In the opinion of the European Court of Justice (ECJ), it is permissible under European law to request the private tax identification numbers – in particular including those of principal managers – as part of the reassessment of the criteria of the customs status as Authorized Economic Operator (AEO) by the customs authority.
The ECJ has been invoked for a preliminary ruling by the Fiscal Court in Düsseldorf. As part of the reassessment of the criteria of the status as Authorized Economic Operator (AEO), Customs had wanted to check the tax-reliability of employees and management board members of the complainant, Deutsche Post AG. The customs authority had requested, inter alia, the private tax ID and the details of the tax offices responsible for the taxation of the members of the executive board, the members of the supervisory board, the principal managers, and the persons in charge of managing customs matters or those responsible for dealing with such matters. In the opinion of the customs authority, private tax infringements by employees may also lead to unreliability. The ECJ then had to decide whether this request was compatible with European customs and data protection law.
In its January 16, 2019 judgement (Case C-496/17), the European Court of Justice held that the collection of private tax identification data by the customs authority was permissible provided that this is necessary for them to fulfil their legal duties under customs law. While the tax identification number was personal data, the collection was necessary within the narrow limits of Article 24 of Union Customs Code Implementing Regulation and therefore permissible under European law. The ECJ massively restricts the group of persons who may be forced to submit data, however. The request of the private tax identification number is compatible with EU customs law (Article 24 of Implementing Regulation) only for members of the board of directors, e.g., the executive board or the general managers, as well as the “person responsible in the company for customs matters.” Depending on the internal organization, several persons may also be affected where they jointly manage the company or are responsible for customs matters. The ECJ expressly rejected the request of the tax identification numbers of members of the advisory or supervisory board, other key office holders (other divisional heads), and customs clerks. At the same time, the ECJ established that private infringements of customs legislation or taxation rules may also have an effect on the reliability criterion. This requirement is not limited to tax infringements committed in the course of the company’s economic activities. The referring Düsseldorf Fiscal Court has to examine and decide whether any national provisions still prevent the request.