The term ‘smuggling’ in German-language legal systems

In German law, smuggling is not clearly defined. An indirect definition can be found in the German Fiscal Code. The official title of Sec. 373 of the German Fiscal Code (Abgabenordnung, AO) is: "Professional, violent or organized smuggling".

Sec. 373 Par. 1 S. 1 AO reads: “Whoever evades import or export duties on a commercial basis or who illegally imports, exports or transports goods on a commercial basis in contravention of monopoly regulations shall be subject to imprisonment for a period of six months to 10 years.”

Thus, Sec. 373 AO is an aggravated form of the evasion of import or export duties pursuant to Sec. 370 AO (official title: “Tax evasion”) and of the “Brannbruch” (ban violation, related to ‘Contraband’, from Medieval Latin ‚contra bannum‘ resp. Medieval French ‘contrebande’ -> against a ban/prohibition) under Sec. 372 AO (official title: “Illegal import, export, or transit of goods”).

Sec. 35 Par. 1 of the Austrian Financial Crimes Act (FinStrG) provides a slightly different definition. According to this, "whoever intentionally brings goods subject to import duties into the customs territory or out of a free zone or free warehouse into another part of the customs territory in violation of the regulations or removes the goods from customs supervision or intentionally brings goods subject to export duties out of the customs territory without filing a customs declaration is guilty of smuggling."

The Austrian provision corresponds to the provisions of the European Community Customs Code (Council Regulation [EEC] No 2913/92 of 12 October 1992, CCC). The first alternative of Sec. 35 Par. 1 FinStrG corresponds to the incurrence of a customs debt pursuant to Art. 202 CCC (‘unlawful introduction’), the second alternative to Art. 203 CCC (‘removal from customs supervision’). The customs debt incurred under Article 204 of the CC (‘misdemeanors’) can be found in Sec. 35 Par. 2 of the FinStrG. Here, the conduct is simply referred to as "evasion of import or export duties". In contrast to the German law, this term does not cover the breach of the ban as such, i.e. the unlawful import, export or transit of goods (Sec. 372 AO).

The European Community Customs Code was replaced by the European Union Customs Code (Regulation [EU] No 952/2013 of the European Parliament and of the Council of 9 October 2013, UCC), which entered into force on 1 May 2016. By this, Art. 202 – 204 CCC were replaced by Art. 79 UCC (‘Customs debt incurred through non-compliance’), which has another structure than it’s predecessor. Since then, Sec. 35 FinStrG does not directly correspond to the European customs law any more.

The Swiss Customs Act (ZG) does not speak of smuggling. It only contains provisions on "customs evasion" (Art. 118 ZG) and "breach of customs control" (Art. 120 ZG).