From September 30, 2023, new EU and UK sanctions will come into effect targeting the imports of specified iron and steel products which are processed in third countries and incorporate Russian-origin iron and steel inputs. Importers will need to declare upon import whether the imported goods are compliant (and be prepared to provide evidence demonstrating compliance if checked by customs).

The new measures tighten existing primary Russian iron and steel import restrictions (which were introduced in 2022) and aim to target circumvention by limiting the ability for Russian-origin iron and steel to be concealed through third country processing into downstream steel products.

Establishing the non-Russian origin of inputs in a range of iron and steel products, especially those that have undergone numerous processing stages in multiple countries, is likely to be a complex and time-consuming task.  With the implementation deadline fast approaching, importers and their suppliers will need to work at pace to ensure they can collect the requisite information and demonstrate compliance.

UK prohibition

From September 30, 2023, UK persons will be prohibited from importing an iron and steel product into the UK, where it:

• is listed in Schedule 3B of the UK’s Russia (Sanctions)(EU Exit) Regulations 2019 (the UK Regulations);
• has been “altered, transformed in any way; or subjected to any type of operation or process” in a third country; and
• incorporates one or more Schedule 3B iron and steel products of Russian origin.

Schedule 3B contains a list of products with HTS / CN codes falling within Chapter 72 (predominantly primary metals) and Chapter 73 (predominantly basic tubes / shapes).

Associated prohibitions will also apply with respect to the provision of technical assistance, financial services and funds, and brokering services in relation the prohibited goods.

The UK Government has stated in guidance that, since the measure was first published in April 2023, there will be no exceptions or transitional period. There is the ability for traders to apply for a license, with the UK Government indicating that the import of iron and steel that left Russia before 21 April 2023 may be eligible.

The UK Government has further stated that traders should be prepared to have documentation available to demonstrate their compliance with the new prohibitions, which may include, but is not limited to, a Mill Test Certificate (MTC) or Mill Test Certificates (MTCs) where the relevant information cannot be summarized in a single document.

EU prohibition

The EU is similarly introducing a prohibition on the direct or indirect import or purchase, from September 30, 2023, of iron and steel products listed in Annex XVII to Regulation (EC) 833/2014 (Regulation 833) when processed in a third country incorporating iron and steel products originating in Russia as listed in Annex XVII.  Annex XVII similarly contains products with HTS / CN codes falling within Chapters 72 and 73.

Associated prohibitions on the provision of technical assistance, brokering services, financing or financial assistance, and insurance and re-insurance will also apply with respect to the prohibited goods.

Unlike the UK, the EU has implemented a staggered implementation period, with longer implementation windows for products with certain Russian-origin inputs (as per the table below). 

CN Codes	Implementation Time Period
Chapters 72 and 73 generally	September 30, 2022
7207.11	April 1, 2024
7207.12.10 7224.90	October 1, 2024

Further, the EU has prescribed in Regulation 833 that, at the moment of importation, importers shall provide evidence of the country of origin of the iron and steel inputs used for the processing of the product in a third country.  In guidance, the European Commission has stated that MTCs may be considered as sufficient evidence of the inputs’ origin.  However, customs authorities may require any additional evidence for the different transformation steps which the product has gone under. 

Although EU Member States have the ability to grant trade licenses to authorize otherwise prohibited imports, these are on more targeted grounds, namely for civil nuclear and medical applications.

Implications for businesses

The new prohibitions, and associated evidentiary requirements to demonstrate compliance, are likely to be time-consuming and challenging not only for importers who face the direct compliance obligation but also their suppliers from whom they would need to obtain the relevant evidence of origin. This will be a particular challenge for finished products which have undergone multiple stages of processing in one or more third countries. 

Although neither the EU or the UK have legally prescribed the type of evidence required to demonstrate origin, both the European Commission and UK Government have made clear that MTCs are the preferred source of evidence.  This could cause challenges for importers if this information is not readily available from their suppliers, and cause supply chain backlogs if importers do not have the requisite evidence. 

It still remains to be seen whether customs authorities will be more flexible in their requirements, and accept other types of evidence.  For example, the German customs authority has stated that invoices, delivery bills, quality certificates, long-term supplier declarations, calculation and production documents, customs documents of the exporting country, business correspondence, production descriptions, declarations of the manufacturer or exclusion clauses in purchase contracts, which show the non-Russian origin of the primary products, can also be recognized as suitable proof documents. French customs have also indicated that they may accept other admissible evidence. Accordingly, we suggest that importers are attune to the specific requirements of individual member states. 

In the meantime, we recommend that businesses work at pace to assess whether any of their goods are likely to be caught by the new prohibitions, and to work closely with their suppliers to source sound evidence of origin to ensure minimal impact on supply chains. 

Update:

By way of update, on October, 2, 2023, the European Commission published 11 new FAQs about the processed iron and steel prohibition (please see here).  Some key takeaways include:

• Only capturing goods manufactured/produced after 23 June 2023: FAQ 6 provides that “the [Article 3g(1)(d)] prohibition applies to imports of iron and steel products incorporating inputs originating from Russia that enter the Union as of 30 September 2023, provided that they were manufactured or produced after 23 June 2023. That is the date when the obligation for the importer to demonstrate the country of origin of the iron and steel inputs used for the processing of the product in a third country was introduced in EU law.”
  • This FAQ is an interesting gloss on the plain wording of the prohibition.  Although FAQs are non-binding, they do provide a statement of the Commission’s intended operation of the prohibition and are persuasive. 
  • The UK has not released any updated guidance on this point, so we would recommend continuing to treat the UK prohibition as capturing all iron and steel inputs imported from 30 September 2023 (regardless of when they were manufactured / produced). 
• Evidence requirements: The FAQs also clarify that mill test certificates are only an example that can be regarded as sufficient evidence, and that it is for the relevant national competent authorities to establish which other documentation can be considered as evidence of country of origin. For instance, the FAQs provided that:

“The origin of the inputs may be established through other means, such as a statement or declaration by the exporter or manufacturer confirming that, after exercising due diligence, the imported product does not contain any Russian steel or iron. Other documents may be invoices, delivery notes, supplier’s declarations, including supplier’s declarations covering several consignments (long term supplier’s declarations) business correspondence, production descriptions, quality certificates and clauses in implemented purchase orders or contracts, provided that they include information of the origin of goods, etc. The type of document(s) may also vary depending on the nature of the product, in particular for finished products (e.g. sewing needles, tubes, etc.).”

• Import timing:  The FAQs confirm that compliance with the restrictive measure needs to be ensured for each import, even if only temporarily out of the EU or were imported in several batches.  For the case of several consignments of identical goods, national competent authorities can nevertheless consider and accept the provision of one evidence, i.e. when the products supplied by the same supplier during a period of time are similar and national competent authorities have no reason to suspect possible circumvention; or when the same batch of products is imported in various transports for logistic or other legitimate reasons. National authorities need to exercise due care to avoid a breach or circumvention of the measures as a consequence.

These clarifications, especially with respect of the carve-out for the goods manufactured or produced prior to June 23, 2023, may provide some useful relief for customers grappling with the new compliance obligations.