By Erik Scheer, Mirko Marinc and Jaap Huenges Wajer Oct 22 2019 / Global Compliance News Baker Mckenzie
The Dutch Custom Authorities have published a short communique on October 1, 2019 stating that as of December 1, 2019 only EU-established entities can be mentioned as exporter on the Dutch customs declaration for export. As a result, per December 1, 2019 only EU-established entities can formally act as exporter. This is especially noteworthy in light of Brexit, where UK-established entities will no longer qualify as EU-established and will therefore no longer be able to act as exporter.
1. Legal Framework
When the Union Customs Code (UCC) was implemented in May 2016, only an entity established in the EU could qualify as exporter for customs purposes if, in addition, this entity held a contract with a consignee in a third country and had the power to determine that the goods were to be brought to a destination outside the EU.
As of July 2018, exporter was further defined under Art. 1(19) UCC-DA as a person that it is established in the EU and:
- has the power to determine that the goods are to be brought outside the customs territory of the Union, or,
- is a party to the contract under which goods are to be taken out of that territory. The conditions of the first possibility have to be assessed based on actual facts and circumstances. With regard to the second possibility mentioned above, business partners are free to designate a person as exporter in their contractual or business arrangements, provided that such a person is established in the EU.
As indicated in the communiqué at hand, Dutch Customs will now enforce the legal framework as put in place upon the implementation of the UCC.
2. Impact of change on filing of customs declarations
Since an EU-established entity will have to act as exporter on the customs declaration, an EU-group entity (if available) or an EU-established third party can fulfill that obligation. Under the new “flexibility” provided by the interpretation of the new exporter definition, parties are contractually free to choose any person established in the EU to act as exporter. This person does not necessarily have to be a party in the sales chain.
Note that whoever is contractually assigned as exporter takes over the responsibility for the correctness of the export declaration towards the customs administration. The exporter is also the addressee of the customs administration for reviews or audits of the export declarations.
Please note that companies should also be aware of this change if a UK-established entity is currently acting as exporter from the Netherlands.
If Brexit takes effect, then the UK-established entity can also no longer act as exporter, since said entity would no longer be established in the EU.
In the event that a non-EU established company is still acting as exporter from the Netherlands, we would suggest reviewing whether an EU-group entity could take over the position of exporter or whether an EU-established third party should be contracted in that respect.
Should you require any assistance in this regard, our customs team in Amsterdam is capable of helping you to review your supply chain to tailor it to be in line with the communiqué of Dutch Customs, while also allowing for a smooth transition for your business.