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Policy & Compliance


Non-established exporter – declaration completion rules


The requirement for establishment can have serious implications as to how Members represent their customers. It is imperative that they are familiar with the declaration completion rules and act accordingly.


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The UK’s departure from the single market and the EU customs union has created a number of practical issues stemming from the requirement for the declarant to be established in the customs territory of the UK. Most of the issues are linked to representation


rules where only established businesses can be represented by customs agents on a direct basis. BIFA has published a number of articles advising Members of this requirement and reminding them about the new rules. Another important issue is linked to the


declaration completion rules for export declarations, which have been rolled over from the European model and are generally viewed as impractical. But what are they? Many Members may


remember a string of discussions about the definition of the exporter under the UCC, which resulted in a restrictive definition included in the Delegated Act. The definition was then subsequently amended in 2018, allowing for more flexibility in determining who can be the exporter as quoted below:


Delegated Regulation (EU) 2015/2446 is amended as follows: (1) Article 1(19) is replaced by the following: ‘(19) ‘exporter’ means: (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; (b) in other cases, where (a) does not apply: (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


July 2021


territory; (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.


As a consequence, the introduction of the


definition of exporter under the EU declaration completion rules for export declarations essentially prohibited declaring a non- established trader, who by definition cannot be considered an exporter, on an export customs declaration. The person declared in Box 2 has to be established, which means that either an agent or another party contractually authorised to determine that the goods are to be taken out of that customs territory has to be declared instead. After its departure from the EU’s single market


and the customs union, the UK has not adopted the same definition of exporter but it has retained the established requirement as stated in The Customs (Export) (EU Exit) Regulations 2019:


Eligibility of persons to make export declarations 12.(1) A person may make an export declaration in respect of goods if the requirements in paragraph (2) are met by that person. (2) The requirements are: (a) that the person is able to: (i) make the goods available for examination, or


(ii) secure that the goods are made available for examination; and


(b) that, except where regulation 13 applies, the person is established in the UK.


As a consequence of this development, BIFA thought it important to amend the legacy completion rules in order to bring them in line with the legislative requirements, but also with the import declaration completion rules for import which always allowed a non-established importer to be declared in Box 8 on the premise that a declaration is lodged on its behalf and an agent acting on an indirect authority. This intervention has been accepted and after a series of discussions it is likely that the guidance will be amended soon, although at the time of writing of this article the legacy rules were still in place.


So what do Members need to do? Customs agents need to understand that the requirement for establishment may potentially have serious implications on how they can represent their customers. It is imperative that they are familiar with the declaration completion rules and act accordingly. BIFA will also be updating the guidance as soon as the new rules have been announced.


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