Marie is our expert in customs law

Secondant of the Month

This month, we present Marie Fernet !

A lawyer and doctor of law, practicing mainly in customs law, Marie was propelled into the spotlight following the announcements on customs duties by the American president last April!

Marie is delighted that customs law, long under-regarded and confined to a purely technical aspect, is regaining its rightful place: a pivotal subject at the crossroads of European Union law and international trade law, with multiple and sometimes unexpected implications and challenges (geopolitics, human rights, separation of powers, etc.).

“ We are rediscovering that customs law is not just about goods. It’s also about geopolitics. When we impose barriers or sanctions, we can, for example, deprive populations of access to certain goods, ” explains Marie. “ From within the European Union, we tended to forget this, but at the time of Brexit, many operators rediscovered, and quite abruptly, that borders do exist! ”

For Marie, these announcements are part of a much broader context: " We are witnessing a complete overhaul of the international trading system ," she observes. " The principles of the WTO, the most-favored-nation clause, are being challenged. We are returning to the law of the strongest, but clearly, states are accepting it. "

And recent decisions by American courts only reinforce this view. They have indeed ruled that the imposition of certain tariffs is unconstitutional because it falls outside the purview of the executive branch.

But, for Marie, this uncertain period nevertheless has its advantages.

These measures will notably lead companies to rethink their practices and to place customs issues at the center of the structuring of their international commercial operations and the negotiation of their contracts.

While Trump's announcements are erratic to say the least, " even American customs officials are struggling to keep up with the rule changes as announcements are not always followed by concrete implementations, " notes Marie.

She adds that their unpredictable nature, which would allow for invoking a case of force majeure, is not certain, because customs issues had already been a subject of his previous term and Trump had made it one of his main subjects during his last presidential race.

As is often the case when instability reigns, we return to the basics, and it is therefore contractual technique that can now come to the aid of companies to limit, or attempt to limit, the consequences of these upheavals.

And you, do you know what your contract says about customs duties?

See the portrait

Question of the month

Excessive formalism in civil procedure: for or against in concreto review?

According to the ECHR, excessive formalism can infringe the right of access to a judge guaranteed by Article 6§1, which must be concrete and effective: intended to serve the goals of legal certainty and good administration of justice, formalism must not become a barrier that prevents the litigant from having their dispute decided on its merits.

The rule is clearly stated.

But how should French judges ensure compliance when a procedural requirement is alleged to have been violated? Should they simply consider whether the French rule, taken in the abstract, independently of a specific case, is excessively formalistic (abstract review)? Or should they go further and consider whether the procedural rule, even if justified in itself, should nevertheless be disregarded in the case before them, in light of the concrete result of its application in the particular circumstances of the case (concrete review)?

Example of in concreto control: the judgment of the Court of Cassation of May 23, 2024.

In this case, concerning a procedure for the immediate return of a child following his unlawful removal, an appeals court had ruled that the mother's appeal declaration, not having been served on the public prosecutor, was invalid under Article 905-1 of the Code of Civil Procedure.