COMMERCIAL AND CORPORATE FLYING WITHIN THE EUROPEAN UNION

Short & Sweet no. 15
Liability and risk elements associated with EU importation and admission

Added October 2022

Do you know the potential customs liability and related risks when flying within the EU?
How does the chosen importation method influence the liability and risk elements?
The dire consequences and risks, if not EU compliant also when flying outside the EU

Clients often ask us about the difference in liability and risk when choosing between the two importation methods when wanting to fly within the EU. In this article, we dive a bit deeper into the topic.

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.

This also means that EU outsiders can choose to use the full importation method instead of the TA procedure if they find it beneficial. Reasons to choose full importation could be due to an establishment of an EU base for the aircraft or the wish for flexibility with free circulation within the EU.

The liability depends on how the aircraft is used
The use of both importation methods has a set of preconditions that must be met. The preconditions create liabilities if the aircraft is used wrongly according to EU regulations, so both methods have limitations in the usage of the aircraft. All aircraft owners and operators wish to know these limitations prior to choosing an importation method, so they can mitigate any liability and risk it creates. In Figure 1, we have provided a simple overview of the key factors involved.

Figure 1: How is the liability affecting the scope of use

Importation method used	Scope of liability	Scope of use
Temporary Admission	Liability is only temporary while flying within the EU	Wide*
Full Importation	Liability never stops, even though the aircraft is exiting the EU	Narrow**

* Aircraft using TA can be used to fly privately, corporately, and commercially with no issues.
** If fully imported, an aircraft must be used solely for the correct economic activity, e.g., as a corporate or commercial aircraft, depending on the type of importation. This is based on the EU-defined set of preconditions for the VAT handling during an EU importation. Any private use of the aircraft will often create problems and situations which must be handled correctly. See Short & Sweet 6 and Short & Sweet 13.

The dire consequences and risks, if not EU compliant also when flying outside the EU
In a customs and VAT context, a full importation will entail that all worldwide trips must be conducted continuously according to EU regulations. This means that a non-business/corporate leg flown, e.g., in the US/Asia, where the compensation for private usage of the aircraft is not handled correctly according to EU rules, will have a negative impact on an EU VAT assessment during an eventual audit by the EU VAT authorities. Such a situation will, in many cases, trigger a payment to the authorities, as the import VAT will partly be seen as wrongly declared as business/corporate use. Here, non-compliance with the full importation procedure will most likely activate a direct payment of the VAT (ranging from 17-27%) and customs duty (2.7%) based on the aircraft’s value.

It sounds absurd, but there is no way around it
We know that this consequence of a full EU importation might sound absurd for many EU outsiders, especially if they have opted for a full EU importation to have the EU free circulation status as a convenient thing, has a completely non-EU operating structure, and is domiciled, e.g., in the US. We have seen that many US operators have the full focus on staying compliant with FAA and IRS rules and might not consider other jurisdictions, which can pose unforeseen consequences for the operator and an unpleasant surprise and side-effect when choosing the full importation method. Therefore, we always recommend that EU outsiders use the TA procedure whenever possible, as these consequences only relate to the full importation method.

“Most EU outsiders do not need the free circulation status so why take a huge and perhaps unnecessary risks and liabilities when flying to and within the EU if opting for the full importation. The TA procedure will be the better option for most operators”

Conclusion
EU insiders: Incorporate the limitations in your operational manual, as there are simply no other options.
EU outsiders: Most EU outsiders do not need the earlier mentioned free circulation status and should be ready to take huge and perhaps unnecessary risks and liabilities when flying to and within the EU if opting for the full importation. In addition, this also means that the operator should be ready to adapt to the risk situation and perhaps limit or completely stop any worldwide private use of the aircraft. If this is not possible or wished for, the TA procedure will be the better option.

IMPORTANT!

Various exotic papers scandals have shown that the risk of extensive audits exists and can be very costly. The Paradise Papers have shown that operators can be heavily hit if an aircraft with a full importation is not used the correct way after the importation. We are here to advise and secure your position and setup, eliminating any doubt about right and wrong usage of an aircraft.

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. 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.

Important things to know about Temporary Admission
Operators should be aware off that different interpretations of the TA procedure 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, and less often other places. Click here to see a list of the known grey zone areas where different interpretations of the TA procedure exist between member states and the areas where an operator often need guidance to use TA in a safe way. Yet, none of the situations cause problems for using TA if handled and documented correctly.

Important things to know about full importation
Operators should be aware off that full importation includes a potential VAT and tax liability and requires onwards continuous correct worldwide economic activity as well as correct handling of any potential worldwide non-business use and non-commercial use; requirements that the TA procedure does not have. The statute of limitations is five years for full importation, and the use of the aircraft must worldwide stay fully compliant with current EU regulations until the end of this period.

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