Exporter

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In foreign trade law , the exporter is the person who is largely responsible for an export . He has to ensure compliance with the statutory provisions and will be prosecuted in the event of violations of these.

The exporter is defined differently in the law applicable in the Federal Republic of Germany . The definitions of European customs law and national foreign trade law are not congruent, but differ in detail. The exporter is also defined in the dual-use regulation . The definition to be applied must therefore be selected depending on the relevant legal matter. This is particularly complex because the export procedure is basically a customs procedure , but the exports are subject to the restrictions of foreign trade law and the Dual Use Regulation.

Exporter according to foreign trade law

The term exporter according to foreign trade law is defined in § 2 AWG . This definition is similar to the definition of the exporter in Art. 2 lit. c is very similar to the Dual Use Regulation, but only refers to exports to third countries . The exporter is defined here as the person who is the recipient's contractual partner in a third country at the time of export and who determines the dispatch of the goods. This definition is therefore aimed at the business owner of the export and not at the carrier of the goods ( forwarder , carrier ). The driver of the cross-border means of transport will therefore usually not be the exporter. He is just his vicarious agent .

If the contracting party of the third country does not act for itself, i.e. only acts as a straw man or broker, the exporter who actually determines the export is the one who actually decides on the export. This regulation is particularly relevant for exports via subcontractors . The Federal Constitutional Court also supported the definition of the exporter based on this theory of business owners ; the theory is no longer applicable since the definition of the exporter in § 2 No. 3 Dual Use Regulation . Since the term export also includes the transmission of data processing programs or technology by way of data transmission, the person who initiates such an electronic transmission is also the exporter within the meaning of Section 2 (2) sentence 3 AWG.

The domestic contracting party is always deemed to be the exporter, even if the actual rights of disposal over the goods to be exported lie with a third country. If a domestic trading company is commissioned by a company in country A to deliver goods to country B to a recipient there, the company in country A is in control of the export procedure, but the domestic company is the exporter within the meaning of foreign trade law.

Exporter according to customs law

In customs law, the exporter is defined in Art. 788 of the ZK-DVO . This definition only extends to Art. 161 (5) of the Customs Code . According to this definition, the exporter is the person for whose account the export declaration is submitted and who, at the time of acceptance of the export declaration, is the owner of the goods or has the right of disposal over them.

According to Art. 788 para. 2 ZK-DVO, only the party resident in the Community can be an exporter, even if the definition in Art. 788 para. 1 ZK-DVO does not apply to him.

Consequences of the deviations

In practice, this different definition can mean that the exporter in terms of foreign trade law is different from the exporter in terms of customs law, since customs law is aimed at the person for whose account the export transaction is carried out. If this is different from the person who is the actual owner of the export, there are two exporters in such cases. In practice, such cases are the exception. As a rule, the exporters are identical under customs law and foreign trade law.

However, was a product such. B. executed without submitting a correct customs declaration come into consideration for the penalties of the exporter under foreign trade law and the exporter under customs law. In such cases, the respective contribution must be weighed up with regard to the punishment.

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Individual evidence

  1. ↑ Hans-Michael Wolfgang / Olaf Simonsen / Achim Rogmann (eds.), AWR Commentary , 2017, Art. 2 Dual Use Ordinance, Rn. 46