EU Commission guidance on e-commerce impacts on forwarders
This summer the Commission has issued guidelines to help national market surveillance authorities better control products sold online. The guidance aims to assist Member States in the enforcement of EU legislation on the market surveillance, safety and compliance of non-food products. This guidance, however, also concerns to a large extent regular services and processes of forwarders, logistic service providers and customs brokers, who might not be directly involved in e-commerce.
According to the European Commission, 55 per cent of Europeans this year will buy products online and have them delivered to their door, "escaping the authorities' traditional controls". The fear is that dangerous products not in line with EU product safety laws – such as counterfeits, products containing substances banned in the EU or those that carry falsified certification – will unwittingly enter the EU market.
Notably, the guidance touches on the new e-commerce trend of “fulfilment services for marketplace sellers”, such as Amazon's Fulfilment by Amazon. These services include product storage, packaging and delivery to customers, and dealing with returns. Such services, however, can also be services of “regular” logistics service providers and forwarders, which might not deal directly with e-commerce, but still have a distribution, warehousing or other role in the supply chain. According to the guidance the role of fulfilment service providers raises questions linked to their responsibilities under the EU product legislation. The guidance for example says:
"This is the case especially when the economic operator providing the goods is located outside the EU and the agreement to supply the product is concluded directly between that economic operator and the consumer or other end-users in the EU, without any identifiable economic operator within the EU to be held accountable (for example, an importer or an authorised representative). In such a case, the only identifiable actor in the supply chain in the EU is often the fulfilment service provider. Experience has shown that their readiness to collaborate with authorities varies significantly."
Specifically for customs, the guidance, for example, mentions that where products offered for sale online enter the EU from third countries, cooperation between market surveillance authorities and customs should also be sought to control and stop shipments of products at the border. According to the Commission, this is crucial when a shipment directly arrives from outside the EU to an EU customer and where no economic operator is present in the EU. This stopping of the goods also should include goods sent through postal services.
The guidance also mentions a definition of a declarant in the customs declaration, which, although it refers to the UCC, is not in line with the Union Customs Code. According to article 5(15) of the UCC, the declarant the person lodging a customs declaration in his or her own name or the person in whose name such a declaration or notification is lodged. Therefore, this person is liable for the declaration. In the case of representation, the declarant/liable person is not the person making the declaration, but nonetheless this guidance gives a definition which states that the person making the declaration is the declarant, which would undermine representation.
The guidance was produced by the Commissions DG for Justice and Consumers and for some issues, like mentioned above, it seems as if not enough though was put into this guidance. CLECAT was not consulted on this matter, but will still address some issues to DG JUST and DG TAXUD.