Overview
On January 25, the European Commission issued a notice on the Withdrawal of the United Kingdom and EU rules in the field of import/export licences for certain goods.
While the destiny of the Brexit negotiations is still covered in legal and political uncertainty, the Commission tries to make market operators aware of the consequences of the United Kingdom becoming a ‘third country’ under EU law (i.e. a non-Member of the EU) as of March 30, 2019.
Although transitional arrangements are expected to be included in a possible withdrawal agreement, shipments of goods to/from the United Kingdom will be subject to the rules applicable to third countries also with regard to import/export licences.
At the present stage, the main elements to bear in mind are:
1. Where EU law requires a mandatory authorisation/approval/notification for shipping goods from a third country to the EU or vice versa (‘import/export licences’), this requirement will apply also to shipments from the UK to the EU and vice versa as of 30 March 2019.
Usually, licences are either not needed for intra-EU shipments, or their requirements differ from licences for extra-EU transfers. Licences are issued by the EU Member States’ Competent Authorities and compliance with EU law is policed as part of the customs controls.
2. As of March 30, 2019, import/export licences issued by the UK in its capacity as an EU Member State – on the basis of Union law – will be no longer valid for shipments to/from the EU.
Out of the examples of goods subject to import/export licensing requirements listed by the Commission, we draw your attention in particular to the following categories:
- Waste (Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste);
- Certain hazardous chemicals (Regulation (EU) No 649/2012 of the European Parliament and of the Council of July 4, 2012 concerning the export and import of hazardous chemicals or ‘Prior Informed Consent’);
- Ozone-depleting substances (Regulation (EC) No 1005/2009 of the European Parliament and of the Council of September 16, 2009 on substances that deplete the ozone layer);
- Mercury and certain mixtures of mercury (Regulation (EU) No 2017/852 of the European Parliament and of the Council of May 17, 2017 on mercury);
- Drug precursors (Council Regulation (EC) No 111/2005 of December 22, 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors);
- Genetically-modified organisms (Regulation (EC) No 1946/2003 of the European Parliament and of the Council of July 15, 2003 on transboundary movements of genetically modified organisms);
- "Dual use goods" (Council Regulation (EC) No 428/2009 of May 5, 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items).
The list provided by the Commission is not exhaustive, as it only includes some legislation which refers explicitly to transboundary trade of goods.
It does not cover sectors where the withdrawal of the UK from the EU might have a major effect on companies’ compliance with EU regulatory requirements, such as REACH (Regulation (EC) No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals), biocides (Regulation (EU) No 528/2012 on the making available on the market and use of biocidal products) and plant protection products (Regulation (EC) No 1107/2009 on the placing of plant protection products on the market), amongst others.
Ahead of Brexit, companies must consider import/export licensing requirements as well as the impact of Brexit on the other obligations imposed on them under such regimes, and the applicability of EU legislation to companies established in a third country (see also the Commission’s Notice of November 21, 2017 on Brexit and EU company law).
