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The ECJ will rule on whether and under what conditions a legal person is obliged to pay the customs debt for an irregularly transported product. In the underlying case, however, the organs of the company are not to blame for the violation of the customs regulations, but potentially only one employee of the company.

The question put to the ECJ by the FG Baden-Württemberg (decision of 1.12.2015, AZ: 11 K 145/12) is based on the following facts: An employee of a logistics company had ordered a transformer to be exported from Switzerland to Germany by ship at short notice – which is duty-free if the formal regulations are observed. However, he did not present the goods to the responsible German customs office. This resulted in a customs debt in accordance with Art. 202 of the Customs Code (CC). However, the question is whether the logistics company is also a debtor. The skipper, who is undoubtedly the debtor, could not be identified.

Liability of the company for employees

It is of crucial importance whether the logistics company itself is regarded as a legal person as a shipper and thus as a customs debtor within the meaning of Art. 202 CC or whether it is to be treated only as a party to the shipment process. Because with a mere participation exemptions from liability are possible. According to recent case law of the European Court of Justice, legal persons can also be customs debtors. The question then arises as to when a legal person is a distributor. This triggers liability.

If an employee independently contravenes customs regulations without instructions from his or her employer’s bodies, as here, the employer is in principle not liable. Such liability is only considered if the action is a direct consequence of the employer’s conduct. However, this is subject to high requirements: For example, the company must give the employee specific instructions.

Can the action be attributed to the company?

It has not yet been decided whether the conduct of a mere employee who is not an executive body can also be regarded as the conduct of the company. An affirmation of this question would lead to a considerable extension of liability.

The same applies to the question of whether the employee’s knowledge can be attributed to the company. If the company is not an exporter within the meaning of the Customs Code, but merely an operator, the obligation to pay depends on the intent or obvious negligence with which the customs provisions were infringed. The company may evade customs payment if it is not accusably in breach of customs regulations. If knowledge of the employee and not only of the executive bodies were also decisive here, exemption from liability would be much more difficult.

The ECJ’s answer to the question is important for those involved in customs transactions because it could lead to a situation in which the proper training of employees in customs matters would no longer provide security for a release from liability arising from mistakes made by employees.

Lawyer Dr. Tristan Wegner

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