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

• 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.

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

* Aircraft using TA can be used to fly private, corporate, 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.

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.