Facts

The [A. AG] (appellant) imported Skoda passenger vehicles on 4 April 2013 and on 19 June 2013 and declared them for customs clearance. It submitted formally valid EUR.1 movement certificates (dated 3 April 2013 and 18 June 2013) and applied for duty-free preferential clearance.

On 18 May 2016 the Federal Customs Directorate (OZD) asked the Polish customs authority to verify the two EUR.1 certificates. In its result of 5 July 2017, the Polish authority stated that the exporter had not produced any documents permitting preferential treatment; the certificates therefore did not qualify for preferential customs clearance.

By letter of 4 December 2017, the Schaffhausen Customs Directorate announced that it would collect subsequently customs duty (CHF 728.40), a proportionate automobile tax, a proportionate value added tax and default interest. By letter of 20 December 2017, [A. AG] requested waiver of the subsequent collection and submitted a long-term supplier declaration from 2013.

By subsequent collection order of 4 January 2018, the Schaffhausen Customs Directorate demanded import charges totalling CHF 977.--. On 10 August 2018 the OZD indicated a partial waiver (CHF 221.80), because the verification request for one certificate had been made after the expiry of the three-year retention period. By appeal decision of 31 October 2018, however, it dismissed the appeal in full. The Federal Administrative Court, Division I, dismissed the appeal by judgment of 8 April 2020 (A-6884/2018).

By appeal in public law matters of 19 May 2020, [A. AG] requested that the judgment of the lower court be set aside and the case remitted for further establishment of the facts. The investigating judge did not order any investigative measures.

Issue in dispute: Whether duty-free treatment under the free trade agreement (FTA) may be refused retrospectively and whether customs duties and import charges may be subsequently collected under Art. 12 para. 1 ACLA where the customs authorities of the exporting state, in the verification procedure, deny the preferential conditions.

Considerations

Admissibility: The appeal concerns a public law matter (Art. 82 lit. a, 86 para. 1 lit. a, 90 FSCA). The exclusion ground of Art. 83 lit. l FSCA does not apply, since the matter concerns the justification of preferential clearance and not tariff classification. A mere request for remittal is sufficient here, because the appeal makes clear that waiver of the subsequent collection is sought.

Right to be heard and facts: The lower court received and assessed the long-term supplier declarations; that it attributed less probative value to them does not violate the right to be heard. Certificates of Conformity serve technical purposes and are unsuitable as proof of origin; customs-notorious knowledge is not evidence. The lower court did not establish the facts in a manifestly incorrect (arbitrary) manner: the importing authority is bound by the result of the verification by the exporting state and may not determine origin itself; queries are permissible only where there are serious doubts. The supplier declarations were not issued to the EU exporter and were too general to give rise to such doubts. The brevity and standard form of the Polish reply, and the assertion that Skoda produces only in EUR.1 countries, do not establish serious doubts.

Retention period: Verification may also take place after the expiry of the three-year retention period (Art. 1 Protocol No. 3 2015 in conjunction with Art. 28 para. 1 Annex I PEM Convention). The three years represent only a minimum period and not a time limit for verification requests. The FTA allocates the risk of non-proof to the customs debtor (Art. 32 para. 6 Annex I PEM Convention), who may protect himself contractually. The customs authorities are therefore bound by the result even after the time limit has expired.

Protection of legitimate expectations: Under Art. 9 Cst., protection of…