The concept of exporter is strongly linked to the obligations of operators in terms of customs export procedures and formalities. In March 2020, Customs published a note modifying the status of exporter and the delegated regulation 2018/1063 of 16 May 2018. The note repeals all previous information relating to the new definition of exporter set out in the European Union Customs Code. This new definition has direct consequences on the subcontracting of an export operation and tax consequences for the declaration and proof of export.
Initially, the effective date of the new customs definition of the exporter was scheduled for 1 May 2020 but following the health crisis linked to Covid-19, the DGDDI decided to postpone its application until 1 October 2020.
The definition of exporter
Delegated Regulation (EU) 2018/1063 of 16 May 2018 (OJEU L192 of 30 July 2018) gives the following definition:
19) Exporter :
(a) a private individual transporting goods to be dispatched outside the customs territory of the Union where the goods are contained in the private individual’s personal luggage ;
(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 on the dispatch of 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 under which the goods are to be dispatched out of that customs territory.
Responsibility and concept of establishment of exporters
The definition of exporter for tax purposes is not changed, the change applies only to customs purposes. As a reminder, according to the regulations: “the exporter in the tax sense will always be the seller making an export delivery, regardless of the person organising the shipment or transport of the goods outside the European Union (seller, buyer not established in France or person acting on their behalf)”.
In order to be qualified as an exporter within the meaning of the European Union Customs Code, the exporter must have, on the customs territory of the European Union, at his choice, :
- its registered office,
- its decision-making centre (General Management),
- a permanent establishment (a fixed place of business which has at all times the necessary human and technical resources and through which customs operations are carried out).
If the seller cannot prove that he has a permanent establishment in the EU, he will have to use a fiscal representative to manage export operations and draw up the customs declaration. This definition thus removes the right to mention in box 2 of the declaration an exporter not established in the customs territory of the European Union (TDU). In addition, the exporter will now have to be empowered to decide or be involved in the export of the goods, contrary to the original guiding rules.
In the end, the exporter entered in box 2 will be responsible for the export operation he initiates through the customs export declaration he lodges, either on his own account or through a representative. He is therefore liable for the customs debt and incurs liability.
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