Customs Criminal Law Offences in Germany

Customs criminal law can be understood as a particular offence area of criminal law, which essentially relates to criminal tax offences, which is why it can also be titled “special criminal tax law “.

Such customs offences are distinguished from the less strict customs regulatory offences, such as tax jeopardy under § 380 German Fiscal Code (AO) or reckless tax evasion under § 378 AO. However, even in the case of customs offences, there is already the threat of severe fines.

For example, §§ 30, 130 of the German Administrative Offences Act (OWiG) opens up the real possibility of sanctioning a company with a fine of up to ten million euros in the case of a deliberate violation insofar as the provision violated does not stipulate a different maximum.

Customs offences are defined under § 369 (1) no. 1 AO as punishable offences under German tax laws. Therefore, the most critical provision is tax evasion (§ 370 AO), which is accordingly punishable as customs evasion.

In addition, the German Fiscal Code stipulates other specific customs offences, of which the breach of the ban (§ 372 AO), smuggling (§ 373 AO) and tax evasion (§ 374 AO) are of particular practical importance.

In commercial transactions, the main problem is that evasion of import duties is quickly assumed to be commercial, leading to increased penalties.

Despite the international and thus cross-border reference, there are no uniform EU law regulations on criminal liability, so German criminal law, particularly the German Fiscal Code (Abgabenordnung), applies.

On the other hand, customs duties and the requirements associated with the transfer of goods are regulated by EU law, namely the Union Customs Code (in short: CCC, through Regulation [EU] 952/2013). Often overlaps with other offence areas are possible, particularly with narcotics and medicinal products criminal law, if, for example, anabolic steroids or other medicines or narcotics are acquired abroad, imported into Germany and discovered by customs when crossing the border.

In the case of private individuals, smuggling in travel, non-declaration of cash (from 10,000 EUR), and irregularities in handling goods subject to excise duty (especially “improper use”) are of practical importance. In the case of commercially active companies, on the other hand, the focus is on commercial smuggling (§ 373 AO) and customs evasion (§ 370 AO).

In addition, problems can arise that may be accompanied by serious economic losses, for example, if an entire shipping container is seized during a customs inspection, but only a part of the goods may not have been appropriately declared or may infringe intellectual property rights (especially trademark and product piracy).

The public prosecutor’s offices rarely become active in customs criminal law matters, as special investigating authorities have been set up for this purpose.

These authorities include the Customs Criminal Investigation Office based in Cologne, the eight Customs Investigation Offices (Berlin, Dresden, Essen, Frankfurt a.M., Hamburg, Hanover, Münster and Stuttgart) and a total of 41 main customs offices. The respective responsibilities arise from various laws.

The main customs offices and the customs investigation offices carry out criminal investigations.

If these authorities become active, they have the same legal powers as the public prosecutor’s office. Searching business premises and companies by the customs investigation office are particularly relevant. The right to search is derived from the general provision of § 102 German Criminal Procedure Code.

A search of a suspect is permissible if a criminal offence is initially suspected based on a court order. Additionally, the customs investigation is authorised to inspect and seize documents relevant under customs law under § 404 AO.

The criminal penalties in customs proceedings are often significantly higher than in “simple” criminal tax proceedings. In addition, the possible secondary consequences should not be underestimated. For example, a conviction under criminal tax law can considerably impact authorisations and permits under customs law, as these are regularly dependent on personal conditions that are affected by a conviction.

Depending on the affiliation of the convicted person to a particular professional group, the authorities may also threaten further consequences under professional or disciplinary law.