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.

End of EU Pi-marked TPE in GB (Britain)

The UK government has today commenced consultation on the ending of recognition of EU Pi-marked TPE (transportable pressure equipment) in Britain.

The proposal is to amend the 2009 Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations to require that, in future, TPE being placed on the GB market is conformity-assessed by:

• a GB-appointed body and affixed with a Rho marking

or

• a notified body established in Northern Ireland, affixed with a Pi marking plus the indication ‘UK(NI)’.

This would effectively end recognition of EU Pi-marked TPE in GB, although TPE already on the GB market before this amendment comes into force may remain in circulation.

The proposal is that this change will come into effect between 1 January 2022 and 1 January 2023.

The consultation invites comments on the impact of ending recognition of EU Pi-marked TPE in GB. The findings from this consultation will be used to inform a decision on when the amendment should come into effect.

The consultation is here. It is a short consultation that will run until 30 June.

Drivers’ Hours (UK)

EU drivers’ hours and tachograph rules still apply to journeys between the EU and UK, or wholly within the EU or UK.

AETR (the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport) apply to journeys outside of the EU, including journeys involving Norway and Switzerland.

3 sets of rules could apply to a road journey:

* EU rules – here

A person must not drive more than:

• 9 hours in a day – this can be extended to 10 hours twice a week

• 56 hours in a week

• 90 hours in any 2 consecutive weeks

All driving carried out under EU rules must be recorded on a tachograph. And there are EU rules on breaks and rest.

* AETR rules – here

AETR rules are the same as the EU rules.

* GB domestic rules – here

GB domestic rules are not completely the same as EU rules (that was the case also before the UK exited the EU) and apply to most goods vehicles that don’t need to follow EU rules. GB rules apply in Britain. Separate domestic rules apply in Northern Ireland – here.

The rules that apply depend on:

• the type of vehicle being driven

• which country the vehicle is being driving in

If driving under the EU or GB domestic drivers’ hours rules, a person also needs to follow the working time rules – here.

The employer of drivers or mobile workers must also follow additional rules – here.

The collection of guidance links on Drivers’ Hours is here. Note the temporary relaxations for Covid.

EU-UK Trade and cooperation agreement (2) (UK & EU)

I updated my post this morning with the link to the UK published legal text (1,246 pages – it’s the same text in the individual sections and chapters). Look back on the blog itself.

I also updated my post this morning (online) with the link to the EU document now loaded on a dedicated website, this also includes an EU Q&A – here.

A couple of points (identified in the Q&A) –

(1) Trading under ‘FTA’ (free trade agreement) terms from 1st Jan will differ substantively to trading in EU’s Customs Union and Single Market.

In particular:

• rules of origin will apply to goods in order to qualify for preferential trade terms under the agreement;

• all imports will be subject to customs formalities and will need to comply with the rules of the importing party;

• all imports into the EU must meet all EU standards and will be subject to regulatory checks and controls for safety, health and other public policy purposes.

(2) Traders will account not only for the origin of materials used, but also if their processing took place in the territory of one of the Parties. This is called ‘full cumulation’. Exporters will be able to self-certify the origin of the goods, and will have additional flexibility in collecting documentary evidence to prove origin during the first year.

(3) The Parties will recognise each other’s ‘Authorised Economic Operators’ programmes, enabling trusted traders with this status to use certain simplifications and/or facilitations relating to security and safety in their customs operations with the customs authorities of the other Party. But there is no waiver on security and safety declarations, as this requires alignment between the Parties on security standards.

(4) From 1st Jan, the EU and the UK will be two separate regulatory and legal spaces. This means that all products exported from the EU to the UK will need to comply with UK technical regulations and will be subject to any applicable regulatory compliance checks and controls. Similarly, all products imported from the UK to the EU will need to comply with EU technical regulations and will be subject to all applicable regulatory compliance obligations, checks and controls for safety, health and other public policy purposes.

(5) Both Parties agreed on a definition of international standards that identifies the relevant international standard-setting bodies. This is intended to ensure that both sides’ domestic product standards and technical regulations are based on the same international references and are therefore compatible to the extent possible.

(6) In the field of conformity assessment, the Parties agreed to maintain simplified access to each other’s markets through, in particular, the continued use of self-certification of conformity by the manufacturer where this is currently applied in both the EU and the UK. This covers a very large share of bilateral trade.

(7) Re Automotive Products – the Parties agreed that regulatory convergence will be based on the use of the international technical standards set at UNECE (United Nations Economic Commission for Europe) level. Both Parties will accept, in their respective markets, products that are covered by a valid UN type-approval certificate.

(8) Re Medicinal Products – the Parties agreed to recognise the results of inspections carried out by the authorities of the other Party in manufacturing facilities located in the territory of the issuing authority. This will avoid unnecessary duplication of inspections of manufacturers of medicinal products to assess their compliance with Good Manufacturing Practice requirements.

(9) Re Chemicals – the Parties agreed to cooperate, while respecting each Party’s right to regulate, both bilaterally and in relevant international fora, on the assessment of hazards and risks of chemicals and the formats for documenting the results of such assessment. The Parties already implement the UN GHS and this will continue. The Parties agreed to use transparent procedures for the classification of substances and possibly to exchange non-confidential information.

(10) Re Organic Products – the Parties agreed reciprocal recognition of equivalence of the current EU and UK organic legislation and control system, for all categories of organic products. Organic products complying with EU law and certified by control bodies recognised by the EU will be accepted on the UK market and vice-versa. In view of new EU rules for organic products applying as of 1.1.2022, equivalence will be reassessed by end-2023.

(11) Re SPS – there will be no changes to EU food safety standards. UK agri-food exporters will need to meet all EU SPS import requirements and be subject to official controls carried out by Member States’ authorities at Border Control Posts. Where required, these controls will include the verification of health certificates in line with international standards. Similarly, EU agri-food exporters will need to meet all UK SPS import requirements.

The Agreement allows for either party to unilaterally decide to reduce the frequency of certain types of border import controls, taking into account the extent to which their SPS rules converge.

It also ensures a simplified process for the approval of imports, where relevant by drawing up lists of establishments that are eligible to export to the other party, based on guarantees provided by the authorities of the exporting Party.

(12) Re Northern Ireland – the EU acquis, including the Union Customs Code, legislation on goods, sanitary rules for veterinary controls (“SPS rules”), rules on agricultural production/marketing, or VAT and excise in respect of goods, will apply to all goods entering Nortern Ireland.

As a result, from 1 January, goods entering Northern Ireland from Great Britain will constitute “imports”.  This means that such goods will need to comply with EU product rules and be subject to checks and controls for safety, health and other public policy purposes, including all necessary SPS controls applicable between the EU and the UK.

An agreement in principle (under the separate Withdrawal Agreement) has been found in the following areas, amongst others: export declarations, the supply of medicines, the supply of certain chilled meats and other food products to supermarkets, and a clarification on the application of State aid under the terms of the Protocol. There are some facilitations –

For example, certain chilled meat, for which imports in the Union market are normally prohibited, will be accepted for delivery to supermarkets in Northern Ireland during a limited period of 6 months:

• Minced meat of poultry, frozen or chilled. Chilled minced meat from animals other than poultry (e.g. minced beef.

• Chilled meat preparations (e.g. sausages, meatballs, pork pies)..

• Any fresh meat, including minced meat and meat preparations, produced from triangular trade (e.g. EU meat exported to Great Britain, cut or minced in Great Britain and re-exported to Northern Ireland).

Another example is that, during a limited period of 3 months, the goods coming from Great Britain and destined for supermarkets located in Northern Ireland will be accompanied with a simplified, collective certificate covering all the goods transported in the same truck, instead of individual certificates.

During this period of time, the UK shall maintain its current EU SPS legislation for the products concerned.

The scope is limited to a restricted number of food suppliers for supermarkets which are approved by the UK authorities after demonstrating that they meet a range of trust criteria. This list of members will be established by the United Kingdom in cooperation with the European Commission before 31 December 2020 and cannot be extended after that date.

(13) Re Business Persons Mobility – the temporary movement of natural persons for business purposes (often refered to as ‘mode 4‘), the EU and the UK have agreed on a broad range of reciprocal commitments facilitating the ability of companies located in a Party to transfer certain employees, as intra-corporate transferees, to work in an associated company located in the other Party. As intra-corporate transferees constitute temporary migration, the maximum duration of such transfers is capped at three years. With respect to UK nationals transferred to the EU, this duration includes periods of mobility between Member States. This is in line with current EU practice with other third countries.

The EU-UK Agreement also facilitates the movement of “contractual service suppliers” or “independent professionals” to supply services under certain conditions. Business visitors not providing services will also be allowed short-term entry in order to carry out certain activities.

(14) Re Legal Services – the EU and its Member States, and the UK will allow lawyers from the other Party to provide legal services relating specifically to the practice of international law and the law of the country where they are authorised under their “home” title.

However, it should be noted that EU law is not considered to be international law, but instead the law of the Member State in which EU lawyers are established or hold their “home title”.

(15) Re Energy – the UK will leave the EU’s internal energy market on 1st Jan, Northern Ireland will maintain the Single Electricity Market with Ireland (Republic of Ireland) (under the separate Withdrawal Agreement). The EU and the UK have agreed to establish a new framework for their future cooperation in the energy field. The UK Energy (Electricity) Guidance was updated on Dec 24th (see the Brexit Guidance List on Cardinal Environment Registers & Checklists).

The UK also leaves the EU ETS (see the Brexit Guidance List) and Euratom.

The UK will define its own climate change targets and policies and the UK committed to implementing a system of carbon pricing as of 1 January 2021. The Parties agreed a framework for cooperation in the fight against climate change, and their ambition to achieve economy-wide climate neutrality by 2050. The Parties will give serious consideration to linking their respective carbon pricing systems in a way that preserves the integrity of these systems and provides for the possibility to increase their effectiveness, for instance by adding further sectors, such as buildings. This would be subject to an agreement to be negotiated separately in the future.

There are also agreed provisions for cooperation in the development of offshore energy, with a focus on the North Sea.

(16) Re Euratom – the Agreement contains a separate agreement between Euratom and the UK on the safe and peaceful uses of nuclear energy.

This Agreement enables:

• the supply and transfer of nuclear material, non-nuclear material, technology and equipment;

• trade and commercial cooperation relating to the nuclear fuel cycle;

• cooperation in the safe management of spent fuel and radioactive waste;

• nuclear safety and radiation protection;

• use of radioisotopes and radiation in agriculture, industry and medicine;

• geological and geophysical exploration;

• development, production, further processing and use of uranium resources.

(17) Re Rebalancing (Level Playing Field, includes OHS and ENV Standards) – the Agreement provides the possibility to apply unilateral rebalancing measures in the case of significant divergences in the areas of labour and social, environment or climate protection, or of subsidy control, where such divergences materially impact trade or investment between the Parties.

This might be relevant, for example in a situation where one Party would significantly increase its levels of protection related to labour or social standards, the environment or climate above the levels of the other Party. This may entail an increase in the costs of production and hence a competitive disadvantage.

Another example would be a situation where one Party would have a system of subsidy control that would systemically fail to prevent the adoption of trade distorting subsidies, which would provide a competitive advantage for that Party.

In such cases, a Party would be able to adopt measures to rebalance the competitive advantage of the other Party.

Each Party could also, at regular intervals and if rebalancing measures have been taken frequently or for more than 12 months, seek a review of the trade and other economic parts of the Agreeent to ensure an appropriate balance between the commitments in the Agreement on a durable basis. In this case, the Parties could negotiate and amend relevant parts of the Agreement. Any trade or economic part of the Agreement, including aviation, that would remain in place or be renegotiated would retain appropriate level playing field commitments.

(18) Re OHS and ENV – the EU and the UK agreed to uphold levels of protection in the areas reated to labour and social standards, and environment and climate.

Labour and social levels of protection cover the following areas:

• fundamental rights at work;

• occupational health and safety standards;

• fair working conditions and employment standards;

• information and consultation rights at company level; or

• restructuring of undertakings.

Environmental levels of protection include the following areas:

• industrial emissions;

• air emissions and air quality;

• nature and biodiversity conservation;

• waste management;

• the protection and preservation of the aquatic environment;

• the protection and preservation of the marine environment;

• the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or

• the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.

The climate level of protection applies to:

• emissions and removals of greenhouse gases covering EU’s and the UK’s respective 2030 economy-wide targets including their systems of carbon pricing; and

• the phasing-out of ozone depleting substances.

(19) Re Further OHS and ENV Provisions – the Agreement contains several guarantees in terms of environmental protection, over and above the non-regression provisions applying to environment, climate and labour and social protection. These include:

• A recognition of the shared biosphere;

• Coverage of future targets that are now in the laws of the parties – the 2030 waste recycling targets, the 2027 water targets and the 2030 air pollution ceilings;

• Full inclusion of the key environment principles, including precautionary principle, polluter pays, and integration principle;

• Full inclusion of the principles of the Aarhus Convention with modernised text, including access to justice, access to information and public participation;

• Effective co-operation mechanism foreseen between the supervisory body or bodies in the UK in terms of protection of the environment, and the Commission;

• The recognition of the relevance of procedures for evaluating the likely impact of a proposed activity on the environment, such as an environmental impact assessment or a strategic environmental assessment.

(20) Re Health/Sanitary Quality in Agri/Foods – the broad scope of the commitment on the environment refers to agricultural and food production. In addition, it specifies two important areas for the level playing field with regards to agriculture and food production, namely the use of antibiotics and decontaminants.

(21) Re Aviation – UK carriers will be able to fly across the territory of the EU without landing; make technical stops in the territory of the EU for non-traffic purposes; and carry passengers and/or cargo on any routes between a given point in the UK and a point in the EU. Also, the Agreement will permit Member States and the UK to bilaterally exchange onward travel (termed 5th freedom) rights for extra-EU all-cargo operations only (e.g. Paris-London-New York).

The Agreement defines new arrangements for the recognition of future design and environmental certificates, as well as for production organisation oversight. Existing design certificates issued under EU rules before 1 Jan will remain valid.

(22) Re Road Transport – the Agreement provides for quota-free point-to-point access for operators transporting goods by road between the EU and the UK. This means UK lorries would be able to reach the EU and return from the EU, including when not loaded. The same rights are conferred to EU hauliers travelling from any point in the EU to the UK, and back from the UK to anywhere in the UK.

UK and EU trucks will also be able to perform up to two additional operations in the other party’s territory, once they have crossed the border.

This will allow EU hauliers that carry a load to the UK to perform two cabotage operations in the UK, thus limiting the risk of having to travel back to the EU without a load. 

For UK hauliers, these additional operations can be composed of two cross-trade operations (i.e. transport operations between two Member States) or one cross-trade and one “cabotage” operation (i.e. a transport operation within two points of a single Member State). Special provisions are made in the case of Ireland, as Northern Irish hauliers will be able to perform two cabotage operations in Ireland.

ECMT holders will be able to do 3 cabotage operations.

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.

Border Arrangements (Kent) (Britain from 1st Jan 2021)

On 13 July the Government published its Border Operating Model – I blog posted about it at the time.

It is the responsibility of the trader (or the trader’s agent, such as a customs agent or freight forwarder) to provide the necessary documentation to the HCV driver, and it is the HCV driver who must present the documentation at the EU ports.

Being border-ready means that an HCV driver is carrying all the necessary documentation to get through the GB and EU port (or has been provided with the appropriate information to get the documentation).

This includes:

• customs documentation:

• a master or movement reference number (MRN) from an import declaration if the goods are going to stay in the country of disembarkation (for example, goods going from GB to France), or a transit accompanying document if the goods are either staying in the country of disembarkation or going to move beyond it (for example, goods going from GB to Spain via France)

• an admission temporaire/temporary admission (ATA) carnet if the goods are temporarily going abroad (for example, goods going from GB to France and then back to GB)

• a transports internationaux routiers (TIR) carnet if goods are sealed and/or going to non-Common Transit Convention (CTC) member countries (for example, GB to India overland).

• import and export documentation depending on what goods are carried (it is possible that a free trade agreement or sectoral deal may change some of the requirements for import and export documentation). For example, EU member state authorities will check for the following on arrival at the EU port:

• products of animal origin require an export health certificate

• plant and plant-based products require a phytosanitary certificate

• fish require a catch certificate, export health certificate and where appropriate a captain’s certificate.

In addition, there may be other forms of import/export documentation that an HCV driver will need to carry on behalf of their trader which would not be checked at the ports. An HCV driver using the accompanied roll on roll off (RoRo) route would need a safety and security declaration before arriving in the EU. EU rules mean that they can be completed shortly before arriving in the EU.

Some EU member states have additional national requirements for goods arriving from GB, for example:

• France requires the use of the SI Brexit system, and the MRN barcodes for multiple consignments must be compiled in to a single ‘envelope’ MRN that will be scanned.

• the Netherlands and Belgium require that all movements are pre-notified using the Portbase and RXSeaport systems respectively; HCVs that are not pre-notified will not be allowed to leave Dutch or Belgian ports.

Disruption at the cross-Channel ports from 1 Jan 2021 is not inevitable, but it is a possibility for which the UK government is preparing.

Updated assessment of potential levels of disruption is ongoing, and the UK Government is now consulting on aspects of the Border Arrangements (Kent and the Short Straits) that will need to be in place from 1st Jan 2021.

The M20 Contraflow

In 2019, there was a permanent contraflow between Junctions 8 and 9 of the London-bound carriageway of the M20 with a steel barrier between lanes 1 and 2 of the northbound carriageway. That carriageway was reduced from three to two lanes with a speed limit of 50 miles per hour when Operation Brock was inactive.

From 1st Jan 2021, Highways England will deploy instead a concrete quick moveable barrier to set up the contraflow. The moveable barrier will be ready to use in December 2020 and will enable around 2,000 HCVs to be held – the same capacity as the 2019 planned contraflow. This will be available for long-term traffic management plans and is not just a response to any cross-Channel disruption at the end of the transition period.

Kent sites and revision of traffic management plans

Goods being moved from GB to the EU must be prepared for full EU import controls from 1 January 2021.

The UK Government has announced that goods moving from the EU to GB will also be subject to third country import controls, but these checks will be phased in during the first half of 2021.

For Eurotunnel and the Port of Dover, this is likely to require new inland border control posts as there is insufficient space for the new facilities at the ports.

While the inland border control posts are intended for checks conducted by HM Revenue and Customs (HMRC) and the Department for Environment, Food & Rural Affairs (Defra) on inbound and outbound goods, they could also be used as new holding sites for outbound HCVs as part of Operation Brock (HGV traffic management system).

The UK Government has purchased a new site in Ashford to support this. Construction at the site has commenced, and it will provide approximately 2,000 HCV holding spaces. The new Ashford site is being integrated into updated traffic management plans for the end of the transition period. This overall plan is still in development and is likely also to incorporate some but not all of the other parts of the 2019 approach.

Extending the sunset clause

In Oct 2019, the Government had issued three Orders (Statutory Instruments) to give the Kent Resilience Forum the ability to create traffic restriction periods that require HCV drivers to use designated roads to reach the ports (including under specific conditions), and to follow instructions from traffic officers.

There would have been four Brock phases to handle increasing levels of congestion:

• phase 1: using the Dover Traffic Assessment Protocol (TAP 20) to hold around 500 lorries on the six-mile section of A20 leading to Dover

• phase 2: queuing on the coastbound M20 (J8-J9) with a steel barrier to create the contraflow, with all other non-freight traffic going through the M2

• phase 3: Manston Airport HCV holding facility for all Port of Dover freight (Eurotunnel freight would have continued to be held on M20 J8-J9)

• phase 4: M26 queuing system coastbound and London-bound for all Eurotunnel freight

As the current set of SIs expire on 31 December 2020, the Government proposes to extend the sunset clause to October 2021 to allow Operation Brock to continue and be enforceable in 2021.

The smart freight (SF) service

SF is an online service for the RoRo freight industry being developed by the UK Government. The service will help to simplify and automate the process of establishing the border-readiness of an HCV to help mitigate the risk of delays.

It will ask questions relating to the expected EU import controls at the border to ensure the HCV driver has the necessary documents before they travel. The service will include an online portal for registration of goods movements and an operator application to check compliance with the service.

For 1 Jan 2021, two key products are being developed to upstream the border-readiness checking process to the point of loading:

1 a web-based portal for the SF service (the ‘SF portal’) which enables the HCV driver, or someone acting on their behalf, to self-declare if they have all the documentation they need to take goods across the Short Straits

2 a mobile application (the ‘SF app’) which enables enforcement officials to confirm that a vehicle is registered on the SF portal, and to see the outcome of their self-declaration

The Government’s consultation questions are found in this document – here

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

The European Commission published a Communication “Getting Ready for Changes. Communication on readiness at the end of the transition period between the European Union and the United Kingdom” today 9th July. This document is here.

The Communication is posted on the European Commission’s End of Transition Period Readiness Page here, where other notices, with various publication dates, are posted.

Key points in the 35 page Communication (this is not a full list):

(1) As of 1 January 2021, the European Union and the United Kingdom will be two separate regulatory and legal spaces.

(2) As of 1 January 2021, licences issued to railway undertakings by the United Kingdom will no longer be valid in the European Union, and certificates or licences issued in the United Kingdom to train drivers will no longer be valid for the operation of locomotives and trains on the EU’s railway system.

[I Blog posted recently specifically re Railways]

(3) As of 1 January 2021, air carriers holding operating licences granted by the UK licensing authority for the commercial carrying by air of passengers, mail and/or cargo, will no longer be able to provide air transport services within the European Union. EU air carriers and holders of aviation safety certificates will need to ensure, and uphold compliance with European Union requirements, including airlines’ requirements on principal place of business and EU majority ownership and control, as well as the European Union aviation safety acquis.

(4) As of 1 January 2021, road transport operators that are established in the United Kingdom will no longer hold a European Community licence. In the absence of a reciprocal access agreement, the limited quotas already available under the mechanism of the European Conference of Ministers of Transport (ECMT) will be available for EU operators to conduct journeys to the United Kingdom, and for UK operators to conduct journeys to the EU.

[I Blog posted in 2019 about this topic]

(5) As of 1 January 2021, EU REACH registrations held by manufacturers and producers established in the United Kingdom will no longer be valid in the European Union. These entities will have to ensure that their substances are registered with a manufacturer or importer in the European Union or appoint an ‘Only Representative’ in the European Union as registrant for the substance.

[A UK REACH will operate in the UK, I Blog posted about this in 2019]

(6) As of 1 January 2021, downstream users in the EU will have to check whether chemical substances they use are registered by a registrant established in the European Union. Where this is not the case, they should:

* check whether the UK registrant they deal with plans to appoint an ‘Only Representative’ in the European Union; or

* register the substance in the capacity of importer.

Re Northern Ireland specifics (this is not a full list)

(1) Checks and controls will take place on goods entering Northern Ireland from the rest of the United Kingdom, for example on food products and live animals to ensure adherence to sanitary and phytosanitary (‘SPS’) requirements. Goods leaving Northern Ireland to enter the EU must comply with EU standards and rules.

(2) EU customs duties will apply to goods entering Northern Ireland unless the Joint Committee (set up under the Ireland/Northern Ireland Protocol) sets out a framework of conditions under which these goods are considered not to be at risk of entering the EU’s Single Market. Based on such a framework, no customs duties will be payable if it can be demonstrated that goods entering Northern Ireland from the rest of the UK are not at risk of entering the EU’s Single Market.

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.