Liability according to Art. 79 of the Union Customs Code is not determined, contrary to liability as defined by tax law, by the culpability of someone else, but the persons themselves become debtors. According to liability under customs law, the “persons liable” can be:
- The declarant of the respective customs procedure, e.g. during importation or inward processing procedures.
- The declarant’s representative, e.g. the freight forwarder.
- Any person involved in the breach of obligations, e.g. employees of customs departments and the person responsible for customs matters in the company.
Liability under customs law: employees
Those employees in the business who do not derive any direct economic benefit from customs procedures should conclude a release-of-liability agreement with their employer. This agreement should also release the employee of any liability due to negligent behavior under customs law.
Liability under customs law: superiors
The circle of persons who can be held liable also includes superiors, if they have instructed the employee in charge of customs obligations to do so. According to a decision by the Court of Justice of the European Union (CJEU judgment dated September 23, 2004 – case no. C-414/02, “Spedition Ulustrans”), it is not required that the person liable be present at the time the obligation is breached.
Liability under customs law: purchaser
Furthermore, the owner, or respectively the buyer of the goods may be liable. In that case, it is irrelevant whether the goods are still in possession of the original purchaser at the time the customs assessment notice is issued.
Liability under customs Law: responsibility under customs law
Pursuant to Art. 79 para. 3 of the Union Customs Code, this liability only takes effect if the person responsible was not aware or could not reasonably have been aware that he/she was breaching an obligation under customs law.
The obligations under Art. 79 of the Union Customs Code include breaches relating to the movement, processing, storage, temporary storage, temporary admission or disposal of goods.
Liability under customs law: minor tax fraud
In addition to liability under customs law as defined by Art. 79 of the Union Customs Code, personal liability for customs declarations may also arise out of sec. 379 of the German Fiscal Code (Abgabenordnung). This regulatory offense penalizes placing incorrect documents into circulation. In this case, companies that export face the challenge that every supplier’s declaration is considered to be a document within the meaning of the Regulation. Through incorrect preference calculations carried out in the context of declarations of origin, documents brought into legal circulation can be punished by a fine of up to 5,000 euros per document. In business transactions with customers, we therefore recommend that you ask why they require a supplier’s declaration, in order to reduce the number of potentially erroneous documents.
Liability under customs law: international transactions tax law
Liability under customs law, or respectively, international transactions tax law is particularly problematic: In this case, personal liability may arise out of erroneous or missing export declarations, for example. Liability under customs law first and foremost affects the person responsible for exports in the company. According to the form provided by the German Federal Office for Economic Affairs and Export Control (BAFA), the chief export control officers must even declare that “in case of a violation of foreign trade obligations – especially incorrect or incomplete data provided to the BAFA – they cannot deny their responsibility under the above-mentioned principles by referring to the person in charge”. Whether this declaration is binding before the criminal courts remains to be decided by case law, since this declaration is entirely new.
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