Customs Duties and Anti-Dumping Duties in Medical Technology Imports: When and How You Can Legally Pass on Additional Costs to Your Customers
Importing medical technology is a highly regulated and precision-driven market—and simultaneously a terrain of considerable cost risks. In addition to standard import duties, companies are repeatedly confronted with the sudden introduction or tightening of anti-dumping measures. These charges can destabilize a delivery’s cost calculation within days. This leads to a core practical question: Are you allowed to pass these burdens on to your buyers—and if so, on what legal basis and in what form? This article systematically and practically addresses the issue, aiming to provide a reliable decision-making framework for current contracts and future contractual design.
1. Legal Framework: Binding, Adjustment, and Exemption
The starting point is the concluded contract. A fixed price agreement is initially binding. Typically, this means the seller bears the risk of unforeseen cost increases, including customs and anti-dumping duties, unless otherwise agreed. However, this does not exclude the possibility of passing on such costs. German civil law offers two corrective mechanisms: adjustment via effective price adjustment clauses or, if such clauses are absent or ineffective, contract adaptation due to a disruption of the contractual basis under § 313 BGB. Full or partial release from the performance obligation (e.g., § 275 BGB or Art. 79 CISG) is rare and usually not triggered by mere cost increases.
Thus, in practice, legally secure cost passing mainly depends on well-crafted price adjustment clauses or, secondarily, on § 313 BGB.
2. Price Adjustment Clauses as the Preferred Tool in B2B Contracts
In business-to-business transactions, price adjustment clauses are permitted if they are transparent, based on actual cost triggers, and not used for profit maximization. Such clauses must clearly define which state-imposed costs—especially customs and anti-dumping duties—trigger an adjustment and how this is calculated. References like "customs, import charges, and trade protection measures arising or increasing after contract conclusion, including anti-dumping and countervailing duties" are common and acceptable.
Clauses should also clarify whether the seller must switch to alternative procurement markets to maintain price stability. In most cases, this obligation should be excluded due to the disruption and effort it entails.
Value-added tax adjustment clauses (including import VAT) are common, as buyers can typically reclaim these via input tax deductions.
Important: German general terms and conditions (AGB) law applies as soon as a contract form is used more than once. Therefore, price adjustment clauses must meet the legal validity criteria even in B2B contexts.
In the event of expected duties, such as retaliatory tariffs or announced anti-dumping investigations, these should already be factored into the contract via specific clauses. Relying on § 313 BGB after the fact is much harder to justify.
An alternative tool is the contractual right of determination under §§ 315 et seq. BGB, which allows for price setting based on fairness if no final price was agreed upfront. Such a right must maintain the initial calculation balance.
3. If the Clause is Missing: Contract Adaptation under § 313 BGB
If a viable price clause is missing, § 313 BGB remains a legal fallback. However, it requires a significant and unforeseeable change in circumstances that disrupts the contract's balance. It must be unreasonable to expect one party to uphold the contract unchanged.
This involves a three-step test:
- Interpretation to see if the issue is already contractually addressed.
- Assessment of whether the change was material and unforeseeable and not part of the assumed risk.
- Evaluation of whether maintaining the original contract terms leads to an unjust result.
Cost increases alone generally fall under the seller’s risk. Only “extreme” changes—especially in politically sensitive sectors like medical technology—may activate § 313 BGB.
4. Why Economic Impossibility and Force Majeure Rarely Help
Labeling cost increases as “economic impossibility” often fails. § 275 BGB only applies to actual impossibility, not higher costs. Similarly, Art. 79 CISG does not excuse performance solely due to price surges. Real efforts to mitigate the cause—e.g., alternative sourcing—are expected before invoking force majeure.
5. Practical Contract Types in Medical Technology
Long-term framework agreements are common in the industry and should include transparent adjustment clauses. In fixed-price project contracts (e.g., for imaging systems), retroactive adjustments are only possible via § 313 BGB if no clauses exist.
6. Example: 25% Anti-Dumping Duty on a Core Component
A supplier of an endoscopic component faces a sudden 25% anti-dumping duty. If a contract clause references such duties, the seller can demand an increase equal to the actual additional cost, with documentation. Without such a clause, § 313 BGB may apply—but only if the situation was unforeseeable and seriously disturbs the original price equilibrium.
7. Refuting Common Objections
Even if a force majeure clause exists, pure cost increases rarely suffice. Courts demand that all reasonable mitigation steps be taken first. This makes § 313 BGB the more promising path.
8. Contract Drafting Tips
To reliably pass on customs and anti-dumping duties, include clauses with:
- A clear list of cost triggers (duties, trade measures),
- A calculation method based on actual cost increase,
- Documentation requirements and adjustment mechanisms for downward changes if duties are lifted.
Indicating that sellers are not obliged to change suppliers is also advisable. Contract terms should reflect duty rates and sourcing regions at contract signing.
9. Recommendations for Current Contracts
Review your contracts for relevant clauses and gather facts: date and type of measure, cost impact, alternatives explored. Then inform your customers early and propose a cost-neutral adjustment. If needed, prepare a § 313 BGB argument with documentation.
10. Conclusion
Customs and anti-dumping duties are not an unavoidable fate for importers. Legally passing on these costs is possible through proper clauses or—less commonly—via § 313 BGB in extreme cases. Force majeure and impossibility are rarely applicable. Those who proactively shape their contracts and communicate transparently can address cost burdens legally and fairly within the medical technology supply chain.
Source: BeckOK BGB Hau/Poseck, 74. Edition, BGB § 309 Nr. 1, § 313, CISG Art. 79.