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Crowdfunding launched by German/Swiss AOPAs to help rescue a retired pilot from bankruptcy due to German customs decision

Yea, that list is relevant even today. And look at it, most of those are international airports which are unsuitable or too expensive for GA.

So the other list is even more important, but you will end up finding that many of the useful airfields and secondary airports have PPR requirements which nullify the biggest advantage Ga has, namely flexibility.

LSZH(work) LSZF (GA base), Switzerland

I don’t think that is fair to put all the blame on the pilot, you do get load of contradictions between aip, ops, notams, forums…for sure you can’t cover all your bases on this topic, to name few things that can spoil your day: landing in non customs, landing 15min late after their hours, depart when they don’t show up, you/ops/they not sending or receiving that pnr notification

But it is always a good habit to call local customs guys by phone before preferably, after you landed and they were not there or even few days after if you feel something was wrong while you have done “your best” to comply (they maybe on your case and then suddenly no longer interested when you gave that phone call )

Last Edited by Ibra at 09 Oct 22:23
Paris/Essex, France/UK, United Kingdom

Free movement of people and goods (i.e. flexibility) is one of the big advantages to GA of the EU for the full member countries (Schengen + ECU European Customs Union). Unfortunately, the populist trend these days is leading more in the direction of countries leaving the EU rather than joining it, so GA prospects indicate degeneration on this front rather than improvement.

LSZK, Switzerland

My reading of the Münich Financial Court decision. My comments between brackets [].

On Customs duty:

  • Customs are due on any goods that have been imported illegally [implicitly: even if they would not have been due on a legal importation], even if the importer didn’t have the intention to import them illegally and even if the importer is not guilty of anything. That the import was not meant to be [and factually was not] long-term is not material: As soon as the import was illegal, the customs duties are due. [It is a strict liability; by the standards of proof of criminal law, he is not guilty (e.g. no mens rea, he behaved in a reasonable way, etc), but this is not about criminal law, this is about finances of the state. The state has a far lower burden of proof in tax cases. The import was illegal? That’s the only question to be examined by the court. Not intention, not precautions taken, not elements that have legitimately confused the taxed person (and that would have confused any prudent person).]
  • The general obligation is that goods have to come in through a Customs airport. Würzburg is not, was not, and never was a Customs airport.
  • There is an exemption for aircraft that cumulatively fulfil all the below conditions. [I don’t see a PPR/PNR requirement in the regulations, but I wouldn’t count on it, it can come from a different article or regulation.] Since condition number 3 was not fulfilled, this exemption doesn’t apply.
    1. Used in transportation in the free circulation or in temporary use
    2. Used for transport of persons in non-commercial or occasional circulation
    3. They fly to a so-called “special aerodrome”. Würzburg is not a “special aerodrome”. [It probably never was, but it was, and still is, a “other approved aerodrome”. I don’t fully understand what “other approved aerodrome” entails.]
  • The exemption of customs duty for civil use aircraft doesn’t apply, because the formalities and procedures to qualify were not followed.
  • The 0% rate for import from Switzerland also doesn’t apply, because that preferential rate can be applied only on a good import declaration. There is no goods import declaration. [That says that illegal imports are not allowed preferential rates, they always pay the full rate.]
  • There is a rule [Article 212a of the European customs code] that end-use exemptions are granted even in the case of unlawful import, on condition that the behaviour of the person concerned involves neither fraudulent dealing nor obvious negligence and he produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.
    • However, this does not apply here, because there are procedural requirements and these are not satisfied.
    • It also doesn’t apply, because that exemption applies only to putting the aircraft in free circulation [long-term imports], and there was no intention to put the aircraft in free circulation [he intended to bring the aircraft back to Switzerland a few days later, and he did. Notice how perverse this is: he is not allowed to use the fact that the import was temporary to escape the obligation to pay duty on illegal imports, but because the import was temporary, he doesn’t qualify for the good faith rule that would have entitled him to exemption of duty on a long-term import!]
    • This good faith rule doesn’t apply to the other exemption he was entitled to, namely “temporary use of a means of transport”.

On VAT:

  • [Contrary to customs duty] VAT is not due on mere entrance of good in the EU. It is due when the goods enter the economic cycle of the Union and can be supplied for consumption.
  • This aircraft entered the economic cycle of the Union because it was used for passenger transport on domestic flights between Würzburg and Jena. Two flights, one roundtrip. This excluded other providers of domestic passenger transport from performing that transport, so it had an economic effect in the EU, so the aircraft entered the economic cycle of the Union.
  • Temporary import under exemption of import duties is also exempted from VAT. However, since the the correct procedure for temporary import was not performed, this exemption does not apply.

I note that the court decision [dated 09.04.2019] says that there is a request made on 21 June 2017 to the customs authority to “decide on basis of fairness” (I assume that means “use its discretion to not enforce a rule or law when that enforcement would lead to an unfair consequence”), but since the customs authority has not decided on this request, it is not subject to judicial review. @Mooney_Driver and/or @chflyer, do you have any news on that request for “Billigkeitsentscheidung”?

ELLX

Mooney_Driver wrote:

Mentioning Schengen in connection with customs is ALWAYS wrong.

It is within the discretionary powers of the customs authority that they want a 24h PPR on non-EU non-Schengen arrivals to a non-customs airport that is also not a special aerodrome, but only a 4h PNR (or even no PNR at all) on non-EU Schengen arrivals. They can decide they want 16h PNR on arrivals from the canton of Zürich, but 2h PNR on arrivals from Nidwalden. So the disputed text in the AIP (copied into Jeppesen) is plausible.

ELLX

lionel wrote:

I don’t fully understand what “other approved aerodrome” entails.

Anybody has any information on that “übrige verkehrsrechtlich zugelassene Flugplätze” status? My guess is that this is a list established by the customs authority in application of their general power under § 3 Abs. 4 i.V.m. § 2 Abs. 3 ZollV to exempt as they see fit arrivals from the obligation to use a customs airport (Zollflugplatz), as long as the arrangements are made so that they can exercise their supervision. My guess it that this list is a list of destination/departure aerodromes that they announce they are inclined to grant exemptions to non-cargo flights from/to, but only on request?

The German customs authority has issued a leaflet on their website to explain who can fly where in what conditions, but it is mum on the “übrige verkehrsrechtlich zugelassene Flugplätze”, it mentions only “Zollflugplätze” and “besondere Landeplatz” (which is “Teil A” in the list linked to in post number 33; what about “Teil B”?).

Last Edited by lionel at 10 Oct 04:55
ELLX

lionel wrote:

The point is that the AIP said that this was a customs field, and the airport itself was genuinely convinced it was a customs field. With PPR for non-Schengen states, which the pilot was convinced of having respected even though he was not coming from a non-Schengen state and thus didn’t need PPR, by advising the airport. In such cases of customs having to be pre-arranged, usually the airport advises customs.

Every airport can be facilitated to have customs. This means that the police or customs officers travel to the place and meet you. But they won’t do that unless asked and agreed they will do so. The ATC or the airport personnel have nothing to do with this. At a customs airport there are permanent police/customs personnel to handle customs. So, one airport is “customs possible (if agreed)” the other is “customs always”.

Schengen is completely irrelevant. It has nothing to do with customs.

Looks to me what he did was to land at a “customs possible if agreed” without ever contacting customs.

The elephant is the circulation
ENVA ENOP ENMO, Norway

LeSving wrote:

Every airport can be facilitated to have customs. This means that the police or customs officers travel to the place and meet you. But they won’t do that unless asked and agreed they will do so. The ATC or the airport personnel have nothing to do with this.

(…)

Looks to me what he did was to land at a “customs possible if agreed” without ever contacting customs.

Having the aerodrome itself arrange customs (and/or immigration, respectively) at a “customs (immigration, respectively) if agreed/prenotified” aerodrome is a common procedure. And in my (non-German) experience, works much better than trying to call customs (immigration, respectively) directly. See my comment number 16. I’m learning that in (at least some parts of) Germany, calling the customs directly may actually work!

Peter wrote:

Where is the reference document, if it isn’t the AIP?

The true reference is the law gazette of that state, and of the European Union. For Germany, the Bundesanzeiger, for France the Journal Officiel de la République Française, for Luxembourg the Mémorial, etc. For the EU legislation, the Official Journal of the European Union.

While the above is true, it is not useful for us, and not useful for “the citizen at large”. Nobody learns how to drive by reading the Road Traffic Act (and a myriad of other regulations) from the official source. We read from compilations, examples, teachings prepared by experts, such as a driver training school. We ask the state official in charge of the enforcement of that part of the law, or in more modern times, read their website. We may ask a law expert (lawyer / barrister). The AIP participates in this process: it is supposed to faithfully reproduce and compile actual laws and regulations, but it is not the reference. The list published on zoll.de is the same process: it is supposed to faithfully reproduce and compile the actual regulation, but it is not the reference.

In the same way that if the public prosecutor (or the minister of Justice or whoever) says “it is forbidden to people with green eyes to stand within less than 50m of the Queen” does not make it true (it would take a legislative act of Parliament, or a lawful regulation taken by a lesser part of the state as authorised/delegated by an act of Parliament), the AIP saying “aircraft whose last two letters of the registration are not ER are not allowed to do touch-and-goes at any aerodrome within 20nmi of Buckingham” does not make it true. And if the list on zoll.de says “Memmingen is a customs airport”, that does not make it true; only publication in the Bundesanzeiger does.

Like everything in our life, we proceed by faith on the AIP, like we proceed on faith of many small things that the process of society and the state is not too broken. We do not read every page of the government gazette every morning to check that the parliament didn’t pass a law yesterday that says that we should now stop on green and cross on red, or drive on the other side of the road. We take the calculated risk that it didn’t, since we didn’t hear about it, and if they had passed such a law, there would “probably” have been a big public information campaign on it.

ELLX

Thank you for the very illuminating posts Lionel and for the time you have put into them.

I agree with all you say (to the extent that I know it) and especially re the primary references for the law. But I still don’t get how this prosecution was possible if the pilot followed the AIP.

AIUI the UK has a defence for due diligence (it certainly has in some areas of regulatory compliance I could discuss by PM) and an AIP briefing would cover this. The fact that the AIP is published by the very government which is trying to bust you would make the half-life of a prosecution lawyer even shorter

Würzburg is not, was not, and never was a Customs airport.

How can they say that when the AIP, published officially by Germany, apparently said it is?

This excluded other providers of domestic passenger transport from performing that transport, so it had an economic effect in the EU, so the aircraft entered the economic cycle of the Union.

What are they smoking?

It’s a clear travesty of justice. The AIP is the primary reference for pilots.

Interesting how little input there is from the huge numbers German pilots who read EuroGA. One would think this would be a matter of some concern.

Administrator
Shoreham EGKA, United Kingdom

Mooney_Driver wrote:

Everything else is wrong. You can’t apply for customs with the police or for immigration with customs.

In principle, yes. But it is not that unusual to have the duties of one delegated to the other in “simple cases”.

ESKC (Uppsala/Sundbro), Sweden
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