Facts
A. GmbH reported imports of wood products from the European Union as definitively preferential during the period from January 3, 2012 to February 9, 2016, although valid proof of origin was not available at the time of customs declaration. The Swiss Federal Customs Administration (FCA) subsequently demanded post-payment of duties due to unjustified preferential clearance.
The Federal Supreme Court ruled that for imports with a goods value under EUR 6,000, according to Art. 22 (8) of the Free Trade Agreement Protocol No. 3 of 2005, the origin declarations on the invoices can be submitted even after the import, but no later than within two years after the import. The retroactive demands are inadmissible to the extent that the declarations were submitted in a timely manner.
However, proof of origin submitted more than two years after the respective import date is no longer considered valid due to its validity period of four months after issuance.
Considerations
The Federal Supreme Court interpreted the provisions of the Free Trade Agreement Protocol No. 3 in accordance with the principles of international law interpretation. It concluded that Art. 22 (8) of the Protocol expressly allows the subsequent submission of origin declarations within two years of import for low-value imports. This applies regardless of the provisions of Swiss customs law, as Art. 2 (1)…