My question relates to an order placed by a UK company for goods manufactured by my company in the UK, to be supplied on an ex-works basis for collection by my customer’s freight forwarder for shipment outside of the EU. Who is considered to be the exporter and responsible for application to the ECO?
Hi – it all depends on the sales order and contract. If you are selling UK business to UK business then you will be charging VAT, therefore you are not an exporter. If you are supplying goods that are subject to export licensing controls then it is good practise to advise UK customers that you are supplying them controlled products and that they must seek relevant government approvals before exporting the goods from the UK.
If, though, you are selling exworks to a UK company and they expect you to ship the goods out of the UK or they are sending in a freight company to take the goods out of the UK then it is a different issue. One issue is VAT – if you cannot provide adequate evidence of export (ie the customs declaration with your name/EORI on it for goods going outside the EU/ or confirmation on delivery for EU shipments) then you must charge VAT. The other issue is export licences – you are the supplier of goods, you must do end-user checks, know where and who the end-user(s) is/are and you must feel comfortable that the correct licences are in place. This will probably mean you will either "assist" the customer or, so you know you can legally supply, obtain the licence yourself. Don’t sell exworks when goods are leaving the UK – there are too many grey areas.
I am a UKTI Team Manager. The answer to your question would normally be very easy. Under Incoterms 2012 ex works means that the buyer is responsible for obaining all of the export documentation and licences. Therefore you are not the exporter. However, having ECO (the Export Control Organisation) involved complicates things. As said in the comment above you probably have a duty of care to ensure the final destination and use of the goods is in accordance with UK Gov’t wishes. There is also a question as to whether international law (Incoterms) overides UK Law or not. I have asked the ECO organisation at BIS, and they are not sure! They are consulting their lawyers now to review the legislation. They will getr back to me and I will then get back to you. Everyone agrees this is a really interesting question!
Thank you both for your responses. Your comments are very useful. I’m interested to hear what the ECO come back with John. I’m not sure they fully appreciated the complexity of my enquiry when I spoke to them.