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

Added August 2021
  • 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?

Introduction
Any aircraft flying into the EU will fly under customs control using either the Temporary Admission (TA) procedure or full importation. 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, namely full importation.

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.

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.

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, the TA procedure has since 2014 continuously become a very well-defined customs procedure, especially for corporate and commercial aviation.

Legal background – learn more
The description is based on the Union Customs Code (UCC) and various EU working papers and directives. The usage of both the TA and FI procedure includes limitations that must be handled correctly and situations that must be avoided. Please, visit our webpage, www.opmas.dk, to learn more or contact us directly at info@opmas.dk.

How can we help?
If you have questions about the above, please do not hesitate to contact us. We offer a cost-free introduction and analysis of the owner, user, and operator scenario to find the best option for you when flying within the EU. Please, feel free to contact us at any time.


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