Are Tariff Explanatory Notes Subject to Judicial Supremacy?

Abstract

In 1803, under the lead of John Marshall in Marbury v. Madison, the Supreme Court of the United States ruled that: It is emphatically the province and duty of the judicial department to say what the law is . . . If two laws conflict with each other, the courts must decide on the operation of each . . . This is of the very essence of judicial duty. Likewise in the European Union, under both EU law and the national laws of the Member States, it is widely accepted that only the judiciary must have a final say on what a given law means. Turning now from these quasi-constitutional principles to tariff classification matters, the question arises whether such principles are applied in EU customs classification matters? In the case of Explanatory Notes, the executive branch enacts ‘soft law’ guidance that, however, is widely followed and applied by the national customs administrations of the EU Member States. While formally we are facing soft law acts, the wide and almost unconditional application of tariff classification Explanatory Notes by the national customs administrations renders them de facto law.