Swiss Federal Supreme Court, 04.12.2025, 9C_728/2024
Facts
A Macedonian transport company (hereinafter: the appellant) operates international bus routes between Macedonia and Switzerland. Between 2015 and 2018, it carried out passenger transport within Swiss territory using its foreign-registered buses. Specifically, passengers arriving from Macedonia were transferred to another bus belonging to the same company, also registered in Macedonia, to be taken to their final destination in Switzerland (and vice versa). The Federal Office for Customs and Border Security (FOCBS) classified these operations as prohibited cabotage and demanded the retroactive payment of import duties (customs duties, VAT) and the heavy vehicle fee (HVF) for a total amount of CHF 424,957.75. The Federal Administrative Court rejected the company's appeal, which subsequently brought the case before the Federal Supreme Court.
Legal Analysis
The importation of goods, including means of transport, is subject to customs duties (Art. 7 of the Customs Act, CA) and import VAT (Art. 50 et seq. of the Value Added Tax Act, VATA). An exemption is possible under the temporary admission regime (Art. 9 CA), governed in particular by the Istanbul Convention (IC). However, the Convention (Art. 8(a) of Annex C to the IC) authorizes contracting states to prohibit temporary admission for means of transport used for commercial purposes in domestic traffic. Switzerland exercised this option inArt. 34(1) of the Customs Ordinance (CO), which prohibits duty-free temporary admission for foreign means of transport used for domestic transport for commercial purposes (cabotage prohibition). According to the Federal Supreme Court's case law, the concept of "domestic transport" must be interpreted from the perspective of the means of transport. Cabotage occurs as soon as a foreign means of transport picks up passengers on Swiss territory to drop them off at another location in Switzerland. The fact that this journey is part of a larger international trip or that the passengers were brought by another vehicle from the same company does not change this classification.
Application to the Case
The Federal Supreme Court first examines and rejects the formal complaints raised by the appellant, in particular an alleged violation of its right to be heard. It notes that the company was properly informed of the proceedings, benefited from several deadline extensions, and that its director voluntarily waived the assistance of a lawyer during a hearing. On the merits, the appellant argues that its operations do not constitute cabotage. It contends that the passengers were bound by a single international transport contract with its company and that this was a simple "transshipment" between two of its own vehicles, not domestic transport. The Federal Supreme Court rejects this argument. It reaffirms that the analysis must focus on the journey made by each vehicle individually. In this case, a bus registered in Macedonia picked up passengers in Switzerland to transport them to another destination in Switzerland. This operation constitutes domestic transport within the meaning of the law, regardless of the passenger's overall contract or the fact that the first vehicle belonged to the same company. Consequently, the buses used for these domestic transports were not eligible for the duty-free temporary admission regime. The retroactive collection of customs duties, VAT, and the HVF is therefore justified. The appellant does not contest the calculation method or the amount of the fees.
Outcome
The Federal Supreme Court dismisses the appeal and confirms the decision of the lower court. The legal costs are to be borne by the appellant.
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