UK exits the EU (customs)

I posted before on Brexit Notices issued by the EU to Operators and Stakeholders. The EU has now set up a specific Brexit Customs website here.

Two Notices are available on this website :

(1) EU rules in the field of customs and indirect taxationhere.

Authorisations granting the status of Authorised Economic Operator (AEO) and other authorisations for customs simplifications, issued by the customs authorities of the United Kingdom will no longer be valid in the customs territory of the Union (from the exit day).

Goods originating in the United Kingdom that are incorporated in goods exported from the EU to third countries will no longer qualify as “EU content” for the purpose of the EU’s Common Commercial Policy. This will affect the ability of EU exporters to cumulate with goods originating in the United Kingdom and may affect the applicability of preferential tariffs agreed by the Union with third countries.

Taxable persons wishing to use one of the special schemes of Chapter 6 of Title XII of the VAT Directive (the so-called Mini One-Stop Shop or MOSS), who supply telecommunications services, broadcasting services or electronic services to non- taxable persons in the EU, will have to be registered for the MOSS in a Member State of the EU (from the exit day).

(2) EU rules in the field of import/export licences for certain goodshere.

As of the withdrawal date, import/export licences issued by the United Kingdom as an EU Member State on the basis of Union law will no long be valid for shipments to the EU-27 from third countries or vice versa.

This applies to : (full list is in the Notice)

– waste shipments

– certain hazardous chemicals

– ozone depleting substances

– drug precursors

[Article 50 transition arrangements, if agreed, may change the exit day from 00:00 30 March 2019 (CET) to 31 December 2020 – I posted separately about the Transition/Implementation Period]

UK exits the EU (use of dot EU Top Level Domain)

Under current EU rules, UK owners of dot EU Top Level Domain names will no longer be eligible to use them. The matter was considered by the UK Parliament (European Scrutiny) Select Committee on 17th January 2018 – here.

This reviewed the DCMS Explanatory Memorandum – extract below :

Explanatory Memorandum from the Minister of 21 December 2017

The then Minister of State at the Departure of Digital, Media, Culture and Sport (DCMS) (Matthew Hancock), states that:

▪ currently, only persons, companies or organisation based in the European Union, Iceland, Norway or Liechtenstein can register a domain name under .eu or .ею (Cyrillic script);

▪ the UK has the fourth largest number of registrations within the EU (340,000), which is the same number as the previous report;

▪ top Level Domain Name policy is a reserved matter. However, as the Devolved Administrations may have interest in the use of .eu by persons, organisations and businesses based in Scotland, Wales and Northern Ireland, they were consulted in the preparation of the Government’s Explanatory Memorandum (although no detail of the Devolved Administrations’ views is provided);

▪ thus far, UK stakeholders have not been vocal in raising any issues or the possibility of UK based users of .eu losing its use on Brexit; and

▪ the UK Government will continue to carry out stakeholder engagement to further understand the views of UK users of .eu to inform its negotiating position.

The Government also quotes, in full, a statement from the .eu registrar about the implications of UK exit for .eu domain names that have been registered by UK residents, which essentially states that the registrar is awaiting instruction from the European Commission about how to proceed:

“On 23 June 2016 voters in the UK referendum expressed their preference to leave the European Union. As the next steps have still not been determined and the political and legal processes have not yet been initiated, note that no action will be taken against .eu or .ею domain names that have been registered by residents in UK. EURid has been appointed by the European Commission to manage the technical infrastructure of .eu and its variants in other scripts. When further details are known about the timing and details of a UK exit, the European Commission will instruct EURid on how to proceed. We will continue to keep all our stakeholders fully informed.”

UK exits the EU (transition period)

UPDATE : Wednesday 21st February – the UK Draft Text for Discussion: Implementation Period is here.

[Note : the UK position is to seek a longer transition period.]

UPDATE : Thursday 8th February – the UK proposal for continuation of existing EU-third country agreements is here.

UPDATE : Wednesday 7th February – the draft EU wording for the Transition clauses of the Withdrawal Agreement is here.

Draft clauses to note : [the next step for this draft wording is for it to be agreed by the EU-27 member states, the wording could alter after this step]

(1) There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

(2) Union law (with stated exceptions) shall be binding upon and applicable in the United Kingdom during the transition period.

(3) During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law.

(4) During the transition period, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties. In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.

——-

UPDATE : Monday 29th January – the EU position is here. It’s a status quo period without institutional representation lasting until 31 December 2020. The Press Release is here (with links).

Two key questions :

(1) registration of EU nationals allowed or not allowed in the transition period ?

(2) EU Notices apply from 29 March 2019 or 31 December 2020, which ?

NOTE : this Annex also sets out the Withdrawal Treaty issues that are still to be resolved. I will post about the EU-UK Withdrawal Treaty separately. The Irish border will continue as a separate strand during the transition period.

NOTE (2) : the possibility of a transition arrangement obtains its legal authority from Article 50, and so the Transition terms will be set out in the Withdrawal Treaty.

——-

UPDATE : UK 26th January 2018 statement on the Transition Period (the UK terms it the Implementation Period) – here.

Last night Hammond/Davis/Clark sent letters to business leaders in which they said of the transition/implementation period:

“The period’s duration will be strictly time-limited, and should be determined simply by how long it will take to make these

changes.” The full letter is here.

The EU position will be published on Monday 29th January 2018.

——–

The date of exit is 00:00 30 March 2019. The EU and the UK have signalled their willingness to agree a Transition Period.

Very little is yet published on the nature of this to-be-agreed Transition Period, save the EU stating it should not extend beyond 31st December 2020.

EU and UK negotiators are currently talking through the loose ends that remain over the UK-EU Withdrawal Treaty – citizens’ rights, the financial settlement and the Irish border – along with topics such as Euratom, which governs the movement of nuclear materials, that have yet to be substantively discussed.

A draft treaty putting the agreements on the three Withdrawal issues into legal language is due to be published within weeks. I will publish this as a separate post.

The EU and the UK authorities have signalled the Transition Period cannot be agreed until the Withdrawal Treaty is in legal language at least. The Withdrawal Treaty will be ratified later in 2018 in advance of the 2019 exit date.

I will update this post when more information is available about the Transition Period. My post updating will NOT be automatically emailed to your inbox, so please make sure to revisit this post on the Blog itself.

UK exits the EU (industrial products)

I posted a number of times in the last six months about European Commission Notices to Operators in different sectors.

22nd January 2018 sees the publication of the latest European Commission Notice to Stakeholders re EU rules in the field of industrial products. This Notice is here.

(1) As of the withdrawal date, the EU rules in the field of non-food and non- agricultural products (industrial products – see indicative list below), whether for use by consumers or professionals, no longer apply to the United Kingdom.

(2) This Notice applies primarily to (the full indicative list is in the Annex to the Notice) : this is a selection (based on the Cardinal EHS Legislation Registers

* products covered by the General Product Safety Directive

* products covered by ROHS

* batteries and waste batteries

* combustion appliances

* products covered by the Eco-design Rules

* simple pressure vessels

* electrical equipment

* machinery

* products covered by the EMF Rules

* measuring instruments

* non-automatic weighing instruments

* pressure equipment

* transportable pressure equipment

* ATEX equipment

* PPE

* marine equipment

(3) This notice should be read in conjunction with any complementary, more specific notices on the legal consequences of the United Kingdom’s withdrawal that may be published with regard to any of the EU laws listed in the annex of this Notice.

(4) EU law designates the importer to be the economic operator established in the EU who places a product from a third country on the EU market. As from the withdrawal date, a manufacturer or importer established in the United Kingdom will no longer be considered as an economic operator established in the EU. Ditto, aneconomic operator established in the EU-27 who, prior to the withdrawal date, was considered as an EU distributor will become an importer for the purposes of EU product legislation.

(5) Currently, EU product legislation does not generally oblige the manufacturer to designate an authorised representative. However, if the manufacturer chooses to do so, the applicable legislation requires the authorised representative to be established in the EU. In addition, specific EU legislation does provide for the obligation to have an authorised representative (e.g. EU legislation on medical devices, transportable pressure equipment, or marine equipment) or a responsible person (cosmetic products) established in the Union.

Authorised representatives or responsible persons established in the United Kingdom will not, as from the withdrawal date, be recognised as authorised representatives or responsible persons for the purposes of the applicable EU product legislation. The Notice advises manufacturers to take the necessary steps to ensure that, as from the withdrawal date, their designated authorised representatives or responsible persons are established in the EU-27.

(6) In some product areas, EU legislation requires the intervention of a qualified third party, known as Notified Body, in the conformity assessment procedure.

(7) EU product legislation requires Notified Bodies to be established in a Member State and be designated by a Member State notifying authority for performing the conformity assessment tasks set out in the relevant act of EU product legislation. Therefore, as from the withdrawal date, UK Notified Bodies will lose their status as EU Notified Bodies and will be removed from the Commission’s information system on notified organisations (NANDO database). As such, UK bodies will not be in a position to perform conformity assessment tasks pursuant to EU product legislation as from the withdrawal date.

(8) When the applicable conformity assessment procedure requires or provides for the possibility of third party intervention, a certificate delivered by a body recognised as an EU Notified Body at the time of the placing of that product on the market will be required for products placed on the market as from the withdrawal date.

(9) The Notice advises economic operators to take the necessary steps to ensure that, where the applicable conformity assessment procedures require the intervention of a Notified Body, they will hold certificates issued by an EU-27 Notified Body to demonstrate compliance for their products placed on the market as from the withdrawal date.

(10) Where economic operators hold certificates issued by a UK Notified Body prior to the withdrawal date and plan to continue placing the product concerned on the EU-27 market as from the withdrawal date, the Notice advises the operators to consider either applying for a new certificate issued by an EU-27 Notified Body or arranging for a transfer – on the basis of a contractual arrangement between the manufacturer, the UK Notified Body, and the EU- 27 Notified Body – of the file and the corresponding certificate from the UK Notified Body to an EU-27 Notified Body, which would then take over the responsibility for that certificate. This responsibility depends on the specific conformity assessment procedure required for the product concerned under the applicable product legislation set out in the Annex.

[The Withdrawal Date is 00:00 30 March 2019, both the EU and the UK authorities have signalled a willingness to agree a Transition Period – I will post separately about this.]

Plastic Strategy (EU)

The EU has adopted today (16th January 2018) its first plastic strategy. The press release is here. The Q&A is here.

Next Steps

The new Directive on port reception facilities proposed today will now go to the European Parliament and Council for adoption.

Subject to Better Regulation requirements, the Commission will present the proposal on single-use plastics later in 2018.

Stakeholders have until 12 February 2018 to contribute to the ongoing public consultation.

The Commission will launch the work on the revision of the Packaging and Packaging Waste Directive and prepare guidelines on separate collection and sorting of waste to be issued in 2019.

For the full list of measures and their timeline, see the Annex to the Plastics Strategy here.

A few remarks (in the UK Brexit context)

(1) I posted a few days ago about imminent changes to 6 EU Waste Directives (the EU Circular Economy Package). The new rules will fix a new target of 55% recycling of plastic packaging waste by 2030, set a ban on landfilling separately collected waste and fix stronger arrangements for extended producer responsibility (EPR) schemes. It is not announced if the UK will follow this.

(2) The EU Plastic Strategy identifies that by 2030 all plastic packaging should be designed to be recyclable or reusable. To achieve this, the European Commission will work on a revision of the legislative requirements for placing packaging on the market. The revision process will focus on defining the concept of design for recyclability. The goal is to decrease the quantity of waste generated and to avoid that these materials end up as litter, are incinerated or are landfilled where can be recycled. This also includes the issue of over-packaging. It is not announced if the UK will follow this (the commitment in the UK 25-yr environmental plan is to eliminate plastic waste where practicable by 2042).

(3) Microplastics are plastic particles smaller than 5 mm. They end up in the surface waters and the marine environment, either because they are used intentionally in products in order to accomplish a certain function (e.g. microbeads in cosmetics as exfoliating agents) or because they are generated through the breakdown of larger plastic pieces and through the wear and tear of products (e.g. through abrasion of tyres or washing of textiles).

The European Commission has started work to restrict the use of microplastics that are intentionally added in products through the Registration, Evaluation, Authorisation and Restriction of Chemicals regulation (REACH).

Regarding unintentional release of microplastics, the European Commission is examining options such as labelling, minimum requirements for product design and durability, methods to assess quantities and pathways of microplastics in the environment, funding for targeted research and innovation.

The UK Government has brought in Microbeads Regulations applicable in England. I posted earlier about this, and Email Alerts have been sent (if you did not receive an Email Alert, and need the legislation adding to your EHS Legislation and Law Checklists, please let me know).

(4) The EU Plastic Strategy proposes to look into actions to specifically tackle single-use plastic items and other marine litter, including lost or abandoned fishing gear. Preparatory work has started on a legislative initiative on single-use plastics to be tabled by the European Commission, following the approach already used to tackle light-weight plastic bags.

The results of an ongoing public consultation will help determine the measures to be taken. The UK 25-yr environment plan contains proposals on single-use plastics, but not specifically on fishing gear.

(5) A 2015 amendment of the European Packaging and Packaging Directive mandated Member States to address plastic bag use – see article 4(1a) in the Directive itself here. The UK brought in Legislation in all UK jurisdictions (prior to the 2015 Directive amendment being agreed) and recently signalled it would remove the exemptions that were applied in England.

Note : the provisions of article 8a in the Packaging and Packaging Waste Directive which relate to the labelling and identification of biodegradable and compostable plastic carrier bags, the implementation period (for Member States) is 18 months from the date of that separate 2017 European instrument.

25-yr Environment Plan (UK)

The UK issued a few moments ago, its long awaited 25-yr Environment Plan. The Plan is here.

I will update this post on the Blog here with the Plan key commitments, targets and schedules. Please note, the updates will not be sent as emails to your inbox (the original post is emailed). So make a note, to check back on the Blog post itself.

UPDATE

Pledges :

(1) eliminate avoidable plastic waste by 2042,

(2) remove exceptions in England plastic bag regulations [the latest amendment to the EU Packaging and Packing Waste Directive stipulates measures on plastic bags by end 2018, plus the European Commission’s Plastics Strategy is announced next week – I will write a separate Blog post about it],

(2)(a) consultation in a charge for single-use plastic containers,

(3) protect ancient woodland and plant more trees, a new Tree Champion to be appointed after the National Planning Policy Framework is updated,

(4) retain strong targets for wildlife, water and air,

(5) “polluter pays” and “public money for public goods” as guiding principles for future farming policy (plus subsidy reform from 2024 (2022-2024 consultation) – this may be set out in the forthcoming Brexit Agriculture Bill),

(6) sustainable drainage to make cities safer from floods – new planning guidelines,

(7) healthcare that takes advantage of green prescriptions – preventative care that can make the most of “natural health service”,

(8) nature integrated in urban communities – net nature gain in new developments (possibly via the revamp of the National Planning Policy Framework,

(9) a new Watchdog to hold government to account – a new environment body to replace the activities of the EU’s Commission and Courts (this was an earlier DEFRA announcement – see recent Blog posts – the next step is consultation),

(10) nature targets (little detail),

(11) “leave the environment in a better state than they found it”, “the goals of our 25 year environment plan are simple: clean air, clean and plentiful water, plants and animals which are thriving, and a cleaner, greener country for us all. A better world for each of us to live in and a better future for the next generation.”,

(12) a miscellany of other pledges with little attached detail.

Note : the objectives in the plan itself add relatively little to the European and international commitments the UK is already signed up to.

But : the UK is meant to achieve good ecological status for all water bodies by the mid 2020s under the EU Water Framework Directive. The commitment in this 25-yr plan to achieve good water quality “as soon as practicable” is a lesser target.

Also : there is no mention of implementation of the forthcoming EU Circular Economy amendments to six existing Waste Directives.

Plus : there is no mention of the EU “precautionary principle’, particularly relevant to chemicals.

UK exits the EU (more Brexit Notices)

Over the past six months or so, the European Commission (sometimes in conjunction with other European bodies) has issued Brexit Notices to Operators. I have posted in this Blog about them, as they have been issued.

In November and December 2017, separate parts of the European Commission issued Brexit Notices at the same time, and there were more of these Brexit Notices.

(1) Notices issued in relation to Transport (I posted recently about the Road Haulage Notice) – this link covers Aviation, Road Haulage and Seafarers – here.

(2) Notices issued in relation to Data Protection, Justice and Company Law – here.

(3) Notices issued in relation to Food and Biotechnology (I already posted about Plant Protection Products, Pesticides, and Biocides) – GMOs, and mineral water.

(4) Notice issued on the European Trade Mark – here.

(5) Notice issued on Medicines – here.

I will update this post, as more Notices are drawn to my attention. Please note to check this post on the Blog itself. Post updates do not result in new emails to your inbox.