SPS Export Health Certificates from April 21 (EU)

I posted before about the new EU Animal Health Law (Regulation (EU) 2016/429) that comes into force on April 21. This document is here.

The new EU Animal Health Law (AHR) is a large and complex Regulation designed to consolidate, update and replace a number of existing Regulations.

The main change is the new model export health certificates (EHCs) in use from April 21. EHCs are required for third country import into the EU.

AT THE SAME TIME, April 21 is the date for new rules for entry into the EU of composite products.

Including those for composites, a total of five new EHCs are needed from 21 April. These include three new products of animal origin (POAO) EHCs, two new composite EHCs and a private attestation document for composites exempt from certification. In the UK, private attestations do not need to be signed by an Official Veterinarian (OV) or Food Competent Certifying Officer (FCCO).

The three new POAO EHCs include meat of certain wild game and farmed large game and mechanically separated pork meat.

The two new composite product EHCs are –

a. Entry into the EU (or Northern Ireland) of not shelf-stable composite products and shelf stable composite products, containing any quantity of meat products (except gelatine, collagen and highly refined products) and intended for human consumption; and,

b. Transit through the EU to a third country either by immediate transit or after storage in the Union of not shelf-stable composite products and shelf-stable composite products containing any quantity of meat products and intended for human consumption.

Article 12 of Commission Delegated Regulation (EU) No 2019/625 (delegated rules to a DIFFERENT Regulation (EU) No 2017/625, the Official Controls Regulation) establishes three categories of composite products (applicable from April 21):

(1) non shelf-stable composite products,

(2) shelf-stable composite products that contain any quantity of meat products, except gelatine, collagen and highly refined products, and

(3) shelf-stable composite products that do not contain meat products, except gelatine, collagen and highly refined products.

Note: the EU Official Controls Regulation itself has applied since 14 December 2019.

With a view to smoothen the transition, Article 35 of Commission Implementing Regulation (EU) No 2020/2235 introduces a period of six months (to 20 October 2021) for the imports of composite products during which the old certificate will be accepted to enter the Union. Where no certificate was required prior to 21 April 2021, then the new relevant certificate or private attestation must be provided.

What is not a composite product?

The addition of a product of plant origin during the processing defined in Article 2(1)(m) of Regulation (EC) No 852/2004 of an animal product does not automatically mean that the resulting food falls within the definition of composite products. If such addition does not modify the main characteristics of the final product, the latter is not a composite product. It can be to add special characteristics or necessary for the manufacture of the product of animal origin (Article 2(1)(o) of Regulation (EC) No 852/2004).

For instance, a cheese to which herbs are added or a yogurt to which fruit is added remain dairy products. Similarly, canned tuna to which vegetable oil is added remains a fishery product. These foodstuffs must be produced in approved establishments in accordance with Regulation (EC) No 853/2004.

What percentage of a processed product of animal origin makes a food subject to the rules applicable to composite products?

What makes foodstuff subject to the rules applicable to the composite products is the fact that it is made by both products of vegetable origin and processed products of animal origin. The percentage of processed product of animal origin included in the composite product is irrelevant.

The above is taken from the EU Q&A on composite products – here.

These changes create a high impact on food trade between the UK and the EU.

From April 21, any composite product containing meat products (except gelatine, collagen and highly refined products) is subject to EU Border Control Post (BCP) (or Points of Entry (PoE) for Northern Ireland) checks and requires an EHC.

Chilled/frozen composite products containing processed dairy/egg/fish require EU BCP/PoE checks and an EHC.

Shelf stable composite products containing processed dairy/egg/fish (where the dairy or egg components meet certain heat treatment requirements) require a private attestation and EU BCP/PoE checks unless they are on the EU’s list of lower risk products.

The UK has updated its composites products guidance – here.

APHA (a DEFRA agency) has produced guidance on the April 21 changes – here.

It will be noted that guidance in the EU and the UK is not yet updated in all areas.

The EU is yet to publish the final EHCs for live animals and germinal products that will be used under the AHR. All EU EHCs and Notes for Guidance are being updated to reflect the new rules by August 2021. Only those needed for use by traders from 21 April will be available from April on EHC Online (EHCO), with the remainder uploaded and available by August 2021.

COVID-19 Employer Testing Duty (UK)

Employers employing more than 50 employees (including agency workers), are required to take reasonable steps to facilitate employees to take COVID-19 tests when they travel across international borders.

DHSC guidance stipulates ‘reasonable steps’ to facilitate the taking of tests might be:

• establishing workplace coronavirus (COVID-19) testing or providing employees with home testing

• supporting access and signposting employees to testing outside of the workplace.

Further (extensive) details are here.

UK updates to the TCA (Britain)

A little while ago, the Government announced (unilateral) new dates for the grace periods applying to GB goods movement to Northern Ireland under the IRl/NI Protocol. The Brexit Guidance was then updated.

The Government has now announced (unilateral) new dates for the grace periods applying to EU imports into Britain under the TCA (the UK-EU FTA). The Brexit Guidance will be updated.

We are announcing today a clear revised timetable for the introduction of controls, as follows:

• Pre-notification requirements for Products of Animal Origin (POAO), certain animal by-products (ABP), and High Risk Food Not Of Animal Origin (HRFNAO) will not be required until 1 October 2021. Export Health Certificate requirements for POAO and certain ABP will come into force on the same date.

• Customs import declarations will still be required, but the option to use the deferred declaration scheme, including submitting supplementary declarations up to six months after the goods have been imported, has been extended to 1 January 2022.

• Safety and Security Declarations for imports will not be required until 1 January 2022.

• Physical SPS checks for POAO, certain ABP, and HRFNAO will not be required until 1 January 2022. At that point they will take place at Border Control Posts.

• Physical SPS checks on high risk plants will take place at Border Control Posts, rather than at the place of destination as now, from 1 January 2022.

• Pre-notification requirements and documentary checks, including phytosanitary certificates will be required for low risk plants and plant products, and will be introduced from 1 January 2022.

• From March 2022, checks at Border Control Posts will take place on live animals and low risk plants and plant products.

Traders moving controlled goods into Great Britain will continue to be ineligible for the deferred customs declaration approach. They will therefore be required to complete a full customs declaration when the goods enter Great Britain.

Controls and checks on Sanitary and Phytosanitary goods are of course a devolved matter and we continue to work closely with the Devolved Administrations on their implementation, in particular with the Welsh Government on their timetable for completing supporting Border Control Post infrastructure in Wales.

The written statement is here.

GB goods movement to the EU is unaffected, i.e. the TCA applies in full.

Customs Red Tape (Ireland)

There is a lot of chatter about the new processes required for goods movements between Ireland (north and south) and its neighbour, Britain. This blog does not focus on Customs, Tariffs or VAT.

Irish Revenue information on Imports from Britain is here. Note the requirement for an Entry Summary Declaration (ENS). The ENS is a safety and security entry summary declaration needed for moving goods on ‘roll-on, roll-off’ lorries and other goods vehicles.

An emergency code (number) was supplied initially by Irish Revenue to allow importers temporarily bypass some of the documentation rules on border controls. This is a facilitation and is temporary.

Further information is accessed from this Irish Revenue location – here.

The Irish Times reports again this morning re the rules of origin matter (Peppa Pig etc) –

Government officials have raised queries with the European Commission Commission about Brexit “rules of origin” restrictions that are disrupting supply chains of foods and other products coming from mainland Europe to Ireland.

Rules of origin are designed to prevent a UK company buying cheap products from a non-EU country and repackaging and rebranding them and then selling them into the EU tariff-free.

The restriction is, however, preventing some products moving between two EU countries where the products are repackaged in UK distribution centres before being supplied into the Irish market.

Under the EU-UK trade deal, signed before Christmas, goods that are unpacked and repacked in the UK – and not subject to further manufacturing – face customs taxes, or tariffs, when reimported back into the EU.

The rules have led to severe disruption in supply chains and food shortages and empty shelves in Irish retail outlets of UK supermarket chains, in the Republic and Northern Ireland, and delayed the shipment of other goods.

The Irish Times notes – government officials warned a fix was unlikely

Government officials have made “technical inquiries” with officials within the commission “to see what the possibilities are”, said one Government source, though they warned that finding a fix for the issue was unlikely.

“This is Brexit. The UK has left the single market and the customs union. They are a third country. That is the problem,” said the source.

“If a good comes through England, that doesn’t mean that it should come under these rules, but if they are repackaged, there is a problem. That is not transit.

“This is an issue which was unforeseen or not foreseen to the extent to which it should have been.”

My Peppa Pig blog post concerns re-distribution. But even then, EU Commission clarification would be required,

Customs Solution to ‘Percy Pig’ tariffs (Ireland)

This blog does not focus on customs, tariffs, or VAT. But this story from the Irish state broadcaster RTE, caught my eye. Here

Percy Pig are popular sweets, sold by the UK retailer Marks & Spencer widely in Ireland and Europe. They are made in Germany and imported to the UK for onward re-distribution to Ireland and Europe without further processing.

It was thought under the EU-UK trade and cooperation agreement such import into the UK and re-distribution back to the EU without further manufacture or processing in the UK would attract a tariff.

But a partner in Customs and International Trade at (the accounting firm) BDO Ireland thinks she has a possible solution, which she is running by the authorities for verification. It utilises a Returned Goods Relief in existing EU customs rules.

[others may also have located Returned Goods Relief or other facilitations in the EU customs rules]

Happy New Year!

Here we go, 1st Jan 2021, and the start of the new rules for EU-UK trade.

(new 1st Jan) GB Cardinal Environment EHS Registers & Checklists (ENV) are being uploaded in alphabetical order, some have already been uploaded, uploading is taking place today, and will take a further 5-7 calendar days to complete. Any questions, please email me.

Northern Ireland Cardinal Environment EHS Registers & Checklists (ENV) will be next.

The December Email Alert will be issued on Monday 4th Jan, so look out for it in your inboxes on that day.

A couple of new items to note :

(1) the UK government issued a 31st Dec update (159 pages with worked examples) to its border model – here.

(2) the UK government issued a 3 month temporary approach to sending parcels to Northern Ireland from Britain – here.

(3) the UK government issued an unofficial list of waste codes for international shipping (note the List of Waste codes for domestic movement is found in WM3) – here.

(4) the UK government updated more of its guidance (notably data) to incorporate the EU-UK trade and cooperation agreement – the Brexit Guidance List in Cardinal Environment EHS Registers & Checklists.

(5) Stena, who manage Holyhead port, report they turned away 6 freight lorries carrying goods to Ireland so far this morning because the Ireland-required Pre-boarding Notification (PBN) had not been completed – this Blog does not focus on customs – the Irish Revenue link is here.

Transporting Goods from GB to EU (UK)

The lengthy instruction sheet (guidance for hauliers and commercial drivers) first issued by UK bodies and ministries on 18 November, is updated with aspects of the EU-UK trade and cooperation agreement. Note I just blog posted re the easement in road transport trips and the agreed cabotage arrangements provided for in the EU-UK trade and cooperation agreement. We are still awaiting the actual legal text of the EU-UK trade and cooperation agreement.

The lengthy instruction sheet for hauliers and commercial drivers is here.

As I said in the earlier blog post of this morning –

From 1 January 2021, UK operators will be able to undertake unlimited journeys to, from and through the EU. Up to 2 additional movements (cross-trade or cabotage) may be undertaken within the EU following a laden journey from the UK, with a maximum of 1 cabotage movement with a 7-day period.

Both additional movements may be cabotage movements in Ireland for Northern Ireland operators provided they follow a journey from Northern Ireland, and are performed within a 7-day period.

Please refer to my earlier blog post for the updated info on the UK Licence for the Community – this long instruction sheet has not been updated.

UK Licences for the Community can be used in the 27 EU countries and 4 other countries:

Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and the UK.

Information on UK Licences for the Community is here.

Please remember (it’s not in this long hauliers instruction sheet) where goods are packaged with wood, the wood must be stamped compliant with ISPM15, and can be stopped at the EU border if not – further details are here.

There is a shortage in the UK of ISPM15 compliant wood packaging. Please check this for yourself.

Note the differences applying in Northern Ireland.

International Road Haulage in EU (UK)

The Arrangements for Road Haulage carried out by UK drivers and organisations (goods vehicle operators) in the EU are altered by the EU-UK trade and cooperation agreement. The UK updated its Brexit Guidance. As I said in the earlier blog post of this morning, we will update the Brexit Guidance List on Cardinal Environment systems today (Christmas Day) – please check later today or tomorrow.

A goods vehicle operator will be able to make unlimited journeys to, from and through the EU.

The UK Licence for the Community will replace the EU Community Licence from 1 January 2021. The goods vehicle operator will automatically be sent a replacement UK Licence for the Community by 31 December 2020 if an EU Community Licence is held.

Drivers need to carry a copy of the UK Licence for the Community when working in the EU.

Drivers can make up to 2 additional movements (cross-trade or cabotage) within the EU following a laden journey from the UK with a maximum of one cabotage movement within a 7-day period.

A third cross-trade movement (moving goods between 2 countries outside the UK) can be made using a European Conference of Ministers of Transport (ECMT) permit from 1 January 2021, subject to demand.

Applications closed for annual ECMT permits on Friday 20 November 2020. This link provides details for short term ECMT permits – here.

Both additional movements may be cabotage movements in Ireland for Northern Ireland operators, provided they follow a journey from Northern Ireland, and are performed within a 7-day period.

Further details on Road Haulage in the EU are here (this includes announcements made earlier)

Post-Transition Borders Preparedness (UK)

On 10th Dec, the Chair of the EU Goods Sub-Committee wrote to the UK CDL Michael Gove with questions. The EU Goods Sub-Committee is a Lords Sub-Committee of the European Union Select Committee.

This letter is found here. The questions are identified in bold.

In November 2020 the Committee held five evidence sessions on preparedness for the end of transition, and the arrangements for the import and export of goods after the transition period.

The letter presents to the Government the key findings of the inquiries, asks urgent questions and makes recommendations.

Key Findings

• Crucial IT systems to deal with customs declarations and accessing Kent are still in testing and may not be ready for the end of transition.

• Small businesses will struggle to access these IT systems, or the services of the customs intermediary sector which appears to be under-resourced.

• The traffic management plan is vulnerable to closures, and the plan splits traffic well before drivers would normally make the decision on which route to take.

• Facilities for drivers are inadequate and will have serious welfare, safety and legal implications for those stuck in what may be delayed queues. Comfort breaks and sustenance have not been adequately considered or provided for.

• Animal welfare issues may arise for vehicles carrying livestock if they are stuck in queues for a long time.

• There is widespread uncertainty and the guidance provided by the Government has been complicated and unclear.

Separately (also in the week to 10th Dec), nine organisations involved in the supply of goods to the UK wrote to the UK transport minister Grant Schapps to warn that the current levels of congestion at the country’s leading container ports could continue for some time to come.

This report is here.

In response to pressures on local and national supply chains, the UK Department for Transport, pursuant to Article 14(2) of Regulation (EC) No 561/2006, introduced a temporary and limited urgent relaxation of the enforcement of EU drivers’ hours rules in England, Scotland and Wales.

These temporary relaxations apply from 12:01am on 10 December 2020 until 11:59pm on 30 December 2020, subject to review.

This notice is here.

EU REACH and UK REACH (UK from 1st Jan)

Like CLP (see my blog post on CLP), the key principles of the European Union (EU) REACH Regulation are retained. This document is included (separated into four line entries) in our Brexit Consolidated Law project (the coloured list in Cardinal Environment EHS Legislation Registers & Checklists).

From 1 January 2021, UK REACH and EU REACH will operate independently from each other. Companies that are supplying and purchasing substances, mixtures or articles to and from the EU/EEA/Northern Ireland and Britain (England, Scotland and Wales) will need to ensure that the relevant duties are met under both systems.

EU REACH will apply to Northern Ireland from 1st Jan, while UK REACH will regulate the access of substances to the GB market.

GB- based Businesses holding EU REACH Registrations (in ECHA)

The EU REACH registration will be (and must be) legally recognised (grandfathered) in the UK REACH system after 31st Dec, but information will be supplied to the HSE (the UK REACH regulator) via an account (the holder sets up) on the new UK REACH IT system.

* initial information on the existing EU REACH registration within 120 days of 31st Dec.

* technical information (required under UK REACH) within 300 days plus either 2, 4 or 6 years of 31st Dec. The deadline depends on the tonnage and/or hazard profile of substances.

Grandfathering will be available (and will be required) for all registrations (including intermediates) held by GB-based entities, including importers and Only Representatives (ORs) based in Britain, and to sole, lead or joint registrants.

All GB-based registrations that exist on 31st Dec, and all registrations held by GB entities at any point since 29 March 2017 will be grandfathered. This means that if a GB registration was transferred to an EU/EEA/NI-based entity in the run-up to 31st Dec, it will still be grandfathered into UK REACH.

Grandfathering will not apply to registrations held by entities established outside of Britain, regardless of whether they are part of a group of companies which also has a presence in Britain. Those registrations will not be grandfathered, unless they have been transferred to a GB entity before 31st Dec.

Before transferring any registrations, the HSE asks you to consider how this would affect your operations in the EU/EEA and Northern Ireland, and your ability to access the EU/EEA and NI markets in future.

The HSE says any ECHA decisions relevant to a registration(s) will remain valid.

Access to the technical information used for EU REACH registration may require renegotiating commercial contracts/letters of access which were originally put in place for EU REACH under a Substance Information Exchange Forum (SIEF).

UK REACH will not require GB companies to form a Substance Information Exchange Forum (SIEF) to submit registration data, including under the grandfathering provisions. UK REACH will include a similar Article 26 substance inquiry system to EU REACH to facilitate the principle of ‘one substance, one registration’ which will be retained under UK REACH.

This link gives access to HSE details of the information that must be submitted (scroll down)

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied from the EU/EEA – read here.

GB- based businesses importing non EU/EEA substances Businesses that act only as importers of substances will not be able to appoint an Only Representative (OR) under EU REACH (only a manufacturer, formulator or producer of articles can do so). This means that, as a GB-based importer, you will not have the option to transfer your EU REACH registrations to an EU-based entity OR to continue selling into the EU/EEA or Northern Ireland.

To sell chemicals to EU/EEA or NI customers you should:

* help your EU/EEA and NI-based customers to register with ECHA as importers

or

* work with the non-EU/EEA or NI-based manufacturer who supplies you to encourage them to appoint an OR based in Northern Ireland or an EU/EEA country, who can register the substance with ECHA. The HSE advises you will need to consider in each case whether this registration will be sufficient to allow you to export the substance into the EU/EEA or Northern Ireland.

For mixtures to be placed on the EU/EEA or NI markets you should ensure that each substance at one-tonne or over is registered with ECHA in accordance with EU REACH directly by someone EU-based in your supply chain (again see above re OR).

GB- based Businesses holding EU REACH Authorisations (in ECHA)

Again, these will be grandfathered. The deadline here is 60 days from 31st Dec for information supply to HSE –

* the information included in the application for the authorisation

* any other information provided to ECHA by the applicant for the authorisation which was material to the formation of ECHA’s opinion

* any information required to be submitted or recorded before 31st Dec under any condition under which the authorisation is granted.

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied by anyone with an EU REACH authorisation – read here.

Link to HSE information for GB- based Businesses bringing to GB NI- registered goods under EU REACH (qualifying Northern Ireland goods – QNIGs) – here.

Link to HSE information for NI- based businesses trading QNIGs – here.

Note : see above re GB holders of EU REACH registrations.

LINK to HSE for further scenarios.