The impact of the Retained EU Law (Revocation and Reform) Bill on UK customs and border compliance
Retained EU Law is a category of domestic law created at the end of the transition period and consists of EU-derived legislation that was preserved in the United Kingdom's domestic legal framework by the European Union (Withdrawal) Act 2018.
Within the press release titled “The Retained EU Law (Revocation and Reform) Bill 2022[1] the government has identified that the Bill will create powers to make secondary legislation so that retained EU law can be amended, repealed, and replaced more easily. The Bill will also include a sunset date by which all remaining retained EU Law will either be repealed, or assimilated into UK domestic law. The sunset may be extended for specified pieces of retained EU Law until 2026.
The Retained EU Law (Revocation and Reform) Bill identifies within section 3 Sunset of retained EU rights, powers, liabilities etc:
(1) Section 4 of the European Union (Withdrawal) Act 2018 (saving for rights, powers, liabilities etc under section 2(1) of the European Communities Act 1972) is repealed at the end of 2023.
(2) Accordingly, anything which, immediately before the end of 2023, is retained EU law by virtue of that section is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).
At the end of 2023, what was previously referred to after The European Union (Withdrawal) Act 2018 as “retained EU law” will be referred to as "assimilated law".
The Retained EU Law Dashboard published by the Cabinet Office and the Rt Hon Jacob Rees Mogg MP is cited to show a list of retained EU laws (REUL) that were saved to ensure legislative continuity following Brexit. At the time of writing on 24 January 2023 it was not accessible due to a Tableau Public server fault.
The government has outlined that a bespoke legislative approach will be introduced for retained EU law concerning VAT excise and customs duty in a future Finance Bill. The approach will revoke any remaining direct EU law that the government did not repeal in the Taxation (Cross-border) Trade Act 2018, and identify that UK Acts of Parliament and subordinate legislation are supreme.
Regulation 952/2013[2] is a key pillar of customs legislation retained as EU law, where Taxation (Cross-border) Trade Act 2018 addresses certain identical areas which are derived from the Implementation of Article VII of the General Agreement for Tariffs and Trade[3] published by the World Trade Organisation, pertaining to taxation, and aspects derived from the Revised Kyoto Convention[4], which has been ratified by all World Customs Organisation members, Regulation 952/2013 laying down the Union Customs Code, determines the legislation concerning the administrative aspects of customs procedures, transit, and cross-border risk management.
Other areas pertinent to cross-border activities, amongst others, include the Sanitary and Phytosanitary Controls and Export Health Certification (EHC) products of animal origin.
Products of Animal Origin and Export Health Certification
Commission Implementing Regulation (EU) 2019/2007 of 18 November 2019 laying down rules for the application of Regulation (EU) 2017/625 of the European Parliament and of the Council as regards the lists of animals, products of animal origin, germinal products, animal by-products and derived products and hay and straw subject to official controls at border control posts and amending Decision 2007/275/EC (Text with EEA relevance)[5] identifies which products are subject to Import of Products of Animal Food and Feed System (IPAFFS) administration.
“CN” refers to the Combined Nomenclature of the European Union.
The part of the Regulation which contains the CN codes is Annex 1. This consists of a series of chapters. Each chapter is for a product type and contains a table with three columns:
Column 1 - CN Code: the Regulation specifies that, unless otherwise specified, all products prefixed with or covered by four digits shall be submitted to official controls at border control posts.
Column 2 - Description: the wording for the description of animals and products in column (2) is considered to be of indicative value only, since the goods covered by the Regulation are determined by CN codes.
Column 3 - Qualification and explanation: this column gives details of the animals or goods covered. Further information on the animals or goods covered in the different Chapters of the CN can be found in the Explanatory Notes to the Combined Nomenclature of the European Union.
The current Export Health Certification (EHC) is based upon retained EU law, and applicable to third countries outside of the EU. The introduction of EHC for EU POAO imports was suspended on 28 April 2022, until the end of 2023.[6]
F-Gas Portal administration
Registration with the Environment Agency is compulsory for undertakings importing hydroflurocarbons article Under Article 17 of Regulation No 517/2014 (as retained in UK law and as applicable in Great Britain) [7].
Under Article 19 of Regulation No 517/2014 as amended by relevant implementing regulations (now GB law) an economic operator must report F gases to the Environment Agency if, in the previous calendar year, if the economic operator has:
· produced, imported or exported 1 tonne of F gas, or F gas equivalent to 100 tonnes or more of carbon dioxide (CO2) – traders are required to submit an independently audited verification document for F gas equivalent to 10.000 tonnes or more of CO2
· destroyed 1 tonne of F gas or F gas equivalent to 1.000 tonnes or more of CO2
· placed F gas that economic operators must report on equivalent to 500 tonnes or more of CO2 in pre-charged equipment on the market – and also submit an independently audited verification document
· placed pre-charged refrigeration, air conditioning and heat pump equipment on the market if hydrofluorocarbons (HFCs) contained in the equipment have not been placed on the market before - with an independently audited verification document
Importers of pre-charged equipment containing F-Gases cannot apply for a quota. They will require quota authorisation from a quota holder instead. Registration on the F gas service and quota authorisations is required for companies importing HFCs equivalent to 100 tonnes of carbon dioxide (CO2) or more in a calendar year, in accordance with the following procedures:
• register on the F gas service
• get a quota authorisation from a quota holder
• get quota delegations from an authorisation manager
• submit a declaration of conformity
The Declaration of Conformity is a precedent document based upon compliance with Article 14 of Regulation (EU) No 517/2014 of the European Parliament and of the Council as amended.
The forthcoming changes to the legislation will require an internal compliance framework that manages the rephrasing of supporting precedent documents for traders that are impacted by the changes, to maintain the legal status of the issuance, and maintain compliance with border controls.
On behalf of our clients, Alinea Customs are closely monitoring the legislative amendments which will be enacted as a result of the The Retained EU Law (Revocation and Reform) Bill which is currently at second reading stage in the House of Lords.[8]
Alinea Customs work with commercial organisations to maintain compliance, please contact our senior consultancy team to discuss how the forthcoming changes to legislation may impact your business, and identify a timeframe to prepare accordingly.
[1] Department for Business, Energy and Industrial Strategy The Retained EU Law (Revocation and Reform) Bill 2022, 22 September 2022, available from: https://www.gov.uk/government/news/the-retained-eu-law-revocation-and-reform-bill-2022#:~:text=The%20Bill%20will%20create%20powers,how%20it%20should%20be%20interpreted [Accessed 24 January 2023] [2] EU Regulation 952/2013 of the European Parliament and of the Council 9 October 2023 laying down the Union Customs Code (recast) available from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0952&rid=1 [accessed 25 January 2023] [3] Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, 22 December 1994, https://www.wto.org/english/docs_e/legal_e/20-val_01_e.htm [accessed 25 January 2023] [4] The Revised Kyoto Convention (2008). http://www.wcoomd.org/en/Topics/Facilitation/Instrument%20and%20Tools/Conventions/pf_revised_kyoto_conv/Kyoto_New[accessed 25 January 2023] [5] Commission Implementing (EU) 2019/2007 available from: https://www.legislation.gov.uk/eur/2019/2007/contents [accessed 25 January 2023] [6] Cabinet Office, New approach to import controls to help ease cost of living, 28 April 2022, available from: https://www.gov.uk/government/news/new-approach-to-import-controls-to-help-ease-cost-of-living [accessed 25 January 2023] [7] Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 Text with EEA relevance14. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.150.01.0195.01.ENG [8] UK Parliament, Parliamentary Bills, Retained EU Law (Revocation and Reform) Bill, available from: https://bills.parliament.uk/bills/3340 [accessed 25 January 2023]