DEFRA SPS standards (UK from 1st Jan 2021)

Lord Gardiner of Kimble made the following statements concerning the SPS standards regime that will operate from 1st Jan 2021 – (these statements made in the final reading of the Agriculture Bill at the House of Lords)

[note: goods placed on the NI market will need to comply with EU law where it’s listed in the Ireland/Northern Ireland Protocol]

(1) The Food Standards Agency and Food Standards Scotland will apply to imports under new free trade agreements. For example, regulated food products will need to pass the FSA’s risk analysis process before being placed on the local market. The FSA has doubled the number of risk assessors since 2017. It can draw on the expertise of 100 scientific experts and support staff and has recruited 35 additional members to its advisory committees. It has also taken wider consumer interest into account, such as the impact on the environment, animal welfare and food security, drawing on appropriate expertise and stakeholders to do so. The expertise of other government departments and agencies will be brought to bear in the risk assessment process, as required, including the Animal and Plant Health Agency and Defra officials.

(2) Equivalence will be considered by experts in the Animal and Plant Health Agency and the Food Standards Agency. The expert advice and evidence on regulated products will then be presented to Ministers and devolved Administrations for a decision on whether these products should be placed on the local market. Secondary legislation would need to be laid before Parliament to authorise new regulated products to be placed on the market.

(3) The functions of audit and inspection, currently carried out by the European Commission, will be repatriated to ensure that trading partners continue to meet local import conditions for food and feed safety, animal and plant health and animal welfare. This will include officials auditing the food production systems and rules of other countries and carrying out inspection visits to facilities in the countries themselves. Verification that requirements are being carried out as stipulated will be conducted through checks at the border. Audits will ensure that trading partners have the necessary infrastructure and regulation in place to export safe food and animal products, which either meet or exceed local import conditions, and will then ensure that these standards are maintained.

(4) The UK Government will take a science-based approach to SPS measures and take their own sovereign decisions on standards and regulations, in line with the principles of the WTO SPS agreement and other relevant internationally recognised guidance.

[Information on the WTO SPS agreement is here – note, it does not of itself set out SPS standards]

(5) Food labelling rules apply to all food intended for supply to final consumers or to caterers. Imported food needs to be fully compliant before it is placed on the local market. The name and address of the local food business, or the importer, will be required on the label from 1st Jan 2021. There are no exceptions to food labelling rules for imported food.

(6) Re Northern Ireland. The withdrawal agreement joint committee met again on 16 July and the Northern Ireland Executive representative again attended, in line with the New Decade, New Approach deal. They exchanged updates on implementation of the protocol and discussed preparatory work for future decisions.

(7) Re quotas that form part of the commitments within the UK goods schedule, which has been lodged at the WTO. The UK has already agreed a common approach with the EU to apportion EU 28 tariff-rate quotas between the UK and EU 27 in order to ensure existing trade flows are maintained. Legislation will be presented by the Treasury later this year under the Taxation (Cross-border Trade) Act 2018 to establish new tariff quotas in UK law.

(8) Re Use of gene editing. Until 2018, there was uncertainty within the EU as to whether the living products of gene editing technology should be subject to the same regulatory framework as genetically modified organisms (GMOs), because the legal definition of a GMO was open to interpretation.

In 2018, the European Court of Justice ruled that gene edited products must be treated in the same way as GMOs, even if the changes to their genetic material could have been produced by traditional methods, such as crossing varieties of the same species and selecting only the improved individuals.

The UK Government is committed to taking a more scientific approach to regulation.

Gene-edited changes to genetic material that would not arise naturally or from traditional breeding methods will still need to be regulated as genetically modified organisms. The UK Government will consult on this issue. Defra is working on the details so that a consultation can be launched in the autumn.

Further details are set out in the Hansard record – here.

EU-UK Readiness post 1st Jan 2021 (EU)

On 14th July, the European Commission published a Guidance Note “Withdrawal of the United Kingdom and EU Rules in the field of Customs, including preferential origin”.

This document (35 pages) is here.

The Guidance Note summary advice to Stakeholders –

–  consider whether they need to obtain an EORI number from an EU Member State;

–  consult their competent customs authority for further advice on their individual situation; and

–  adapt input and supply chains to take account that UK input will be non-originating for the purposes of tariff preferences with third countries.

Some points (this is not a full list, please read the document) –

(1) From 1st Jan 2021, UK EORI numbers will cease to be valid in the EU and will be invalidated in the relevant IT system EOS/EORI, including those UK EORI numbers linked to the ongoing operations covered by the Withdrawal Agreement.

Customs authorities of EU Member States should accept requests before 1st Jan 2021 and assign to them EORI numbers with the 1st Jan 2021 or thereafter as the “start day of EORI number”, according to the requests of the persons concerned.

(2) Authorisations granted by UK customs authorities are not valid in the EU from 1st Jan 2021. From 1st Jan 2021, the UK customs authorities are not an EU competent customs authority.

The UK is a Contracting Party to the Convention on a Common Transit Procedure (CTC), so from 1st Jan 2021 authorisations granted by the UK for transit simplifications are not valid in the EU Customs Decisions system, but need to be treated in the UK’s national system as a Contracting Party to the CTC. Where then the UK communicates to the Member States which of those authorisations continue to be valid within the framework of the CTC, the Member States are to accept those authorisations as valid.

(3) Authorisations granted to economic operators with UK EORI numbers are not valid in the EU from 1st Jan 2021, unless the economic operator has an establishment in the EU, has the possibility to obtain an EU EORI and to apply for an amendment of the authorisation to include the new EU EORI instead of the UK EORI number. Where an authorisation cannot be amended by replacing the UK EORI by an EU EORI, the economic operator should apply for a new authorisation with his new EU EORI.

(4) UK content (material or processing operations) is “non-originating” under EU preferential trade arrangements for the determination of the preferential origin of goods incorporating that content.

Note the specific different arrangements that apply in Northern Ireland from 1st Jan 2021.

EU-UK Readiness post 1st Jan 2021 (UK 1st Jan 2021)

Yesterday, 13 July, the UK published its Border Operating Model (206 page Policy Paper) that will apply from 1st Jan 2021 for GB trade with the EU – here.

In addition, HMRC information for traders importing or exporting goods between Britain (GB) and the EU after 1st Jan 2021 is published – here.

HMRC also has guidance on declaring goods brought into GB from the EU after 1st Jan 2021 (update from 10 July) – here.

Specific instructions –

(1) Plants and plant products (update from 10 June) – here

(2) Animals, animal products and high-risk food and feed not of animal origin (update from 10 June) – here

In addition, the Forestry Commission’s guidance on importing wood, wood products or bark from non-EU countries is updated – here.

Protocols for GB trade with NI, and NI trade with the EU (including Ireland) will be published later this month (the UK government said yesterday 13 July).

I Blog posted a few days ago on EU-UK Readiness on the EU side.

Rail Transport (UK from 1st January 2021)

Rules change from 1st January 2021 (as a result of Brexit).

The UK Department for Transport issued on 1st July, text applicable to Rail Transport from 1st January 2021. This text is here.

The UK text also refers the reader to the already existing European Commission Notice, updated 28 April, here.

Note the following (this is not an exhaustive list, please read the text behind the links).

Note the deadlines – 1st January 2021 and 1st January 2022. Note the different rules in Northern Ireland.

(1) EU-based operators must apply to the Office of Rail and Road (ORR) for documentation to run services in Britain – the necessary documentation is required by 31 January 2022.

For Northern Ireland, the UK text says “non-UK operators are currently not subject to a time-limited period”. This flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

(2) The UK text says “It is likely that certificates and licences issued in the UK will not be valid in the EU from 1 January 2021”.

If this is the case, operators of cross-border services will be subject to the recognition implications set out in both UK and EU rules.

(3) The UK will continue to recognise certain EU-issued documents until 31 January 2022 for services in Britain. These are operator licences, safety certificates, and train driving licences.

For Northern Ireland, the UK text says “The 2-year time limit from 31 January 2020 on recognition of these categories of EU-issued documents does not currently apply to Northern Ireland.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any future arrangements with France are expected to deal with the Channel Tunnel itself but not with the routes into continental Europe (beyond Calais-Fréthun). UK operators and train drivers will need to obtain additional licences and safety certificates to operate or work in the EU.

(4) The UK’s formal participation in the EU Agency for Railways (ERA) ended on 31 January 2020 and the UK is not seeking membership of ERA. The UK text says “The UK intends to put in place appropriate arrangements for regulatory co-operation with ERA where this is necessary to secure the safety of international rail services.”

(5) After 31 January 2022, operators with an EU operating licence will need to hold an ORR-issued licence to operate in Britain. Establishment in the UK is not necessary, but the UK ORR licence will need to have been applied for and obtained by 31 January 2022 to continue operating after that date.

Operators holding an ORR-issued licence that run domestic services in the EU will need to re-apply for an operator licence in an EU member state, consulting the relevant guidance and following the requirements from the EU or the relevant member state. The licence must be in place by 1 January 2021.

This is also the case for UK-based operators seeking to run new domestic services in an EU member state.

Operators of cross-border services between the UK and the EU holding an ORR-issued licence will need to re-apply for an operator licence in an EU member state. The licence must be in place by 1 January 2021.

(6) ORR-issued Part A and Part B safety certificates will be valid for UK-based domestic operators operating in Britain until their normal expiry.

EU established operators running a domestic-only service in Britain, with a Part A safety certificate issued in the EU before 31 January 2020, will be able to use these certificates until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to UK regulations will allow EU established operators running a domestic-only service in Britain with a Part A safety certificate issued in the EU before 31 January 2022 to run services in Britain until 31 January 2022. These changes are to be made in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

This will also apply to operators running services with a single safety certificate issued under Directive (EU) 2016/798, which will be deemed equivalent to a UK Part A safety certificate during the period between 31 December 2020 (subject to the changes to regulations coming into force) and 31 January 2022.

If trains are operated in Britain on the basis of an EU-issued safety certificate, the relevant safety certification issued by the ORR is required by 31 January 2022 at the latest. An ORR-issued Part B certificate associated with an EU-issued Part A safety certificate or a Single Safety Certificate will expire alongside the parent certificate. An operator obtaining new safety certification will also be required to apply for and obtain a new Part B safety certificate.

Establishment in the UK is not required to obtain relevant safety certification issued by the ORR, but a UK address must be supplied in the application.

For Northern Ireland – the UK text says – “non-UK based operators running a domestic-only service with a Part A safety certificate issued in the EU are not currently subject to a time-limited recognition period.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any EU operator seeking to run domestic services in Britain based on an EU-issued Single Safety Certificate, issued under Directive (EU) 2016/798 until 31 January 2022, will also have to obtain a Part B safety certificate from the ORR before it can do so.

UK-based operators running domestic services in the EU who hold an ORR-issued, or Northern Ireland-issued, Part A safety certificate need to obtain an EU safety certificate by 1 January 2021. This also applies to UK-based operators seeking to run new domestic services in an EU country.

Operators established in the UK who operate cross-border services and hold an ORR-issued Part A safety certificate will need to obtain EU safety certification by 1 January 2021.

(7) Entities in charge of maintenance (ECM) that maintain vehicles in the EU on the basis of an ECM certificate issued in the UK by the ORR or an accredited certification body need to apply for and obtain a new ECM certificate from a certification body in an EU country.

Vehicles used in international traffic between the UK and the EU also have the option of obtaining a certificate according to the legal framework of the Convention concerning International Carriage by Rail (COTIF). The validity of ECM certificates issued in the UK by the ORR or an accredited certification body will be unchanged for freight wagons running purely on the UK mainline railway. ECMs that hold a certificate issued in accordance with COTIF can continue using these certificates in the UK for operations involved in international traffic. ECMs may also rely on certificates issued in the EU in accordance with Commission Regulation 445/2011 to maintain freight wagons for use in domestic operations.

Proposed changes to regulations will allow ECMs to rely on certificates issued in the EU in accordance with the new Commission Implementing Regulation (EU) 2019/779 to maintain freight wagons for use in domestic operations. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

(8) Drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2020, are able to drive trains on the basis of those licences until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to regulations will allow train drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2022, to use this documentation until the 31 January 2022. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

From 31 January 2022, train drivers working in Britain will need to have obtained a UK train driving licence from the ORR to continue operating. The validity of train driving certificates is unaffected. However, operators must ensure that certificates held by newly re-licensed drivers (and their registers of those certificates) refer to the correct licence.

This means that, UK train driving licences are required by 31 January 2022.

Train drivers operating international services or driving domestic services in an EU member state on the basis of an ORR-issued train driving licence will need to re-apply for a train driving licence in an EU country. The new licence will need to be in place by 1 January 2021. Train drivers should apply for and obtain this as soon as possible, where they have not already done so.

(9) From 1 January 2021, the placing of interoperability constituents on the UK market will be based on a UK conformity assessment process, requiring compliance with applicable UK National Technical Specification Notices (NTSNs).

For Northern Ireland, the UK text says “Further updates may be provided in relation to Northern Ireland due to a review of obligations under the Northern Ireland Protocol.” This is the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

The UK text says “It is currently expected that an interoperability constituent placed on the EU market up to 31 December 2020 with a certificate of conformity from a UK notified body will be able to be used within the EU for the period of validity of that certificate in subsystems or vehicles authorised before 1 January 2021.”

(10) Vehicles first authorised in the UK from 1 January 2021 will need to be authorised in the EU as well before they can be used in the EU. Vehicle authorisations issued in the EU up to 31 December 2020 will remain valid in the UK if the vehicle is already in use here prior to that date.

From 1 January 2021 vehicles first authorised outside the UK will require an additional authorisation before they are first used in the UK. This system will be operated in accordance with the UK’s COTIF international obligations.

Withdrawal Agreement Ireland/Northern Ireland Protocol (Northern Ireland)

I posted earlier about the first meeting of the EU-UK Withdrawal Agreement Joint Committee. The first meeting of the Specialised Committee that deals with the Ireland/Northern Ireland Protocol has also been held. Note, this Specialised Committee will also have a specific advisory group report to it.

The Ireland/Northern Ireland Protocol is a particularly tricky aspect of the EU-UK Withdrawal Agreement that was signed late in 2019. It requires new arrangements to be set up for Northern Ireland. I have posted about this before.

The EU issued (and published) on 30 April a Technical Note on the implementation of the Protocol – here.

At various points, EU Technical Note reminds that from the end of the transition period, the UK has committed to apply in Northern Ireland the provisions of EU law listed in Annex 2 to the Protocol relating to sanitary and phytosanitary (SPS), products, and goods requirements.

The altered Cardinal Environment EHS Legislation Registers and Checklists for Northern Ireland will have these Annex 2 EU Law identified at the head of the Registers. We are working to the 31st December 2020 deadline for these alterations.