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2016 OAS Guidelines

1.II.2. What is an economic operator "established in the Union"?

In accordance with Article 5(31) of the UCC, a person established in the Union is defined as:

  • in the case of natural persons, any person having his habitual residence in the customs territory of the Union;
  • in the case of legal persons and associations of persons, any person having its registered office, headquarters or a permanent business establishment (PBE) in the customs territory of the Union.

Article 5(32) of the UCC defines a "permanent commercial establishment" as a fixed place of business, in which the necessary human and technical resources are permanently available, and through which the customs operations of a person are carried out, in whole or in part.

Multinational companies or large corporations are generally composed of a parent company and subsidiaries or branches that may be established in one or more Member States. Despite being ECPs of the same parent company, these companies may have different legal statuses in different Member States, as the legal form under which they operate in the Member States depends on how they have chosen to operate and primarily on the national legislation of the Member State concerned. As a result, some branches of a parent company may be considered independent legal entities in certain Member States (i.e., independent legal entities registered in the local commercial register under the company law of the Member State concerned), and some ECPs may not be considered independent legal entities in other Member States.

In this case, the economic operator wishing to apply for AEO status for all its ECPs must assess which group they belong to. If they are legal persons or fall within the definition of persons proposed in Article 5(4) of the UCC, they must separately apply for AEO status in the Member State concerned. In the remaining cases, they cannot apply separately for AEO status; instead, the parent company, which is considered a person under EU law, must submit a single application for all of them.

Customs authorities must also consider that the general conditions are the same for all types of authorizations and resolutions requested by the economic operator. For example, customs may not consider an economic operator to be a legal entity when requesting, for example, an EORI number, and at the same time consider the same economic operator to be a mere branch when requesting AEO status, adhering to the same legislation in both cases.