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Customs authorizations and the offence of customs evasion according to § 370 AO

by Dr. Stephan Kastner

Not least because of the strict rules of conduct and the formal requirements for customs procedures, authorizations in the area of customs law have a special significance. The holder of such an authorization can or will only rarely be able or willing to renounce it after it has been applied.
The authorizations considered in the context of this work have in common that they permit certain declarations or conduct which, without the authorization (in the case of intentional conduct), is criminally sanctioned by § 370 AO, the national criminal offence of customs evasion: The granting or existence of a license has - apart from its customs law content - direct consequences on the criminal relevance of the respective conduct or procedure. There are many examples of this.
The present study first examines the effects of customs authorizations on the criminal offence of customs evasion according to § 370 AO with special consideration of the principles developed by case law and literature on the administrative (act)accessoriness of "authorization-dependent criminal offences". Then, the effects of the previously developed results on conceivable constellations of facts are presented (ineffectiveness or illegality of the permit, appeal proceedings, interim legal protection, errors of the party involved). Furthermore, the author examines the (criminal) consequences that revocation and withdrawal of a customs authorization (may) have. Finally, the paper deals with the criminal law consequences of retroactive authorizations.

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