Definition and significance of customs criminal law
Das Customs criminal law encompasses all criminal and administrative offense regulations relating to violations of customs law. It serves to enforce customs provisions and sanctions, in particular, breaches of requirements and prohibitions in the customs procedure, to ensure the correct levying of duties and compliance with foreign trade, excise, and consumer protection regulations. Customs criminal law has numerous points of intersection with other legal fields such as tax criminal law, foreign trade law, and European law.
Legal basis of customs criminal law
National law
In Germany, customs criminal law is primarily enshrined in the following laws:
- Fiscal Code (AO): Contains central criminal and administrative offense provisions, such as tax evasion (§ 370 AO) and negligent reduction of taxes (§ 378 AO), which also apply to customs duties.
- Customs Administration Act (ZollVG): Regulates, in particular, the investigative and enforcement powers of the customs administration.
- Foreign Trade and Payments Act (AWG) and Foreign Trade Regulation (AWV): Sanction violations of export and import regulations, embargoes, and licensing requirements.
- Administrative Offenses Act (OWiG): Regulates the procedure and sanctioning of administrative offenses, which may be applicable in cases of non-serious violations.
- Narcotics Act (BtMG), Weapons Act (WaffG), Medicines Act (AMG): Special provisions regarding the import and export of sensitive goods, the violation of which has customs criminal consequences.
European and international law
- Union Customs Code (UCC): Regulates customs law within the European Union and has direct effect in Member States. Violations of the UCC result in sanctions under national law.
- Commission Delegated Regulation on the Customs Code (ZKDVO): Supplements the UCC with specific instructions for action.
- Convention on Mutual Assistance in Customs Matters: Serves the cross-border prosecution of customs offenses.
Criminal offenses in customs criminal law
Tax evasion and smuggling
The core criminal offense in customs criminal law is customs evasion (§ 370 AO), which essentially corresponds to tax evasion. In this case, customs duties are withheld from the state or unduly refunded. Forms of customs evasion include the failure to declare goods subject to import duties, false statements regarding the goods (type, value, origin), or the use of forged documents.
The term smuggling is understood in German law as tax evasion in the customs sector. The colloquial concept of smuggling includes the unauthorized transfer of goods across the border and is legally covered by the criminal offense of customs evasion.
Breach of embargo (‘Bannbruch’) (§ 372 AO)
The breach of embargo refers to the intentional violation of customs and foreign trade regulations, such as circumventing export and import bans or breaking embargoes. In this case, consignments are subject to a “ban” that can only be lifted under certain conditions.
Other criminal offenses under customs criminal law
- Embezzlement of duty refunds (§ 374 AO): Unlawful obtaining of customs relief, refunds, or rebates through deception.
- Tax receiving (§ 374 AO): Dealing in goods that have already been subject to customs evasion.
- Violations of the Foreign Trade and Payments Act (§§ 17 et seq. AWG): Unauthorized exports, circumventing embargoes.
Administrative offenses
In addition to criminal sanctions, customs criminal law also includes significant administrative offenses, for example, violations of reporting obligations, negligent acts, or non-compliance with export controls (§ 378 AO, § 30 para. 5 AWG).
Competent authorities and procedures in customs criminal law
Jurisdiction
Die Customs administration with its main customs offices and customs investigation offices is responsible for the identification and prosecution of customs offenses. These are supported by the Customs Investigation (Customs Criminal Office and Customs Investigation Offices), which mainly operate in the field of organized crime and major offenses.
Investigation procedure
Detected violations are prosecuted by the authorities as administrative offenses or crimes. The criminal procedure is governed—unless special provisions apply—by the Code of Criminal Procedure (StPO). The customs administration has extensive investigative powers in this context:
- Search and seizure
- Initiation and conduct of criminal and administrative fine proceedings
- Imposition and enforcement of seizures or confiscation orders
Above all, the area of covert investigations and international cooperation is playing an increasingly significant role in uncovering customs crime.
Fiscal courts and criminal courts
While the fiscal court is responsible for tax-related disputes, criminal proceedings for customs offenses fall under the jurisdiction of criminal courts. In the event of parallel proceedings, these are often consolidated.
Sanctions and legal consequences of customs criminal law
Criminal consequences
The range of sanctions includes fines, imprisonment (up to ten years for particularly serious tax evasion), driving bans, confiscation of smuggled goods, as well as confiscation of assets obtained from the offense.
Administrative offenses
For administrative offenses, fines are regularly imposed, which—depending on the severity of the offense—can reach considerable amounts.
Other legal consequences
In addition to criminal and administrative sanctions, further consequences may include seizure of goods, confiscation orders, business law measures, up to entries in the central business register.
Customs criminal law and international cooperation
Customs criminal law is increasingly shaped by international cooperation. Within the EU, cooperation is regulated by the Customs Information System and EUROFISC. Worldwide, there are numerous agreements on mutual legal and administrative assistance, which facilitate cross-border criminal prosecution.
Practical significance
Customs criminal law continues to gain in importance in view of growing international trade flows and political crises. The risk of violations arises not only from intentional actions (e.g., smuggling), but increasingly also from a lack of knowledge of complex regulations (e.g., rules of origin, dual-use goods). The threat of sanctions underscores the necessity of careful compliance with customs requirements in international trade.
References and further links
- Distinction and structure of customs criminal law: Birk, Customs Offenses, NWB Verlag
- German Customs Law: Federal Customs Administration (www.zoll.de)
- Union Customs Code: EU Commission (ec.europa.eu/taxation_customs)
This article provides a comprehensive and objective overview of the concept of customs criminal law and thoroughly examines its legal framework, procedural rules, and significance for international trade.
Frequently asked questions
What typical criminal offenses exist in customs criminal law?
There are numerous criminal offenses in customs criminal law, primarily regulated in the Customs Administration Act (ZollVG), the Fiscal Code (AO), and the Criminal Code (StGB). The most common include tax evasion (§ 370 AO), breach of embargo (§ 372 AO), smuggling (§ 373 AO), and commercial, organized, or armed smuggling (§ 374 AO). In addition, violations of specific customs prohibitions and restrictions, such as those involving the import and export of certain goods (e.g., weapons, narcotics, cultural goods), are also criminally relevant. The offense of tax evasion includes both the omission of complete and correct information on customs assessment bases and the deliberate concealment of import or export transactions. In the case of smuggling, the main focus is on the movement of goods while circumventing controls. Criminal liability arises as soon as unlawful import, export, or transit of goods is conducted in violation of customs rules.
How does a typical investigation procedure in the field of customs criminal law unfold?
An investigation in customs criminal law usually begins with a report of suspicion, often triggered by irregularities in customs declarations, information from other authorities, spot checks, or complaints from third parties. The competent authorities, usually the main customs office or the customs investigation service, then start the investigation. Their powers include, among others, searching vehicles, storage facilities, and residences, seizing evidence, and temporarily arresting suspects. Investigations may also include covert measures such as surveillance or intercepting communications, but always subject to legal requirements and only if there is initial suspicion. The proceedings end either with the discontinuation of the investigation—such as for lack of sufficient suspicion—or with an indictment by the public prosecutor’s office. In some cases, especially with minor violations, the proceedings can also be completed by means of a penal order.
What penalties can be expected upon conviction for a customs offense?
Sanctions in customs criminal law depend on the severity of the offense and range from fines to multi-year prison sentences. While simple cases of customs administrative offenses are often punished with fines, crimes such as professional or organized tax evasion or organized smuggling usually result in severe imprisonment. For tax evasion under § 370 AO, the threatened penalty is up to five years of imprisonment or a fine; in particularly serious cases, the term can increase to up to ten years. There are also regular incidental consequences such as confiscation of smuggled goods, forfeiture of valuables, or revocation of customs privileges and authorizations. Moreover, convictions can affect civil claims and business licenses.
How can a defendant defend themselves in customs criminal proceedings?
Defendants in customs criminal proceedings have extensive rights of defense. Firstly, everyone has the right to remain silent and to make statements only after inspection of the files through a lawyer. It is particularly important to consult a lawyer specialized in customs criminal law, as the subject matter is complex and prone to error due to numerous special laws, European references, and international agreements. The defense might aim, for example, to demonstrate that there was no intent—a key requirement for liability in tax evasion or smuggling. Procedural errors, inadmissible searches, or prohibited evidence can also be crucial defense strategies. Additionally, under certain circumstances, it is possible to obtain mitigation of punishment or immunity through active repentance, timely subsequent declaration, or voluntary disclosure (§ 371 AO), provided that the legal requirements are met.
What role do international agreements play in customs criminal law?
International agreements play an increasingly important role in customs criminal law, as cross-border trade and complex logistics structures require coordinated cooperation between different countries. Depending on the country involved, European and international regulations such as the Union Customs Code (UCC), bilateral double taxation agreements, the Kyoto Convention, or WCO legal instruments may apply. These regulations coordinate, for example, the exchange of information between customs authorities of different countries, set standards for controls, and provide the legal basis for the fight against cross-border smuggling and related offenses. They also enable cross-border enforcement of customs criminal sanctions and cooperation in investigations and evidence gathering. For defendants, this can lead to faster and more efficient prosecution but also to more complex legal situations where knowledge of international regulations becomes essential.
What legal remedies are available in customs criminal law?
Various legal remedies are available against decisions in customs criminal law, depending on the stage of proceedings and the measure imposed. In the investigation phase, judicial review may be requested against coercive measures such as searches or seizures. In trial proceedings, the remedy against penal orders and first-instance judgments is objection or appeal proceedings; for judgments of regional courts, a further appeal to the Federal Court of Justice is possible if admitted. At the European level, legal remedies may also be available to the European Court of Human Rights (ECtHR) or the European Court of Justice (ECJ) in certain circumstances, for example in the event of violations of human rights or EU law.
Who bears the burden of proof in customs criminal proceedings?
In customs criminal law—as in general criminal law—the principle of legality and the rule “in dubio pro reo”, i.e., the presumption of innocence, apply to the benefit of the accused. The burden of proof for the act and in particular for intent lies with the public prosecutor’s office or the investigating customs authority. Generally, the accused is not obliged to contribute to their own exoneration or actively assist in clarification. However, actual cooperation, such as providing documents demonstrating the legality of business transactions, can help expedite the proceedings or favor discontinuation. There are no specific rules of reversal of the burden of proof in customs criminal law, unless special statutory evidence rules apply, for instance, in the area of dealings with prohibited or license-required items.
