Brexit – EU & UK trade agreement (TCA): How have UK export procedures changed?

The United Kingdom left the European Union on January 31^st, 2020 with the entry into force of the Withdrawal Agreement. From that moment UK was no longer an EU member state and is considered a third country. On December 24th, 2020, the EU and the UK abandoned the prospect of a hard Brexit by signing the Trade and Cooperation Agreement (TCA). Negotiations on the future partnership between the EU and the UK started on March 2^nd, 2020. The agreements stipulated that provisional application would end at the end of February unless further postponements were agreed. At the request of the EU, the EU-UK Paternity Board decided on February 23^rd, 2021 to extend the provisional application to April 30^th, 2021 in order to allow time to complete the legal-linguistic review of the agreements in all 24 languages.

TCA – EU-UK Trade and Cooperation Agreement: protecting European interests, ensuring fair competition, and continued cooperation in areas of mutual interest

Since January 1^st, 2021, the New EU-UK Trade and Cooperation Agreement starts to be applied. The new EU-UK relationship will be very different from when the UK was a Member State.

It encompasses:

• a trade agreement for free, fair, sustainable trade, with zero tariffs, zero quotas;
• a broad economic, social & environmental partnership;
• a new partnership for citizens’ security;
• a common governance framework to ensure a sound and lasting partnership.

The draft Trade and Cooperation Agreement consists of three main pillars:

1.A Free Trade Agreement: a new economic and social partnership with the United Kingdom. The agreement covers not just trade in goods and services, but also a broad range of other areas in the EU’s interest, such as investment, competition, State aid, tax transparency, air and road transport, energy and sustainability, fisheries, data protection, and social security coordination. Furthermore, it provides for zero tariffs and zero quotas on all goods that comply with the appropriate rules of origin.

• Zero tariffs or quotas on goods traded, ensuring lower prices for consumers – provided agreed rules of origin are met.
• Traders can self-certify the origin of goods sold and enjoy ‘full cumulation’ (i.e. processing activities also count towards the origin, not just materials used), making it easier to comply with requirements and obtain zero-tariff access.
• Mutual recognition of trusted traders programs (‘Authorized Economic Operators’) ensures lighter customs formalities and smoother flow of goods.
• A common definition of international standards and the possibility to self-declare conformity of low-risk products make it easier for producers to meet both markets.
• Specific facilitation arrangements for wine, organics, automotive, pharmaceuticals, and chemicals.

2.A new partnership for our citizens’ security. The Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters.

3.A horizontal agreement on Governance: A framework that stands the test of time. To give maximum legal certainty to businesses, consumers, and citizens, a dedicated chapter on governance provides clarity on how the agreement will be operated and controlled. It also establishes a Joint Partnership Council, who will make sure the Agreement is properly applied and interpreted, and in which all arising issues will be discussed.

EU-UK Agreement implementation and export procedures for the UK 

The EU-UK trade cooperation agreement has been provisionally applied since January 1^st, 2021. Considering that the negotiations were only concluded at a very late stage, the Council adopted a decision to apply the agreement provisionally, which will be followed by the legislative process foreseen by the individual member states’ laws for entry into force of international agreements. In the UK, the agreement was signed by the Queen on December 31^st 2020.

Non-application of duty in the UK to the goods of EU origin exported 

In order to avoid the non-application of duty in the UK to the goods of EU origin exported, the requirements set out in the rules of origin in Title I Chapter 2 Part II of the Agreement must be met. In detail:

• the exported goods must meet the requirements to obtain EU origin according to the rules better clarified in the following link: https://trade.ec.europa.eu/access-to-markets/it/content/guida-rapida-al- work-with-the-rules-of-origin ;
• the exported goods must be shipped directly to the UK;
• the exporter must provide valid proof of origin to the UK importer. To this end, the European Union requires that the Union exporter be registered in the REX system (for shipments worth up to 6,000 euros the certificate of origin can be affixed directly to the invoice). Similarly, to obtain the non-application of the duty to imports of goods of UK origin, the exporter must indicate an identification number required by the UK rules which according to the indications provided by the UK will be an EORI number.

Pending the introduction of the new EU platform REX, taking into account the time currently required for the registration in question, economic operators not yet registered on REX will be able to indicate in the declaration attached to circular 49/2020 the EORI code together with their complete address from entering in the “place and date” field, unless the data is updated as soon as the registration code is obtained (as required by the United Kingdom in The Trade and Cooperation Agreement (TCA) document: detailed guidance on the rules of origin (V. 1.0 ) published on 29.12.2020 on its institutional website)
The knowledge of the Union origin demonstrated by the UK importer represents a further condition for the certification in question (see article 18 paragraph 2 letter B of section 2 part 2 of the Agreement).

Rex code: Once assigned, the REX number is unique and the registered exporter can use it for all his exports, both with reference to the preferential agreements that provide for the application of this system and within the framework of the Generalized Preferences System (GSP); therefore, also for the purposes of the EU-UK trade and cooperation agreement, it is possible to use the REX code already obtained.

Export custom formalities 

In accordance with customs legislation, customs operations must be carried out at the place where the exporter is established. If it is necessary to identify a different export office, it must be located within the national territory. It is also allowed to present the export declaration at the office where the goods are packed or loaded (at a national port or airport) or loaded for export (by road or rail) provided that it is a national customs office.

Preferential origin of goods

An Italian or UE economic operator exporting to the UK who wants to take advantage of the preferential tariff treatment provided by the draft EU-UK agreement, first of all, has to ensure that the goods have EU origin according to the rules of origin set out in the agreement. To ensure preferential treatment when imported into the United Kingdom, the goods must be accompanied by a declaration of origin issued by the EU exporter, the wording of which is set out in Annex ORIG-4 to the agreement. Or, as an alternative to this certification, the UK importer, if he has all the information relating to the original nature of the goods, can request their preferential treatment (so-called “knowledge of the importer”). In the statement of origin issued by the EU exporter in the space dedicated to the exporter’s reference number have to be indicated the registration number of the exporter in the REX system.  In the event of a shipment with a value not exceeding € 6,000, it is not necessary to be registered in the REX system.  The exporter must affix the statement of origin on the invoice or other document that identifies the goods in a sufficiently precise way to allow their identification. The exporter who issues a statement of origin for the exported products must be able to demonstrate that they comply with the rules of origin set out in the agreement and, to this end, must obtain the necessary information from his suppliers. With a view to flexibility in the collection of documentary evidence, the EU Commission has adopted transitional rules that will apply until the end of 2021, so that an EU exporter can make a declaration based on the information already available to him even if he receives the formal declarations of the supplier only afterward.
However, the exporter is responsible for ensuring that the attestation on the origin and the information provided are correct. The exporter must also have all supplier declarations by 1 January 2022.

the rules of bilateral (complete) cumulation apply between the parties: for example, a product or material originating in the UK can be considered as originating in the EU if in the EU it is transformed or incorporated into another product provided that the operation completed is not considered insufficient (art. ORIG.7). In this way, the product thus obtained will be able to enjoy the benefits of EU preferential origin in trade with third countries.
On the contrary, since cumulation with third countries is not foreseen, if the product is made from a material not originating in one of the two parties, the acquisition of EU or UK origin is subject to carrying out a sufficient transformation in one of the two parties in compliance with the specific rules for each product (the productions referred to in art. ORIG.7 are insufficient).

The Authorized Economic Operator – AEO and the advantages of the Mutual Recognition Agreement. 

The status of Authorized Economic Operator (AEO) is a kind of reliability certification granted, after an audit, by the Customs Agency to economic operators residing in the European Union. This institution, which has recently been innovated by the new EU Customs Code, is intended to facilitate those economic operators who participate in the international logistics chain and contribute to safeguarding the security of international trade in goods.

There are two types of authorization, which can be combined:

– AEO C (customs simplifications) – certifies compliance with customs and tax regulations and a high level of control over operations and the flow of goods through effective management of commercial records

– AEO S (security) – in addition to the high level of control over operations and the flow of goods, it also certifies adequate security standards to ensure that the packaged goods, ready for shipment, cannot be manumitted.

Advantages:

– fewer controls, faster shipments

– faster delivery times to the foreign customer for AEO S due to mutual recognition agreements (for now with the USA, China, Japan, Norway, and Switzerland) that allow a reduction of controls even at customs clearance in the foreign country.

– lower customs costs due to the possibility of paying a single guarantee for all customs procedures and with a reduced amount; moreover, priority treatment in case of control

– more prestige on the market: an AEO operator is not only trustworthy for the customs administration, but also in the perception of his trading partners

– better relations with the customs authorities (he will have a direct contact person at Customs to whom he can turn in case of need).

How to obtain it:

In order to obtain the status of “authorized economic operator – AEO”, interested companies must submit the application for AEO C and/or AEO S to the territorially competent customs office of the place where the company keeps its accounting records and carries out at least part of its customs operations. The application can be submitted by all operators in the international supply chain: the manufacturer, the exporter, the forwarder, the warehouse keeper, the customs agent, the carrier, or the importer. The application initiates an authorization process that includes a customs audit to ensure that the requirements are met and, if successful, the authorization is granted.

The benefits of the AEO Mutual Recognition Agreement provided for by the Trade and Cooperation Agreement

 The benefits of the Mutual Recognition Agreement, provided for by the Trade and Cooperation Agreement applicable from 1 January 2021, are only recognized for entities holding an AEOS authorization (for security art. 38.2 b of the UNHRC) or in any case for entities whose authorization provides for the security component (formerly AEO Full authorization).

References:

1. European Commission – EU-UK: A new relationship
2. ADM – Excise customs and monopolies of agency:  Info Brexit
3. European Commission: The EU-UK Trade and Cooperation Agreement
4. GOV.UK – Claiming preferential rates of duty between the UK and EU
5. European Commission – General aspects of preferential origin  REX – Registered Exporter system
6. ADM – Excise customs and monopolies of agency: Agenzia Accordo commerciale UE – UK
7. ADM – Excise customs and monopolies of agency: Get to know the AEO – Authorised Economic Operator