COVID status data and GDPR (England)

The European REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 (on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) known as the GDPR – applies in the UK (UK GDPR).

UK GDPR applies to certain ‘processing’ of personal data. The ICO (the Information Commissioner’s Office) says –

If you are only conducting a visual check of COVID Passes (either a hard-copy document or a pass held on a digital device) and do not retain any personal data from it, this would not constitute ‘processing’. The activity would therefore fall outside of the UK GDPR’s scope.

However, if you are conducting checks digitally (for example, by scanning the QR code displayed on the pass), this would constitute processing of personal data – even if you do not keep a record of it. The UK GDPR would therefore apply.

If you make a record of any personal data, whether you conduct visual or digital checks, then you would be processing personal data and the UK GDPR would apply.

Article 9(1) of GDPR does not permit an employer to be in possession of employees’ personal and medical data. Article 9(2) sets out situations where the employer might have Covid status data.

The ICO says –

A person’s COVID status is health data, which has the protected status of ‘special category data’ under data protection law. This means it requires extra protection. You must also identify an Article 9 condition for processing. The two you could consider are:

• the employment condition; or

• the public health condition.

If you intend to rely on the public health condition, you must ensure that either a health professional carries out the processing, or that you tell people you are treating their COVID status as confidential and would only disclose it in clearly defined circumstances.

Consent is rarely appropriate in an employment setting given the imbalance of power between the employer and employee. Similarly, consent is unlikely to be appropriate where checking a COVID pass is a condition of entry to your premises. This is because you cannot consider consent to be ‘freely given’ in these circumstances.

This generally means that COVID status data cannot be held.

The ICO provides detailed information on the steps to be gone through if COVID status information is to be asked for, and held – here.

Framework for Better Regulation (UK)

The government yesterday initiated a consultation on its plans to reform its Framework for Better Regulation. The consultation is here.

Better Regulation is a principles-led process of evaluating legislation before it’s proposed and enacted, and then after it is enacted. Better Regulation also exists at EU level.

In the UK, (per the explanation in the document) –

Better Regulation is designed to ensure that government regulation is proportionate and is only used where alternative non-regulatory approaches would not achieve the desired policy outcomes. The framework enables ministerial decisions to be based on robust analysis of the costs and benefits of different options, including the direct costs on businesses, and means that decision making is clear and transparent. The framework helps ensure that new burdens are only imposed where there is clear evidence they will generate sufficient benefits for society, and that measures are implemented and enforced in a way that is easier for businesses to deal with.

The revisions propose increasing the outcomes orientation of regulation –

(1) delegating more power and discretion to the UK’s regulatory bodies, removing many of the detailed rules in the existing statutory frameworks to make them less prescriptive (replacing them with outcomes to be achieved), and allowing the regulatory regime to be shaped more by case law.

(2) Parliament should set out only what is prohibited or the outcomes to be achieved, in plain English, and set out any parameters within which regulators would need to operate to meet these outcomes, but then giving regulators appropriate powers and discretion over how to do so, rather than legislation setting out all of the rules that businesses have to comply with in detail.

(3) regulators would still set out some detail in rules and guidance but would have flexibility to change these without having to petition the Government to introduce further legislation. This would give regulators the freedom to regulate based on whether the outcomes set by Parliament are being achieved rather than whether a particular rule has been followed. Where regulators provide for detailed rules or processes, they would also be able to provide for exemptions and waivers to reach the outcomes set out by Parliament in the most sensible way.

The Government wants to identify areas where the envisaged benefits of a move to a less codified, more common law focused approach are likely to be the greatest, and areas where the Government should be more cautious about adopting such an approach.

The government is also seeking responses on its proposals to replace the Precautionary Principle with a Principle of Proportionality. Pages 21 and 22 in the consultation document set this out. This would be a major departure.

Please read the other sections of the document for further questions.

Consultation ends 1st October 2021.

[if the focus changes to a more outcomes-led Regulation in the UK (Britain) in this manner, then we would, in Cardinal Environment, need to start analysing and reporting on case law (i.e. the common law as this document puts it) in this jurisdiction]

EU Eco-design & labelling rules (Britain)

The UK government has decided to introduce EU Ecodesign and Energy labelling rules for lighting products in Britain in 2021 (if there is parliamentary time).

The UK government decision is set out here, and here.

In the EU from 1 September 2021, the existing rules under Regulation (EU) No 874/2012 will be repealed and replaced by new energy labelling requirements for light sources under Regulation on energy labelling for light sources (EU) 2019/2015

The new EU rules will use a scale from A (most efficient) to G (least efficient), the new labels will give information on the energy consumption, expressed in kWh per 1000 hours and have a QR-code that links to more information in an online database.

In the EU, with the new regulation, most halogen lamps and the traditional fluorescent tube lighting, which are common in offices, will be phased-out from September 2023 onwards.

Note : the UK government earlier decided to rescale the energy labels for some energy-related products from 1 March 2021, following the EU. The legislation is not yet adjusted. The Office for Product Safety and Standards (OPSS) issued technical notices, and the UK government updated the information on gov.uk and responded to email queries from businesses. I blog posted at the time about this change. The updated guidance is found in the Brexit Guidance List on subscribers’ Cardinal Environment Limited EHS Legislation Registers & Checklists.

Note (2) : the EU rules will apply in Northern Ireland by virtue of the Northern Ireland Protocol.

EU REACH and UK REACH (UK from 1st Jan)

Like CLP (see my blog post on CLP), the key principles of the European Union (EU) REACH Regulation are retained. This document is included (separated into four line entries) in our Brexit Consolidated Law project (the coloured list in Cardinal Environment EHS Legislation Registers & Checklists).

From 1 January 2021, UK REACH and EU REACH will operate independently from each other. Companies that are supplying and purchasing substances, mixtures or articles to and from the EU/EEA/Northern Ireland and Britain (England, Scotland and Wales) will need to ensure that the relevant duties are met under both systems.

EU REACH will apply to Northern Ireland from 1st Jan, while UK REACH will regulate the access of substances to the GB market.

GB- based Businesses holding EU REACH Registrations (in ECHA)

The EU REACH registration will be (and must be) legally recognised (grandfathered) in the UK REACH system after 31st Dec, but information will be supplied to the HSE (the UK REACH regulator) via an account (the holder sets up) on the new UK REACH IT system.

* initial information on the existing EU REACH registration within 120 days of 31st Dec.

* technical information (required under UK REACH) within 300 days plus either 2, 4 or 6 years of 31st Dec. The deadline depends on the tonnage and/or hazard profile of substances.

Grandfathering will be available (and will be required) for all registrations (including intermediates) held by GB-based entities, including importers and Only Representatives (ORs) based in Britain, and to sole, lead or joint registrants.

All GB-based registrations that exist on 31st Dec, and all registrations held by GB entities at any point since 29 March 2017 will be grandfathered. This means that if a GB registration was transferred to an EU/EEA/NI-based entity in the run-up to 31st Dec, it will still be grandfathered into UK REACH.

Grandfathering will not apply to registrations held by entities established outside of Britain, regardless of whether they are part of a group of companies which also has a presence in Britain. Those registrations will not be grandfathered, unless they have been transferred to a GB entity before 31st Dec.

Before transferring any registrations, the HSE asks you to consider how this would affect your operations in the EU/EEA and Northern Ireland, and your ability to access the EU/EEA and NI markets in future.

The HSE says any ECHA decisions relevant to a registration(s) will remain valid.

Access to the technical information used for EU REACH registration may require renegotiating commercial contracts/letters of access which were originally put in place for EU REACH under a Substance Information Exchange Forum (SIEF).

UK REACH will not require GB companies to form a Substance Information Exchange Forum (SIEF) to submit registration data, including under the grandfathering provisions. UK REACH will include a similar Article 26 substance inquiry system to EU REACH to facilitate the principle of ‘one substance, one registration’ which will be retained under UK REACH.

This link gives access to HSE details of the information that must be submitted (scroll down)

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied from the EU/EEA – read here.

GB- based businesses importing non EU/EEA substances Businesses that act only as importers of substances will not be able to appoint an Only Representative (OR) under EU REACH (only a manufacturer, formulator or producer of articles can do so). This means that, as a GB-based importer, you will not have the option to transfer your EU REACH registrations to an EU-based entity OR to continue selling into the EU/EEA or Northern Ireland.

To sell chemicals to EU/EEA or NI customers you should:

* help your EU/EEA and NI-based customers to register with ECHA as importers

or

* work with the non-EU/EEA or NI-based manufacturer who supplies you to encourage them to appoint an OR based in Northern Ireland or an EU/EEA country, who can register the substance with ECHA. The HSE advises you will need to consider in each case whether this registration will be sufficient to allow you to export the substance into the EU/EEA or Northern Ireland.

For mixtures to be placed on the EU/EEA or NI markets you should ensure that each substance at one-tonne or over is registered with ECHA in accordance with EU REACH directly by someone EU-based in your supply chain (again see above re OR).

GB- based Businesses holding EU REACH Authorisations (in ECHA)

Again, these will be grandfathered. The deadline here is 60 days from 31st Dec for information supply to HSE –

* the information included in the application for the authorisation

* any other information provided to ECHA by the applicant for the authorisation which was material to the formation of ECHA’s opinion

* any information required to be submitted or recorded before 31st Dec under any condition under which the authorisation is granted.

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied by anyone with an EU REACH authorisation – read here.

Link to HSE information for GB- based Businesses bringing to GB NI- registered goods under EU REACH (qualifying Northern Ireland goods – QNIGs) – here.

Link to HSE information for NI- based businesses trading QNIGs – here.

Note : see above re GB holders of EU REACH registrations.

LINK to HSE for further scenarios.

EU CLP and GB CLP (UK from 1st Jan)

I mentioned GB CLP yesterday in my blog about publication of the new rules for Northern Ireland.

From 1 January 2021, the European Union (EU) CLP Regulation will be replaced in Britain by retained EU law – the GB CLP Regulation. The GB CLP Regulation will be added to Cardinal Environment EHS Legislation Registers & Checklists, and is included in our Brexit Consolidated Law project (the coloured list).

Businesses based in Britain (England, Scotland and Wales) that place chemicals (substances and mixtures) on the GB market will comply with the GB CLP Regulation (not the EU CLP Regulation) from 1st January.

GB CLP Agency

GB-based businesses supplying the GB market with chemicals (substances and mixtures) will deal with the Health and Safety Executive (HSE) as the GB CLP Agency instead of the European Chemicals Agency (ECHA).

GB Notification

GB-based businesses will notify the GB CLP Agency (not ECHA) of the classification and labelling of the substances they place on the GB market, whether on their own or in mixtures, where they meet the criteria for notification (please check that notification is not required if the substance is subject to UK REACH registration).

GB mandatory classification and labelling (GB MCL)

GB-based businesses will classify and label their substances, where required, in accordance with GB MCL and with the entries in the GB MCL list hosted and managed by the GB CLP Agency.

Downstream users and distributors supplied from the EU/ European Economic Area (EEA)

GB-based downstream users or distributors supplied from the EU/EEA will be importers after 31st December if these supply arrangements continue. 

Exporting to the EU/EEA

Responsibility for the classification, labelling and packaging of chemicals exported to the EU/EEA from Britain will rest with the EU/EEA-based importer.

Unchanged from 1st Jan 2021 –

The main duties on GB-based businesses i.e. manufacturers, importers, downstream users and distributors (“suppliers”) to classify, label and package the chemicals (substances and mixtures) they place on the market under the GB CLP Regulation will stay the same.

Classification

From January 2021, GB-based manufacturers, importers and downstream users will still classify substances and mixtures) i.e. identify any hazardous properties, before they place them on the GB market.

Labelling

Manufacturers, importers, downstream users and distributors based in Britain will still label substances and mixtures to reflect their hazard classification before they place them on the GB market.

There are no changes to requirements for when GB CLP Regulation labelling appears alongside those for transport (dangerous good transport).

Packaging

There are no changes to packaging requirements. Substances and mixtures placed on the GB market must still be safely and securely packaged. Requirements for child resistant closures and tactile warning devices will remain in place.

Responsibility to identify health, environmental and physical hazards 

All suppliers based in Britain will continue to be responsible for identifying, examining and evaluating available scientific and information on substances and mixtures relating to possible physical, health or environmental hazardous properties of chemicals. This is to ensure all the requirements of classification, labelling and packaging are fulfilled.

Testing arrangements 

Testing arrangements for chemicals, including a ban on testing on humans or primates for the purposes of the GB CLP Regulation, will still apply.

Relationship with UN GHS

The GB CLP Regulation, as retained EU law, will continue to adopt changes to the United Nations Globally Harmonized System of classification and labelling of chemicals (UN GHS) in a similar way to the EU CLP Regulation.

Northern Ireland- based Businesses

The EU CLP Regulation will apply in Northern Ireland. This will mean that:

* chemicals (substances or mixtures) placed on the market in Northern Ireland will comply with the EU CLP Regulation (not the GB CLP Regulation)

* Northern Ireland- based businesses will notify ECHA (not the HSE) of the hazard classification and labelling of the substances they place on the NI market, for inclusion in the EU Classification and Labelling Inventory, whether on their own or in mixtures, where they meet the criteria for notification (notification is not required if the substance is subject to EU REACH registration)

* Northern Ireland-based downstream users and distributors who are currently supplied by businesses in the EU/EEA will not face any new EU CLP Regulation requirements if these supply arrangements continue (GB businesses will be importers – see above)

Responsibility for the classification, labelling and packaging of chemicals traded from Britain to Northern Ireland will rest with the Northern Ireland based business who places the chemical on the Northern Ireland market even if it is currently a downstream user or distributor.

NI- based businesses placing goods on the GB market must study the new Rules for Northern Ireland published yesterday. Please note the relevant clauses of the Internal Market Bill are dropped (and the HSE Guidance is not yet updated).

Link to HSE.

UK implementation of Ireland/Northern Ireland Protocol (Northern Ireland)

The UK government has today published its approach to implementing the Ireland-Northern Ireland Protocol of the Withdrawal Agreement that was signed with the European Union.

The Protocol sets up special arrangements that stem from the Withdrawal Agreement and apply in Northern Ireland from 1st January 2021, until at least 2024, when the first four-year consent vote process contained in the Protocol is initiated.

The Protocol covers a range of areas: human rights, the Common Travel Area, customs and trade, regulation of manufactured goods, the Single Electricity Market, some limited state aid provisions, and VAT and excise. The paper published today sets out the UK’s thinking in all of these areas. But the core of the Protocol is the provisions on customs and trade. It is these areas which are covered in most detail in the document.

It is the responsibility of the UK Government and UK authorities to give effect to the Protocol in Northern Ireland. The Protocol has as Annex 2, a list of EU law that will continue to apply in Northern Ireland – at least 2021 to 2024.

The UK approach is set out in a Cabinet Office Command Paper – here.

The paper sets out four key commitments that will underpin the UK Government’s approach to implementing the Protocol:

• There will be unfettered access for Northern Ireland’s producers to the whole of the UK market and this will be delivered through legislation by the end of the year.

• No tariffs will be paid on goods that move and remain within the UK customs territory

• Implementation of the Protocol will not involve new customs infrastructure – with any processes on goods moving from Great Britain to Northern Ireland kept to an absolute minimum so that the integrity and smooth functioning of the UK internal market is protected.

• Northern Ireland’s businesses will benefit from the lower tariffs delivered through our new Free Trade Agreements with countries like the United States, Australia, New Zealand and Japan – ensuring Northern Ireland firms will be able to enjoy the full benefits of the unique access they have to the GB and EU markets.

Today’s publication also sets out plans to establish a new business engagement forum, which will meet regularly to allow Northern Ireland’s businesses to put forward proposals and provide feedback on how to maximise the free flow of trade. The Northern Ireland Executive will be invited to join the forum.

The Withdrawal Agreement is administered by a Joint EU-UK Committee set up under the Agreement, and both the Agreement and the Protocol have dispute mechanisms.

More detail is expected, and accordingly I will write more Blog posts.

Truckers’ Mobility Package (EU)

Two new EU Regulations and one EU Directive are being adopted imminently.

The Market Access Regulationhere – will become applicable 18 months after the Regulation enters into force

The Market Access Regulation sets rules on transport operations carried out within a national market outside a transport operator’s own country (‘cabotage’), the current system allowing a maximum of 3 operations in 7 days will remain unchanged. To prevent systematic cabotage, a ‘cooling-off’ period of 4 days will be introduced before further cabotage operations can be carried out in the same country using the same vehicle. A member state may apply these same rules to road legs of combined transport in its territory.

The Market Access Regulation will not apply in the UK.

The Posting Directivehere – will also become applicable 18 months after the Directive enters into force

The Posting Directive clarifies rules on the posting of drivers specifically how professional drivers in goods or passenger transport will benefit from the principle of the same pay for the same work at the same place. The general rule will be that if an operation is organised in such a way that the link between the driver’s work and the country of establishment remains intact, the driver will be excluded from posting rules. This means that bilateral transport operations are explicitly excluded. On the way to the destination country and on the way back, one additional activity of loading and/or unloading goods is permitted in both directions without falling under the posting regime, or there may be zero activity on the way out and up to two activities permitted on the way back. Transit is also excluded. For all other types of operations, including cabotage, the full posting regime will apply from the first day of the operation. Similar rules will apply to the carriage of passengers, with one additional stop during bilateral operations. The posting rules will also create a unified control standard, based on a communication tool developed by the Commission, to which the transport operator can send its posting declarations directly.

The Posting Directive will not apply in the UK.

The Driving Times Regulationhere – will apply 20 days after publication, with the exception of special deadlines for tachographs

The rules on maximum work and minimum rest times for drivers will remain unchanged. However, a degree of flexibility will be introduced in the organisation of work schedules for drivers in international freight transport to enable them to spend more time at home. Drivers will also have the right to return home every three or four weeks, depending on their work schedule.

The new rules confirm that the regular weekly rest period (at least 45 hours) must be spent outside the vehicle. If this rest period is taken away from home, the accommodation must be paid for by the employer.

Although the regular weekly rest period cannot be taken in a parking area, the EU will promote the construction and use of safe and secure parking areas. The Commission will develop standards and a certification procedure for such parking areas through secondary legislation. It will also create a website to make it easier to find these areas.

The Driving Times Regulation will apply in the UK, as Retained EU Law.

The three documents are, however, linked, it is a package. Since one will apply in the UK and the others will not, we will need to wait further instruction on the detail.

For example (re linkage) – to ensure a level playing field between operators using different vehicles, rules on access to the European road haulage market, as well as driving and rest-time rules, will be extended to cover vans used in international transport (light commercial vehicles of over 2.5 tonnes), with a transition period of 21 months for market supervision, and until the middle of 2026 for tachograph and rest‑time rules.

Also (re linkage) to combat the phenomenon of ‘letterbox companies’, the new package tightens the link between the transport operator’s place of establishment and its activities. To ensure that the link is genuine, trucks in international transport will have to return to the company’s operational centre at least once every eight weeks. This eight-week period is designed to allow drivers to return home, together with the vehicle, at the end of their second four-weekly work cycle.

One key element for improving enforcement is having a reliable way to register when and where the truck has crossed a border and to localise loading and unloading activities. The second version of the smart tachograph will do all this automatically. It will be introduced in three different stages for vehicles carrying out international transport. New trucks will have to be fitted with this device in 2023; those vehicles which have an analogue or digital tachograph will have to be retrofitted by the end of 2024; and those equipped with a ‘version 1’ smart tachograph, in 2025.

To improve cross-border monitoring of compliance, the text also modernises the rules for information sharing and administrative cooperation between member states.

Ecodesign – External Power Supplies (EU)

A 2009 dated EU Directive 2009/125/EC establishes a framework for the setting of ecodesign requirements for energy-related products. Separate EU Regulations set ecodesign specifies for individual product groups within this framework.

A 2009 dated EU Regulation (EC) No 278/2009 set the ecodesign requirements for external power supplies, and this is now reviewed and updated.

EU Regulation (EU) 2019/1782 now sets the new ecodesign requirements for external power supplies from 1st April 2020 (and Regulation (EC) No 278/2009 is repealed from that date). The new EU Regulation is here. It specifies energy efficiency requirements.

EU Regulation (EU) 2019/1782 applies to all external supplies as defined in Article 2, except a short list set out in Article 1.

The updated European Regulation applies to the EU member states, including the UK (where it will be regarded as Retained EU Law).

Brexit and COVID-19 measures (EU)

The UK left the EU at end of January 2020, and will leave the transition period at end of December 2020.

The World Health Organisation (WHO) declared COVID-19 a pandemic on 11th March 2020.

These two events are prompting substantive changes in many occupational, health and safety, and environment related measures in EU member states and at EU level.

The EU’s Brexit measures are found here.

[the first round of negotiations on a trade deal with the UK to operate from 1st January 2021 was held 2-5 March, the second round is not scheduled]

[the EU published a new draft legal text on 18 March here, new UK legal texts submitted to the EU in March are not published]

The EU’s COVID-19 measures are found here.

[note the measures announced to keep air cargo moving – here]

The EU’s Brexit and the COVID-19 measures are rooted in law. Cardinal Environment Limited advises on occupational health and safety law and environmental law via Email Alert to subscribers to Cardinal Environment EHS Legislation Registers & Checklists. The next Email Alert on EU-26 Registers & Checklists will be at the next 6-month interval (as usual). Ireland receives monthly Email Alerts due to its connectivity with the UK (its next Email Alert is end of March unless otherwise a different interval is operated).

Subscribers are reminded that they can request Annual Review (a teleconference) on renewal of annual subscriptions, and this is recommended.

Of particular note are –

(1) changes around borders, goods transport and people mobility to keep the Single Market open during the COVID-19 pandemic

(2) measures that may result from the EU-UK trade deal negotiations

Individual member states will be operating internal COVID-19 emergency –

(1) changes around workplace organisation, particularly additional requirements to keep the workplace safe and provide for home working

(2) temporary bans on the opening of some business premises on health grounds

(3) changes around worker employment (this Blog does not address detailed matters of Employment Law)

Explosives Precursors from 1 Jan (UK Brexit)

The UK has not confirmed that it’s explosives precursors regulation system will continue in its current form after 1 January 2021. No notice is yet issued.

The matter is presently addressed (for the EU27) by a 98/2013 EU Marketing and Use Regulation, that will be replaced on 1st February 2021 by a 2019/1148 EU Explosives Precursors Regulation.

In the UK, this 2013 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems). There is also domestic law.

The current UK explosive precursors regulation system is explained (2018) here.

The 2019 EU Regulation tightens controls (for the EU27 from 1st Feb 2021) on “explosives precursors”—chemical substances that have a legitimate purpose but can also can be used in home-made explosives—to keep pace with the evolving security threat.

The changes will further restrict access to explosives precursors and clarify the rights and obligations of those involved in the supply chain. It will distinguish between ordinary members of the public, who would require a licence to purchase restricted explosives precursors above a specified concentration limit, “professional users” who need the substances for their own trade, business or profession, and “economic operators” who trade in them. Professional users will not require a licence but will have to explain the purpose for which restricted explosives precursors were to be used. This information will then be available to EU27 national law enforcement and inspection authorities.

Until a UK notice is issued on the matter, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – that have explosives precursors included in their systems – will have the 2013 EU Regulation (repealed in EU27 on 1 Feb 2021) in the Retained EU Law section of the Registers. The 2019 EU Regulation (applicable in the EU27) will appear below Guidance, with other supplied EU Law (applicable in EU27). They will also have the domestic law.