EU NIP announcements (Northern Ireland)

On 13 October, the EU announced its October 2021 package of proposed measures to amend the Northern Ireland Protocol (to the UK-EU Withdrawal Agreement). This October 2021 package is here. (scroll down)

The October 2021 package is a series of “non papers”, these are not binding. The UK has it’s similar not binding “command paper” issued July – here. Both sets of documents contain a certain amount of spin.

UKG (UK Government) and the EU will discuss the documents over the next weeks. In the meantime, UKG had already extended indefinitely existing NIP grace periods and this is reflected in UKG Brexit Guidance (instructions) found collated in Cardinal Environment EHS Legislation Registers and Checklists.

The Northern Ireland Protocol regulates Northern Ireland’s access to the EU single market, but also affects it’s arrangements with the rest of the UK. This has since 1 Jan 2021 impacted on goods movements from Britain (GB) to Northern Ireland (UKG itself relaxed NIP rules for movement from Northern Ireland to GB); and it’s state aid rules.

Governance of the Northern Ireland Protocol arrangements is currently by the ECJ or CJEU as the court is known as in the EU. It is also an ask of UKG that this governance be altered and the role of the ECJ removed. This was a UKG ask at the time of negotiation of the Withdrawal Agreement.

In the event that agreement is not reached between the parties (UKG unilateral extension of grace periods is itself not agreed), it is open to one or the other to take unilateral action.

Further announcements are awaited.

Further Border Control Delays (UK)

The UK government recently announced that movement of goods from GB to Northern Ireland (occurring under the grace arrangements in the Northern Ireland Protocol – NIP) would continue in the current manner indefinitely.

The UK government also recently announced that CE marked goods would continue to circulate in GB for the entire 2022. CE marked goods circulate in Northern Ireland by virtue of the NIP. This was included in the August Email Alert.

This morning, the UK government confirmed – here

• The requirement for pre-notification of agri-food imports will be introduced on 1 January 2022 as opposed to 1 October 2021.

• The new requirements for Export Health Certificates, which were due to be introduced on 1 October 2021, will now be introduced on 1 July 2022.

• Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts, due to be introduced on 1 January 2022, will now be introduced on 1 July 2022.

• The requirement for Safety and Security declarations on imports will be introduced as of 1 July 2022 as opposed to 1 January 2022.

The timetable for the removal of the current easements in relation to full customs controls and the introduction of customs checks remains unchanged from the planned 1 January 2022.

Transportable Pressure Equipment (UK)

UPDATE : recognition of EU Pi-marked TPE will end on 1st Jan 2023.

I posted earlier that the government started a consultation on ending the circulation (in Britain) of EU Pi-marked Transportable Pressure Equipment (TPE) post Brexit. This consultation concluded and the government response is here.

The government response states the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (as amended) will be further amended to end recognition of EU Pi-marked TPE. The purpose of the consultation was to establish whether this amendment should come into force by 1 January 2022 or by 1 January 2023. But there is no consensus on the date, and the government response gives no date.

Answering questions raised, the government response states –

* UK Rho conformity marking was introduced in the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (EU Exit) (Amendment) Regulations 2020 (amending the 2009 Regulations). Until the regulations are further amended Rho marking remains optional. When the amendment is made, the government response states TPE placed on the market in Britain must be Rho-marked by a GB-appointed body or Pi-marked by a Northern Ireland notified body and accompanied by the UK(NI) indication.

* Under the existing 2009 regulations, TPE can be carried between Great Britain and an EU member state as long as it complies with ADR/RID, even if it is not Rho-marked. Similarly, the European Dangerous Goods Directive 2008/68/EC and the European Transportable Pressure Equipment Directive 2010/35/EU permit the carriage of TPE between a member state and a non-EU country if it complies with ADR/RID, even if it is not Pi-marked.

* Under the Northern Ireland Protocol, Northern Ireland follows the requirements of the European Transportable Pressure Equipment Directive 2010/35/EU (the TPED). EU Pi-marked TPE is accepted in both Northern Ireland and the European Union, so a further conformity assessment would not be necessary to access the market in Northern Ireland. To access both the GB and EU/NI markets the government response states dual conformity assessments would be required.

* There are no plans to amend the regulations for smaller items of TPE. Under the already amended regulations, the minimum height of the Rho marking is reduced to 2.5 millimetres for smaller cylinders with a diameter less than or equal to 140 millimetres.

* As Northern Ireland continues to follow the requirements of TPED, TPE being placed on the market must be Pi-marked by a notified body established in the EU or Northern Ireland and Rho marked TPE will not be accepted onto the NI market. Periodic inspections of Pi-marked TPE also need to be compliant with TPED in NI and conducted by EU notified bodies.

* Periodic inspections of Rho-marked TPE will need to be undertaken by a GB-appointed body. As Britain is continuing to accept TPE which has been conformity assessed by bodies established in Northern Ireland, such bodies will be able to undertake periodic inspections on TPE accepted onto the GB market. The government response states multiple conformity marks are permitted.

The (2009 Regulations) law supplied in Cardinal Environment EHS Legislation Registers and Checklists already has the 2020 amendment included.

UK-EU Future Dealings (UK)

The parameters of economic and internal security co-operation between the UK and EU are defined by three key documents:

* the Trade and Cooperation Agreement (TCA – the ‘deal’ signed on Christmas Eve 2020);

* the Withdrawal Agreement (WA), which lays out the future relationship for trade in goods between Northern Ireland, Britain and the EU; and

* the UK Internal Market Act, supplemented by ‘common frameworks’, which set out how the UK proposes to maintain internal coherence between the four nations of the UK after the loss of the EU framework within which devolution was originally conceived.

A new unit is established in No.10, under Lord Frost (the 2019-2020 Brexit negotiator). This unit has a strategic role, both on the approach to Europe and the EU as well as wider international policy.

The TCA establishes a complex governance model – at the top political level, the TCA will be overseen by a new Partnership Council. Not dissimilar to the Joint Committee established in the Withdrawal Agreement, it will be co-chaired by a representative from the European Commission (recently confirmed to be Maroš Šefčovič, also co-chair of the Joint Committee) and a minister from the UK government (yet to be announced). Its role includes:

• Oversight: The Partnership Council will be responsible for overseeing the application and implementation of the TCA. As part of this responsibility, it will be able to set up or disband specialised committees, delegating powers where necessary.

• Amendment: For the next four years, the Partnership Council will be able to amend the TCA, or supplement agreements, to correct errors or address omissions. But
the power goes beyond just a tidying up function and has the potential to be quite wide-ranging. For example, the Partnership Council will be able to decide to amend some parts of the agreement by mutual agreement, including parts of the chapters and annexes on rules of origin, customs and energy.

• Dispute settlement: For most parts of the TCA, the first step in the dispute resolution process is for the two sides to enter into ‘consultations’, which can take place either in one of the specialised committees or the Partnership Council. If a dispute cannot be resolved through consultation at the political level, the complaining party will have the option of requesting an arbitration tribunal and go through the resolution process.

NB : This process will not apply to all parts of the TCA. There are separate dispute arrangements in areas such as law enforcement and judicial co-operation, fisheries, and parts of the level playing field (LPF), including subsidies, labour and social standards, and environment and climate standards. Other parts do not have a formal dispute arrangement, including competition, tax, SMEs and cultural property.

The TCA also establishes the Trade Partnership Committee to oversee the trade
part of the agreement, with 10 trade-specialised committees, which will oversee specific aspects of the trading provisions, including on sanitary and phytosanitary (SPS), regulatory co-operation, and the LPF. There will be a further eight specialised committees to oversee other aspects of the TCA, including on social security co-ordination and law enforcement, and judicial co-operation. Together, these amount to nearly double the number of committees included in the EU–Canada Comprehensive Economic and Trade Agreement (CETA).

Four working groups are also established in the TCA to support the work of specific specialised committees. These are on organic products, motor vehicles and parts, medicinal products (supervised by the trade specialised committee on technical barriers to trade) and social security co-ordination (supervised by the Specialised Committee on Social Security Coordination). These groups have been set up where it is already clear that greater co-ordination or discussion will be needed.

The structure is not fixed. The Trade Partnership Committee and eight specialised committees can establish and dissolve working groups where they agree it is necessary to support the functioning of the agreement.

The TCA also allows the EU and UK parliaments to set up a new ‘parliamentary partnership assembly’ to exchange and request information on the implementation of the agreement from the Partnership Council as well as to make recommendations. The two sides will also establish a civil society forum and are expected to set up domestic advisory groups.

The Cabinet Office confirmed this morning (in questions to it, in Parliament) that the Partnership Council and various committees will be stood up next month, June.

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.

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.

Counting GB divergence from EU law (Britain)

To date (end Feb 2021) divergence (this is not a definitive list) :

(1) international waste shipment – divergent waste transshipment law – EU bans plastics to non-OECD, Britain has enhanced pre-notification

(2) lead shot in fishing/hunting – EU Reach ban in/around wetlands from Feb 2023 (no announcement in Britain)

(3) carcinogen OELs – EU has further 2021 OELs (EH40 unchanged thus far)

(4) medicines licensing – Britain has ILAP launched 1st Jan – further information is here

(5) safety data sheets – EU has new Reach Annex II, one year grace (UK Reach unchanged so far)

There are other minor divergences

Additionally, and off topic, GB will not implement the latest proposed update to the EU motor insurance directive.

UK relations with EU (UK)

The UK government has brought back Lord (David) Frost, its EU-UK Trade and Cooperation Agreement (TCA) negotiator, to lead UK relations with the EU as a Cabinet Minister (scrutinised by Lords select committee). He will be the UK lead (co-chair with the EU) of the two key committees (replacing Michael Gove CDL) –

(1) The Joint Committee of the 2020 EU-UK Withdrawal Agreement (WA) – a key workload is the IRL/NI Protocol functioning

(2) The Partnership Council set up under the 2020 TCA

These two images depict the TCA work ongoing. The various committees and sub-committees of the Partnership Council are not yet announced.

UK BAT Consultation (UK)

From 1st Jan 2021, EU BATC (best available techniques conclusions) documents will not be applicable in the UK (except in Northern Ireland under the Ireland/Northern Ireland Protocol of the Withdrawal Agreement).

The UK is now consulting on developing its own approach to the creation of UK BAT documents. Here (and online – here). The deadline is 18 April 2021.

A new governance structure is proposed to enable BAT a’ Best Available Techniques’ to be developed within the UK. This would be formed of a new Standards Council, made up of representatives from the UK Government and Devolved Administrations, a new Regulators Group that will provide technical advice to the Standards Council, and Technical Working Groups for each new ‘Best Available Techniques’ under consideration.

The Council would coordinate a rolling programme for review of ‘Best Available Techniques’ within the UK. The programme will be informed by the time since the industry sector last had a ‘Best Available Techniques’ review as well as technical insight on new and emerging techniques and ‘Best Available Techniques’ development in other regimes around the world. This includes considering when general guidance on ‘Best Available Techniques’ developed for new processes or for unique installations would benefit from being considered through the new system. The decision on the future timetable will be based on technical advice provided by the Regulators Group, and instigation of ‘Best Available Techniques’ development can be proposed by any Council member. It is proposed that ‘Best Available Techniques’ currently under review by the EU, where UK industry and experts have already been involved, should be considered by the UK process, once established.

The Regulators Group will support the Council and provide oversight of the work of the sector specific Technical Working Groups. It will develop and regularly review the technical principles that underpin ‘Best Available Techniques’ within the UK, apply those principles when reviewing each sector ‘Best Available Techniques’ and will make recommendations to the Council on ‘Best Available Techniques’. The Regulators Group membership would comprise of representatives from the Environment Agency, Natural Resources Wales, Northern Ireland Environment Agency and the Scottish Environment Protection Agency as well as the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED) (for offshore oil and gas installations).

Further detail is set out in the consultation document.

Trade Agreement with Norway and Iceland (UK)

The EU, Norway and Iceland are members of the EEA (European Economic Area) which has its own Agreement in force since 1994. This Agreement means Norway and Iceland adopt EU Law in the areas of Environment and Health and Safety.

The UK signed a trade in goods agreement with Norway (and Iceland) in Dec 2020.

The UK trade in goods agreement includes provisions on:

• trade in goods – including provisions on preferential tariffs, tariff rate quotas, rules of origin and customs and trade facilitation

• geographical indications with Iceland

Information on changes to trade with Norway and Iceland that apply from 1 January 2021 is here. This link also includes access to the trade in goods agreement itself.

As in the UK-EU FTA, there is no equivalence on standards, goods sold into the Norwegian and Iceland markets must the regulatory requirements as set out in EU Law implemented in Norway and Iceland via the EEA Agreement, and be labelled correctly.

From 1 January 2021, regulations for industrial and agricultural products might not be aligned across the UK, Iceland and Norway. This is also the case with regulations across the UK and the EU. But the EU-UK FTA does not cover Norway and Iceland, and so variation may occur not just as respects the EU, but also Norway and Iceland.

From 1 January 2021, the UK will continue to treat most imports from Iceland and Norway no less favourably than imports from the European Union, for a time limited period. This includes requirements for product testing.

Iceland and Norway will also continue to replicate the EU’s treatment of industrial products from the UK. This includes requirements for product testing.

For rules of origin (which are tripping up GB goods movement to the EU and Northern Ireland), please check with BEIS. But simply re-packaging or re-labeling a product from the EU and exporting it to Norway or Iceland as a good originating in the UK is not permitted. Also, check with BEIS re the customs processes for an EU good dispatched to Norway or Iceland from a GB distribution centre.