Special directions: protective claims
Protective claims are repayment claims which when submitted, are not eligible for repayment but may become eligible through an unexpected future event such as a Court of First Instance (CFI) decision. It enables traders to protect their position concerning time limits for claiming repayments, eg the three-year rule.
Protective claims can be accepted as full or incomplete claims. The trader should indicate that it is a protective claim otherwise it will be treated as a normal claim, ie if not eligible for repayment on acceptance, claim to be rejected. The trader must state the future event that the claim depends on. This should be sufficient for it to be confirmed that such an event will take place and that it could give rise to the trader being eligible for a repayment.
For an accepted protective claim the trader should be notified of the acceptance and that they should:
- keep any documentation (not already attached to the claim) that supports the repayment claim in case it is required by Customs for verification at a later date
- inform Customs when the future event has been finalised.
Where the trader has not stated the future event or has not made it clear how it would justify the repayment, (unless this is obvious to Customs), further clarification should be requested. The trader should be informed to this effect giving the appropriate reason, inviting any further explanation or clarification that would justify acceptance as a protective claim.
Protective claims should be filed and steps taken to prevent the destruction of the Customs copies of the entries concerned. Entries should be obtained and associated with the claim. This does not remove the responsibility of the trader to provide the necessary documentation to support his claim but is seen as a trade facilitation measure to avoid possible difficulties in the future. When the trader provides the information as set out above or Customs become aware that, for example, the Court of First Instance decision has been made, the claim should be processed as a normal claim.
There have been cases when the trader has sought to include details of entries not identified on the previously accepted incomplete protective claim. This is acceptable provided the extra entries are between the first and last of the entry dates supplied with the incomplete claim. For these extra entries, if it is too late to prevent the destruction of the Customs documentation, the trader will need to provide the documentary evidence to support this further clarification of the incomplete claim.