In the FedEx case, the ECJ once again dealt with the incurrence of import VAT in cases of conduct contrary to customs law. This time it was a question of whether customs infringements in one Member State lead to the incurrence of import VAT in that Member State, even though the goods have indisputably gone to another Member State. The ECJ has consistently followed its previous case law by ruling that, despite the customs infringements, the import VAT only arises in the Member State in which the goods entered the economic network of the Union.
Imported goods are not always subject to the duties laid down in the customs tariff of the EU. Some products are subject to so-called autonomous tariff suspensions for a limited period of time. For the most part, these are goods which are required by EU manufacturing companies but which are only available in third countries. The list of these products changes every six months. The current list of suspensions has been applicable since 01.07.2019.
Since the entry into force of the Union Customs Code, the customs administration has been requesting the tax IDs of employees, managers and members of supervisory bodies as part of the application process for and re-evaluation of customs authorisations. After justified doubts from the business world were raised as to the legality of these requests, the customs administration temporarily suspended its requests. In its judgement of 16 January 2019, the ECJ now considers such requests to be permissible, in principle, but with a restriction placed on the group of persons whose tax IDs are required to be produced.
In its decision of 15.11.2018, the Tax Court in Munich rejected a claim for a repayment of import duties in the case of subsequent reduced transfer prices. The court referred the question to the ECJ for a preliminary ruling (judgment of 20.12.2017, C-529/16 – Hamamatsu) and was therefore then bound by this ruling.
The tax court decision is not final. A second referral to the ECJ by the Federal Fiscal Court does not appear to have been ruled out. Companies concerned should object to post-clearance recovery assessments and request that the procedure be suspended.