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22 April 2019
De Minimis principle
Draft Customs Law
The Customs Act protects intellectual and industrial property rights with regard to the import of goods. Under these regulations, the import of counterfeit goods can be suspended based on an application from the rights holder or ex officio by Customs.
The Customs Act makes no distinction or specific provision for shipments based on the quality and quantity of goods.
The only reference in the Customs Act to the size of a shipment concerns commercial and non-commercial goods. The act does not apply to non-commercial goods that fall within the customs duty exemption limits.
The absence of a clear reference to small shipments in customs legislation has created doubt over whether customs officers should seize small shipments of counterfeit goods. This unfortunately encourages manufacturers of counterfeit goods to minimise the risk of seizure by using small shipments.
However, the government looks set to enact a new Customs Law to regulate small shipments.
The Draft Customs Law has been adapted from EU Regulation 608/2013 in line with Turkey's harmonisation with EU legislation. The regulation sets out a new procedure applicable to small shipments. The Draft Customs Law requires an application to be made to Customs for goods sent by post or courier in small consignments. Under this procedure, suspect goods may be destroyed without the involvement of the rights holder where the declarant or holder of the goods agrees or it has been presumed as such.
The Draft Customs Law states that small shipments suspected to contain counterfeit goods will be seized by Customs. Following the seizure, a customs notification (including the possibility of destruction) is sent to the owner of the shipment.
If the owner accepts the destruction or remains silent for 10 business days from the date of the notification, the goods will be destroyed under supervision by Customs.
If the owner of a shipment contests a destruction notification, they will be required to submit an injunction order to prevent the shipment's release within 10 business days from the notification. Failure to submit an injunction order will result in the shipment's release.
Rights holders must notify the Ministry of Trade of any small shipments of goods via a customs application and will be monitored only if they make such a declaration.
According to the Draft Customs Law, the quality and quantity of goods contained in small shipments will be defined by the Council of Ministers.
The Draft Customs Law distinguishes between shipments based on their size through a specific provision on small shipments which has been created to support customs checks.
The anticipated change will enable customs officers to suspend the import of counterfeit goods in small shipments with the proviso that the rights holder's application to Customs includes a clear request concerning the monitoring of small shipments.
The new provision provides a cost-effective and straightforward destruction option for rights holders that prefer not to contest the seizure of a small shipment due to the costly and time-consuming court proceedings.
For further information on this topic please contact Okan Can or Gizem Küçükarslan Bayer at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email (firstname.lastname@example.org or email@example.com). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.
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