Sanitary and Phytosanitary Notification (UK WTO)

The UK is a member of the World Trade Organisation (WTO). The WTO members operate amongst themselves an Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures.

The UK submitted (13 March) information (for circulation to WTO Members) to answer the matter of the ongoing implementation of the United Kingdom’s obligations under this WTO SPS Agreement during the transition period following the United Kingdom’s withdrawal from the European Union, and to set out the UK’s own SPS Regulatory System.

The UK ceased to be a member State of the European Union on 31 January 2020. The UK and the EU agreed a Withdrawal Agreement which provides for a time-limited transition period until 1 January 2021 during which European Union law, as implemented through the Withdrawal Agreement, will continue to apply to and in the United Kingdom.

This means that the European Union SPS regime continues to apply in the United Kingdom during the transition period and, following that, the United Kingdom will apply its own SPS regime.

The United Kingdom Parliament legislated to repeal the European Communities Act 1972 by means of the European Union (Withdrawal) Act 2018. The 2018 Act preserves, and incorporates into domestic law, those elements of European Union law which will apply in the United Kingdom at the end of the transition period.

The European Union (Withdrawal Agreement) Act 2020 in turn implements the Withdrawal Agreement (which provides for the transition period) including by amending the European Union (Withdrawal) Act 2018 to reflect the terms of the Withdrawal Agreement.

The UK SPS Regulatory System is set out in the Notice – here

The UK Government is responsible for matters pertaining to the SPS Agreement and international trade. However, powers to implement, regulate and assure food safety, animal and plant health including matters relating to import and export, are devolved by the UK Parliament to the respective administrations in Scotland, Wales and Northern Ireland (collectively referred to as the Devolved Administrations).

EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

Export-Import (Hops) (UK Brexit)

Exit day is 31st January (end of this month)

Transition Period end date is 31st December (end of this year)

Instructions for trading with the EU (hops and hop products, an agricultural product) after Exit day are set out here. Note these set out in No Deal scenario format – I have adjusted below.

I am posting this Blog because it illustrates the UK approach for trade with the EU in those agricultural products, post Brexit, for which the EU has marketing standards.

Pre-Brexit

Hops marketed in the EU must meet rules on marketing standards. This includes hops extracts, hop cones and ground, pellets or powdered hops cones.

To show that they meet these standards, imports to the UK:

• from non-EU (third) countries, must have an Attestation of Equivalence

• from the EU, must have an EU hops certificate

The UK inspection agency is the Rural Payments Agency (RPA) – this agency inspects at least 5% of hops imports from each non-EU country. The UK does not currently inspect imports of hops from the EU.

Hops produced in the UK are issued with EU hops certificates from hops certification centres. With some exceptions, the certificates are needed for:

• marketing hops in the EU (including the UK)

• exporting hops

Post-Brexit

UK certification centres will still issue hops certificates for hops produced in the UK.

UK hops certification centres must remove all EU branding (including references to the EU and the EU emblem) from certificates from Exit day (or from the end of the Transition Period). The form of the certificate and the process for getting a certificate will not change.

Hops imported into the UK (after Exit day or after the end of the Transition Period) must be accompanied by one of the following as evidence that they meet UK marketing standards:

• the new UK Attestation of Equivalence issued by an authorised third country agency

• EU Attestation of Equivalence issued by an authorised third country agency (can be used until 31 October 2021)

• EU certificate for hops imported from the EU (can be used until 31 October 2021) – this must comply with EU rules and can be issued by a body authorised by an EU member state

After 31 October 2021, all hop imports from the EU and other third countries must be accompanied by a new UK Attestation of Equivalence. This must be issued by an authorised third country agency. A list of these agencies will be published on GOV.UK following EU exit. Agencies currently registered with the EU will be registered with the UK when the UK leaves the EU.

The UK may stop accepting EU Attestations of Equivalence and EU certificates before 31 October 2021 if EU marketing standards for hops do not meet UK standards.

The EU only accepts imports of hops accompanied by an EU Attestation of Equivalence, issued by an authorised agency in the exporting third country.

The UK government intends to apply to the EU to list RPA as the UK agency authorised to issue Attestations of Equivalence. RPA will not be able to issue Attestations of Equivalence until the listing with the EU is complete.

Further details will be published when they are available. However, an exporter must first enrol with RPA to export hops after Brexit.

Other details are set out in the instructions.

New Rules from the Trade Deal

The instructions are currently silent on new rules from the Trade Deal.

New Plant Health Rules (EU)

In October 2016, the EU adopted Regulation (EU) 2016/2031 on protective measures against plant pests (“Plant Health Law”).

On 13 December 2016, the Regulation entered into force and is applicable from today 14 December 2019.

These rules constitute the EU Plant Health Regime, which has been in place since 1977 and was fully reviewed by the European Commission in May 2013.

The new rules aim to modernise the plant health regime, enhancing more effective measures for the protection of the Union’s territory and its plants. They also aim to ensure safe trade, as well as to mitigate the impacts of climate change on the health of our crops and forests.

From 14 December 2019, the current Annexes of Directive 2000/29/EC, whereby the regulated pests, the regulated plants, plant products and other objects and the plant health import, as well as internal movement, requirements are listed, are replaced with a new Implementing Act 2019/2072 and its Annexes.

This Implementing Act is here.

From 14 December 2019, all plants (including living parts of plants) will need to be accompanied by a phytosanitary certificate to enter into the EU, unless they are listed in Commission Implementing Regulation (EU) 2018/2019 as exempted from this general requirement (not requiring to be accompanied by a phytosanitary certificate). Currently, the list of plants exempted from the obligation to carry a phytosanitary certificate from 14 December 2019 are the following fruits: pineapples, coconuts, durians, bananas and dates.

Commission Implementing Regulation (EU) 2018/2019 is updated by 2019/2072.

EU plant health rules also cover the movement and trade within the EU of certain plants, plant products and other objects which are potential carriers of quarantine pests. These plants, plant products and other objects are listed in Annex VIII and IX of the above Implementing Regulation (EU) 2019/2072.

Within the EU, these rules include:

• Requirements for internal movements – Regulation (EU) 2019/2072 – Annex VIII, IX and X

• Production controls and inspections at the place of production during the growing season and immediately after harvest;

• Official producer registration;

• Plant passports, issued to accompany the plants, products and other objects once they have passed all the EU checks.

Registration of EU producers

• Directives 92/90 EEC and 93/50 EC

• Regulation (EU) 2016/2031, Articles 65-70

Rules for issuing plant passports

• Directive 92/105/EEC as amended by Directive 2005/17 /EC

• Criteria for authorization Regulation (EU) 2019/827

• Format of plant passports Regulation (EU) 2017/2313

• Regulation (EU) 2016/2031, Articles 78-95

Brexit – the UK Government has issued instructions, these new EU Plant Health Rules apply today to movements within the UK and movements to the EU.

The UK instructions are here.

Pesticides (EU)

Regulation (EC) No 1107/2009 is the governing EU Law on the placing of plant protection products (pesticides and herbicides) on the European market – the PPP Regulation.

This is a useful Q&A document (2015) about the PPP Regulation – here.

A zonal system of authorisation operates in the EU to enable a harmonised and efficient system to operate.

The EU is divided into 3 zones; North, Central and South. EU countries assess applications on behalf of other countries in their zone and sometimes on behalf of all zones.

The PPP Regulation sets out the requirements, procedure and timeframes for authorisation of Plant Protection Products (PPPs).

Applicants, EU countries, the European Commission and the European Food Safety Authority (EFSA) can be involved in the process of authorisation.

There are different types of application that can be submitted depending on the intended use of the PPP, the Member State(s) for which the PPP is required and the regulatory status of any existing authorisations.

Authorisations usually are time-limited and therefore come up again for review. The relevant EU body for the whole EU is the Standing Committee on Plants, Animals, Food and Feed (SCoPAFF).

In March 2019, the non-renewal of the fungicide active substance chlorothalonil came up for review at SCoPAFF, and the decision was not to renew.

In December 2019, the non-renewal of two organophosphate active substances chlorpyrifos and chlorpyrifos-methyl came up for review at SCoPAFF, and the decision is not to renew (this decision is not yet published).

This means products containing the above active substances may not circulate in the European market, stocks may be used up for a short time, determined by the EU authorisation document that is issued for the active substance.

Brexit : as an EU Regulation, the PPP Regulation is adopted in the UK as Retained EU Law. Enacted Brexit Law (in force from Exit day) makes changes to the PPP Regulation to enable it to stand alone within the UK statute base.

DEFRA has made no announcements re reversing EU bans.

Imports of Regulated Material (UK Brexit)

Exit day is 31st October 2019.

HMG updated instructions dating from 2015 (relating to importing from outside the EU) and issued these today (aligning with post Exit systems for imports from EU).

Here.

The instructions relate to importing (from outside the EU) :

(1) cut flowers

(2) plants

(3) fruit

(4) vegetables

(5) machinery

Plants, fruit, vegetables and plant material (like soil) from outside the EU fall into 3 categories:

• ‘unrestricted’ material you can bring to the UK without any conditions

• ‘controlled’ material that you can only bring into the UK with a ‘phytosanitary certificate’ to show it meets the requirements for entry to the EU

• ‘prohibited’ material that cannot be brought into the UK unless the importer gets a scientific research licence or an exception (‘derogation’) to the rules – contact the Animal and Plant Health Agency (APHA) for a derogation.

The Instructions focus on Phytosanitary Certificates (controlled material) not machinery.

Plant passports for movements to and from the EU – here (also updated from 2015)

Small quantities in hand baggage – here.

Please examine the documents linking to the right of the Instructions page – these are also updated (and some relate to cross border with the EU).

Glyphosate (UK)

In 2017, the EU decided to renew (for a further five years) the licence that permits the herbicide Glyphosate to be marketed and used in the EU28. I have posted before about this (but it was a while back).

Glyphosate is marketed as Roundup by the US agrochemical company Monsanto.

One UN study called the chemical “probably carcinogenic”, but other scientists said it was safe to use.

The UK was among the EU member states in favour of glyphosate renewal. Germany and Poland were also among them – though they had previously abstained.

France and Belgium were among the states that voted against. Portugal abstained. President Macron said after the decision that France would ban Glyphosate as soon as alternatives are found, and within three years at the latest.

The EU Commission said the current proposal on the weedkiller “enjoys the broadest possible support by the member states while ensuring a high level of protection of human health and the environment”.

Glyphosate was introduced by Monsanto in 1974, but its patent expired in 2000, and now the chemical is sold by various manufacturers.

The European Food Safety Authority (EFSA) says glyphosate is unlikely to cause cancer in humans.

Some countries and regions have banned glyphosate use in public parks and gardens. Its effect on plants is non-selective, meaning it will kill most of them when applied.

The European Commission says that besides EFSA, the European Chemicals Agency and other scientific bodies found no link to cancer in humans.

The Soil Association says glyphosate traces are regularly found in bread.

Since the EU decision, a US court has ordered Monsanto to pay one user a substantive sum in damages after he developed cancer, a second case in a different US court also ordered a substantive sum in damages, and further cases are before the US courts in different places.

As a result, Councils across the UK are examining whether to take action. This Guardian article summarises – here.

The current Government guidance is under review.

HSE is the UK regulator responsible for plant protection products (pesticides and herbicides) following Brexit – their online information is here.

Plants and Plant Products Import from UK (Ireland Brexit)

Exit day is 12th April (this Friday) – exit time is 12.00 CET (midnight)

Following the UK’s departure from the EU, the UK will become a third country.

The Irish Department of Agriculture, Food and the Marine (DAFM) will play a key role in implementing and enforcing EU law in this instance. This will include performing the necessary checks and controls and processing the necessary authorisations and licences when importing from the UK.

DAFM is now giving greater priority to preparations for the UK being a Third Country. I posted yesterday about its instructions for traders dealing with the UK for animal products.

DAFM is now calling for all traders involved in the import and export of plants and plant products with the UK (timber, potted plants in retail outlets etc) to register with the DAFM as soon as possible.

Instructions are here.

Applicants are required to complete forms and return these forms to the Horticulture & Plant Health Division of the DAFM.

On completion of the registration process, an importer will be notified of their unique Plant-Health Registration Number (PHR No.). This unique Plant Health Number will be required to be referenced by an importer in all applications for importation of plants and plant products.

The above Instructions link gives access to a number of different instructions and a useful Q&A – for example –

Q: I am working for a retail multiple and we import a number of consignments of plants per week into Ireland from the UK.  Do I need to get a phytosanitary certificate from each of my suppliers of plants in the UK?, or will one phytosanitary certificate cover the entire consignment?

A: It is the NPPO (National Plant Protection Organisation) of UK who issue phytosanitary certificates for consignments of plants and plant products for export to countries outside their jurisdiction.  Consignments of plants and plant products travelling from third countries are typically accompanied by one phytosanitary certificate that covers the entire consignment.  However, it is up to the UK authorities to decide how many phytosanitary certificates they issue.  Please note that in situations where we receive multiple phytosanitary certificates for a consignment, that it will result in processing delays.

Q: Do I have customs obligations when importing plants and plant products from the UK? If so, where do I find out what I need to do?

A: Yes, when importing plants and plant products from the UK you will have certain obligations to fulfil from a customs perspective.  Please click here for more details.

Q: I am a non-commercial importer and I wish to bring cut flowers home from a third country (non-EU) what do I need to do?

A: There are many thousands of species of cut flowers, some are regulated others are not, so it’s not possible to tell you until we know the specific details.  Please submit your query via email to plantandpests@agriculture.gov.ie

[the exit day may change, please keep following this Blog]