Important change in customs regulation for non-EU-based businesses

Important change

This change follows from the strict definition of 'exporter of record' in the EU legislation, where the exporter is defined as follows: 
a. a private individual carrying goods to be taken out of the customs territory of the Union where these goods are contained in the private individual's personal baggage; 
or b.i. a person established in the customs territory of the Union, who has the power to determine and has determined that the goods are to be taken out of that customs territory; 
or b.ii. where (i) does not apply, any person established in the customs territory of the Union who is a party to the contract under which goods are to be taken out of that customs territory.

Like few other EU Member States, the Dutch customs authorities have not, until now, followed up on these changes to the letter. However, recently they announced that the strict definition of 'exporter of record' will apply. Thus as from 1 January 2021 the Dutch customs will no longer accept export declarations of a non-EU business as exporter of record.

It is important to note that nothing will change from a VAT point of view: businesses from all over the world will still be able to export the goods from Dutch soil when they are the owner of theses goods. 'Only' for customs purposes (so for the export documents) the exporter of record must be established in the EU.  A carrier, a freight forwarder, a logistics service provider, a customs broker or any other party may act as such as long as that person complies with the definition of exporter and agrees to take on this role.

The change in the approach of Dutch customs will have impact on all non-EU companies. Therefore, in case of a no-deal Brexit, UK-based exporters, exporting goods from the EU will also qualify as non-EU companies.

Possible solutions

Reviewing the supply change, non-EU exporters might under specific circumstances act as exporter, e.g. by setting up an EU entity, or by establishing a “permanent business establishment” for customs purposes or by implementing different incoterms.