Update: New Exporter Definition – impact and recommended actions

Recently the Dutch Customs authorities announced that the implementation of the new exporter definition, that makes it impossible for non-EU (established) companies to act as exporter from the Netherlands, is further postponed due to the Covid-19 situation.

For the time being, non-EU companies can still act as exporter from the Netherlands. The postponement provides international operating companies with additional time to make the necessary adjustments to their supply chain and systems.Please find below guidance on the background of this important change and on the impact from a customs, VAT and trade regulatory point of view, as well as some recommended actions.

BACKGROUND

On 1 October 2019, the Dutch Customs authorities announced that non-EU companies may not be stated as the “exporter” of goods in Box 2 of the export declaration after the 1st of December 2019. This means that exporters for customs purposes can only be EU-established entities, having an EORI number. An exception has been made for the re-export of non-Union goods (please read below). Previously it was permitted for non-EU companies to appoint an indirect customs representative.

To give businesses time to adjust their supply chains and systems, Dutch Customs announced on 18 November 2019 an adjustment of this date to 1 April 2019. According to the recent announcement of the Dutch Customs authorities, the implementation deadline which was originally set for 1 April 2020 will be postponed to the 15th day of the month following the month the measures concerning Covid-19 are ended by the Dutch Government. The current Covid-19 measures are in force up to and including the 19th of May 2020.

IMPACT OF THE CHANGE – CUSTOMS, VAT AND TRADE REGULATORY

Following the change an EU-established entity must act as exporter on the customs export declaration, and have to be mentioned with its EORI number in box 2 of the export declaration. Non-EU companies should assign an EU-established (group) entity to act as exporter for customs purposes for the export of Union goods. This can be any person having its registered office, central headquarters or a permanent business establishment in the customs territory of the Union. A permanent business establishment is defined as a fixed place of business, where both the necessary human and technical resources are permanently present and through which a person’s customs-related operations are wholly or partly carried out. Alternatively, an assessment of the used Incoterms can be considered (https://www.kneppelhout.com/news/the-icc-launches-the-new-incoterms-2020).

Based on 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.Please note that the party which is contractually assigned as exporter takes over the responsibility for the correctness of the export declaration towards the customs authorities. It should be noted that logistics service providers (customs agents, shipbroker, carriers, etc.) are – generally speaking – not often willing to take on the role of exporter due to the (financial) risks involved.

So how could this affect non-EU companies? If you are a non-EU company shipping under the Incoterm EXW (Ex Works) from The Netherlands or are (having) submitting export declarations on behalf of your non-EU company that is only registered for VAT within the Netherlands, this could significantly affect your supply chain. A potential solution is to agree with the EU supplier to change the EXW Incoterm into FCA. Also, if you are a UK-based company exporting and acting as an exporter of record from The Netherlands this could impact your company as from the 1st of January 2021 (when the Transition Period ends and the full effects of Brexit set in).

Re-export of non-Union goods

To our knowledge the new exporter definition will not apply for the re-export of non-Union goods. This means that a non-EU company can still be exporter for the re-export of non-Union goods from the Netherlands. A non-EU company that sources non-Union goods (in or outside the EU), which are destined for transit and stored in a customs bonded warehouse in Rotterdam (The Netherlands) can continue to be mentioned as exporter in Box 2 of the export declaration.

The EU exporter rule does not only have customs implications, also the VAT and EU export controls aspects for international supply chains should be well considered.

VAT exemption for exports

From a VAT point of view it should be noted that if a non-EU (established) company sells goods from the EU to a customer established outside the EU, the supplying company should still be able to apply the VAT exemption for the export transaction (i.e. a VAT zero-rated export). Having an EU-established (group) entity acting as exporter for customs purposes appears at first sight not in line with claiming a VAT exemption for the export sale of the non-EU (established) company. We note, however, that the definition of exporter under the customs regulations and the assignment of the VAT-exempt export follow different regulations, and are not aligned. This disconnection between the customs and VAT rules should in our view not result in not being allowed the VAT exemption.

Export controls

Who will act as the (future) exporter is even more important in case of the export of dual-use goods. A company needs an export license to re-export any controlled dual-use items to countries outside the EU (this license requirement does not apply to items in transit). An export license is being granted by the competent authorities of the EU Member State in which the exporter is established. This implies that the exporter for export controls purposes can (also) only be an EU (established) company.

RECOMMENDED ACTIONS

Non-EU (established) companies exporting from the Netherlands should find alternative means for ensuring an uninterrupted flow of exports from the EU, including for example amending the incoterms or setting up an EU legal entity (or a “permanent business establishment”) for customs purposes. The export of dual-use goods in particular requires careful consideration. Non-EU companies may also consider appointing parties established in the EU to act as the exporter by means of contractual arrangements. In addition, the current set up and programming of the export declarations has to be amended.

From a VAT point of view, companies should review their supply chains and assess the impact of this change on the VAT exemption for export. Finally, we note that other EU Member States such as Germany, France, Italy, Hungary, Spain, Latvia, Lithuania and the Czech Republic have already imposed the above exporter definition or announced plans to do so. The above mentioned recommended actions also apply for other EU Member States.

For more information please contact the specialists from our Customs, Trade and Regulatory Team.

We can also call on our extensive network of customs specialists in other EU member states.