We are all aware of the EU’s recent legislative changes with regard to the UCC causing a fair amount of headache to our Swiss businesses. The rather restrictive wording of the exporter made us all ask the question how to conduct our business further. Interpretations came and put us more or less to ease and customs themselves did not know whether or not to challenge a particular setup. Nevertheless, the wording remained on paper and has still been hanging over our head as the mythological Sword of Damocles.
Now it seems our voices have been heard. The EU Commission, having received various inputs, considers changing the much-debated definition.
The considerations still relate to the core feature of an exporter being an EU-established entity. Nevertheless, and very much linked to the economic reality of international supply chains, the right of ownership/entitlement over the goods and the so-called right of determination about the whereabouts of the goods may be detached.
In fact, and as many Swiss exporters from EU territory already did to tackle this uncertainty, the Commission considers enabling to ‘delegate’ the export responsibility to any party that ‘has the power or is empowered for determining that the goods are to be brought to a destination outside the customs territory of the Union.’
The above view would provide a sufficient solution not only for entities who have an EU-established affiliate involved in the supply chain (e.g. as a toll manufacturer). but may even go further and enable non-EU entities without a ‘tangible EU connection’ to delegate the export responsibility e.g. to an external party to the chain. Whether logistics enterprises and freight forwarders would be able to legally take on this role remains to be elaborated on via the guidelines.
Should the voting on the new wording turn out to be positive, this provides already a good written legal basis for Swiss entities to regain their confidence in their supply chain. Then the much-awaited interpretative guidance will play a crucial role in filling this very reasonably thought through legislative change with content. Last, but not least, national customs administrations must learn to accept the solution.
We will remain alert and update you with the much-awaited results as soon as they are available. Until then, roll your sleeves up and be confident in your business as much as we are.