DEFENSE AGAINST CHARGES UNDER THE CUSTOMS ADMINISTRATION ACT (ZollVG) AND AGAINST THE SEIZURE OF CASH BY CUSTOMS AUTHORITIES
The central legal basis for the monitoring of cross-border traffic in cash and equivalent means of payment by customs is Section 12a of the Customs Administration Act (ZollVG) and Regulation (EU) 2018/1672 of the European Parliament and of the Council (as of 02/2023).
The regulations result in notification obligations that differ according to whether cash or equivalent means of payment are brought into, out of or through the Federal Republic of Germany on the one hand, or whether they are brought into or out of the European Union on the other. Furthermore, customs have the possibility to seize cash.
Cash within the meaning of Regulation (EU) 2018/1672 is cash, transferable bearer instruments, commodities as highly liquid stores of value and credit cards (loc. cit. Art. 2(1)(a)). Equated means of payment within the meaning of the ZollVG are precious metals, precious stones, securities within the meaning of Section 1 of the Custody Act and Section 808 of the Civil Code, insofar as these are not already cash under Regulation (EU) 2018/1672 (Section 1 (4) sentence 4 ZollVG).
Bringing Cash across the German border
When cash etc. is brought across the German border, a cash declaration must be submitted at the "request of customs officials". The transferor must declare the cash "according to type, number and value, as well as the origin, the beneficial owner and the intended use of this cash and equivalent means of payment."
Violations are subject to fines of up to one million euros under Section 31a (1) No. 2 (b), (4) Var. 1 ZollVG (as of 02/2023). Such a violation occurs not only in the case of concealment of cash, but also if a report is "not filed correctly, not completely or not in a timely manner." The fines are primarily based on the amount of cash concealed, according to the Service Regulations of the Criminal and Fines Offices of the Main Customs Offices (StraBuDV). In the vast majority of cases, they are no longer in reasonable proportion to the culpability of the person concerned.
In addition, the cash can be secured for the purpose of clearing pursuant to Section 12a (7) No. 2 of the Customs Clearance Act (ZollVG). Frequently, security is retained for the expected fine.
Movement of Cash across the borders of the European Union
Article 3(1) of Regulation (EU) 2018/1672 reads:
"Travellers entering or leaving the Union carrying cash with a value of EUR 10 000 or more shall declare that amount of cash to the competent authorities of the Member State through which they are entering or leaving the Union and make the cash available to them for inspection. The cash declaration requirement shall be deemed not to have been met if the information provided is incorrect or incomplete or the cash is not made available for inspection."
Accordingly, the essential difference to the transfer across the German border is the notification obligation independent of the "request of the customs officials" when transferring across a border of the European Union.
In addition, the notification must be made "in writing or electronically using the declaration form referred to in Article 16(1)(a)" (Article 3(3) Regulation (EU) 2018/1672).
Thus, when traveling to Switzerland or Turkey, for example, the "Form 040000" (as of 02/2023) should have been filled out as a precaution before crossing the border and handed in at the correct counter (in the red channel, if applicable).
Violations are punishable by fines of up to one million euros in accordance with Section 31a, Paragraph 3, No. 1, Paragraph 4, Var. 1 ZollVG (as of 02/2023). The above applies to the amount of the fines usually imposed. The cash may also be seized pursuant to Section 12a (7) no. 1 ZollVG.
Excursus: Frankfurt Airport Terminal 1
In practice, Customs Station 6 Terminal 1, Entry B, Level 3, at Frankfurt Airport (FRA) has proven to be problematic (as of 2018). Travelers must pass through this customs station after disembarking from the aircraft, but before their checked baggage is issued. So anyone arriving in this area of Frankfurt Airport has to go through a customs check - with only their carry-on luggage - to get to baggage claim, only to be checked again by customs - this time including checked baggage.
Not only throughout Germany (including all other areas of Frankfurt Airport), but also throughout the world, a different clearance procedure is usually used. This goes back to an agreement under international law:
By Council Decision 87/594/EEC of 30.11 .1987, the Council adopted Annex F.3 to the International Convention on the Simplification and Harmonization of Customs Procedures concerning Customs Facilities for Passengers on behalf of the Community. Thus, this Annex to the International Convention became applicable law in the Community and the Federal Republic of Germany.
According to Annex F.3 No. 3, the customs authorities shall designate the customs offices where customs formalities for travelers may be completed. Note 10 to this point states:
"At the main international airports, the two-channel clearance procedure described in Annex I to this Appendix should be used for the clearance of travelers and their baggage on entry."
It only appears that Customs has also complied with this requirement at Level 3 in Terminal 1 at Frankfurt Airport.
However, No. 5 of Annex 1 (,,Provisions on the Dual-Channel Clearance Procedure for the Clearance of Passengers Arriving by Air and their Baggage") to Appendix F.3 to the International Convention on the Simplification and Harmonization of Customs Procedures reads:
"Passageways shall be located outside the baggage claim area so that travelers have all of their baggage with them when they select their passageway. In addition, the passageways will be located so that the traveler's route from baggage claim to the airport exit is as direct as possible."
If the two-channel check-in procedure is used, it is mandatory that the two-channel check-in point be located outside the baggage claim area thereafter. However, this is not the case at customs office 6 at Frankfurt Airport.
The main customs office in Frankfurt am Main is aware of the problem, but the handling there is "structurally conditioned".
The result is irritation among travelers. It is known from practical experience that many arrivals assume that the route through the customs office is a temporary detour and that the "actual" customs office will not be reached until after baggage claim. As a result, they "do not take seriously" this customs office - which is often not recognizably manned - and pass through the open green channel. The customs authorities do not accept this misunderstanding - provoked by the establishment of the customs office by themselves in violation of international law - and initiate fine and criminal proceedings.
Cash seizure to clarify origin and intended use
Pursuant to Section 12a (7) No. 3 ZollVG, customs may seize cash in any amount (i.e., even less than 10,000 euros) if there is a presumptive reason to believe that the cash is being moved for the purpose of money laundering, terrorist financing or other criminal activity. In the ensuing administrative procedure, the origin and intended use of the funds are to be clarified. In this regard, the persons concerned are obliged to submit suitable receipts, deeds or other documents. Anyone who fails to comply with this obligation may be fined up to 50,000 euros in accordance with Section 31a (1) no. 1 lit. b, (4) var. 2 ZollVG. If there is an initial suspicion, the cash may be seized as evidence.
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