Amendments related to the definition of the exporter
By way of introduction, Regulation no. 2446/2015 has brought certain amendments to Regulation 952/2013 of the European Parliament and the Council regarding the Union Customs Code. Included in these amendments is a modification of the definition of the term ‘exporter’. The modification involves introduction of a specific condition regarding being established within the customs territory of the EU.
To foster harmonisation of customs legislation at the level of the Member States, in August 2016 the Romanian fiscal authority issued Order no. 2460 that allowed economic operators not established in the EU that perform export operations (not occasional operations) to be listed in Box 2: Consignor / Exporter on the export declaration, but only by indirect representation.
However, in August 2019, the Romanian fiscal authorities issued Order no. 2254 that restricted economic operators not established in the EU customs territory, allowing them to only file customs export declarations in their own name, even by indirect representation. In other words, economic operators not established in the EU customs territory are no longer deemed exporters and, therefore, they can no longer be listed in Box 2 on an export customs declaration.
So, companies not established within the EU now have only the following options if they intend to perform export operations from Romania:
- They can register a permanent establishment in Romania (or another Member State); or
- They can list a fiscal representative (or another designated person) as exporter in Box 2 of the customs declaration. It should be noted that though this approach has been adopted by different companies, they do so at their own risk because the amendment of the VAT legislation is still at proposal stage and, therefore, application of the VAT exemption for the export performed by a non-EU company in this form is still questionable.