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21 October 2020
In Spring 2018 the Federal Customs Administration ordered two Swiss forwarders to apply the simplified customs declaration procedure for certain imports. Use of the simplified customs declaration procedure is particularly widespread for courier, express and package delivery services (ie, where large quantities of small consignments are imported, especially for consumers who trade online). In such cases, use of the simplified procedure makes sense from a procedural and financial point of view. However, for forwarders which import few, mostly larger consignments (usually for commercial or industrial customers), neither the financial nor the organisational expenses are justifiable.
The Federal Customs Administration based its order on Article 105b of the Customs Ordinance, which requires the Federal Customs Administration to order an authorised consignee to introduce the simplified declaration procedure if the Federal Consumer Price Surveyor discovers a disproportionately high fee and therefore requests the issuance of such an order.
The two freight forwarders challenged the relevant orders of the Federal Customs Administration questioning, among other things, whether Article 105b of the Customs Ordinance is compatible with the constitutional framework. The Federal Administrative Court has now confirmed the forwarders' view that the Federal Customs Act is not aimed at consumer protection and therefore does not provide a sufficient legal basis for consumer protection orders.(1) Since Article 105b of the Customs Ordinance was implemented based on the Federal Customs Act, the Federal Administrative Court concluded that Article 105b of the Customs Ordinance does not have a sufficient legal basis in a formal law. The provision was therefore regarded as unconstitutional and was not applied, which also meant that the order of the Federal Customs Administration had to be revoked.
The forwarding sector has welcomed these judgments. Customs law should not be misused for the purposes of the Federal Price Surveyor. This has now been clearly stated by the Federal Administrative Court.
This is all the more true in light of the following circumstance: since it was the Federal Customs Administration, and not the Federal Consumer Price Surveyor, which issued the contested orders, the actions of the Federal Consumer Price Surveyor (in particular, the alleged finding of disproportionate fees) would never have been verifiable. It would not be justifiable under the rule of law for the Federal Consumer Price Surveyor to act in a legal vacuum by issuing binding instructions to the Federal Customs Administration, which the Federal Customs Administration must follow, without it being possible to verify the findings underlying the instruction. From this perspective, the Federal Administrative Court's intervention was correct and necessary.
For further information on this topic please contact Stephan Erbe at ThomannFischer by telephone (+41 61 226 24 24) or email (email@example.com). The ThomannFischer website can be accessed at www.thomannfischer.ch.
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