Preparation for EU exporters

There are new processes coming in on both sides of the Channel as a result of these new rules. The moment the EU supplier’s goods move over the EU border – whether it’s heading to Northern Ireland or Britain – they will be required to provide additional certificates and documents, as set out in the Border Target Operating Model. If the goods are landing in Northern Ireland there will also be a mandatory full inspection.

From a UK importer perspective, you will need to ensure your EU supplier has an established point of contact with the animal or plant health department in their own country. For UK exporters this would be DEFRA or APHA, for example; EU countries will have their own equivalents which the EU suppliers will need to contact.

For products of animal origin, the EU supplier will also need to establish links with an official veterinarian (OV). The export health certificate must be obtained and approved by the OV. The OV will need to physically visit your premises to check and approve each pallet or item that’s being shipped, providing a physical certificate for each. There is a cost associated with that, and the GB importer and EU supplier would need to decide who that’s allocated to.

The physical certificate must physically accompany the goods as it will be stamped and signed. The electronic copies must be sent to the importer or their appointed representative.

There are similar problems and processes involved in getting phytosanitary or catch certificates for plants, fish and non-farmed fish.

The other thing the EU supplier will need to ensure is that they have the required certificates a minimum of 24 hours in advance of the goods crossing the border. They will need to lodge a pre-notification of the goods movement, with the accompanying certification, using a system called TRACES.

There is an issue at the moment because of the limited number of available OVs. The EU supplier will therefore need to ensure they’ve contacted an OV well in advance of the export.

If they leave it too late before the goods are due to move, they may not be able to book an appointment in time and their goods won’t be able to cross the border because they won’t have the required certification.

 

Planning the logistics of the export

You need to have a clear timeline and logistical plan in place for obtaining the documentation, and you also need to book your transportation and method of crossing – whether it’s by train or ferry, and what route the goods will travel by.

The key thing is to ensure you’ve got the necessary certification well in advance – whether that’s an export health certificate for animal-origin products, phytosanitary certificate for plants or catch certificate for fish.

The EU supplier will need to ensure they have obtained all the relevant documentation and uploaded these onto TRACES at least 24 hours before the crossing time – and they’re going to be very strict on these deadlines from 31 January.

 

Preparation for GB importers

The EU supplier will need to provide a digital copy of the export health, phytosanitary or catch certificate to the GB importer so that the GB business, or their customs broker, can lodge it with the IPAFFS system in the UK, 24 hours in advance of the goods movement.

The GB business or their broker will also need to lodge this in the Customs Declaration Service (CDS) as well, and they will be given a pre-authorisation number for the movement. This will be needed for the haulier when they’re creating a Goods Movement Reference (GMR) number in the Goods Vehicle Movement System  (GVMS).

As with the export requirements outside of the EU, this cannot be done last minute and you need to ensure you have a clear timescale and logistical plan for obtaining the documentation.

Within IPAFFS, a common health entry document (CHED) will be created and there are different types of CHED for different products – CHED P is the one predominantly used within most SPS movements, but there are other CHEDs for goods regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and other high-risk or unusual goods. If your goods are chosen for inspection at the border, the agent will complete the CHED with the written result of the inspection.

This document will need to accompany the goods to the final destination and the importer will then need to close off the movement on the system by confirming that the goods have been delivered. This is done so that if an inspector from APHA or DEFRA wants to look at the goods after their arrival, they know where they’re going to be.

From this point, if they haven’t closed their CHED, or if they haven’t had their notification submitted in a timely manner, the importer won’t be able to continue to move the goods. HMRC and Border Force could then penalise the importer or even prohibit them from continuing to import SPS goods.

 

Which goods are categorised as needing inspection and will this affect where they can enter the UK?

Risk-based identity and physical checks will be introduced on medium-risk animal and plant goods from the EU, except from Ireland, from 30th April 2024. The inspections that need to be conducted will be determined by the risk assessments completed on the back of the documentation that’s uploaded, which is why there’s the 24-hour notice period via TRACES in the EU and IPAFFS in the UK, as this will give border force agencies the time to select which goods need to be inspected.

It’s vital, however, for importers to select the correct border control post (BCP) for the goods to enter the UK through, as not all BCPs will have the facilities to process the different types of SPS goods.

The government has provided an interactive map setting out which BCPs can process the different types of goods.

 

Who can help me comply with these new requirements?

A lot of suppliers and importers will have customs brokers who they can nominate to manage the customs processes for them, although they now charge additional costs for submitting pre-lodgements for the goods movements.

The EU supplier will nonetheless need to manage the process of obtaining the SPS certification (e.g. export health or phytosanitary certificates) themselves and then provide these to their broker so that they can pre-lodge the movement through TRACES (unless you’re collecting EXW).

Your customs intermediary in the UK will also support customs processes around the goods movements, but they will need to be provided with the SPS documentation in a timely manner to ensure they can lodge the pre-notifications with IPAFFS and get the pre-authorisation number to generate the GMR for the haulier.

 

PEACHES / IPAFFS

The Procedure for Electronic Application for Certificates (PEACHES) will no longer be operational by the end of the month. IPAFFS is essentially replacing it, so it’s vital that importers and their brokers register to it as soon as possible.

 

What are the cost implications of the new regulations for EU suppliers and GB importers?

On average, the cost in Europe is generally around £38 for obtaining the certifying documentation – e.g. the export health certificate – and a certificate will be needed for each item or a pallet of items. There’s also additional administration costs if you’re using a broker to upload this onto TRACES in the EU and a broker for putting it onto IPAFFS in the UK.

The average overall additional cost for the new processes around medium-risk plant-based or animal-origin products is believed to be an additional £140 per shipment.

 

 

The majority of companies that export do so because they received a sales enquiry from abroad and wanted to take the opportunity to increase sales and profitability. In these circumstances there is usually a degree of learning on the job and the sales, finance and logistics teams manage to work it out between them. However, this approach can be stressful and result in costly mistakes such as goods being held at the border or receiving invoices for duty that weren’t expected. To export with confidence, whether you’re new or have been doing it for a while, follow our top tips to successful exporting.

 

1. Identify the correct commodity code / HS code in the relevant tariffs

All goods that are traded internationally can be identified by a number – the commodity  Code or HS code. As a general rule, export codes are 8 digits and import codes are 10 digits – the export code + 2 digits. It is essential to use the correct commodity code for the goods you are moving because it indicates what level of duty is applicable and whether any controls are in place e.g. whether you need a licence or, for food and drink products, a health certificate may be required. Each customs territory has its own tariff and there are often local variations – the UK HS code probably isn’t exactly the same as the USA HTS code. It’s advisable to check the tariff of the country you’re exporting from and to, in order not to miss anything.

 

2. What’s the final destination?

In our global economy and with new sanctions coming online weekly, it’s important to establish which country or region the end user of your product will be and what, if any, regulatory or compliance issues apply – for example export licenses. Once you know where the item is going and any wider information around transportation, you’ll then be able to select the most appropriate transport company and customs broker.

 

3. Planes, trains and automobiles (probably trucks actually)

Transport is a vital element of fulfilling your first export order, and is likely to depend on the type of good you’re selling and how quickly the customer requires it. Air transport, for instance, is quick making it ideal for fresh produce. But it is also expensive. Most items heading to a nearby destination could feasibly go by road or rail, but if you’re exporting to a country further away (and if speed of delivery isn’t crucial), then shipping by sea is likely to be a good choice.

 

4. Agree which Incoterms to use with your customer

Short for international commercial terms, Incoterms are a recognised set of arrangements covering the delivery of goods from sellers to buyers, including elements such as who will cover freight costs, insurance of goods in transit and liability for any import or export duties. In all, there are 11 Incoterms, and seven of these relate to transport. When written into a sales contract they become legally binding. Some buyers may offer to trade on Ex Works terms (EXW), where most of the responsibility for transportation and declarations rests with them.

This can be attractive to new exporters but you may struggle to prove the goods have left the country and be handed a bill for the VAT. At the other end of the spectrum is the Delivered Duty Paid terms, where the exporter undertakes all responsibility, including both the import and export declaration. While this may be helpful in attracting new customers, be aware that the seller bears most of the risk under these terms and depending on the rate of import duty and value of the consignment could be very expensive.

 

5. Understand rules of origin

Another task will be to determine the economic nationality of the goods you’re selling. Even if a product is manufactured in the UK, if a certain percentage or the value of materials / components used are not UK origin, you may not be able to claim that the end product is UK origin. The reason that origin is so important is that it affects the rate of import duty applicable when imported by your customer. For more information on this subject have a look at our FAQs, Blog, webinar or free Download.

 

6. Prepare your customer for import VAT

Many of our clients report that customers in the EU are surprised and annoyed when required by the transport company / customs broker to pay import VAT. When the UK was a member of the European Union this wasn’t an issue and a shockingly high number of EU companies still haven’t got to grips with the UK being a third country. All export sales from the UK are 0% rated for VAT but the customer will have to pay VAT at their local rate when the goods arrive at an EU border (unless you’ve agreed to deliver using DDP Incoterms). If they are registered for VAT they can account for it in the normal way on their VAT return but as the money has to be paid up front it will have an impact on their cash flow which can be a nasty surprise if they’re not expecting it. Good communication in advance will solve most export problems.

 

All of this can be rather daunting if you’re new to it and even seasoned exporters trip up every now and again because the landscape is constantly changing. If you’re concerned about anything to do with exporting (or importing) get in touch today to arrange a free consultation and benefit from the peace of mind that working with an Intertrade Services Groups provides.

Introduction

The impact of Brexit on SME manufacturers has been enormous and many would argue extremely detrimental. In this blog I look at some of the most significant issues.

Food and Drink

The first point to make is that British producers of food and drink related goods (known as sanitary and phytosanitary products) have been at a significant disadvantage to their EU counterparts because they have had to complete hugely complicated customs paperwork and have their products certified before they can be exported to the EU whereas we are still allowing EU food and drink into the UK without any of these requirements. The time and investment needed to complete the documents correctly, much of it in several languages, is out of the reach of many SMEs so they have stopped exporting to the EU even though there is strong demand for their products. For perishable items, a delay at the border due to a mistake on the paperwork often results in the entire consignment being destroyed because it wouldn’t be viable by the time it reached customers. The playing field needs to be levelled urgently, preferably by a relaxation of EU customs regulations for imports of these products. Whilst the Border Operating Target Model demonstrates good progress in this area, the further delays to introducing controls means British producers continue to be at a disadvantage and don’t have the confidence to plan and invest in exports to the EU.

Resource

The additional costs of customs paperwork for imports and exports is also relevant to manufacturers of non SPS goods. Huge amounts of time and money have been invested by SMEs in training their staff on commodity codes, incoterms, rules of origin etc. but understandably mistakes are still made which result in costly delays. What many people fail to understand is that the 27 EU member states have different regulations governing imports so you may need to provide one type of safety certificate when you sell something to France than you do to Germany or Italy. When we were signed up to the rules and regulations of the EU this wasn’t a problem but now our products are scrutinised like those of any other third country. Keeping track of and complying with the different requirements of each country can also be prohibitively expensive for SMEs.

CE/UKCA Mark

Many manufacturers have spent time and money finding an EU company to act as their Authorised Representative and on getting their products tested by an EU approved laboratory. The implementation of the UKCA mark has been delayed again which leads many manufacturers to question whether we will end up simply accepting the CE mark in which case UK companies have been put at a disadvantage unnecessarily.

Supply Chains

Mistakes on customs paperwork have caused huge numbers of delays at borders which in turn disrupt supply chains. There was a lot of talk after Brexit and during the pandemic about reshoring but the fact remains that many manufacturers need to import at least some of the raw materials, components or parts that they need. In the past they could operate on a just in time basis but have now had to move to a just in case scenario whereby they keep higher levels of stock of the things that they need. This has implications for running costs because more warehouse space is needed, and cash flow because money they could use more productively is tied up in stock.

Rules of Origin

The subject of rules of origin was covered extensively in the media recently in relation to the automotive industry but it equally applies to SMEs who are often suppliers to the huge multinationals and so part of their supply chain. The amount of resource required to determine the origin of where something was manufactured, rather than just where you bought it from, is immense and beyond the capabilities of many SMEs even assuming they realise this is something they need to do. Once they’ve done this we expect them to read the Trade and Cooperation Agreement to find out which rule of origin applies to their product and then work out whether their product complies. When you consider the number of suppliers, materials, parts, components and end products each manufacturer represents it’s an incredibly complex calculation that may need to be repeated many times. I would urge the UK and the EU to look at simplifying rules of origin at the very least.

Export Licenses

The requirement for dual-use export licenses to the EU has been a huge problem for some SME manufacturers. The process of determining whether a license is required, what type of license and then actually applying for it is complex and time-consuming. The time currently taken to grant licenses is often over 90 days which means British manufacturers are losing orders to competitors from China predominantly and often licenses are refused even for innocuous items that in a sane world wouldn’t need one anyway. The industry absolutely accepts the necessity of export control licenses but the system in the UK is broken and British manufacturers are going out of business or being bought by foreign companies, including all of their intellectual property as a result.

Conclusion

These are some of the specific customs related problems that were caused by Brexit. I could also have mentioned trade with Northern Ireland and the difficulties of recruiting and retaining EU workers which are both huge challenges for SMEs. But the overarching backdrop to all these issues is what feels like a lack of coherent strategy. The goalposts are always moving, manufacturers have been told on numerous occasions to prepare for new regulations or controls only for the deadline to be pushed back several times or the idea abandoned altogether. So much time and money has been wasted in this way. You can’t expect companies to invest and innovate to increase productivity when the rug might be pulled out from under them in 6- or 12-months’ time. British SME manufacturers just want to get on with growing their businesses and most people accept that this is the new reality and that we must adapt to make it work. But we need clarity and certainty from government. And some funding wouldn’t go amiss either.

A huge raft of changes to the UK’s customs framework will come into effect over the next 6 months including the Border Target Operating Model (BTOM).

But what is it and how will it affect you?

One aim of BTOM is to reduce exit checks on goods entering the UK from the EU by using a more targeted, risk-based system for checks, “underpinned by evidence and data”.

The new approach applies to security controls for all imports, and sanitary and phytosanitary (SPS) controls for imports of live animals, germinal products, animal products, plants and plant products. It sets out how controls will be delivered through simplifications, digitalisation and the UK’s new Single Trade Window.

Trusted Trader schemes will be introduced to further reduce checks on goods shipped by frequent importers and there are plans to undertake checks further away from the border to relieve the pressures and delays at ports.

The previous Trusted Trader Scheme has now been replaced by UKIMS (UK Internal Market Scheme). Assuming your application is successful it certifies that you’ve been evaluated and deemed sufficiently customs compliant to be allowed to send your goods to NI without any checks because they are confident your goods won’t slip over the border into the EU.

The BTOM also needs to be considered in the context of the Windsor Framework which was designed to secure seamless trade within the UK’s domestic market and uphold Northern Ireland’s affiliation with the EU customs union. 

The BTOM guarantees that Northern Ireland businesses will continue to enjoy unfettered access when transporting goods to Great Britain.

It also outlines the practicalities for ensuring that traders in Northern Ireland encounter no trade obstacles when moving Northern Irish Qualifying goods from Northern Ireland to Great Britain, directly or via Ireland.

Qualifying Northern Ireland Goods (QNIGs) are defined by HMRC as goods in free circulation in Northern Ireland, which means goods not under a Customs procedure or in an authorised temporary storage facility.

This move by the UK government ensures the benefits of unfettered access are more focused on Northern Ireland Traders. 

From the 31^st January 2024, all non-qualifying goods will face full Customs controls and the requirement for pre-notification and certification when moved directly from Ireland via Irish ports to Great Britain.

Export Health Certificates and Phytosanitary Certificates will be required for Irish medium-risk animal products, plants and plant products moving directly from Ireland to GB ports.

Pre-notification requirements (except for low-risk plants and plant products) and full Customs controls will be introduced for non-qualifying goods moving from Northern Ireland or Ireland to GB.

From the 31^st October 2024, The UK Government will introduce documentary and physical identity checks for medium-risk animal products, plants and plant products imported to Great Britain from the EU.

The UK Government will introduce Safety and Security declarations for EU imports. A reduced dataset for imports will be introduced. For ‘non-qualifying’ goods moving from Northern Ireland or Ireland to GB, documentary and risk-based identity and physical checks on medium-risk animal products, plants, plant products and high-risk food and feed of non-animal origin from the EU will be introduced.

What is a REX Number?

REX stands for the Registered Exporters System and is a system developed by the European Commission, used in the EU for certification of the origin of goods based on a principle of self-certification.  The REX system is used to identify suppliers making origin statements on goods going into the EU under the Generalised Scheme of Preferences (GSP) and by EU Exporters under some FTAs.

REX Numbers and Preferential Origin

When a trade agreement requires the use of a REX, the exporter makes the declaration of preference origin on a commercial document.  These are known as statements of origin and are generally made on the export invoice. To be entitled to make out a statement of origin, the exporter must be registered on a database by the competent authorities, therefore becoming a “registered exporter”.

We first encountered REX numbers during our time within the EU.  A program was introduced wherein eligible countries could request a REX number from their competent authorities. This unique number was used in their commercial documentation for goods that qualified under the EU GSP. The REX number effectively replaced the requirement for a physical GSP certificate (GSP Form A) to be sent to the importer to claim GSP benefits. Its validity can be verified through the EU REX validation database.

There was a need for more precise guidelines on this matter because certain commodity brokerages (who were not the actual manufacturers of the goods), were incorrectly including declarations on their commercial documents like invoices. The declaration of origin could only be made on a commercial document by the REX holder, the manufacturer. To ensure clarity, customs entry and preference claims required both the broker’s invoice and a declaration from the manufacturer. This ensured that the correct origin information was provided and prevented inaccuracies in the process.

REX Numbers Post-Brexit

After leaving the EU, a notable shift occurred for those in the UK.  The GSP system continued in the UK until June 19th, 2023, when it was replaced by the Developing Countries Trading Scheme (DCTS).  However, the UK would not, under GSP, and will not, under DCTS, accept a commercial document origin statement supported by a REX number.  The commercial document statement must be supported by a Trader Identification Number, or a GSP Form A can be used to claim preference at import.  The GSP Form A does not have to be the original certificate with the green guilloche pattern; copies are accepted by UK Customs. Perhaps more significantly, the REX numbers assumed an entirely different role, unrelated to GSP for UK imports.

 Upon the agreement and publication of the UK-EU Trade and Co-operation Agreement (TCA), traders were informed that to claim preferences under this trade deal, a supplier declaration of origin must be used on a commercial document, and no separate certificate, such as an EUR1 form would be valid.  To make the statement of preference origin, the EU Exporter must hold a REX number and quote it within the declaration, though low-value consignments (less than €6000) do not need the REX to be quoted.  So, it is crucial for any EU supplier making such declarations to be a Registered Exporter (REX), since this plays a pivotal role in the suppliers’ declaration process and without a valid REX number being quoted, it is difficult for the UK importer to benefit from the TCA.

Approved Exporter Status

The introduction of the REX within the EU-UK agreement has caused some confusion because the EU (and the UK) operate a separate exporter validation scheme, known as the Approved Exporter Status, which applies to some FTAs.  This is an entirely different number and cannot be used to validate the EU exporter’s preference statements on import into the UK, even though we have seen some UK companies assume the correct authorisation number has been quoted.  A REX number has “REX” as part of the number, e.g., NLREX1234321.  Even though the goods were produced in, for example, France, the declaration would need to include the French producers’ REX number, e.g., FRREX12345678, but clearly state that the goods were of EU origin, not the individual country of production in the declaration.

The UK does not operate a REX system, though we do have Approved Exporter Status, which is relevant to many UK FTAs.  When exporting from the UK to the EU, instead of using a REX within the statement of origin, GB (Great Britain) producers had to include their EORI (Economic Operator Registration and Identification) number instead.  This information enables their EU customers to claim preference on imports to the EU without needing a REX number.

Again, this situation caused considerable confusion, with EU exporters mistakenly including their EORI numbers, instead of a REX number in the declaration.  While on the other hand, UK exporters sought clarification about obtaining a REX number, only to realise they were not eligible to acquire one.

Conclusion

REX is a registration scheme used by businesses in the EU, not the UK.  But to claim preference on imports from the EU, the EU supplier must quote their REX on a commercial document that comes with the consignment. The UK importer must check and validate that it is an authorised number linked to the company exporting the goods.  The EU also use REX numbers in other trade agreements, including the EU agreements with Canada, Japan, Vietnam, Singapore, and the interim Economic Partnership Agreement (EPA) with Eastern and Southern Africa (ESA).  The requirement for a REX number has been replaced in the UK versions of these agreements and all new agreements.

Latest Information

As of November 2022 The UK government has for the third time delayed the requirement for firms to adopt the UK Conformity Assessment (UKCA) mark for their goods to be placed in the UK market. The UKCA mark can already be used for goods traded in the UK and the government’s intention is for it to eventually replace the EU’s CE mark. Both marks are used to verify that manufactured goods meet the safety standards of their respective markets. The government has given businesses two additional years to prepare for a new deadline of 31 December 2024, at which point the UKCA mark will be legally required for affected goods placed in the UK market. The UK will continue to recognise the CE mark for this period, with the EU certificate remaining valid until the end of 2027. Industry bodies have repeatedly raised concerns about the requirement for goods to be re-tested to ensure they meet the UK’s post-Brexit safety standards and have said that the UK would not have sufficient capacity to meet the surge in demand for this. Firms have also warned that some EU suppliers would not bother with the additional administrative requirements for getting the new certification, potentially stopping supplying the UK market. In June this year, the UK government announced a series of easements to make the application process easier. This included allowing certificates issued by EU assessment bodies before the end of 2022 to be used as the basis for a UKCA mark application, as well as the removal of the need to relabel permitted existing goods imported before January 2023.

Product areas covered by the UKCA marking

You will need to use the UKCA marking if you manufacture or handle products in the following areas:

• toys
• pyrotechnics
• recreational craft and personal watercraft
• simple pressure vessels
• electromagnetic compatibility
• non-automatic weighing instruments
• measuring instruments
• measuring container bottles
• lifts
• equipment for potentially explosive atmospheres (UKEX)
• radio equipment
• pressure equipment
• personal protective equipment (PPE)
• gas appliances
• machinery
• equipment for use outdoors
• ecodesign
• aerosols
• low voltage electrical equipment

Some products are covered by the UKCA marking but have some special rules. You should consult the sector specific guidance for more information;

• Medical devices
• Rail interoperability
• Construction products
• Civil explosives
• Marine equipment
• Cableways
• Energy using products
• Transportable pressure equipment
• Hazardous substances (RoHS)

Roles & Responsibilities
If the UKCA marking applies to products you manufacture or handle, you will have specific obligations and responsibilities for compliance, depending on your role. Economic operators under the relevant legislation are:

• manufacturers
• importers
• authorised representatives
• distributors

Manufacturers
A manufacturer is normally an individual or business who manufactures a product, or has a product designed or manufactured and markets that product under their own name or trademark. For instance, an importer who markets a good under their name and trademark is usually considered to be the manufacturer and assumes the responsibilities of a manufacturer.

Before placing a product on the GB market, the manufacturer must ensure that the product has been designed and manufactured in accordance with the relevant safety requirements in the legislation.

Next, the manufacturer must draw up a declaration of conformity and place the UKCA marking visibly, legibly, and indelibly to the product. However, legislation in certain product sectors may allow the UKCA marking to be alternatively affixed to a label placed on the product, to the product’s packaging or to a document accompanying the product. These exceptions may require certain conditions to be met, such as the nature of the product making it impossible for the UKCA marking to be placed on it directly.

Manufacturers must draw up technical documentation and a UK declaration of conformity and keep both for 10 years after a product has been placed on the GB market. Manufacturers must indicate their name, registered trade name or registered trademark, and postal address on the product. There may also be other product specific indications that manufacturers should include, such as a type, batch, serial, or model number. Where it is not possible to indicate this on the product, the manufacturer must ensure the information is indicated on the packaging or in a document accompanying the product.

Manufacturers must ensure that the product is accompanied by instructions. The precise content and nature of the instructions will be product specific, but they generally should be clear, legible and in easily understandable English.
Manufacturers must also make certain that procedures are in place to ensure that any products in series production remain in conformity with the relevant product regulations. For example, ensuring series products are bought into compliance when product regulations change. You must take account of any changes in the product’s design, characteristics, and designated standards or technical specifications to which the declaration of conformity was drawn up.

Manufacturers must act where they have reason to believe that the product(s) they have placed on the GB market are not in conformity with the legal requirements of the relevant regulations and must immediately take the corrective measures necessary to bring the product into conformity or withdraw or recall it. Where the product presents a risk, the manufacturer must immediately inform the market surveillance authority.

Importers

An importer is anybody (individual or business) established in the UK who supplies a product from outside the UK for distribution, consumption or use on the GB market in the course of a commercial activity.

The importer’s obligations build on from the obligations of the manufacturer and authorised representative.
As an importer, you have legal obligations which go beyond those of distributors when placing a product on the GB market.

Importers must not place a non-compliant product on the market. They must ensure the manufacturer has carried out the correct conformity assessment procedures, subject to the requirements of the relevant legislation. If the manufacturer has appeared to have supplied non-compliant products, then the importer must take the necessary corrective actions (for example, recalling products from the market) to prevent the products from being placed on the GB market, until they are compliant with the appropriate legislative requirements.

An importer who markets a good under their name and trademark is usually considered to be the manufacturer and assumes the responsibilities of a manufacturer.

Where the product presents a risk, the importer must immediately inform the relevant enforcement authority.
The importer must ensure the manufacturer has drawn up the correct technical documentation in English, affixed conformity markings, and has fulfilled their identification obligations.

Before placing products on the market, the importer must indicate their details (name, registered trade name or registered trademark, and postal address – usually a number, street, and postcode) on the product. Where this is unwarranted due to the nature of the product, the product specific legislation sometimes permits placing these details on packaging, or placing them on accompanying documentation, as an alternative to placing them to products themselves.

There are also special rules for products imported from an EEA state or Switzerland before 11pm on 31 December 2027. In these cases, to smooth the transition, the importer’s details can be set out elsewhere instead of being affixed to the product itself. This will typically be in an accompanying document or on the product’s packaging. This measure applies to the following regulations:

• Electrical Equipment (Safety) Regulations 2016
• Electromagnetic Compatibility Regulations 2016
• Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations 2016
• Explosives Regulations 2014
• Lifts Regulations 2016
• Measuring Instruments Regulations 2016
• Non-automatic Weighing Instruments Regulations 2016
• Pyrotechnic Articles (Safety) Regulations 2015
• Simple Pressure Vessels (Safety) Regulations 2016
• Supply of Machinery (Safety) Regulations 2008
• The Pressure Equipment (Safety) Regulations 2016
• Toys (Safety) Regulations 2011
• Radio Equipment Regulations 2017
• Recreational Craft Regulations 2017
• Regulation (EU) 2016/426 and the Gas Appliances (Enforcement) and Miscellaneous Amendments Regulations 2018
• Regulation (EU) 2016/425 and the Personal Protective Equipment (Enforcement) Regulations 2018
• The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012
• Weights and Measures (Packaged Goods) Regulations 2006

Importers must ensure that, while the product is under their responsibility, the storage or transport conditions do not jeopardise its compliance with the relevant UK products regulations.

Importers must retain a copy of the Declaration of Conformity and technical documentation for 10 years after the product has been placed on the market.

Under certain UK product regulations and depending on which specific regulations apply to you, market surveillance authorities may conduct sample testing of products, if they suspect products are non-compliant.

You should check the relevant legislation to understand your full obligations, however there may be specific responsibilities exclusively required of you.

There are no importer obligations for products falling under both the Supply of Machinery (Safety) Regulations 2008, and the Noise Emission in the Environment by Equipment for use Outdoors Regulations 2001. It is the ‘responsible person’ who will need to ensure products are compliant and bear the UKCA marking (when placed on the market or put into service). The ‘responsible person’ is either the manufacturer or their authorised representative (and in specific circumstances can include the person placing the product on the GB market or the person putting the product into service in GB).

Authorised representatives

An authorised representative (AR) is anybody (an individual or company) who is appointed by a manufacturer to carry out certain agreed specified tasks (for example, drawing up a UK Declaration of Conformity for a manufacturer) on their behalf, as defined in the relevant product legislation.

The delegation of tasks from the manufacturer to the authorised representative must be explicit and set out in writing. If an AR is importing a product, then they also adopt the obligations of the importer too. The manufacturer in some cases could appoint an importer to carry out the delegated duties of the authorised representative, alongside the importer’s legal obligations. There is a limit as to what the authorised representative can do. They are not responsible for safety and compliance, for example.

If used, ARs must be established in the UK.

Under some product legislation an authorised representative is mandatory, but in most cases it is voluntary. For instance, the supply of medical devices for the GB market will require a UK-based responsible person to be appointed by the manufacturer. Check your respective product regulations to determine whether the use of an authorised representative is mandatory.

Where a manufacturer appoints an authorised representative, they may, among other things, ask them to:

• Affix the UKCA marking
• Draw up and sign a UK Declaration of Conformity
• Keep the necessary technical documentation and to cooperate with market surveillance authorities

If an authorised representative is also acting as an importer, or distributor, they will also need to fulfil the obligations of those economic operators under the legislation. An AR cannot act as a manufacturer, although as above, they may perform tasks on the manufacturer’s behalf.

GB-established authorised representatives are not recognised in the EU.

Distributors
A distributor is a person in the supply chain, other than the manufacturer or importer, who makes products available on the GB market. If a person is bringing in a product from outside of the UK and placing it on the market, they will be considered an importer under the legislation and therefore these persons cannot be distributors.

Please note that this guidance to distributors is non-exhaustive. You should check the relevant legislation to understand your full responsibilities and whether there are specific obligations depending on the products you are placing on the GB market.

Before making a product available on the GB market, a distributor must take due care to ensure that it is in conformity with product regulations as they apply in GB. The distributor must verify that the manufacturer and importer (if relevant) have indicated their name, registered trade name or registered trademark, postal address, and any other required indications on the product.

Distributors must ensure that products bear the UKCA marking and are accompanied by the required documentation, instructions, and safety information.

Distributors must not make a product available if they have reason to believe it is not in conformity with the essential safety requirements. If there is reason to believe the products are non-compliant, then the distributor must not make products available and take corrective actions to prevent them from being placed on the GB market until the product has been brought into conformity. Where the product presents a risk, the distributor must immediately inform the relevant enforcement authority.

Distributors must ensure that while the products are under their responsibility within the supply chain, the products storage and transport conditions do not jeopardise their conformity with the legislation.

Distributors must cooperate with and provide information to the market surveillance authorities following a request.
There are no distributor obligations for products falling under either the Supply of Machinery (Safety) Regulations 2008, and the Noise Emission in the Environment by Equipment for use Outdoors Regulations 2001.

Conformity assessment routes

Certain conformity assessment procedures allow for self-declaration of conformity by the manufacturer.
Other regulations, for those typically more ‘high-risk’ products, may require third-party conformity assessment.
You should check the sector specific guidance which applies to your product to find out whether you can self-declare or need to use a third-party conformity assessment to show the UKCA requirements have been met.

 

Mandatory third-party conformity assessment for the UKCA marking

Where mandatory third-party conformity assessment was required for CE marked products, it’s also required for UKCA marked products.

The government will bring forward legislation that will require conformity assessment for new product types after 11pm on 31 December 2024 to be carried out by a UK Approved Body. The conformity assessment procedures and modules applicable are the same as those that were required for the CE marking.

Reducing re-certification/re-testing costs for UKCA marking

The government will be introducing legislation to allow conformity assessment activities undertaken by EU-recognised Conformity Assessment Bodies (CABs), for CE certification before 11pm on 31 December 2024, to be used by manufacturers to declare existing product types as compliant with UKCA requirements. Products must still bear the UKCA marking and will need to undergo conformity assessment with a UK Approved Body at the expiry of the certificate or after 31 December 2027, whichever is sooner.

Before 11pm on 31 December 2024, if an EU-recognised CAB has completed the relevant conformity assessment activities applying to a product, this would allow manufacturers to apply the UKCA mark without the need for any UK Approved Body involvement. They could continue to place their goods on the market on the basis of their existing CE certification following the end of this year, for the lifetime of the certificate issued, or until 31 December 2027 (whichever is sooner).

Where manufacturers are using conformity assessment under existing CE certification before 11pm on 31 December 2024 as the basis to ensure compliance with UKCA requirements for their products, it is recommended that they include in the UK Declaration of Conformity the list of relevant UK designated standards and equivalent EU harmonised standards that apply to their product, as well as details of the EU-recognised CAB (or CAB recognised under an EU Mutual Recognition Agreement with a third country) which carried out the conformity assessment procedures. This measure applies across all module types for the following regulations:

• Noise Emission in the Environment by Equipment for Outdoor Use Regulations 2001
• Supply of Machinery (Safety) Regulations 2008
• Ecodesign for Energy-Related Products Regulations 2010
• Toys (Safety) Regulations 2011
• Explosives Regulations 2014
• Pyrotechnic Articles (Safety) Regulations 2015
• Electromagnetic Compatibility Regulations 2016
• Simple Pressure Vessels (Safety) Regulations 2016
• Lifts Regulations 2016
• Pressure Equipment (Safety) Regulations 2016
• Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres Regulations 2016
• Non-automatic Weighing Instruments Regulations 2016
• Measuring Instruments Regulations 2016
• Recreational Craft Regulations 2017
• Radio Equipment Regulations 2017
• Regulation 2016/425 on personal protective equipment as it applies in GB
• Regulation 2016/426 on gas appliances as it applies in GB

The UK Market Conformity Assessment Bodies (UKMCAB) database lists all bodies which can provide conformity assessment for the UK market.

Technical documentation & Record Keeping

You, or your authorised representative (where allowed for in the relevant legislation), must keep documentation to demonstrate that your product conforms with the regulatory requirements.

This must generally be kept for 10 years after the product is placed on the market.

This information can be requested at any time by market surveillance or enforcement authorities to check that your product conforms with the regulatory requirements.

The information manufacturers must keep will vary depending on the specific legislation relevant to your product.
You must keep general records of:

• how the product is designed and manufactured
• how the product has been shown to conform to the relevant requirements
• the address of the manufacturer and any storage facilities

You should keep the information in the form of a technical file which can be supplied if requested by a market surveillance authority.

UK Declaration of Conformity

The UK Declaration of Conformity is a document which must be drawn up for most products lawfully bearing a UKCA marking before they are placed on the market. It is recommended that manufacturers have their UK Declaration of Conformity and their EU Declaration of Conformity in separate documents.

In the document you as the manufacturer, or your authorised representative (where allowed for in the relevant legislation), should (among other things):

• declare that the product is in conformity with the relevant regulatory requirements
• make sure the document has the name and address of the manufacturer (or your authorised representative) together with information about the product and the conformity assessment body (where relevant)
• The UK Declaration of Conformity should be available to market surveillance authorities on request.
  The information required on the UK Declaration of Conformity is largely the same as what was required on an EU Declaration of Conformity. This can vary depending on the applicable legislation but generally should include:
• your (the manufacturer’s) name and full business address and that of your authorised representative (if applicable)
• the product’s serial number, model or type identification
• a statement, stating you take full responsibility for the product’s compliance
• the details of the approved body which carried out the conformity assessment procedure (if applicable)
• the relevant legislation with which the product complies
• the name and signature of the person authorised to sign on behalf of the manufacturer or their authorised representative
• the date the declaration was issued
• supplementary information (if applicable)

You will need to list:

• relevant UK legislation (rather than EU legislation). This can be listed as a reference to the base statutory instrument or the full title.
• UK designated standards rather than standards cited in the Official Journal of the European Union

Relevant UK and EU legislation

In many areas the current EU legislation for specific products has corresponding UK legislation:

For more information about the latest UKCA mark requirements and how to comply email info@intertrade-groups.com or call +44(0)7966514511

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When and Why?

There are many reasons that HMRC or Border Force might seize goods that are imported into the UK but in the manufacturing and engineering sector it is most likely to be a disagreement about the HS or Commodity Code that was used.

Commodity codes, also known as HS codes after the Harmonised System, are an 8 or 10 digit number that tells everyone involved in the movement of goods;

• What they are
• What duties should be paid
• Whether a quota applies
• If they should have a licence
• What the labelling requirements are

For some goods, especially machinery or electronics a small difference in the HS code can significantly affect the amount of import duty that’s payable so it’s unsurprising that HMRC scrutinise imports carefully to ensure the correct duty is paid.

It’s also important for domestic manufacturers that products made overseas don’t enter the UK market without paying the correct duty. A wide range of goods and materials from countries with cheap labour and lower costs have anti-dumping and countervailing duties imposed in addition to import duty to make sure British manufacturers aren’t disadvantaged.

The second common reason that goods are seized is that when the consignment was inspected, the contents of the container didn’t match the description or quantity listed on the customs declaration. Often, this is an innocent mistake because the supplier or the importer didn’t understand the level of detail required. There have been instances of goods worth tens of thousands of pounds seized because the customs declaration didn’t include some very low value spare parts that had been packed with the main product to save space. The spare parts didn’t even attract any import duty but, because they hadn’t been itemised on the customs declaration, the whole consignment was pulled. Quite apart from being a legal obligation, it is in the importer’s best interest to provide full and accurate information about the goods to avoid expensive delays and unnecessary stress.

What Happens?

If your goods are seized you’ll receive a NOTICE OF SEIZURE UNDER CUSTOMS AND EXCISE MANAGEMENT ACT 1979 from HMRC. This will explain in detail the grounds for the seizure of the goods. If HMRC disagrees with the HS code they will tell you what they think is the correct one. If they have found items not listed on the customs declaration it will give the quantity and description so everything is clear.

There are now two options. If you accept that HMRC or Border Force had reason to seize your goods as explained in the Notice of Seizure you can ask for their return. This is known as a Restoration Request and may require payment of a fine and / or unpaid duty.

If you believe it was illegal for HMRC or Border Force to seize your goods and that you didn’t break the rules, for example you brought in alcohol or tobacco for your personal use, you must issue a Notice of Claim.

Notice of Claim

If you don’t agree HMRC or Border Force had legitimate reasons to seize your goods you should issue a Notice of Claim which means you will go to court to argue your case. If you win you will get your things back unless they’ve already been disposed of in which instance you’ll be awarded compensation. If you don’t win you may have to pay court costs and your things will not be returned.

The Notice of Claim should include;

• the seizure reference number on the notice you got from customs
• your name and address
• a list of the things you think customs was wrong to seize – include details, for example quantities and brands
• proof of ownership if your vehicle was seized
• why you think it was illegal for customs to seize your things

Deadline

Your notice of claim must be received by HMRC or Border Force within a month of your things being seized. Your things are usually kept until your claim is decided, unless they’re perishable, for example they’re food.

Restoration Request

You can make a ‘restoration request even if you agree customs was right to take them. It must be done in writing (email is fine) and;

• be written in English
• include your full name and address
• quote any reference number shown on the seizure information notice or notice of seizure
• explain why you think the thing should be restored to you, giving the full circumstances, and enclosing any available evidence to support your request
• include proof of ownership of the thing (such as purchase receipts)

HMRC or Border Force will normally acknowledge your Restoration Request within 10 working days of receiving it.

Deadline

There is no time limit in law although HMRC or Border Force usually expects to receive a request for restoration of a seized thing within one calendar month of the date of seizure or the date on the Notice of Seizure. Perishable goods (including tobacco, beer and all food products) will be disposed of as quickly as possible. Non-perishable things (such as vehicles and spirits) are usually disposed of 45 days after the date of seizure unless the legality of the seizure is challenged or they receive a restoration request. In those cases they usually keep the goods until the challenge or restoration is decided.

If the seized thing has been destroyed, HMRC or Border Force cannot restore it to you but they will usually offer you an appropriate payment instead. This may be an amount equal to the sum paid by you for the goods in question or an amount equal to the proceeds of sale (where HMRC or Border Force have sold the goods in question) or an amount equal to the market value of the goods at the time of seizure and not including any additional compensation (for costs, travel expenses, interest).

Which Option?

It is permissible to pursue both options at the same time by challenging the legality of the seizure and asking for the seized thing to be returned in the meantime. It is important to understand that challenging the legality of the seizure and asking for restoration are two completely separate processes. They may be dealt with at the same time but in separate ways. They cannot be combined because magistrates’ courts and tribunals have different areas of authority.

The Intertrade Services Groups has represented several clients to successfully claim back their goods from HMRC. For more information about the process and costs email info@intertrade-groups.com or call +44(0)7966514511