According to the current case law of the Supreme Administrative Court (VwGH 12. 11. 2021, Ra 2020/16/0158), the application for suspension of enforcement in customs law already has the effect of inhibiting enforcement, even before this application is granted. This means that legal protection in a customs procedure corresponds to that in a tax procedure. The customs administration is currently still ignoring this case law. The article shows that this is questionable from a constitutional point of view and can result in claims for official liability.
According to Article 45 (1) of the Union Customs Code (UCC), the submission of an appeal shall not cause the implementation of the disputed decision to be suspended. The content of Art 45(1) UCC corresponds to Sec 254 of the Federal Fiscal Code (BAO). Pursuant to Sec 254 BAO, the effectiveness of the contested decision is not suspended by filing an appeal against a decision, in particular the collection and compulsory collection of a levy is not stopped.
According to Art 45(2) UCC, the customs authorities shall, however, suspend the implementation of such a decision in whole or in part in two cases: (1) Where they have good reason to believe that the disputed decision is inconsistent with the customs legislation or (2) that irreparable damage is to be feared for the person concerned. If one of the cases of Art 45(2) UCC is present, the execution of the decision is suspended either on provision of a guarantee or without such provision (cf. Art 45(3) UCC).
Inhibition of collection means a stay of execution. During the suspension, collection measures may neither be initiated nor continued. The decisive factor is whether this effect already occurs when the application is filed or only when it is granted.
In tax proceedings, section 212a BAO grants the taxpayer the right to file an application for suspension of collection. Pursuant to section 230(6) BAO, once a request for suspension has been filed, collection measures may neither be initiated nor continued with regard to the duties concerned until the request has been settled.
In section 4.3.3 of CC-0220 Working Guideline on Customs Decisions, Granting of Applications and Appeals, Decree No BMF-010313/0111-VI/6/2016 as amended by Decree No 2020-0.824.934 of 14 December 2020 ("Working Guideline CC-0220"), the customs administration denies the inhibiting effect of an application for suspension of enforcement in customs law. According to the customs administration, the mere filing of an application for suspension should not mean a de facto suspension. This would, according to the customs administration, be contrary to the wording of Article 45 UCC. The provision of Article 230(6) of the Federal Fiscal Code (BAO) does in their opinion not apply to customs procedures on the basis of Article 45 UCC.
Relationship between Art 45 UCC and Sec 230 (6) BAO
Union law generally takes precedence over national law (ECJ 20 May 2003, Case C-469/00, SARL; 17 December 1970, Case C-11/70, Internationale Handelsgesellschaft, and in particular ECJ 8 September 2010, Case C-409/06, Winner Wetten).
Article 45(1) UCC states: "The submission of an appeal shall not cause implementation of the disputed decision to be suspended.”
Section 230(6) BAO reads: "If an application for suspension of collection has been filed, enforcement measures with regard to the taxes affected by it ... may neither be initiated nor continued until it has been decided".
However, Article 45 UCC would only supersede Section 230(6) BAO if both provisions govern the same facts.
The English version of Article 45(1) UCC reads: "The submission of an appeal ..." and therefore does not refer to an application, suspension or enforcement. The appeal within the meaning of Articles 44 and 45 (1) UCC is therefore to be understood as an appeal against a decision and not as an application for suspension of enforcement. Therefore, Article 45 UCC does not prevent the granting of provisional legal protection until the application for suspension of enforcement has been dealt with. Only the appeal against the decision itself has no suspensive effect.
Principle of effective legal protection
In section 4.3.3 of Working Guideline CC-0220, the customs administration requires that the suspension of enforcement of an administrative decision may only take place after the customs authority has examined and affirmed the existence of one of the two alternative conditions of Article 45 (2) UCC. However, this procedure is not sufficient to guarantee a certain minimum level of legal protection:
An application for a stay of proceedings serves the purpose of de facto efficiency of appeals against administrative decisions: According to the case law of the Austrian Constitutional Court (VfGH), it is not permissible to unilaterally burden the applicant with all the consequences of a potentially unlawful official decision and to unconditionally burden him with the risk of legal protection until a decision is made on his application for suspension (cf. VfGH 11. 12. 1986, G119/86). Because of this case law, Sec 254 BAO, which corresponds in its content to Art 45 UCC, was repealed as unconstitutional in 1986. At that time Sec 230 (6) BAO did not exist. This was not remedied until 1987, when applications for suspension were granted the effect of inhibiting collection.
Already in 2015, the Federal Fiscal Court (BFG) affirmed the effect of an application for suspension of enforcement in customs law (BFG 16.7.2015, RV/5200072/2011). The BFG's legal opinion has now also been confirmed twice by the Supreme Administrative Court (VwGH 30. 1. 2020, Ro 2019/16/001; VwGH 12. 11. 2021, Ra 2020/16/0158).
Results and practical advice
The customs administration currently assumes that Union law is contrary to fundamental rights. It is true that Union law that is contrary to fundamental rights would supersede national law that is in conformity with fundamental rights. However, Article 45 of the Universal Customs Convention can also be interpreted in accordance with fundamental rights such a way that Section 230 (6) BAO is applicable and applications for suspension of enforcement in the customs procedure have the effect of inhibiting enforcement. If the customs administration does not grant such a stay and the person liable to pay the customs duty suffers damage as a result, this can lead to official liability claims due to illegality.