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 other documents needed onboard when flying with EU-resident persons?

• What is right and wrong?

The Union Customs Code (UCC) states that there are some limitations for aircraft using the TA procedure when carrying EU-resident persons onboard. These limitations were only meant to limit the real user of the aircraft, so it is important to know the definition of the real user to understand the effects that the limitations bring. The limitations are stipulated in article 215 in the UCC-DA.

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

The customs aspect of flying within the EU
Any aircraft flying into the EU will operate under customs control using either the Temporary Admission procedure (TA) or full importation (FI). There are no other options. 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 with 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 or privately if applied correctly.

Which entity is the real user of an aircraft?
The concept of use does not depend on the entity having the power of disposal over the means of transport, e.g., in the form of ownership, under a rental agreement or charter, lease or operating agreement, but depends only on the entity having the physical control over the means of transport. The entity using the aircraft is the pilot or co-pilot, thus having the physical control over the aircraft, also referred to as the physical operator. The physical operator is, in customs terms, the entity that has the crew employed or supervision or control of the aeronautical operation and provides services to keep the aircraft flying. If the aircraft is managed, the management company is normally considered the physical operator.

What are the limitations for EU-resident persons?
To the extent that the pilots have their habitual residence within the EU, the aircraft can use the TA procedure if the conditions in article 215 in the UCC-DA are met. The most important condition is that the pilots must be directly employed by the physical operator.

Irrespective of the habitual residence of passengers or flight attendants being in or outside the EU, passengers and flight attendants are not considered users of the aircraft, meaning that the limitations do not influence any EU-resident passengers or flight attendants.

The above is based on solid EU working papers, but these papers are non-binding for EU member states. The topic can, therefore, be seen as a grey zone area. That is why we mention this reservation and recommend that all operators have proper documentation ready to present during a customs ramp check to secure flights with EU passengers.

Are other documents needed onboard when flying with EU-resident persons?
Almost every week, operators ask us if they must have a so-called authorization letter onboard the aircraft from the owner or if they must appoint a main passenger when flying with EU-resident passengers within the EU. But the use of the authorization letter is outdated, as this option was simply removed from the EU’s Customs Code in 2014. An authorization or invitation letter can naturally still be used, but it will not have any legal effect or protect the aircraft against irregularities. First, the authorization was originally meant for pilots and not passengers; please, review the explanation above about the real user. Second, appointing a main passenger amongst all passengers is also evidence of a wrong application of the TA procedure as passengers cannot be considered the real user. The two points simply have no legal foundation in the UCC.

What is right and wrong?
We acknowledge that there are many opinions about this issue. Still, we are completely sure that the above explanation is strictly correct, as it is based upon dialogues and various working papers from the EU Commission and backed by EU customs agencies. Throughout the years, we have seen a tendency to talk down the use of TA in favor of the full importation procedure, which is also available for EU outsiders. Yet, the TA procedure holds numerous advantages in comparison to full importation if applied correctly. If you have any doubts about this explanation, simply ask the EU Commission or a competent EU customs agency for guidance instead of consulting importing companies, such as OPMAS. We have ourselves asked for guidance from capable EU regulators several times, and we have never received a reply that did not support our descriptions. Moreover, since 2014 the TA procedure has become a very well-defined customs procedure, especially for corporate and commercial aviation. This is thanks to the huge effort from, e.g., the EU Commission and NBAA.

The TA procedure has become a very well-defined customs procedure
Please note that TA can be used to fly privately, corporately, and commercially within the EU without any problems and with EU-resident persons onboard, if applied correctly. Since 2014, the TA procedure has become a very well-defined customs procedure, especially for corporate and commercial aviation. This is thanks to the huge effort from, e.g., the EU Commission and NBAA.

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 EU Customs Code Committee (available in English, French, and German) is especially important. Operators should always be aware that these documents are not binding for the EU member states, which is why different interpretations exist between member states, thus also why it is important to have a competent customs agency to outline the correct use and understanding based on the specific setup. The problem with local interpretations is often related to flights within France, Spain, Portugal, Italy, and Greece.

Click here to see a list of the known grey zone areas where different interpretations of the TA procedure exist and where an operator often needs guidance to use TA safely. None of the grey zone areas create problems for using TA if correctly handled and documented.

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