CDU: New definition of exporter... what does it change?

Since the entry into force of the Union Customs Code (CDU) on 1 May 2016, Article 1 (19) of Delegated Regulation (EU) 2015/2446 defines the exporter in three distinct categories:

(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 »

Points (a) and (c) both refer to commercial exports.

However, according to European Commission guidelines on the concept of exporter*, where both cases are potentially applicable, Article 1 (19) (a) shall prevail, since Article 1 (19) (c) shall cover in a residual way the « other cases ».

This new definition of exporter In particular with that contained in the previous Community Customs Code (CDC):

« natural or legal person on whose behalf the export declaration is filed and who, at the time of acceptance, owns or has a similar right of disposition of the goods in question ».

Indeed, it raises questions on the part of economic operators in many respects.

In particular, these new criteria mean 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).

In addition, an agreed sale with a third party buyer under Incoterm® Ex Works (EXW)would no longer allow the Community seller to be included as an exporter on the SAD.
Indeed, this incoterm® involves making the goods available to the buyer out of the factory or warehouse... The seller does not control the movement of goods outside the EU customs territory!
In this case, only the buyer should be taken over as an exporter on the SAD via a customs representative acting under indirect representation (authorised during the transitional period until 31/12/2020).

This raises the problem of justification of the VAT exemption of the Community seller via its DAU electronically targeted out of the EU customs territory.

* « ANNEX A DEFINITION OF « Export » Article 1 (19) UCC DA » of 20/05/2016 available to our subscribers on request.