Short & Sweet no. 6
Flying with EU-resident persons onboard when using Temporary Admission

• What are the limitations for EU-resident persons?
• Who are the limitations meant to target?
• What is the legal background?
• There are different opinions
• How to secure a flight operation when using Temporary Admission

IMPORTANT: This article is important because the convention text regulating the worldwide usage of TA is vague and has left many important areas in the UCC open to interpretation. Please read more about the convention, the legal background, and how to secure correct use of TA at the bottom of this article.

Please also read this article if you wish to learn more about the background for TA, why the procedure exists, how it is enforced, and the consequences of using it incorrectly.

Here are the background and various important definitions and interpretations, which have been confirmed several times by the EU Commission.

Which entity is the real user of an aircraft?

The pilots are seen as the real users of an aircraft in a customs context.

What are the limitations for persons onboard?

If a pilot has their habitual residence within the EU, the aircraft can still use the TA procedure, but only if the preconditions in the UCC are met. The most important condition is that the pilots must be directly employed by the physical operator.

The following types of persons are not seen as users of an aircraft in a customs context and are therefore not limited or restricted in any way:

• Non-EU-resident pilots
• EU-resident flight attendants and technicians
• Non-EU-resident flight attendants and technicians
• EU-resident passengers
• Non-EU-resident passengers
• Non-EU-resident owners (individuals)

Which entity is the physical operator of an aircraft?

The concept of being an operator of an aircraft in a customs context does not depend on the entity having disposal over the aircraft, e.g., through ownership, rental, charter, lease, or use/operating agreement. It depends solely on the physical control of the aircraft.

Thus, the physical operator is, in customs terms, the entity that supervises or controls the aeronautical operation. This entity typically also employs the crew and provides services to keep the aircraft in the air. If the aircraft is managed, the operating company is normally considered the physical operator. Pilots cannot themselves be seen as the physical operator in a customs context if they operate the aircraft on behalf of a ‘hired’ operator.

IMPORTANT: The correct designation of the physical operator can often be complex if more than one entity is involved in the ownership and operation of the aircraft, but it is absolutely essential to get this designation correct, as many other elements and liabilities depend on this definition.

The physical operator will be seen as the TA authorization holder (also known as the TA customs declarant) and must, of course, be a non-EU entity.

A typical pitfall

A non-EU-owner entity that directly employs pilots cannot designate the pilots as the physical operator if the same owner entity has engaged a professional operator to operate the aircraft. Such a wrong designation of the physical operator can lead to an economic catastrophe if any of the pilots are EU residents.

Is an authorization or appointment letter needed?

The short answer is no. Yet operators often ask whether an authorization letter from the owner to specific passengers is needed onboard, or whether the owner must designate a main passenger when flying with EU-resident passengers within the EU.

Using an authorization letter is outdated, as this option was removed from the UCC in 2014. An authorization letter (sometimes also referred to as an invitation letter) can still be carried onboard, but it has no legal effect or protective value against irregularities because:

• The authorization option no longer exists
• The authorization was originally meant for pilots, not passengers (see the explanation above about the real user term) 

Appointing a main passenger among all passengers has no legal basis under the UCC. This is based on the same two reasons as listed above for the authorization letter. Such an eventual usage furthermore indicates a misapplication of the TA procedure, as passengers are not considered the real users in this regard. Feedback indicates that this approach is often seen as a poor start during ramp checks.

There are different opinions

We acknowledge that there are opinions on this issue. However, we are confident that the explanation above is strictly correct, as it is based on dialogues and various working papers from the EU Commission, supported by EU customs agencies.

Legal background for Temporary Admission

The Istanbul Convention from 1990, regulating the worldwide usage of TA, is not very precise, and the EU Commission has been and is continuously publishing various working papers and guidelines to clarify the correct understanding of TA and its usage in the EU. The 2014 working paper from the Union Customs Code Committee (available in English, French, and German) is especially important. Operators should always be aware that these documents are not legally binding for EU member states. Interpretations may vary between member states, which is why it is crucial to have a competent customs agency provide guidance based on the specific setup.

Click here to see a list of known grey zone areas where different interpretations of the TA procedure exist. While none of these areas pose a problem when TA is correctly applied and documented, we find that operators often require guidance to ensure safe and compliant use in these situations. 

IMPORTANT: The above-mentioned working papers and guidelines grant users of TA a wide and very flexible use of TA, but these privileges (e.g., flying internally in the EU or carrying EU persons onboard, as described in this article) are not carved in stone and are always subject to specific preconditions and limitations. That is why we at OPMAS assist many operators every year to understand and get things the right way when using TA, including getting proper supporting documentation of the TA status from a competent customs agency.

How can we help?
If you have questions about the above, please do not hesitate to contact us.