Der Fall „Hamamatsu“ – Das Ende einer langen (Zoll)-Reise

In its follow-up decision to the ECJ ruling “Hamamatsu”, the Federal Fiscal Court comments on the relationship between customs value and transfer prices for companies that are affiliated from a customs perspective. In addition to this important interplay between transfer prices and customs value determination, the ruling gives rise to a variety of strategic and procedural aspects in the context of import declarations, customs inspections and disclosures.   

With the judgment of the Federal Fiscal Court of May 17, 2022 (VII R 2/19) on what is probably the most popular dispute in the cosmos of European customs valuation law (the "Hamamatsu" case), a long journey now comes to an end. The proceedings began in 2015 with the filing of the lawsuit by Hamamatsu Photonics Germany with the Munich Finance Court and have since spanned various German and European courts. Since the lawsuit was filed at first instance, the ECJ judgment (C-529/16 of December 20, 2017) and the judgment of the Munich Finance Court (14 K 2028/18) have been issued on the dispute in question after a prior appeal to the ECJ. It is therefore not surprising that the judgment of the Federal Fiscal Court is met with great expectations from European customs practice - after all, this is the final court decision in the original case.

The case concerns the relationship between customs value and transfer prices for companies that are linked from a customs perspective and the question of reimbursement claims based on subsequent transfer price adjustments in the form of global credits.

With regard to the specific dispute, the BFH ruling does not contain any surprises in terms of content, as the BFH's decision largely follows the tenor of the previous rulings. In addition, the BFH's identical decision from the oral hearing in the same month has been circulating in expert circles since May 2022.

However, the BFH ruling raises further ambiguities and customs valuation possibilities when looking at the other statements and aspects more closely. After an initial analysis and evaluation of the ruling, the current BFH ruling could have the potential to fundamentally revolutionize the application of customs valuation law in the European Union. In the original case, it was confirmed that a refund of customs duties was excluded due to the reduction in transfer prices. Of fundamental importance is the court's statement that the transaction value method cannot be used for transfer prices whose value is not conclusively determined at the time of import. To the extent that the customs value is determined by applying a different customs valuation method at the time of import, subsequent transfer price adjustments would not be relevant to customs valuation.

It remains to be seen how European customs practice, in particular the customs authorities and the EU Commission, will interpret the BFH ruling in the future. In this respect, the BFH ruling brought the procedural journey of the “Hamamatsu” individual case to an end, but from a technical point of view, further follow-up proceedings are to be expected in the future.

Companies should keep a close eye on further developments and in particular the positioning of the (German) customs administration and review the interaction between transfer prices and the determination of the customs value upon import. However, the ruling also gives rise to a variety of strategic and procedural aspects that must be taken into account in the context of import declarations, customs inspections, disclosures and other aspects.

The full text of the judgment is available on the BFH website.

You can access the BFH ruling directly here .

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