Appeal Against a German Customs Notice: How to Proceed

The German customs authorities can make errors in import duty assessments for various reasons. An objection procedure with the main customs office seems particularly useful if

• the goods concerned have been classified under an unfavourable customs tariff number,
• a higher customs duty rate has been applied
• deductible costs have not been considered in the transaction value,
• quota or preferential duties have been disregarded,
• anti-dumping and countervailing duties have been imposed despite an existing entitlement to exemption,
• the origin of the goods is not recognised, i.e. another country of origin is assumed.

It is also conceivable that a requested customs tariff information is not issued as requested or is subsequently revoked. Customs authorisations that have already been granted (for example, in relation to a so-called deferment account, the status as an authorised exporter or the authorisation as an economic operator (AEO)) can also be revoked.

In addition, an objection may also be considered if one of the following constellations applies:

• an import duty assessment notice was not issued until after expiry of the relevant assessment period,
• the duty to consult has been violated,
• there has been an infringement of EU customs regulations,
• an incorrect exercise of discretion in customs authorisations is suspected,
• there was an incorrect customs valuation or
• there is an unauthorised double charging of duties.

If there is any doubt about the accuracy of the customs assessment, an appeal against the customs assessment should be filed in most cases. However, importers should always bear in mind that an appeal has no ‘suspensive effect’. This means that the customs duties assessed, and the import VAT must be paid first, even if an objection has been lodged within the deadline. The German customs authorities do not charge any fees for the objection procedure itself. However, legal advice is strongly recommended to ensure that the formal and substantive requirements are met.

German customs notices are considered tax notices (Section 155 (1) in conjunction with Section 3 (3) of the German Fiscal Code (AO)), whereby the following categories are distinguished depending on the type of tax:

• Import duty notices:
  • Customs duties | countervailing duties | anti-dumping duties
  • import turnover tax
  • special excise duties
• Export duty notices
• Excise duty notices:
  • Tobacco tax
  • Beer tax
  • Mineral oil tax etc.

However, it is also conceivable that these three special excise duties are treated as import duties within the meaning of Section 1 (1) of the German Customs Administration Act (ZollVG).

Both European and German national law provide the legal basis for the appeal procedure in connection with an incorrect customs assessment: while the Union Customs Code itself only provides a framework for the appeal procedure in its Articles 43 to 45, the more precise provisions are determined by the national law of the individual Member States. For example, the appeal procedure against tax assessments applicable in Germany is governed by Sections 347 et seq. of the German Fiscal Code (AO). This also applies to all forms of tax assessment notices on import and export duties.

The appeal must generally be lodged in the Member State in which the decision was made or applied for, see Art. 44 Para. 3 of the Union Customs Code. In Germany, it is the main customs office that decides on the appeal and is deemed to be the tax office within the meaning of the German Fiscal Code (Sections 6 (2) No. 5, 367 AO).

There is a one-month deadline for filing an objection to the customs notice in Germany. The objection must therefore be received by customs within this period. If this deadline is missed, the decision becomes final, which makes it incontestable.

The relevant date for calculating the deadline is the date of delivery, i.e. when the notice was delivered to your company or your representative. In practice, the objection period may be shortened if the representative does not forward the customs letter immediately.

The objection must be sent to the responsible main customs office. It is important to ensure that the formalities are observed – in particular that …

• the customs office named in the notice of appeal is correctly named as the addressee, as is the appellant,
• the appeal is labelled with the correct reference number
• and, ideally, that the appeal is accompanied by a strong statement of grounds.

From a legal perspective, the objection procedure does not require any special justification. Theoretically, it is sufficient to lodge an objection as the addressee of the customs decision and thereby show that you do not agree with the decision (see Federal Fiscal Court, judgement of 27 November 1985, ref.: II R 90/83). In his appeal, the appellant must only demonstrate that he is ‘directly and personally’ adversely affected by the administrative act in question or its omission, see Art. 44 para. 1 of the Union Customs Code.

Experience has shown, however, that careful substantiation is decisive for the outcome of the objection proceedings. Pursuant to Section 364b AO, the customs office can set a deadline for the statement of grounds for the objection. As a rule, this is also requested by the main customs office in the course of the proceedings. If it is still not provided, the authority can decide based on the files. This should be avoided if possible. Declarations and evidence submitted late will generally no longer be taken into consideration.

As an objector, you should not forget that the customs authority has already made its decision by issuing the customs decision. This is aggravated by the fact that the customs authority controls itself in the objection procedure. For these reasons, a particularly cogent argument is required to obtain an amendment to the customs decision.

If the appellant fails with their appeal, they are free to bring an action for annulment within the meaning of Section 40 (1) of the German Fiscal Court Code (FGO). Here too, proof must be provided that his rights have been infringed by the tax assessment notice, Section 40 (2) FGO. As with the objection procedure, the time limit for bringing an action is one month, Section 47 (1) FGO. This is a preclusive period that cannot be extended. However, the law does not stipulate a time limit for the statement of grounds itself. This is solely at the discretion of the court. The complaint must be submitted in writing to the competent tax court, Section 64 (1) FGO.

In the appeal proceedings, the judge is limited to reassessing the arguments already submitted. Irrespective of this, it is advisable for the plaintiff to carefully justify once again why the customs assessment notice should be incorrect.