to be proportionate, the intervention had to correspond to the seriousness of the infringement and to the gravity of the offence designed to punish – in the applicant’s case, the failure to comply with the obligation to declare the amount.

The amount seized was undoubtedly significant for the applicant because it represented almost all of the proceeds from the sale of his property in Russia. On the other hand, the damage caused by the applicant to the authorities was insignificant. If the amount had not been traced, the Russian authorities would only have been deprived of the information that the money had left Russia. Thus, the confiscation measure was not intended to provide monetary compensation for the damage – since the State suffered no loss as a result of the applicant’s failure to declare the money – but had a deterrent and punitive purpose.

The Court was not persuaded by the Government’s argument that an assessment and evaluation of the proportionality of the measure had been incorporated into the domestic decision. The scope of the review carried out by the domestic courts was too narrow to satisfy the requirement of striking a “fair balance”, a principle inherent in Article 1 of the First Additional Protocol. Contrary to the Government’s claim that the court had chosen the most lenient sentence, the relevant provision does not appear to give the Court a discretionary power. The confiscation measure had imposed an individual and excessive burden on the applicant and was disproportionate to the offence committed.

The Court finds a violation and awards the sum of EUR 73,000 in damages and EUR 1,500 for non-material damage.

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