UK exits the EU (animal health certificates of competence)

I posted earlier on ECHA advice to UK companies, and European Commission Notices to UK Operators.

Animal health has been debated in UK Parliament as part of its consideration of the European Union (Withdrawal) Bill 2017-19. Following this debate, DEFRA has issued a statement about Animal Health. This statement is here.

[A] The European Commission has issued a Notice to slaughterhouse operators holding a certificate of competence relevant to exports to the European Union. This notice is here.

(1) Certificates of competence delivered in the United Kingdom will no longer be valid in the European Union from the moment the United Kingdom becomes a third country (exit date).

(2) Slaughterhouse operators shall ensure that some operations are only carried out by persons holding a certificate of competence (exports to the European Union). This requirement also applies to animal welfare officers (vets) who are working in a slaughterhouse (exports to the European Union).

[B] The European Commission has issued a Notice to transporters of live animals to the European Union. This notice is here.

(1) Transporter authorisations granted by the competent authorities of the United Kingdom pursuant to Articles 10 or 11 of the Regulation will no longer be valid in the European Union from the moment the United Kingdom becomes a third country (exit date).

(2) Certificates of approval of means of transport, and of drivers and attendants granted by the competent authorities of the United Kingdom will no longer be valid in the European Union from the moment the United Kingdom becomes a third country (exit date).

These two notices are located here.

Taxation (Cross-border Trade) Bill 2017-2019 (UK)

UPDATE : the SECOND READING commences Monday 8th January 2018 (next Monday).

UPDATE : the Resolutions are agreed and the Bill has been given its FIRST READING. The date of the SECOND READING is not announced. The Bill is here. The Explanatory Notes are here.

A Bill to impose and regulate a duty of customs by reference to the importation of goods into the United Kingdom; to confer a power to impose and regulate a duty of customs by reference to the export of goods from the United Kingdom; to make other provision in relation to any duty of customs in connection with the withdrawal of the United Kingdom from the EU; to amend the law relating to value added tax, and the law relating to any excise duty on goods, in connection with that withdrawal; and for connected purposes.

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This Bill is the Brexit Customs Bill. It will be given its First Reading ONLY following debate and approval of the relevant Ways and Means Resolutions on Monday (20th November).

Ways and Means Resolutions are used to approve parts of a Bill that will involve taxes and charges being made on the public.

In this case, there are two Ways and Means Resolutions :

(1) to provide for the charging of import and export duties, the administration and enforcement of these duties, and customs duties in connection with the UK’s withdrawal from the EU,

(2) to authorise the Bill to amend the law relating to VAT and excise duty on goods in connection with the Withdrawal of the UK from the EU. This resolution prevents certain provision being made in relation to zero-rates or reduced rates of VAT, or exemptions, refunds or new reliefs from VAT.

Both (1) and (2), if enacted, will authorise the making of statutory instruments and other provisions.

There is also a Money Resolution to authorise expenses which might be incurred by public bodies as a result of provision made by or under this Bill to be paid by Parliament, and deal with the destination of money received by public bodies (e.g. Licence fees).

In the view of HM Government, each of the Resolutions for this Bill (if passed) would authorise provision that extends and applies to the whole of the UK.

This post will be UPDATED with the Bill itself if the Resolutions are agreed. NB : updates on the post will NOT result in a new notification, so please go onto the Blog itself to check.

EU (Withdrawal) Bill 2017-2019 (Days 1 & 2)

UPDATE : UK Government fact sheets are here.

The European Union (Withdrawal) Bill (EUW Bill – UK law) will repeal the instrument that puts EU law into UK domestic law (the UK European Communities Act 1972) and create a new class of UK domestic law termed ‘retained EU law‘.

Subscribers to Cardinal Environment EHS Legislation Registers and Law Checklists will see this new category appear in their Registers. First, the Brexit Law will be corralled into a single area accessed on the top right (Environment, and Occupational Health & Safety).

The EUW Bill is at the House of Commons Committee stage, an important stage when amendments are considered.

Day 1 of the considerations was yesterday. This considered amendments to Clause 1 and Clause 6 of the Bill.

Day 2 is today. This will consider Clauses 2, 3 and 4 (the EU retained law itself).

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Clause 1 repeals the 1972 European Communities Act. No changes were agreed.

Clause 6 addresses the role of the Court of Justice of the European Union (often referred to as the European Court of Justice) after exit day. No changes were agreed.

UPDATE : Clauses 2, 3 and 4. No changes were agreed, Clause 4 was agreed.

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Clause 6 (Interpretation of retained EU law) says :

6 Interpretation of retained EU law

A court or tribunal—

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and

(b) cannot refer any matter to the European Court on or after exit day.

A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.

Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it –

(a) in accordance with any retained case law and any retained general principles of EU law, and

(b) having regard (among other things) to the limits, immediately before exit day, of EU competences.

But—

(a) Supreme Court is not bound by any retained EU case law,

(b)  the High Court of Justiciary is not bound by any retained EU case law

Etc

Brexit Bill Tracker (UK)

Brexit Bills

(1) EU (Withdrawal) Bill 2017-2019 – Commons Committee Stage (Full Commons Committee, commencing today) here

(2) Nuclear Safeguards Bill 2017-2019 – Commons Committee Stage (Public Bill Committee, commencing today) here

(3) Trade Bill 2017-2019 – Second Reading (date not announced) here

(4) Immigration Bill

(5) Customs Bill – White Paper here

(6) International Sanctions and Anti-Money Laundering Bill

(7) Agriculture Bill

(8) Fisheries Bill

(9) Withdrawal Agreement and Implementation Bill – DExEU announcement here

Brexit Consequent Bills

(1) Environmental Watchdog Bill – DEFRA announcement of consultation here

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Subscribers to Cardinal Environment EHS Legislation Registers and Law Checklists will see their Link to Brexit Laws appearing shortly.

CJEU ruling on worker rest periods (EU)

On the 9th November (today), the Court of Justice of the European Union (CJEU) has ruled on the REQUEST for a preliminary ruling submitted by the Portuguese Tribunal da Relação do Porto (Court of Appeal, Oporto) on whether the minimum uninterrupted weekly rest period of 24 hours to which a worker is entitled (in the European Working Time Directive) must be provided no later than the day following a period of six consecutive working days.

The European Directive on the organisation of working time (Directive 2003/88/EC as amended) provides that every worker is entitled, per each seven-day period, to a minimum uninterrupted rest period of 24 hours plus 11 hours’ daily rest. An earlier Directive 93/104/EC is also relevant, and the request raised the matter of the effect of the Charter of Fundamental Rights of the European Union, which had been dealt with by the earlier June Opinion of the Advocate General. 

By today’s judgment, the Court finds that EU law does not require the minimum uninterrupted weekly rest period to be provided no later than the day following a period of six consecutive working days, but requires it to be provided within each seven-day period. See the list of documents here. 

The earlier June 2017 Advocate General Opinion had found – Article 5 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 5 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time and Article 31 of the Charter of Fundamental Rights of the European Union must be interpreted not as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period.

The Opinion is here. 

New Plant Health Regulation (EU)

Regulation (EU) 2016/2031 is a new European Plant Health Regulation, which entered into force on 13th December 2016, and is a major overhaul of the EU’s Plant Health legislation that has been in place since 1977. It will repeal and replace seven Council Directives on harmful organisms and will become fully applicable on 13 December 2019. The new Regulation is here. 

It focuses particularly on the prevention of entry or spread of plant pests within the EU territory, and sets out detailed rules for the early detection and eradication of Union quarantine pests if found present in the EU territory. These rules establish obligations for the notification of outbreaks by professional operators, surveys and multiannual survey programmes, demarcation of areas for the purpose of eradication, as well as enhanced requirements for the priority pests as described above.

Under the new Regulation, all Member States will have to immediately proceed with the eradication of a Union quarantine pest if found present in an area where it was not known to be present. This means that they will no longer be allowed to proceed unilaterally with containment, namely to skip the eradication step and simply take measures to restrict the presence of the pests in a particular area.

Details

Plant pests currently fall under different legal acts depending on their quarantine status or whether they affect the quality of plant reproductive material. The new Regulation will list all pests together, under three main categories:

Union quarantine pests: Not present at all in the EU territory or, if present, just locally and under official control (examples include Citrus black spot, which is not present in the EU, and Xylella which is present in a few specific locations only). Strict measures must be taken to prevent their entry or further spread within the EU due to their increased risk for plant health. These pests have to be eradicated immediately if detected.

Protected zone quarantine pests: Present in most parts of the Union, but still known to be absent in certain demarcated areas called ‘protected zones’ (for example grape phylloxera, which is present in the territory of the EU but not in Cyprus which is designated as protected zone for this pest). These pests are thus not allowed to enter and spread within these protected zones. Measures are taken (such as prohibition or restriction of movement of commodities, surveys, etc.) to avoid the introduction of these pests into the protected zones or to ensure their eradication if found present in these zones.

Regulated non-quarantine pests: Widely present in the EU territory but, since they have an impact on the quality of the plants, plant reproductive material on the market should be guaranteed free or almost free from the pest (for example, the fungus Verticillium albo-atrum is known to be harmful to the apple production in the EU, therefore certified apple trees are not allowed to enter the EU market if more than 2% of the examined quantity is contaminated with the fungus). This way the starting quality and economic value of many agricultural crops as well as forestry and fruit plants can be ensured.

The new Regulation introduces the concept of “priority pests“. These are the Union quarantine pests with the most severe potential impacts on the economy, environment and/or society of the EU. They will be subject to enhanced measures concerning surveys, action plans for their eradication, contingency plans and simulation exercises. 

The list of these priority pests will be adopted through a delegated act, as close as possible to the date of application of this Regulation (end of 2019). It will be based on the criteria fixed by the Regulation and the assessments of the severity of the impacts of those pests.

The import of most plants and plant products from non-EU countries will in principle be allowed, subject to certain conditions. Some will be prohibited or subject to very strict requirements if a risk assessment indicates that this is necessary due to the pests they might host. The new Regulation sets out more precise rules about the risk assessment and risk management supporting such measures.

Under the new Regulation, the Commission is further required to adopt within two years a list of so-called high risk plants or plant products. The import of these commodities will be prohibited as long as no detailed risk assessment has been carried out to determine if such imports should be acceptable and, if yes, under which conditions.

All living plant material (namely entire plants, fruits, vegetables, cut flowers, seeds, etc.) will only be imported into the EU if accompanied by a phytosanitary certificate confirming their compliance with the EU legislation. The Commission will adopt within two years a list of plant materials to be exempted from that certification if they are deemed safe for the EU territory.

Finally, for specific cases where there is little experience with trade of certain plants or plant products and where related pest risks are still unknown, the new Regulation sets out the possibility to introduce temporarily phytosanitary import restrictions or even a prohibition until more scientific information becomes available. 

Imports by Passengers

In principle, passengers will no longer be allowed to introduce into the EU plants/plant products from non-EU countries if they are not accompanied by a phytosanitary certificate. However, harmonised exemptions to this general rule might be granted through a Commission implementing act, setting out the maximum quantity of plant material that might be allowed to be introduced by the passengers into the EU without phytosanitary certificate.

Plant Passports

Plant passports are the documents that accompany plants and certain plant products while moving within the Union and certify their phytosanitary health status. Under the new Regulation, all plant passports will be issued using a common format, thus facilitating their visibility and making them more easily recognisable throughout the EU.

Plant passports will now be required for the movement of all plants for planting, (under the current legislation, plant passports are required only for certain plants for planting). However, in order to avoid disproportionate administrative burdens, no plant passports will be required when the plants are transferred to non-professional consumers (e.g. in places like flower shops or other retail shops).

Professional Operators

Professional operators will have to notify any quarantine pest they find in the areas of their control. For the purpose of more efficient controls, the professional operators will have to be registered by the competent authorities. The professional operators will also have to ensure the traceability of the regulated plants/plant products they receive from and submit to other professional operators.

Professional operators will be allowed to issue plant passports, under the supervision of the competent authorities. To that purpose they will have to be authorised specifically by the authorities, subject to specific conditions.

National Authorities

Member States’ competent authorities will play a key role in the implementation of these rules. They will be responsible for activities such as surveys, eradication of outbreaks, contingency plans, simulation exercises, notification of pest occurrences, controls of imports, registration of professional operators, authorisation of professional operators to issue plant passports and other attestations.

In this respect, the new Regulation will be complemented, in the coming months, by the Regulation on Official Controls which will set out the obligations of Member States with regards to official controls and other official activities.

Why will the Regulation be applicable only in three years’ time?

To replace the existing legislation, it was decided that an EU Regulation was the right instrument, since it is directly and universally applicable throughout the EU. During the next three years, a string of delegated and implementing acts needs to be adopted. This period will also be used by competent authorities and professional operators to adjust to the new common rules.

Neonicotinoids (UK/EU)

UPDATE : the DEFRA statement is here. 

UK DEFRA has confirmed an article in this morning’s Guardian online – the UK will back a total EU ban on neonicotinoids. This newspaper article is here. 

“A total ban on insect-harming pesticides in fields across Europe will be backed by the UK, environment secretary Michael Gove has revealed. The decision reverses the government’s previous position and is justified by recent new evidence showing neonicotinoids have contaminated the whole landscape and cause damage to colonies of bees. It also follows the revelation that 75% of all flying insects have disappeared in Germany and probably much further afield, a discovery Gove said had shocked him.”

In 2013, three neonicotinoids were restricted by the EU.

Per The Guardian : “The European Commission now wants a total ban on their use outside of greenhouses, with a vote expected in December, and the UK’s new position makes it very likely to pass.”

The European Commission’s information on its regulatory activities in this area is here. 

Trade Bill (UK)

UPDATE : it has emerged during 9th January 2018 second reading, this Trade Bill may be restricted to the 65 trade arrangements with countries the UK already has access to under the EU Trade agreements. A second (more extensive) Trade Bill might be brought forward later.

Today the UK Government introduced the Trade Bill (at First Reading). The Trade Bill sets out measures that are required to build a future trade policy for the UK once it leaves the EU. These measures include:

(1) A power to ensure that the UK can implement any procurement obligations arising from the UK becoming a member of the Agreement on Government Procurement (GPA) in its own right. The GPA is a plurilateral agreement within the international WTO framework. The UK is currently a member by virtue of its EU membership and will re-join as an independent member.

(2) Measures to implement agreements with partner countries corresponding to the EU’s Free Trade Agreements (FTAs) and other trade agreements in place before the UK’s exit from the EU. The Trade Bill includes a power for the Government to implement any changes to domestic law which will be necessary for the UK to meet obligations flowing from these agreements.

(3) A new Trade Remedies Authority (TRA) to deliver the new UK trade remedies framework. This TRA will be enabled to provide advice, support and assistance to the Secretary of State in connection with the conduct of international disputes and other functions of the Secretary of State relating to trade and functions of the TRA. The TRA may also provide such advice, support and assistance to other organisations on its own initiative.

(4) Power for HMRC to collect data on behalf of the government to confirm the number of exporters of goods and services in the UK and to be able to identify those exporters for trade promotion purposes.

(5) Power to establish a data sharing gateway between HM Revenue and Customs (HMRC) and other public and private bodies, so that those bodies, including Department for International Trade (DIT), can discharge their public functions and access record-level data for research, monitoring and evaluation.

The Trade Bill 2017-2019 and Explanatory Notes are here.

DEFRA update (UK)

On 1st November, DEFRA Secretary Michael Gove appeared before the UK Environmental Audit Committee hearing (having first appeared before the Lords EU Committee). The recording is here.

(1) Consultation for a new Environmental Regulator would likely take place ahead of the UK’s departure in March 2019.

“The need for a body or bodies has been clearly identified… as a need to safeguard the environment.”

“Outside the EU, the question is what replaces the Commission. How do we have the ECJ’s role replicated? I think that this is an absolutely important question, and my thinking is that we should consult on what type of body would be appropriate to replace the role that the Commission and Court have played.”

“It’s right that… we ensure there is a right balance between ensuring people continue to have recourse to the court through judicial review, but also recognise that you might need an agency, body or commission that has the power to potentially fine or otherwise hold government and public bodies to account.”

“We could have a system in that UK that is stronger and more effective than the EU’s because the Government could be held to account in a way that the EU itself currently cannot.”

(2) Re : DEFRA 25-yr Plan – Defra had initially planned frameworks for two separate 25-year environment and food & farming plans, but there would now be only one document published, which would be released either before Christmas or, at latest, in January 2018. The document would feature new policies in key areas such as recycling and biodiversity. 

The plan could see the UK Government step up its voluntary approach on food waste targets (NB Scotland and NI have specific food waste producer obligations, and Wales prohibits down the drawn disposal of food waste). 

“I am very keen that we should try to reduce food waste at every stage in the cycle”

“Having an ambitious target to reduce avoidable waste is an incredibly useful tool and discipline.”

The plan, which will be open for consultation, would be followed by a command paper on the future shape of agriculture, as a prelude to the agricultural bill expected in early Spring.

(3) Re : China’s ban on 24 grades of waste material imports, due to come into force in January [UK exports around 4.5 million tonnes of waste to China for recycling or recovery.]

“I don’t know what impact it will have.”

“It is a very good question and something to which I’ll be completely honest I have not given sufficient thought.”

CJEU ruling on breastfeeding mothers risk assessment (EU)

On 19th October the Court of Justice of the European Union (CJEU) ruled on a REQUEST for a preliminary ruling under European Union treaty law made by the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain).

This REQUEST asked for clarification on the matter of the employer’s risk assessment of breast feeding mothers in the workplace.

The court found :

(1) The European Equal Opportunites & Equal Treatment Directive 2006/54/EC must be interpreted as applying to a situation (such as that at issue in the main Spanish court proceedings), in which a breastfeeding worker challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work – in so far as she claims that the assessment was not conducted in accordance with Europan Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.

(2) On a proper construction of European Directive 2006/54 (in a situation such as that at issue in the Spanish court proceedings), it is for the worker in question to provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements of Article 4(1) of Directive 92/85 and from which it can therefore be presumed that there was direct discrimination on grounds of sex within the meaning of Directive 2006/54 (in the case). It would then be for the defendant to prove that that risk assessment had been conducted in accordance with the requirements of that provision (risk assessment of breast feeding mothers) and that there had, therefore, been no breach of the principle of non-discrimination.

The CJEU judgment is here. 

The UK HSE guidance is as yet unchanged. The UK HSE guidance states a specific risk assessment is not required when an employer is notified a worker is a new or expectant mother. This guidance is here.

NB: ACAS is finalising new guidance on preventing pregnancy and maternity discrimination at work. UPDATE : this guidance is here.

The Cardinal Environment EHS Legislation UK websystems contain Law, ACOPs, HSGs and some other health and safety relevant guidance. They do not contain ACAS documents, please refer to legal specialists in Employment Law for further guidance.