No-deal Brexit and the internal market: what implications for trade of food products, animals and plants?

This date is approaching, but the UK parliament has still not approved the withdrawal agreement. Instead, the UK Parliament backed a law requiring prime minister Johnson to request the European Council to delay the UK's departure date until January (unless Parliament agrees on a deal with the EU by 19 October) to avoid a no-deal Brexit on 31 October. While the possibility remains for the UK to strike a deal with the EU and leave on 31 October, or for the UK to submit another request for an extension, the option of a no-deal Brexit on 31 October remains on the table.

A no-deal Brexit will have legal consequences in many different fields. This blog focuses on the consequences of a no-deal Brexit on the import and export to and from the Netherlands of food products, animals and plants.

The applicable law for trade after a no-deal Brexit

In the case of a no-deal Brexit, where the UK leaves the EU without an agreement, the UK would cease to be an EU Member State. Specifically, a no-deal would mean that all EU primary and secondary legislation would no longer be applicable to the UK.

In a no-deal scenario, the UK would become a third country in relation to the EU, while in the case of a Brexit with a withdrawal agreement, there would likely be a transition period (during which EU law remains applicable to the UK) while the EU and UK negotiate on the future relationship.

Thus, a no-deal Brexit would also affect the applicable law on the import and export of food products, animals and plants. Ceasing of application of EU law to the UK entails an exit from the European single market, meaning that goods, services, persons and capital can no longer be freely traded between the UK and the EU. Instead, trade between the EU Member States and the UK could, depending on the outcome of the negotiations between the EU Member States and the UK, be regulated by the rules of the World Trade Organization (WTO). The WTO deals with the global rules of trade between nations.

What does a no-deal Brexit mean for the trade of food products, animals and plants?

The Netherlands Food and Consumer Product Safety Authority (Nederlandse Voedsel- en Warenautoriteit, "NVWA") supervises the compliance of food products, animals and plants with applicable legislation. The NVWA provides information on its website on the consequences of Brexit on the import and export of food products, animals and plants.

If the UK becomes a third country to the EU, trade with the UK will no longer be regulated by EU rules on free movement. This means that the UK will be free to provide its own rules on the import of goods. Food products, animals and plants being exported from the EU to the UK will need to comply with those rules before such products can enter the country. In the same vein, the EU can provide for rules governing the import of food products, animals and plants from the UK to the EU. One can expect that in order to verify compliance with the rules, customs checks will be introduced at the borders of the EU Member States and the UK.

It is not yet clear which requirements the UK will introduce on the import of food products, animals and plants, if it becomes a third country. However, companies can begin to take measures to prepare for the administrative side of import and export from and to the UK.

For example, if a company wants to export fish from the Netherlands to the UK, it needs to request export certificates via the application "e-CertNL". The NVWA needs to be notified of the products to be exported (in this case fish) two to three days before the export takes place. Subsequently, the NVWA will check the shipment before it can be exported. Upon arrival in the UK, companies should expect checks by customs and competent authorities. Companies should take into account additional costs related to obtaining the export certificates and the check by the NVWA, and additional time to prepare for the export as well as to go through border control.

As mentioned, the EU may also introduce new rules, for instance on the import of certain plants to reduce the risks for plant health. The authorities of the Member States where the plants arrive (for instance, the Netherlands) must check whether the shipments comply with EU rules. The checks take place at recognised import inspection locations. In practice, this means that the UK supplier must certify the shipment by requesting certificates from the competent UK authorities which explain how the UK complies with the EU requirements. In addition, the importing EU company must request an import inspection. The shipment needs to be inspected upon arrival in the Netherlands; customs can only release the plants after this inspection. The company can apply for the inspection electronically using the CLIENT-import system.

Tips to prepare for a no-deal Brexit

Full preparedness for Brexit is difficult, particularly given the fact that the timing and type of Brexit remains unclear. However, to be prepared for a potential no-deal scenario, several practical measures can already be taken to – as far as possible – minimise potential hindrances to the import and export of food products, animals and plants from and to the UK.

For the export of animals and animal products from the Netherlands to the UK, a company can, according to the NVWA:

1. request access to the e-CertNL system;
2. request eHerkenning (e-recognition) to login to e-CertNL;
3. request ESK (an export canalisation system, which is a voluntary quality system within a company aimed at safeguarding compliance with requirements of third counties) at the NVWA for meat and meat products.

For the import of plants and plant products from the UK to the Netherlands a company can, according to the NVWA:

1. register at keuringsdienst (inspection service);
2. request access to the CLIENT-import system;
3. request eHerkenning (e-recognition) to declare itself to the NVWA as an importer.

For more information on the import of animals and animal products and on the export of plants and plant products visit the website of NVWA.

We will give an update once the prorogation of parliament has ended and more is known about the negotiations between the EU and the current UK Government.