Customs inspection of third parties to determine licence fees

In its judgment of 28.01.2014 – VII R 17/12, the Federal Fiscal Court (BFH) ruled that a customs audit pursuant to Art. 78 (2) of the Customs Code (ZK) is legal for an indirectly involved third party in order to determine licence fees which the third party has paid to the exporter on the basis of contractual regulations.

In the underlying case, a company that purchased music CDs from an importer to distribute them to end users was suing. The importer did not indicate in the customs declaration whether royalties were paid to the exporter by the distributing company. However, these would play a role in the calculation of customs value. Since the payment of royalties is the normal case for works protected by copyright, the main customs office also assumed payment of royalties in this case. It prompted a customs inspection of the distributing company because the importer stated that he had no knowledge of royalty payments.

The Federal Fiscal Court ruled the action of the authority to be lawful. Such an examination is lawful for statistical purposes even if it does not serve the subsequent recording of import duties, because the time limit set for it has already expired. This means that a customs check can even affect the person who is not directly involved in the import itself at any time. According to the BFH, this does not violate the company secret. Any inspection of the audit results would only be granted to third parties in an anonymised manner respecting the official secrecy of Art. 15 CC.

You should always be prepared for a customs inspection. Please contact us directly

 

Lawyer Dr. Tristan Wegner

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