With the introduction of the Union Customs Code in 2016, a new definition of ‘exporter’ was introduced. Based on this definition, non-EU resident entities no longer qualify as ‘exporter’.

The definition of exporter is in article 1, sub 19, of the Delegated Act to the Union Customs Code:
‘exporter’:
(….)
(i) a person established in the customs territory of the Union, who has the power to determine
and has determined that the goods are to be taken out of that customs territory;
(ii) where (i) does not apply, any person established in the customs territory of the Union who
is a party to the contract under which goods are to be taken out of that customs territory.

In addition to the above definition, the EU commission has released guidance regarding this matter:

In cases of exports where Article 1(19)(b)(i) does not apply, the business partners concerned must make contractual or business arrangements in order to designate who will act as exporter, provided the person designated is established in the customs territory of the EU.

A carrier, a freight forwarder or any other party may act as exporter as long as that person complies with the definition of ‘exporter’ and agrees to take on this role.

According to this guidance it is possible to appoint any party in the EU that does comply with the definition of exporter.  Dutch Customs, however, applied a rather liberal interpretation of this provision, as a result of which non-EU based entities could still be mentioned as exporter on export declarations. The EU has urged Dutch Customs to change this approach, which will take effect per April 1, 2020.

The introduction of the new exporter definition results in practical differences from a VAT perspective. Dutch VAT law requires for the application of the 0%-VAT rate in case of export that it has to be proven that the goods have physically left the EU. The main evidence is ‘the confirmation of exit’ status of an export declaration.

As of April, when non-resident companies cannot be mentioned as exporter, getting a clear evidence will become more complex. Therefore, it is of utmost importance to make sure that each export declaration includes a clear reference to the sales transaction (for example based on a sales order number or invoice number). The customs broker should include a quote on the declaration based on which it is made clear that the declaration relates to the transaction.

For further information please contact Paavo Oestberg (oestberg.paavo@ch.pwc.com).

Image Source: Unsplash.com