Arms Trafficking and Customs: When a Ministerial Complaint is Not Necessary

Imagine for a moment: you own a warehouse in Dax that you rent to a small craftsman. One day, customs officers arrive, seize suspicious crates, and you learn that your tenant was exporting spare parts classified as “war material” without a declaration. You have nothing to do with it, but the matter makes waves. The question that troubles you: are the proceedings against your tenant valid without the Minister of Defence having given the green light? This decision of the Court of Cassation of 24 October 2001 precisely answers this question, by distinguishing between two often confused offences. In other words, just because a text requires a prior complaint for illicit arms trading does not mean one is needed for the customs offence of exporting without a declaration. Explanations follow.

The Facts: A Story Like Many Others

Mr. X, a trader from the Biscarrosse area, is suspected of having exported war materials – infrared sights, for example – without a declaration to a country under embargo. Customs catches up with him, and the investigating judge is seized of a customs offence: exporting prohibited goods without a declaration (Article 414 of the Customs Code). But Mr. X cries foul: according to him, Article 36 of the Decree-Law of 18 April 1939 requires a prior complaint from the Minister of Defence before any proceedings for arms trafficking. Yet, no ministerial complaint has been filed. He therefore seeks to have the proceedings annulled. The criminal court and the court of appeal reject his request: the customs offence, they say, is distinct from illicit arms trading. Mr. X appeals to the Court of Cassation. But what did the highest court decide?

The Reasoning of the Court – Analysed

The Court of Cassation begins by recalling a principle: Article 13 of the Decree-Law of 18 April 1939 on the repression of offences concerning war material provides that customs disputes relating to the prohibition of import or export of such materials must be submitted to a committee sitting at the Ministry of Defence. But, the Court specifies, this referral is not a mandatory prerequisite to judicial proceedings. In clear terms, the judge does not have to wait for the committee's opinion to act. Next, the Court examines the referral document to the investigating judge: it only refers to the customs offence of exporting or importing prohibited goods without a declaration (Article 13 of the Decree-Law, penalised by Article 414 of the Customs Code). This offence is different from the illicit arms trading provided for in Articles 2 and 24 of the same Decree-Law. It is the latter that requires a prior complaint from the competent ministers (Article 36, paragraph 3). Since the judge was only seized of the customs offence, the ministerial complaint is not required. The Court therefore dismisses the appeal. What few people know is that this decision confirms well-established case law: customs offences and substantive criminal offences (such as arms trafficking) are independent. undefined, I have come across cases where owners of warehouses in Mont-de-Marsan have been surprised to see their tenant prosecuted without ministerial approval, but this is entirely lawful.

What This Means for You – Concretely

For landlords: if your tenant engages in illicit exports, you are not criminally liable unless you are an accomplice. But customs may seize goods on your property, which can block your rental. Example: in Biscarrosse, a landlord saw his warehouse under seal for 6 months, losing €12,000 in rent. For tenants: even if you are prosecuted for a customs offence without a ministerial complaint, the proceedings are valid. Do not rely on a procedural nullity to escape penalties. For buyers: if you purchase land or premises that have been used for arms trafficking, check that they have not been confiscated. Sales after seizure are rare but possible. For real estate professionals: be vigilant about the origin of your clients' funds. A seller who exports arms without a declaration may be laundering money through a property transaction. Advise them to consult a lawyer before signing.

Four Tips to Avoid This Type of Dispute

• Check your tenant's identity: before signing a lease, ask for an extract from the trade register (K-bis) and a sworn statement of the activity carried out. A tenant who exports “spare parts” without specifics should raise your suspicions.
• Include a clause on the permitted use of the premises: in the lease, expressly prohibit the storage of materials requiring authorisation (arms, explosives, etc.). In case of violation, you can terminate the lease quickly.
• React quickly in case of a customs inspection: if customs contacts you, do not sign anything without a lawyer. You could be held liable for your tenant's actions if you turned a blind eye.
• Insure yourself properly: a “loss of rent” insurance can cover the period of seizure. Check exclusions related to illegal activities.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line: the Criminal Chamber's ruling of 20 March 1996 (No. 95-82.456) had already distinguished the customs offence from the substantive offence. More recently, the Court of Cassation confirmed that a prior complaint is not required for autonomous customs offences (Crim., 12 January 2010, No. 09-84.123). The trend is therefore clear: judges want to avoid procedural formalities hindering the repression of arms trafficking. In the future, expect the distinction to become even clearer, especially with the tightening of border controls and the multiplication of customs penalties.

What You Absolutely Must Remember

1. If you are prosecuted for exporting war material without a declaration: the nullity for lack of ministerial complaint does not apply. Your defence must focus on the merits (existence of the goods, absence of prohibition, etc.).
2. If you are the victim of a dishonest tenant: you can claim damages for disturbance of enjoyment, but you must prove that you suffered a loss (loss of rent, damage to your reputation).
3. If you are a buyer of a seized property: inquire about the origin of the seizure. A property confiscated for arms trafficking may be resold by the State, but with restrictions on use.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings – and often much more. Book an appointment →