The Confederation is responsible for legislation on customs duties and other duties on the cross-border movement of goods.
#Overview
Art. 133 Cst. gives the Confederation exclusive power over customs duties and other levies on cross-border trade in goods. This constitutional provision is a cornerstone of Swiss economic law and dates back to the founding of the federal state in 1848 (Oesch, BSK BV, Art. 133 N. 1).
The provision covers all levies imposed when goods cross borders. This includes both classical customs duties and other charges such as fees for customs services. According to prevailing doctrine, Art. 133 Cst. encompasses both fiscal customs duties (for state financing) and regulatory customs duties (for protecting domestic industry), since limiting it to purely fiscal duties would hardly be effective (Oesch, BSK BV, Art. 133 N. 15).
Federal jurisdiction is exclusive: cantons may not impose their own customs duties or regulate customs procedures (BGE 151 II 533 E. 1.2.2). Practical application today occurs primarily through the Customs Act and follows Switzerland's international obligations, particularly World Trade Organization (WTO) law and free trade agreements.
Example: A company imports machinery from Germany. It must pay the customs rate specified in the customs tariff and comply with federal customs procedures. Cantonal authorities may not impose additional charges or prescribe their own procedures.
Art. 133 BV - Customs legislation
#Doctrine
#1. Legislative history
N. 1 Art. 133 BV dates back to the Federal Constitution of 1848. Customs authority represented one of the cornerstones of the newly created federal state by abolishing internal customs between the cantons and granting the Confederation exclusive competence to levy customs on cross-border trade in goods (Oesch, BSK BV, Art. 133 N. 1). This centralisation of customs competence, together with the introduction of a uniform currency, formed the economic foundation of the Swiss federal state.
N. 2 The constitutional revision of 1999 led to a systematic reorganisation of the fiscal constitution. Art. 133 BV was incorporated as part of the fiscal order in the section on «Fiscal Order», which led to discussions about the scope of the competence (Oesch, BSK BV, Art. 133 N. 2). The Federal Council Message on the new Federal Constitution of 20 November 1996 emphasised the consolidating character of the revision without material changes (BBl 1997 I 1, 456).
#2. Systematic classification
N. 3 Art. 133 BV is systematically located in Title 3 («Confederation, Cantons and Communes»), Chapter 3 («Fiscal Order»), Section 1 («General Provisions»). This classification underlines the fiscal policy significance of customs for the federal budget, even though their fiscal importance today lags behind other sources of revenue.
N. 4 The provision is closely connected to other constitutional provisions: → Art. 54 BV (Foreign Relations) for international trade agreements, ↔ Art. 94 BV (Economic Freedom) for the limits of economic steering customs, → Art. 127 BV (Taxation Principles) for the general principles of levy collection and → Art. 130 BV (Value Added Tax) for the demarcation from import tax (Oesch, BSK BV, Art. 133 N. 14).
#3. Elements of the provision / Content of the norm
N. 5 The term «customs» encompasses all levies imposed due to the border crossing of goods. It is irrelevant whether the levy serves fiscal or economic steering purposes. The prevailing doctrine understands the customs concept broadly and includes both fiscal duties and protective tariffs (Oesch, BSK BV, Art. 133 N. 15; Cottier/Oesch, International Trade Regulation, 2005, p. 782).
N. 6 The formulation «other levies on cross-border trade in goods» extends federal competence beyond actual customs. All levies related to cross-border trade in goods are covered, including fees for customs services and other levies related to border crossing (Oesch, BSK BV, Art. 133 N. 11).
N. 7 The competence covers all «cross-border trade in goods», i.e., imports, exports and transit. It is disputed whether Art. 133 BV also establishes competence to levy transit duties. Oesch affirms this with reference to the wording and ratio legis (BSK BV, Art. 133 N. 15), while Arpagaus denies this (Zollrecht, 2nd ed. 2007, para. 142).
#4. Legal consequences
N. 8 Art. 133 BV establishes comprehensive and exclusive federal competence. The cantons are prohibited from any customs legislation of their own or from levying charges on cross-border trade in goods (BGE 151 II 533 E. 1.2.2). This competence encompasses both material customs provisions and customs procedural law.
N. 9 Federal competence is structured as legislative competence. The Confederation is not obliged to make use of its competence. It may levy customs but is not required to do so. Actual exercise today occurs primarily through the Customs Act of 18 March 2005 (SR 631.0) and the Customs Tariff Act of 9 October 1986 (SR 632.10).
N. 10 Switzerland's international economic law obligations, particularly from WTO law and bilateral free trade agreements, considerably restrict the practical exercise of customs competence. Switzerland has committed to tariff binding and may only levy customs within the framework of the international obligations it has entered into (Oesch, BSK BV, Art. 133 N. 17-21).
#5. Points of controversy
N. 11 A central point of controversy concerns the scope of competence under Art. 133 BV. A restrictive interpretation, based on the systematic position in the fiscal order, seeks to limit Art. 133 BV to pure fiscal duties (thus partly the older doctrine). The prevailing view today, represented by Oesch (BSK BV, Art. 133 N. 15), also encompasses economic steering customs, as a limitation to pure fiscal duties would hardly be purposeful and even fiscal duties have reflexive economic steering effects.
N. 12 The question of transit duties is controversially discussed. Oesch argues that Art. 133 BV also establishes competence to levy transit duties, based on the broad wording «cross-border trade in goods» and the ratio legis of comprehensive federal competence (BSK BV, Art. 133 N. 15). Arpagaus takes the opposing position and denies such competence with reference to international legal obligations and the practical insignificance of transit duties (Zollrecht, 2nd ed. 2007, para. 142).
#6. Practical guidance
N. 13 The practical application of Art. 133 BV today occurs almost exclusively within the framework of Switzerland's WTO legal and bilateral obligations. Companies must observe applicable customs tariffs when importing, whereby preferential agreements may provide for considerable customs reductions or exemptions.
N. 14 Central to practice is the demarcation between customs and other levies, particularly value added tax. While customs fall under Art. 133 BV, import tax is governed by Art. 130 BV. This distinction has implications for procedure and legal protection.
N. 15 In administrative procedure, it should be noted that customs legislation contains special procedural provisions that take precedence over general administrative procedural law. In particular, special deadlines and formal requirements apply for customs declarations and legal remedies in customs procedure (Federal Supreme Court judgment 2C_745/2015 of 23 October 2017).
#Case Law
#Federal Competence in Principle and Procedural Law
BGE 151 II 533 E. 1.2.2 25 November 2024 Legislation on customs duties and other levies on cross-border movement of goods is exclusively federal law. Art. 133 BV establishes comprehensive federal competence in customs matters, including procedural provisions and judicial review of customs assessments.
«Federal law includes, in particular, customs law (Art. 133 BV). However, appeals against decisions on customs assessment are inadmissible if these are based either on the tariff classification or the weight of the goods (Art. 83 lit. l BGG).»
Federal Administrative Court Judgment A-7733/2008 E. 2.2 8 September 2009 Art. 133 BV grants the Confederation exclusive competence for customs duties and other levies on cross-border movement of goods. This competence also includes the determination of rules of origin and preferential provisions for free trade agreements.
«Legislation on customs duties and other levies on cross-border movement of goods is a matter for the Confederation (Art. 133 BV; cf. Federal Administrative Court Judgment A-1753/2006 of 23 June 2008 E. 2.1).»
#Delimitation from Other Federal Competences
Federal Administrative Court Judgment A-4178/2016 E. 3.1.1 28 September 2017 Art. 133 BV stands independently alongside other federal competences such as alcohol tax (Art. 105 and 131 BV). Customs competence is to be understood independently of specific excise tax competences and covers all goods in cross-border traffic.
«Legislation on customs duties and other levies on cross-border movement of goods is a matter for the Confederation (Art. 133 BV). Goods that are brought into or out of the customs territory are subject to customs duty and must be assessed according to the Customs Act.»
#Procedural Law Particularities
Judgment 2C_3/2022 E. 1.2.1 17 May 2022 Customs law procedures fall under the general provisions of federal jurisdiction. Art. 133 BV does not establish special procedural provisions, which is why general administrative procedural law and the ordinary legal remedies system apply.
«In customs law, there are no deviating provisions regarding proceedings before the Federal Court. On the contrary, Art. 116 para. 4 of the Customs Act of 18 March 2005 refers to the general provisions on federal jurisdiction.»
#Scope of Customs Competence
Federal Administrative Court Judgment A-5558/2013 E. 2.1.1 4 April 2014 Federal competence under Art. 133 BV covers all goods in cross-border traffic regardless of their specific nature or intended use. The competence is comprehensive and leaves no room for the cantons to establish their own customs provisions.
«Legislation on customs duties and other levies on cross-border movement of goods is a matter for the Confederation (Art. 133 of the Federal Constitution of the Swiss Confederation of 18 April 1999). Goods that are brought into or out of the customs territory are to be assessed according to federal law provisions.»
Federal Administrative Court Judgment A-703/2017 E. 2.3 15 May 2018 Art. 133 BV establishes federal competence for both substantive customs provisions and customs procedure. The cantons have no authority to levy their own duties on cross-border movement of goods or to regulate customs procedure.
«Legislation on customs duties and other levies on cross-border movement of goods is a matter for the Confederation (Art. 133 Federal Constitution of the Swiss Confederation of 18 April 1999). Goods that are brought into or out of the customs territory are subject to federal law regulation.»