The French Cour de Cassation has ruled that a customs seizure which is made on company premises is valid as long as it takes place in the presence of someone who acts as a company representative with regard to the customs agents, even if that person is not a representative of the company and even if the real representative is absent

The facts relating to this ruling are as follows: in 2009, customs agents in Marseilles visited the premises of a company and seized various goods imported from China by the company, in accordance with the Customs Code. Following that seizure, the company and its manager were prosecuted for trade mark infringement offences and for breaches of the Customs Code. Convicted at trial, they appealed to the Aix-en-Provence Cour d'appel and argued that the seizure was invalid since it was not carried out in the presence of the company representative.

In September 2012 the Cour d'appel affirmed the convictions, fining the defendants and sentencing the individual defendant to a suspended prison term.

The defendants appealed further to the Cour d'appel but in vain, maintaining that the manager of the company's father had presented himself as the company representative to the customs agents, who believed that they were in the presence of a company representative during the seizure. The moral of this episode is that a person who behaves as though he is a company's representative will be treated as such, whether he has authorisation to act in that capacity or not. This decision also applies in the case of infringement seizure (saisie-contrefaçon) executed by a French court bailiff.

Source: "Supreme Court considers validity of customs seizure in absence of company representative",  by Camille Pecnard (Hogan Lovells International LLP, Paris), published on World Trademark Review, 2 May 2014