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

• What are the limitations?

• Who are the restrictions meant for?

• Are certain documents needed onboard when flying with EU-resident persons?

• Endorsed by the EU Commission

The Union Customs Code (UCC) states that there are some limitations for aircraft using the Temporary Admission (TA) procedure when carrying EU-resident persons onboard. These limitations are only meant to restrict the real user of the aircraft, so it is important to understand the definition of the real user to see how these limitations apply. The limitations are stipulated in Article 215 of the UCC-DA. 

Here is the background, which has been confirmed several times by the EU Commission.

The customs aspect of flying within the EU

Any aircraft flying into the EU will fly under customs control using either TA or full importation. There are no other options. If the aircraft is not already fully imported, the aircraft will automatically be considered as flying under TA even though the owner or operator has not themselves taken any action to activate this procedure or realized that their aircraft is flying under TA. The TA procedure is thus always required for non-EU imported aircraft, even for flights with only one stop within the EU. Here, non-compliance with TA will most likely activate a direct payment of the VAT (ranging from 17-27%) and customs duty (ranging from 2.7-7.7%) for the owner or operator. The TA procedure can only be used by EU outsiders where the aircraft is owned (including any UBOs), operated, registered, and based outside the EU, leaving EU insiders only one option: full importation. EU outsiders can, of course, choose to use full importation instead of TA if they find it beneficial. However, both options can be used commercially, corporately, or privately if applied correctly.

Which entity is the real user of an aircraft in customs terms?

The concept of use does not depend on the entity having disposal over the aircraft, e.g., ownership, rental, charter, lease, or use/operating agreement. It depends solely on the entity having physical control of the aircraft. 

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 flying. If the aircraft is managed, the management company is normally considered the physical operator.

This means that pilots are regarded as the real users of the aircraft, as they have physical control over it.

What are the limitations for EU-resident persons?

If the pilots have their habitual residence within the EU, the aircraft can use the TA procedure only if the conditions in Article 215 of the UCC-DA are met. The most important condition is that the pilots must be directly employed by the physical operator.

The following are not restricted in any way:

• Non-EU-resident pilots
• EU-resident crew members (e.g., flight attendants and technicians)
• EU-resident passengers

Are certain documents needed onboard when flying with EU-resident persons?

Operators often ask whether an authorization letter from the owner must be onboard, or whether they must appoint a main passenger when flying with EU-resident passengers within the EU. However, the authorization letter is outdated, as this option was removed from the UCC in 2014. An authorization or invitation letter can still be carried onboard, but it has no legal effect or protective value against irregularities because:

• The authorization was originally meant for pilots, not passengers (see the explanation above about the real user)
• Appointing a main passenger among all passengers indicates a misapplication of the TA procedure, as passengers cannot be considered the real user. 

These points have no legal foundation in the UCC, and no such paperwork is needed.

Endorsed by the EU Commission

We acknowledge that there are many 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. Over the years, there has been a tendency to favor full importation over the TA procedure, even though both are valid options for EU outsiders. If you have any doubts about this explanation, we recommend contacting the EU Commission or a competent EU customs agency for guidance instead of relying on importing consultants, such as OPMAS. We ourselves have contacted capable EU regulators on several occasions and have never received a reply that contradicted our explanations.

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.

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