CDU – Definition of exporter: a desired and expected flexibility!

We warned you a few months ago about the new definition of the exporter taken over in the CDU which had led to the lifting of shields from many economic operators, professional organisations but also from Member States as ambiguous and restrictive (cf. CDU: New definition of exporter... what does it change?).

The European Commission had noted these objections and was in the process of recasting the definition.

RECALL

Article 1 (19) of Delegated Regulation (EU) 2015/2446 of 28 July 2015 defined the exporter as follows:

(a) « the person established in the customs territory of the Union who, at the time the declaration is accepted, is the holder of the contract concluded with the consignee in a third country and is empowered to decide on the dispatch of the goods to a destination outside the customs territory of the Union.

(b) the individual carrying the goods to be exported when they are contained in the personal baggage of the individual;

(c) in other cases, the person established in the customs territory of the Union who is empowered to decide on the dispatch of the goods to a destination outside the territory of the Union »

This definition was repealed by Commission Delegated Regulation (EU) 2018/1063 of 16 May 2018 amending the text as follows:

(a) an individual carrying goods to be shipped outside the customs territory of the Union where they are contained in the personal baggage of the individual;

(b) in other cases, where point (a) does not apply:

(i) a person established in the customs territory of the Union, who is empowered to decide and has decided to dispatch the goods outside that customs territory;

(ii) where point (i) does not apply, any person established in the customs territory of the Union who is a party to the contract following which the goods are to be shipped outside that customs territory.»

Thus,the concept of a commercial contract concluded with the consignee in a third country has been definitively abandoned.

On the other hand, the obligation to be established within the EU is maintained: this criterion induces in particular thata natural or legal person established outside the EU may no longer be designated as an exporter on the customs declaration(box 2 of the DAU).

But let us remember thattransitional period until 31/12/2020allows a third party entity to be included as an exporter provided that it istax representation in the European Unionvia indirect customs representation.

Finally, the concept of the exporter's obligation to decide on the shipment of goods outside the customs territory of the Union has been retained, suggesting that at least onesale with incoterm FCA.

Indeed, in the case ofEXW saleAnnex A* (modalities of application) confirms thatThe third-party buyer is to be regarded as the exporterSince he is able to decide on the shipment of goods outside the territory of the Union (TDU).

However, trading partners may make contractual or commercial arrangements to designate who will act as an exporter, provided that the designated person isestablished in the customs territory of the EU.

Thus, in our case of EXW sale, the third-party buyer may as well designate the seller, carrier, freight forwarder or any other party to the contract to act as an exporter as long as that person complies with thedefinition of «1 exporter»and agrees to assume the role.

 * « ANNEX A DEFINITION OF « Export » Article 1 (19) UCC DA revised» of 30/07/2018available to our subscribers on request.