Is it permissible or inadmissible for the customs administration to query the tax ID? The ECJ will deal with the question of the extent to which the collection of personal data is possible in the area of authorisation or maintenance of the status of Authorised Economic Operator (AEO). In any event, the Advocate General states in his Opinion that the tax ID and the competent tax office may be consulted only in relation to the person responsible for the applicant company or exercising control over its management and the employee of the applicant who is responsible for its customs affairs; the request for such data must not be extended to the members of the applicant’s supervisory board or its other managers and employees.
Until now, customs authorities had still asked companies to communicate the tax ID of their supervisory boards, managers and all staff involved in customs matters.
Query of tax ID in the context of reissue
With the introduction of the Union Customs Code in May 2016, it became necessary to reissue already issued authorisations. This reissue should be carried out by means of a “questionnaire for self-assessment” provided by the customs administration. In this questionnaire, the companies concerned were asked to provide information concerning their assistant and supervisory boards, key management personnel, persons responsible for customs matters and customs officers. Specifically, this involved the indication of the corresponding names, dates of birth, tax identification numbers and the relevant tax office. The companies were promised that they would not be able to determine whether the licensing requirements had been met again without providing the data, and that they would then revoke unlimited licences if necessary.
Düsseldorf Finance Court has serious doubts in connection with data protection law
However, the Düsseldorf Finance Court has doubts under European law as to the admissibility of the collection of tax data on employees by the customs authorities and therefore, by order of 9 August 2017 (4 K 1404/17 Z), referred the question of admissibility to the ECJ for a preliminary ruling. Deutsche Post AG had filed a lawsuit against the main customs office in Cologne.
In particular, the Düsseldorf Finance Court classifies querying the tax identification number as critical under data protection law. In so doing, the Court points out that the rules governing the authorisation or maintenance of the status of authorised economic operator must be interpreted in the light of Article 8 of the Charter of Fundamental Rights of the European Union (protection of personal data). In the light of that interpretation, it is questionable whether the consultation of personal data relating to the persons designated in the catalogue still constitutes authorised data processing for specified purposes. The Düsseldorf Finance Court also has doubts as to whether, in order to determine the reliability of an economic operator, it is necessary to use the data of its employees and members of the supervisory board actually collected for other purposes. In particular, the Court considered that the tax identification numbers of the persons concerned were not directly linked to the assessment of their reliability under customs law. In German law, the tax identification number is mainly relevant for income tax purposes between employer and employee.
Query of tax identification number currently suspended
In view of the ongoing legal dispute between Deutsche Post AG and the main customs office in Cologne, the customs administration had already pointed out in a technical report dated 14 September 2017 that querying the tax identification number would be waived both in the context of reissuing and in the initial application for approval of the status of authorised economic operator. The list of available questions has been adapted accordingly.
Advocate General for limited tax ID query
The Advocate General responsible delivered his Opinion on 17 October 2018. He limits the search on the tax ID and the competent tax office to the person responsible for the applicant company or exercising control over its management and the employee of the applicant who is responsible for its customs affairs.
As a rule, the ECJ follows the Opinions of the Advocates General. A decision by the European Court of Justice on the reference for a preliminary ruling from the Finanzgericht Düsseldorf is expected in the near future.
The outcome of the procedure is relevant for the nationwide not only for holders of an AEO licence but also for all holders of a customs authorisation. This is because all applicants now have to complete the customs administration’s questionnaires.