Third Chapter. Enforcement other than of monetary claims

Last Updated on May 31, 2021 by LawEuro

The Fiscal Code of Germany

Third Chapter
Enforcement other than of monetary claims

1st Subchapter
Enforcement owing to actions, tolerance or omissions

Section 328
Coercive measures

(1) An administrative act that is directed at the performance of an action or at the tolerance or omission of an action may be enforced using coercive measures (coercive fine, substitutive execution, direct enforcement). Section 336 shall apply to forcing the provision of collateral. The authority issuing the administrative act shall be the enforcement authority.

(2) The coercive measure least detrimental to the liable party and to the public shall be determined. The coercive measure shall be proportionate to its purpose.

Section 329
Coercive fine

No individual coercive fine may exceed 25,000 euros.

Section 330
Substitutive execution

Where the obligation to perform an action which may be undertaken by another party is not fulfilled, the enforcement authority may commission another party to undertake the action at the liable party’s expense.

Section 331
Direct enforcement

Where the coercive fine or substitutive execution do not attain the objective or where they are not appropriate, the revenue authority may force the liable party to perform, tolerate or omit to do an action, or to perform the action itself.

Section 332
Giving warning of coercive measures

(1) Warning of the coercive measure shall be issued in writing. Where there are grounds to fear that, in so doing, the forced implementation of the administrative act to be implemented will be thwarted, it shall be sufficient to issue an oral warning of the coercive measure or issue a warning by other necessary means conducive to the situation. An appropriate deadline shall be set for the discharge of the obligation.

(2) The warning may be issued in combination with the administrative act instructing the performance, tolerance or omission of an action. The warning shall refer to a particular coercive measure and shall be issued separately for each obligation. Warning shall be given of the specific amount of the coercive fine.

(3) A renewed warning for the same obligation shall be permissible only then where the coercive measure first threatened is unsuccessful. Where the liable party is required to tolerate or omit to do an act, it shall be permissible to give warning of a coercive measure for each instance of an offence.

(4) Where the performance of an action is to be conducted by substitutive execution, the warning shall contain a provisional estimate of the amount of the cost.

Section 333
Determining the coercive measures

Where the obligation is not fulfilled within the deadline set out in the warning or the liable party acts in breach of the obligation, the revenue authority shall determine the coercive measure.

Section 334
Substitutive coercive detention

(1) Where a stipulated coercive fine cannot be recovered from a natural person, the local court may, upon application by the revenue authority, order substitute coercive detention after consulting the liable party if reference had been made to this in warning of the coercive fine. Where the local court orders substitutive coercive detention, the court shall issue an arrest warrant in which the applying authority, liable party and the reason for the arrest shall be stated.

(2) The local court shall rule by way of decision, exercising due discretion. The local court in whose district the liable party is resident or, in the absence of a residence, has his habitual abode, shall have local jurisdiction. The decision of the local court shall be subject to the appeal procedure pursuant to sections 567 to 577 of the Code of Civil Procedure.

(3) Substitutive coercive detention shall be for a minimum of one day and a maximum of two weeks. The implementation of the substitutive coercive detention shall be determined pursuant to sections 904 to 906, 909 and 910 of the Code of Civil Procedure and sections 171 to 175 of the Prison Act.

(4) Where the claim to the coercive fine becomes time-barred, the detention may no longer be enforced.

Section 335
Termination of the coercive procedure

Where the obligation is fulfilled following determination of the coercive measure, enforcement shall be stayed.

2nd Subchapter
Forcing provision of collateral

Section 336
Forcing provision of collateral

(1) Where the obligation to provide collateral is not fulfilled, the revenue authority may attach eligible collateral.

(2) The act of forcing provision of collateral shall be preceded by a written warning. Sections 262 to 323 shall apply accordingly.

Fourth Chapter

Section 337
Costs of enforcement

(1) Costs (fees and expenses) shall be levied during the enforcement proceedings. The judgement debtor shall be liable for these costs.

(2) No costs shall be levied for the order for payment procedure.

Section 338
Types of fees

Fees for attachment (section 339), confiscation (section 340) and realisation (section 341) shall be levied as part of the enforcement proceedings.

Section 339
Attachment fee

(1) An attachment fee shall be levied for the attachment of movable items, for animals, for crops not yet separated from the ground, for receivables and for other property rights.

(2) The fee shall be incurred:

1. as soon as the enforcement officer has undertaken steps to carry out the enforcement order,

2. upon service of the order through which a receivable or another property right is to be attached.

(3) The fee shall be 26 euros.

(4) The fee shall also be levied where

1. attachment is averted by payment to the enforcement officer,

2. payment is made by some other means after the enforcement officer has been in situ,

3. an attempt at attachment has not led to the desired result because no attachable objects were uncovered, or

4. attachment in the cases of section 281(3) of this Code as well as sections 812 and 851b(1) of the Code of Civil Procedure does not occur.

Where the attachment is averted by other means, no fee shall be levied.

Section 340
Confiscation fee

(1) A confiscation fee shall be charged for the confiscation of movable items including documents in the cases of sections 310, 315(2), fifth sentence, sections 318, 321, 331 and 336. This shall also apply where the judgement debtor voluntarily pays the enforcement officer present to undertake the enforcement.

(2) Section 339(2) number 1 shall apply accordingly.

(3) The amount of the confiscation fee shall be 26 euros. The fee shall also be levied where the items described in subsection (1) above cannot be uncovered.

Section 341
Realisation fee

(1) A realisation fee shall be levied for auction by public sale and realisation by other means of objects.

(2) The fee shall be incurred as soon as the enforcement officer or another agent has undertaken steps to carry out the enforcement order.

(3) The fee shall be 52 euros.

(4) Where realisation is averted (section 296(1), fourth sentence), a fee of 26 euros shall be levied.

Section 342
Plurality of debtors

(1) Where enforcement is undertaken against several debtors, the fees shall be levied on each judgement debtor, even where the enforcement officer performs several acts of enforcement on the same occasion.

(2) Where enforcement is undertaken against joint and several debtors for a joint debt on the same occasion, the fees for attachment, confiscation and realisation shall only be levied once. The persons described in the first sentence above shall be liable for the fees as joint and several debtors.

Section 343

Section 344

(1) The following shall be charged as expenses:

1. clerical expenses for copies that are to be issued, or that are sent via fax, in a non-official capacity; irrespective of how such copies are produced, the amount of such clerical expenses shall be

a) 0.50 euros per page for the first 50 pages,

b) 0.15 euros for each additional page,

c) 1.00 euro per page for the first 50 pages copied in colour,

d) 0.30 euros for each additional page copied in colour.

Where electronically stored files are supplied in place of copies, expenses shall be 1.50 euros per file. A total of no more than 5 euros shall be charged for electronic documents supplied in one working step or for documents transferred to a data storage device in one working step. If, upon advance request, documents are converted from printed form to electronic form for the purpose of supplying electronically stored data, the fee for clerical expenses under the second sentence above shall not be less than the fee that would have been charged if the first sentence above were to have applied.

2. fees for postal and telecommunication services excluding fees for local area telephone services,

3. fees for service by the postal service with notice of receipt; where service is undertaken by the authority (section 5 of the Administrative Service of Documents Act), a fee of 7.50 euros shall be charged,

4. costs incurred through public notification,

5. the amounts to be paid to persons called upon to open doors and containers as well as to those called upon to search the judgement debtors,

6. costs for the movement, storage and supervision of attached items, costs of harvesting attached crops and costs for the storage, feeding, care and movement of attached animals,

7. amounts that, in corresponding application of the Judicial Remuneration and Compensation Act, are to be paid to court experts (section 107) as well as amounts to be paid to the trustees (section 318(5)),

7a. costs charged by a credit institution because a judgement debtor’s cheque was not cashed,

7b. costs for transferring a registered security or for the reinstatement of a bearer instrument,

8. other amounts to be paid to third parties because of enforcement measures, especially amounts paid to agents and aides during substitutive execution or in the case of direct enforcement, and other costs incurred by carrying out direct enforcement or applying substitutive coercive detention.

(2) Taxes which the revenue authority owes because of enforcement measures shall be levied as expenses.

(3) Where items or animals which have been attached in the case of several judgement debtors are collected and realised in a single procedure, the expenses arising in this procedure shall be divided between the judgement debtors involved. The special circumstances involved in individual cases, above all the value, amount and weight of the objects, shall be taken into account in the process.

Section 345
Travel expenses and expense allowances

In the enforcement proceedings, the judgement debtor shall not be required to refund the enforcement officer’s travel expenses and the expenses which can be reimbursed through expense allowances.

Section 346
Incorrect treatment of items, period for assessment

(1) Costs which would not have been incurred were items treated correctly shall not be levied.

(2) The period for the calculation of the costs and for the cancellation or amendment of the calculation of the costs shall be one year. It shall begin upon expiration of the calendar year in which the costs arose. An application for cancellation or amendment filed before the expiration of the period may also be met after the period has expired.

(The Fiscal Code of Germany)

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