Under the Community Customs Code (CCC), the only reference to the notion of exporter appeared in article 788 of the Consolidated Code Implementing Provisions (CCIP), which stipulated that an exporter shall be considered to be "the person on whose behalf the export declaration is made and who is the owner of the goods or has a similar right of disposal over them at the time when the declaration is accepted".
Since the Union Customs Code (UCC) entered into force on 1 May 2016, article 1 (19) of the Commission Delegated Regulation 2015/2446 defines the exporter as "the person established in the customs territory of the Union who, at the time when the declaration is accepted, holds the contract with the consignee in the third country and has the power for determining that the goods are to be brought to a destination outside the customs territory of the Union".
The European Commission has published guidelines (i.e. Guidance on export and exit out of the European Union) related to this definition of exporter. The new conditions state in particular that a person established outside of the EU customs territory cannot be named as an exporter, especially on the export declaration (SAD). Furthermore, to summarise, the guidelines state that the exporter is the person responsible for transporting goods outside of the Union. The requirements of international trade mean, however, that such a definition tends to complicate certain situations.
This is why the Commission has presented various cases to illustrate the new considerations raised by application of this new definition (i.e. Annex A of the Delegated Regulation), and in particular that of delivery under the incoterm Ex Works (EXW) which, you will recall, implies that the seller makes the goods available at their plant/depot; the buyer is then responsible for loading and transporting the goods, as well as all costs and risks involved in taking the goods to the buyer's place of business.
If the buyer is based in a third country, although it organises collection of the goods, completes the customs clearance formalities at export and import and is responsible for all transport, the seller, located within the EU customs territory, is considered not to have the power to determine that goods are to be taken outside the EU customs territory and therefore, according to the definition in article 1 (19), cannot be considered as an exporter. In practical terms, this means that the seller cannot therefore be named in section 2 ("Consignor/Exporter") of the customs declaration, and that the buyer must be entered here again solely by means of a customs representative acting in indirect representation mode.
In France, however, if the name of the seller located within the EU does not feature on the customs declaration, it will be more difficult for it to provide evidence of its right to be exonerated from paying VAT due to the fact this is an export.
To date, the French authorities have not published an official circular or memo on this topic.
Meanwhile, the Belgian customs authorities stipulate, in the case of an EXW delivery, that "the exporter from a customs point of view must be mentioned in section 2 of the export declaration and the name of the exporter from a VAT point of view in section 44, with their EU VAT number".
At European level, it seems that the issue is currently under discussion in Brussels.
However, it is interesting to note that a similar issue has been identified as regards the definition of the notion of importer. On this point, the French Customs Directorate-General adopted a position in a memo to operators sent on 25 October 2016.
As a reminder, article 293 A of the French General Tax Code (CGI) stipulates that "the tax must be paid by the person designated as the real recipient of the goods on the import declaration".
Meanwhile, customs regulations do not provide any definition a recipient, and certainly not of what constitutes a "real" recipient. We only know that the Official Customs Bulletin (BOD) no. 6705 of 21/03/2007 on the single administrative document (SAD) indicated that section 8 of the SAD "Consignee" must mention the contact details of the "real recipient, which is the entity that actually receives the goods and on behalf of which the customs clearance formalities are performed. The recipient is the person responsible for the transaction from a tax point of view".
Nevertheless, the assumptions for distinguishing between the entity actually receiving goods and the real recipient covered by the memo to operators are not clearly identifiable. Above all, it seems essential to make this distinction clearly apparent on the customs declaration in order that the party liable to pay import VAT (i.e. the real recipient in the sense of the CGI) can provide proof of having paid the tax whilst not appearing in section 8 of the SAD under "Consignee", in the customs sense of the term.
In these conditions, the memo specifies that, when two entities are concerned, the following must be officially included on the import declaration:
- In section 8, "Consignee": the identity of the entity actually receiving goods, but there is no legal definition of this notion. According to the circular, this refers to the person mentioned in the commercial and/or transport documents (i.e. the logistics or industrial site receiving the goods);
- In section 44, "Additional information/Documents produced/Certificates and authorisations": the identity of the real recipient, i.e. the party subject to and liable to pay import VAT, along with its French EU VAT number using the document 1004 code.
Article 1 (19) of the delegated regulation (EU) no. 2015/2446 of 28 July 2015