GB-EU Border Checks (UK & EU from 1st Jan 2021)

On 14 July, the EU updated and reissued it’s 1 Jan 2021 Readiness Notice on Customs (dated 22 Nov 2019) and combined the content with the updated and replaced Readiness Notices on Preferential Rules of Origin (dated 4 June 2018) and Customs and Indirect Taxation (dated 30 Jan 2018), here.

The day before, on 13 July, the UK published its Border Operating Model, here. I Blog posted about it at the time.

The Institute for Government in the UK has published a handy explainer – here.

GB to EU trade – From 1 Jan 2021

(1) Full customs declarations (UK export declarations and EU import declarations) will be required.

(2) If applicable, tariffs and import VAT will be payable at the time of import, unless traders are eligible to defer payments.

(3) UK exit summary Safety and Security declaration (or combined fiscal and safety and security declaration) and EU entry summary Safety and Security declaration will be needed.  

(4) Checks according to international conventions (e.g. CITES) will take place.

(5) Full SPS checks will be imposed, including a requirement for UK Export Health Certificates.

(6) Additional requirements will apply to the export of other controlled goods, in line with EU and member state rules.

(7) Excise goods will be subject to the rules applied by the importing EU member state.

EU to GB trade –

From 1 Jan 2021

(1) Full customs declarations will be required for controlled goods (e.g. excise goods like tobacco and alcohol).

(2) For standard goods (most goods), simplified customs requirements will be in place from January. Traders will have to keep sufficient records of their imports, but will be able to defer full customs declarations until 1 July 2021 (although they may submit customs declarations before if they wish).

(3) If applicable, tariffs will be payable, but it will be possible to defer payment until customs declarations are made (no later than July 2021). If applicable, import VAT will be payable, although many traders will be able to defer payment.

(4) An EU exit summary Safety and Security declaration will be needed.

(5) Checks according to international conventions (e.g. CITES) will take place.

(6) Imports of high-risk live animal and plants (and animal and plant products) must be pre-notified to the UK authorities via IPAFFS, have correct health documentation and may be subject to checks. Physical checks will be carried out at the point of destination or other approved premises.

(7) Import licenses and other requirements will apply to the import of some high-risk goods.

(8) Businesses importing excise goods will need to pay GB excise duties using the CHIEF or CDS systems (although excise duties are already payable on excisable imports from the EU).

From April 2021

Imports of all products of animal origin, regulated plants and plant products will require pre-notification to the UK authorities via IPAFFS and must have correct health documentation. Necessary physical checks will take place at the point of destination or other approved premises.

From July 2021

(1) Full customs declarations will need to be made at the time of import for all goods. Some traders may be eligible for simplified declaration procedures.

(2) Any applicable tariffs will be payable on import, although many traders are eligible to defer payments.

(3) A UK entry summary Safety and Security declaration will be needed.  

(4) Products subject to SPS checks will need to transit through a designated Border Control Post equipped to handle the goods in question and be subject to checks. Goods will subject to an increased rate of physical checks.

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 (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.

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.