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The Dutch Custom Authorities have published a short communique on October 1, 2019 stating that as of December 1, 2019 only EU-established entities can be mentioned as exporter on the Dutch customs declaration for export. As a result, per December 1, 2019 only EU-established entities can formally act as exporter. This is especially noteworthy in light of Brexit, where UK-established entities will no longer qualify as EU-established and will therefore no longer be able to act as exporter.

1. Legal Framework

When the Union Customs Code (UCC) was implemented in May 2016, only an entity established in the EU could qualify as exporter for customs purposes if, in addition, this entity held a contract with a consignee in a third country and had the power to determine that the goods were to be brought to a destination outside the EU.

As of July 2018, exporter was further defined under Art. 1(19) UCC-DA as a person that it is established in the EU and:

  1. has the power to determine that the goods are to be brought outside the customs territory of the Union, or,
  2. is a party to the contract under which goods are to be taken out of that territory. The conditions of the first possibility have to be assessed based on actual facts and circumstances. With regard to the second possibility mentioned above, business partners are free to designate a person as exporter in their contractual or business arrangements, provided that such a person is established in the EU.
    As indicated in the communiqué at hand, Dutch Customs will now enforce the legal framework as put in place upon the implementation of the UCC.

2. Impact of change on filing of customs declarations

Since an EU-established entity will have to act as exporter on the customs declaration, an EU-group entity (if available) or an EU-established third party can fulfill that obligation. Under the new “flexibility” provided by the interpretation of the new exporter definition, parties are contractually free to choose any person established in the EU to act as exporter. This person does not necessarily have to be a party in the sales chain.

Note that whoever is contractually assigned as exporter takes over the responsibility for the correctness of the export declaration towards the customs administration. The exporter is also the addressee of the customs administration for reviews or audits of the export declarations.

3. Brexit

Please note that companies should also be aware of this change if a UK-established entity is currently acting as exporter from the Netherlands.

If Brexit takes effect, then the UK-established entity can also no longer act as exporter, since said entity would no longer be established in the EU.

4. Suggestions

In the event that a non-EU established company is still acting as exporter from the Netherlands, we would suggest reviewing whether an EU-group entity could take over the position of exporter or whether an EU-established third party should be contracted in that respect.

Should you require any assistance in this regard, our customs team in Amsterdam is capable of helping you to review your supply chain to tailor it to be in line with the communiqué of Dutch Customs, while also allowing for a smooth transition for your business.

Author

Erik Scheer is a Tax Partner in the Firm's Amsterdam office. He is an attorney-at-law and tax adviser in the area of indirect taxes: VAT and customs. He is a recognized tax litigator and has been consistently named a leading tax lawyer in Chambers, Legal 500 and International Tax Review.

Author

Mirko Marinć is a partner in Baker McKenzie’s Indirect Tax practice in Amsterdam, and a member of the EU VAT Steering Committee. His experience includes advising businesses on supply chain opportunities, acquisition and restructuring projects, holding company issues and intra-group compliance simplification. Mirko lectures on moot courts at the University of Leiden every year, and speaks at various seminars and conferences. He has also published several articles in international (VAT) magazines on indirect tax. Prior to joining the Firm as a tax advisor on December 2006, he worked for Arthur Andersen and Deloitte where he was involved in numerous projects for major Dutch and foreign companies.

Author

Jaap Huenges Wajer is an associate with the Baker McKenzie Amsterdam Indirect Tax team. He his experience covers among others various real estate projects, ranging from single building blocs, including offices and residential, to larger international real estate portfolios. Furthermore, he advises companies on customs related matters, such as Brexit restructuring, product classifications, excise linked cross border activities within the market of European Union and VAT advice in respect to the aforementioned.