Belgian Court of Cassation clarifies confiscation and countervalue rules in customs and excise law

On 7 October 2025, the Belgian Court of Cassation rendered three important judgments that provide further clarification on confiscation and the countervalue of goods in customs and excise law.

Confiscation of goods in customs and excise law – and in particular the question of payment of the countervalue of confiscated goods when those goods are no longer physically present – has long been a complex and contentious issue in legal practice, prompting the Court of Cassation to regularly rule on this matter.

Key takeaways from the judgments

1. Valuation of the countervalue of the goods at the time of the offence (judgment number: P.25.0804.N)

The Court confirms that the countervalue of confiscated goods must be determined at the time the offence was committed, i.e. when the goods were removed from customs supervision. This applies even if the confiscation decision is made later.

2. Mitigation in case of disproportionate financial hardship (judgment numbers: P.25.0081.N and P.25.0842.N)

According to the Court of Cassation (hereby following the recent case law of the Constitutional Court, arrest nr. 11/2025 dd. 30 January 2025), the court must refrain from ordering confiscation when it would impose an unreasonably harsh penalty. If confiscation is waived, no conviction to pay the countervalue of the goods can be pronounced either. The court must make a balanced assessment considering the seriousness of the offence, the financial situation of the offender, and the collective interest of customs and excise law.

When the court, to avoid imposing an unreasonably harsh penalty, refrains from ordering the confiscation of the goods against an offender, that offender cannot be obliged to present those goods. In the absence of confiscation, the Belgian State therefore has no right to compensation for the mere failure to present the goods and there is consequently no basis to convict the offender to pay the countervalue of the goods.

Practical implications

• Confiscation is a mandatory legal measure but may be mitigated if it causes disproportionate financial hardship.

• The valuation of the countervalue of the confiscated goods is fixed at the time of the offence, not at the time of confiscation.

• Judicial discretion to mitigate is essential to avoid excessively harsh penalties.

• The Belgian State may claim compensation for non-presentation of confiscated goods unless confiscation is mitigated or waived.

For clients and practitioners in customs and excise matters, it is crucial to consider these nuances when assessing risks and determining their legal position.