Our friends at OPMAS put together this useful Myth-Busting lowdown on the process for “Temporary Admission” of aircraft within the EU. We saw it, we liked it, and so here it is for our OPSGROUP members!

There are still several myths concerning the usage of the Temporary Admission (TA) procedure when flying within the EU. Common to all these myths is the idea that TA limits operators when flying on internal EU trips with great consequences if not followed, but this is often incorrect, outdated or misunderstood.

 

What’s Temporary Admission?

Temporary Admission (hereafter TA) is meant to allow EU outsiders to be able to roam freely within the EU for a certain period. “Outsiders” means that the aircraft is owned, registered, operated and based outside the EU (all criteria must be fulfilled). Read the short story on Temporary Admission.

 

Myth #1: Temporary Admission cannot be used when carrying EU passport holders as passengers

This myth is busted because:

• The EU Commission has – numerous times – stated that these restrictions are not meant to restrict having EU residents onboard as passengers. The restrictions are meant for the pilots who are, in customs terms, seen as the real user of the aircraft, meaning that there are NO RESTRICTIONS for carrying EU passengers. Thus, there is no need to appoint a main passenger or have a so-called authorization letter onboard.
• The idea of a main passenger, authorization letter, and other strange demands when using TA has no foundation in the Union Customs Code. It is based on a wrong interpretation or outdated information.

 

Myth #2: Temporary Admission cannot be used for commercial flights, such as Part 135

This myth is busted because:

• The EU Commission approved Part 135 traffic as correct use of TA in 2014.
• Internal traffic was also removed as a restriction for TA in 2016 with the introduction of the Union Customs Code (UCC). The paragraph was originally intended to limit commercial traffic but has been removed for many years now.
• The requirement for Traffic rights (also called charter permits) is often mentioned as another obstacle when using TA, yet traffic rights have absolutely nothing to do with the process of obtaining TA or full importation. It is strictly an aviation regulator issue.
• US aircraft flying Part 135 may need to obtain traffic rights on some internal EU legs, but this is independent of the TA or full importation status. Any fully EU-imported US Part 135 aircraft will also need to obtain the exact same traffic rights. Having a fully EU-imported aircraft instead of a TA aircraft will not improve the situation. Full importation does not grant an aircraft “better” traffic rights than aircraft flying under TA or EU-registered aircraft.

 

Myth #3: The owner must be onboard or be present within the EU

The myth is busted because:

• It has earlier been clarified that the owner is not needed to be present onboard or within the EU in the typical Part 91/135 scenario when flying within the EU. This paragraph in the Union Customs Code is meant to regulate a completely different scenario.
• This issue can however be a bit tricky as aviation structures are complicated and not always easily or correctly understood by customs on the ramp, so operators should always ask a competent customs agency to approve the structure in advance and outline the correct understanding in the specific case.

 

Myth #4: Aircraft flying under Temporary Admission will most likely have problems when flying to Cannes, Nice, or Paris-Le Bourget

The myth is busted because:

• Numerous aircraft are flying to these airports and other “dangerous” airports every day using TA and are ramp checked without having any problems because the crew onboard are well-prepared and able to explain and document why the aircraft is eligible to use the TA procedure. We have supported many of these operations, so we know how it works and what it takes.
• Some aircraft encounter problems at these airports, but all known cases are based on operators either not being TA compliant or simply not prepared to prove compliance. These aircraft can remain on the ramp for hours or weeks and sometimes result in a full VAT payment.

 

There is a lot of noise when TA is discussed

It seems like some presenters have forgotten to read or understand the changes made to the Union Customs Code for the last many years as we see a tendency to, deliberately or not, denigrate the use of TA in favor of full importation using arguments that it is impossible or dangerous. In fact, the opposite is true.

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.

More advantageous for many North American operators

The option of using TA is sometimes presented as second to full importation, with the latter presented as the only “safe and possible” option for North American operators. This is clearly NOT supported by the EU Commission. On the contrary, the use of full importation will be an extra burden and place risks on the owner and user of a corporate aircraft, also when flying outside the EU. This can be eliminated by using TA. In fact, the TA procedure is often more advantageous for many North American operators compared to full importation due to the limited scope of liability and the wide scope of use.

 

Thanks to OPMAS for this article! They provide importation services in relation to the EU; Temporary Admission, full importation for corporate owners and full importation for AOC holders and charter/commercial operators. That’s all they do! They do not charge for an evaluation of the particular set up you have – contact them here.

If you are a non-EU operator, you are probably already using the Temporary Admission customs regulation when flying to the European Union – whether you know it or not!

It’s always been generally accepted that you trigger the use of this regulation just by filing a flight plan and crossing the external border into the EU, but in July 2020 the EU Customs Code was updated to explicitly ratify this practice.

As we were looking into this latest change and what it meant for operators, we quickly got that sinking feeling you get when you realise you’re about to be engulfed by a world of bafflement and overwhelming complexity. EU customs rules and regulations will do that to you.

So we asked our pals over at OPMAS to break it down for us. What is the Temporary Admission? How does it work? Who does it apply to? What follows below is their quick overview, giving you the essentials of what you need to know in less than 10 minutes.

To start, watch their quick explainer video, and to continue your journey check out their more detailed info below.

The Basic Rule: Any aircraft must come under customs control
Any aircraft flying into the EU will fly under EU customs control either using the Temporary Admission (TA) regulation 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 the TA regulation even though the owner or operator have not themselves taken any action to activate the TA regulation or realize that their aircraft is actually flying under the TA regulation. Non-compliance with the TA regulation will most likely activate a direct payment of the VAT (ranging 15-27%) and customs duty (7.7%).
KNOW MORE: See what is actually needed when arriving within the EU?

Who can use Temporary Admission?
Temporary Admission (hereafter TA) is meant to allow EU outsiders, which means that the aircraft is both owned/registered/operated/based outside the EU (all criteria must be fulfilled), to be able to roam freely within the EU for a certain period. TA cannot be used by EU insiders where the aircraft is either owned/registered/operated/based and mainly used inside the EU (just one criterion must be fulfilled). Mandatorily, EU insiders must use full importation.

Advantages
Most EU outsiders will practically have the same flying privileges as given under full importation as the few limitations do not influence the typical flight and will even give the typical operator more flexibility and extra advantages, such as: unrestricted personal/family/guest use without consequences; and no tax, VAT (Value Added Tax)or duty liability anywhere. Many of these points are often a problem and burden when using full importation.
KNOW MORE: See the quick overview: What you can and cannot do

Disadvantages
There are a few limitations:
1. Flights where the aircraft will be used for passenger transport subject to an individual and personal ticket fee or direct payment
2. Commercial freight items are not allowed
The below descriptions also include other matters that must be handled the correct way.

The basic preconditions for EU outsiders
TA can only be used if the aircraft is owned by and registered to a non-EU entity and further operated by a non-EU operator. The aircraft must also have its normal fixed base outside the EU. The term ‘non-EU’ relates to anything other than the 27 EU member states and related customs areas as the Isle of Man and the Channel Islands (at least until Brexit has become a reality).
KNOW MORE: The 27 European Union member states and special member state territories

Private or commercial use
The TA regulation distinguishes between private use and commercial use; where private use in general offers more privileges and flexibility than commercial use. There has been some earlier confusion about these forms of usage under TA, but the 2014 working paper from EU Customs Code Committee gave some clarification of these definitions where upon the modern use of TA is based. This description only describes private use of an aircraft.
KNOW MORE: See the quick overview: Private or commercial use of aircraft

When do the restrictions start?
Any EU outsider can fly to one EU destination without any consequences, if the next following flight is to a destination outside the EU. The restrictions are only related to internal flights within the EU.

What about the VAT and the customs duty?
Both the VAT and the customs duty is suspended as long the preconditions for TA is fulfilled. A violation will activate a full payment of these taxes.
KNOW MORE: See the quick overview: Customs duty and end-use exemption

When is TA used?
Any aircraft flying within the EU must somehow come under EU customs control using either TA or full importation, there are no other options. So, if the aircraft is not already fully imported, the aircraft will automatically be considered as flying under TA.
KNOW MORE: See the quick overview: What to do?

When is TA activated?
The use of TA regulation is activated (knowingly or not) every time an un-imported aircraft crosses EU’s external border on an entry and is terminated again when the same aircraft is crossing the EU’s external border on the way to a non-EU destination.

The grey zones – owned by?
Most aircraft used or indirectly owned by a high net-worth individual are directly owned by non-EU SPV. This is basically fine as long as this individual does not have their official place of residence or their centre d’affaires within the EU or is registered as a tax resident.

The grey zones – EU entities involved?
We recommend that no EU entities are part-owners or a part of a leasing structure (like a sublessee) for an aircraft using TA.

The grey zones – EU base, long-term parking or not?
The aircraft must have its fixed base outside the EU and spend the majority of time outside the EU, but certain facts can indicate that the operator or aircraft has become ‘resident/domiciled’ in an EU airport even though an official home base is established outside the EU. The TA regulation cannot be used as a circumvention of the import for free circulation by predominately using the aircraft within EU as opposite to outside the EU.
KNOW MORE: What is the limit for multiple continuous stays at the same place?

Which entity is actually ‘using’ the aircraft?
The users of the aircraft are actually the pilots (read: the operator of the aircraft) according to the 2014 working paper from EU Customs Code Committee. Most lay persons would probably think that the user of an aircraft would be the owner entity or the passengers, but the pilots are actually considered to be the users in a customs context.

Which entity must be the declarant?
The declarant must always be the entity who is truly operating (physically piloting) the aircraft. No other entities are allowed to be the declarant. If the aircraft is managed, the management company is normally considered to be the correct declarant in customs terms. Please be aware, that the ‘operational control’ definition related to the use of TA in the EU is not the same as the FAA’s definition which means that the typical entity with the FAA’s understanding of operational control is often not the correct declarant when using TA in the EU.
KNOW MORE: See the quick overview: Entity responsible for flight in the European Union
KNOW MORE: Which entity is allowed to be the declarant?

How can the aircraft be used?
The aircraft can be used for any business or non-business purposes (as Part 91) according to the 2014 working paper from the EU Customs Code Committee.
KNOW MORE: See the quick overview: Aircraft usage

EU resident passengers on flights within the EU
EU resident passengers are allowed according to the 2014 working paper from the EU Customs Code Committee.

EU resident pilots on flights within the EU
EU resident pilots are allowed according to the 2014 working paper from the EU Customs Code Committee but only if the pilots are directly employed by the declarant.

Non-EU resident passengers and pilots on flights within the EU
There are no restrictions.

Does the owner of the aircraft have to be on board or present in the EU?
According to Danish interpretation and the 2014 working paper from the EU Customs Code Committee, an aircraft under TA is used by the person who acts as the pilot and not by the passengers. Accordingly, the presence of the aircraft owner/registered party is not needed in most cases unless the aircraft is occasionally borrowed and used by an EU-resident person, who acts as the pilot. This rule is meant for smaller aircraft without hired pilots. Furthermore, the EU Customs Code Committee have also confirmed in one of its earlier minutes/summary records that any restrictions for EU residents only refers to the pilots on board.

What is a non-EU aircraft registration?
Aircraft registered in the 27 EU member states and related customs areas are not eligible for TA, but any other aircraft registration will work. This disqualifies aircraft registrations from the Isle of Man (M) and the Channel Islands (2/ZJ) at least until Brexit has become a reality.
KNOW MORE: See the quick overview: Aircraft registration
KNOW MORE: SURVEY 5: Does the nationality of the aircraft registration matter?

Period of stay within the EU
A stay is limited to a maximum of 6 months per entry. Multiple continuous stays are allowed as long as the aircraft is roaming around within the EU. We will advise any operator to check whether or not the preconditions for TA are still fulfilled, if the aircraft often tends to stay at the same location – or stay close to or more than 50% of the time within the EU. Please also see the above paragraphs about grey zones for owner entity and base.
KNOW MORE: See the quick overview: Period of stay in the European Union
KNOW MORE: SURVEY 7: How is the 6 months period of stay practically interpreted?

Demand for documentation?
The operator must always be able to document the flight pattern within the EU.

How to document a flight?
A form called the ‘Supporting document for an oral customs declaration’ can be used to document the entry and the exit. The operator should also document the flight pattern within the EU with EUROCONTROL records and the operator’s own flight records. Furthermore, the operator should always have records of all relevant EUROCONTROL charges and a total flight list. The use of the ‘Supporting Document’ can be beneficial but is not mandatory.
KNOW MORE: BREAKING NEWS: See what is actually needed when arriving within the EU?

What is the function of the ‘Supporting Document’?
A customs stamp on the ‘Supporting Document’ only serves to acknowledge that the aircraft has arrived and/or eventually exited the EU. The stamp does not mean that customs have accepted any use or the aircraft set-up as TA compliant. It is a common misunderstanding that the use of this form gives the operator/aircraft some kind of free circulation status for the next 6 months or a carte blanche to fly freely within the EU without meeting any preconditions. Even though the form is used, the operator is still obligated to comply to the TA regulation continuously when flying within the EU.

What is the validity of the ‘Supporting Document’?
The form is only valid as long as the aircraft has not left the EU, and for a maximum of 6 months. A new form must be stamped upon the next entry (even though there is still some time left within the 6 month period). The 6 months mentioned here is the maximum stay of the specific entry whereupon the form is stamped (in customs terms = period for discharge). Again, it is a common misunderstanding that any future entries into the EU can be endorsed in advance by using this form.
KNOW MORE: Is a Supporting Document valid for one EU-trip or multiple EU-trips within 6 months?

Commercial group charters
This is allowed according to the 2014 working paper from the EU Customs Code Committee as long as the aircraft is used in the EU for passenger transportation without a ticket fee/direct payment. This means that a commercial group charter (as Part 135) is treated in customs terms as private use as long as the mentioned preconditions are met, even though the same flight is treated as commercial use according to the aviation regulators.

Traffic rights
Commercial non-EU operators will still need traffic rights where they are normally needed. A customs handling like an importation/admission will not influence any of the demands for traffic rights anywhere in the aviation regulation.

How to be ready to use TA?
Here’s what to do:

1. Check that the basic preconditions are fulfilled
2. Understand the limitations and subjects that must be handled correctly
3. Have the relevant paperwork ready on board the aircraft in order to document the correct use of TA
4. Instruct the pilots so that they are ready to handle a customs ramp check

How can an operator secure all positions?
OPMAS can help non-EU operators to check whether or not an aircraft operation is complying to the TA regulation. The important matters are simply to secure compliance and thereafter set-up a system to document that the preconditions for the TA regulation are fulfilled continuously and that the pilots have the correct paperwork ready for a customs ramp check.

Always ask first
Our advice has always been to ask the local tax authorities for a binding advance tax ruling prior to any importation/admission in order to eliminate any doubt about the outcome. All cases have different details and a binding advance tax ruling will also consider all new European Court of Justice (ECJ) judgements. Even if you have a fully working set-up, we believe, an importation/admission without a binding advance tax ruling from the EU member state into which the aircraft is to be imported, is too great a risk to take. Many of the above-mentioned points/uncertainties could easily be covered by simply asking and you should walk away from any service provider that refuses to provide a binding advance tax ruling.

Tax havens and the Paradise Papers
A few EU member states handle aircraft admission/importation differently. These states do not follow the EU standards or guidelines, and this is often sanctioned by their local tax/customs authorities in order to offer a better business environment or to create local gateways for certain industries. These jurisdictions are known to bend the rules in favor of local companies often by only implementing a light version of any new regulation or by simply ignoring or delaying the required implementation. The Paradise Papers have highlighted some of these EU tax havens. These jurisdictions and related industries will without any doubt have the full attention of several national and EU authorities in the future. We will see many changes and audits of the regulation in the future, thus no one should import an aircraft without a binding advance tax ruling.

Denmark as a jurisdiction
Denmark has the very best reputation both within the EU and worldwide and is the number one on the Transparency List over the least corrupt nations in the world. We are known always to implement all EU-directives promptly and 100% by the book without any bending of the rules in favor of local companies. Denmark is the only EU member state that is known to facilitate aircraft importation and admission for non-EU operators where the member state is not considered a tax haven.

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Thanks to Frank Hansen at OPMAS for this post. To get in touch with OPMAS for more info on any of the above, contact: info@opmas.dk