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.

EU Law in UK 2021 (UK Brexit)

I am being asked about 2019 dated EU Law and its application to or implementation in the UK from 1st January 2021. For example,

* 2019 amendments to the Carcinogens Directive

* 2019 Single-Use Plastics Directive

* 2019 Explosives Precursors Regulation

UK (EU Exit) Statutory Instruments (regulations) and sections of Brexit Bills make changes to the existing statute base, and adopt EU Regulations (not Directives), to enable a standalone statute base as at the end of the Transition Period. This work project can be followed in the supplied Brexit Law List and the Brexit Consolidated Law List.

From 1st January 2021, we will reflect this in the content and the changed structure of the Cardinal Environment EHS Legislation Registers & Checklists for GB systems. Retained EU Law (labelled Brexit Retained EU Law) will replace EU Law at the head of the Registers.

EU Law (applying in EU27) will still be supplied, but it will be found at the base of the Registers, below Regulatory Guidance.

The Checklists and Summaries will be adjusted.

The systems for individual EU27 countries are unaffected, obviously, their content and Register layout will stay as is.

Northern Ireland is a special case, some EU laws (covered by the Withdrawal Agreement) will continue to show at the head of the Registers (a second category labelled Withdrawal Agreement EU Law), the rest will show, as for GB Registers, at the base of the Registers. The Checklists and Summaries will be adjusted.

We are working to a deadline of 31st December 2020 for this system content and Register layout change, and the system navigation is already altered to provide for it.

From 1st January 2021, if a 2019 EU Law is mirrored in GB (Withdrawal Agreement listed Goods EU Law will be mirrored in Northern Ireland), this will be via enactment of new UK/GB Law. Such new UK/GB law will appear in the normal centre of the Registers, and be Email Alerted in the normal way.

From 1st January 2021, GB system Email Alerts will focus on UK/GB Law.

Northern Ireland system Email Alerts will include Listed Withdrawal Agreement Goods EU Law.

EU27 system Email Alerts will continue as is.

This Blog will continue to be used for heads-up, including EU Law more widely, as it is used by all subscribers.

Regulatory Support will continue to handle all enquiries, irrespective of the category of law.

Emissions Trading Systems (UK Brexit, EU, Switzerland)

As of 1 January 2020, Switzerland is the first country to link its greenhouse gas emissions trading system (SETS) with the EU emissions trading system (EU ETS).

A process that took almost 10 years, is now finalized allowing the entry into force of the entire agreement between the EU and Switzerland on the linking of their greenhouse gas emissions trading systems that was signed in Bern on 23 November 2017 (Agreement).

The EU and Switzerland operate separate greenhouse gas emissions trading systems (ETS) as part of their respective policies to tackle climate change. After the Agreement’s entry into force in 1 January 2020, the SETS is now linked to the much larger EU ETS to allow for the mutual recognition of emission allowances from the two system.

The UK, whilst in the transition period, participates in the EU ETS, and the 2018 suspension applicable to UK auctioning and issuing 2019 allowances is lifted (with access to UK registry accounts continuing). Please confirm this with BEIS.

The UK has a hitherto unused Carbon Tax on its statute books, and has closed its wider (non EU ETS) existing ETS (the CRC carbon trading system). From 1st January 2021, it could seek to continue a UK version of the EU ETS with mutual recognition of allowances between the UK and the EU systems. The linking of the (Switzerland) SETS with the EU ETS would be a reference point for such negotiations.

China, Canada, Japan, New Zealand, South Korea and the United States are operating or are developing ETSs.

Further information is in this article – here.

EU Single-Use Plastics Directive (UK alignment)

From 1st January 2021, the UK is outside the EU-UK Withdrawal Agreement transition period.

Northern Ireland – EU Law on goods (includes Environment) continues to apply.

Scotland – a ban on cotton buds is already in place

England – plastic straws, stirrers and cotton buds ban will come into force in April 2020

Wales – the Welsh government will consult

The EU Single-Use Plastics Directive was published in 2019, Member States have two years to implement, some aspects a bit longer – here.

The 2019 Directive mandates a reduction in the consumption of the single-use plastic products listed in Part A of the Annex, in line with the overall objectives of the EU’s waste policy, in particular waste prevention, leading to a substantial reversal of increasing consumption trends. The measures (put in place in member states) should achieve a measurable quantitative reduction in the consumption of the single-use plastic products listed in Part A of the Annex on the territory of the Member State by 2026 compared to 2022.

The 2019 Directive also mandates a ban on the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic.

The 2019 Directive also obliges Member States to ensure that single-use plastic products listed in Part C of the Annex that have caps and lids made of plastic may be placed on the market only if the caps and lids remain attached to the containers during the products’ intended use stage.

The 2019 Directive sets out further measures.

10 Changes after Friday (UK & EU Brexit)

Exit day is Friday (12pm CET, 11pm UK time)

10 immediate changes (credit – online article of this title at ukandeu.ac.uk) – my summary

(1) The UK will no longer be an EU member state

The EU will officially become of a union of 27 rather than 28. If the UK wants to be an EU member again it would have to reapply and negotiate to rejoin.

(2) The UK will no longer have any MEPs

UK MEPs, elected in May 2019, will no longer sit in the European Parliament. Around a third of the UK’s 73 seats will be redistributed to other countries. The overall size of the Parliament will be reduced.

(3) The UK will no longer have a commissioner

Julian King was the last UK commissioner. The UK did not nominate a new candidate to the European Commission that started on 1 December, despite requests from the Commission to do so.

(4) The UK Prime Minister will stop attending European Council summits

These summits—the meetings of the heads of state and government of the EU—have become a fixture of the EU calendar and tend to be the most high-profile of all EU activities.

The UK Prime Minister will no longer have an invitation to attend, except on rare occasions where a EU-UK meeting is tacked on to a summit.

In fact, the European Council in October was the current UK prime minister’s first and last European Council meeting as prime minister.

(5) UK ministers and officials will not attend other Council meetings

It’s not just the prime minister that has been going to meetings in Brussels. For the last 47 years, UK ministers (or their officials) have regularly attended Council meetings.

Last week, Sajid Javid went to the UK’s last Economic and Financial Affairs Council. In early January Dominic Raab joined other EU foreign ministers at a meeting to discuss Iran.

The Withdrawal Agreement allows for the possibility that the UK could be invited to attend meetings in exceptional circumstances, if the topic is relevant to the UK-EU relationship.

Chris Pincher, the UK’s Europe minister, attended the UK’s last Council meeting on 28 January.

(6) UK judges will no longer sit at the European Court of Justice

British judges—Eleanor Sharpston, Ian Stewart Forrester and Christopher Vajda—will no longer be members of the two courts that form the Court of Justice of the European Union: the Court of Justice and the General Court.

Rulings on the application and interpretation of EU law, which will still apply to the UK in the transition period, and in some cases beyond, will be taken with no input from British judges.

(7) EU law will apply to the UK, not as a member state but via the EU-UK Withdrawal Agreement (an international treaty)

EU law will continue to apply in the UK during the transition period.

However, it will be determined by the UK’s obligations under the Withdrawal Agreement, rather than as a Member State.

The 2020 UK Withdrawal Agreement Act effectively copies over the effects of the European Communities Act for the transition period to ensure legal continuity.

[note : I have a new category for EU Law in UK 2021 because we are waiting clarification on long tail implementation, law by law, of particularly 2019 EU instruments]

(8) The UK will be able to start trade deals with other countries

From 11pm on 31 January 2020, the UK will be able to negotiate, sign and ratify trade agreements with other countries. Implementation will be after the transition period.

While the UK in transition, the EU has asked other countries the EU has trade deals with already to continue to treat the UK as a member state for trade purposes. The intention is that these other countries should agree to the status quo during the transition period.

The UK has already agreed to roll over the EU’s existing trade deals with around 20 countries and trade blocs, and it has held preparatory talks with others which it needs to complete by the time transition ends.

But it can also start formal negotiations with other countries with whom the EU has not had a deal before, something it can’t do as an EU member.

(9) EU member states may refuse UK extradition requests for their citizens

Under the European Arrest Warrant, member states must comply with requests to arrest and/or extradite individuals who are wanted in other member states, with only some limited grounds for refusal.

This includes a time limit of 60 days to comply and member states cannot refuse to extradite their own nationals, except in limited circumstances.

The Withdrawal Agreement allows both EU member states and the UK to refuse to comply with such requests from the start of the transition period.

(10) Formal interactions with EU will take place through the UK-EU Joint Committee

While the UK was a member state it had a myriad of formal interactions with other member states and EU officials within the EU’s many institutions, bodies and agencies.

That ceases at 11pm on 31 January 2020.

Instead, a new body will be set up—the UK-EU Joint Committee—whose main job will be to oversee the implementation and application of the Withdrawal Agreement. This is of particular importance in Northern Ireland.

This will likely also become the body through which the UK and the EU manage any future trade agreement, as well as other treaties reached on matters like security and police co-operation.

EU Law in UK 2021 (3) (Northern Ireland Brexit)

Exit day is next Friday.

The UK states the Transition Period will end on 31st December, and not a later date.

From 1 Jan 2021, whilst GB will not accept new EU law with implementation dates beyond the end of the Transition Period, Northern Ireland will stay aligned with those EU rules that are relevant to this Blog –

(1) legislation on product requirements

(2) sanitary rules for veterinary control (“SPS rules”)

(3) rules on agricultural production and marketing

Annex 2 to the (Withdrawal Treaty Northern Ireland/Ireland) Protocol lists the areas in which Northern Ireland will stay aligned with EU product/technical standards. The areas (relevant for our purposes) are as follows:

• goods—general provisions (including product safety);
• motor vehicles, including tractors;
• lifting appliances;
• gas appliances;
• pressure vessels;
• measuring instruments;
• construction products and machinery;
• electrical and radio equipment;
• textiles and footwear;
• cosmetics and toys;
• explosives and pyrotechnics;
• medicinal products;
• medical devices;
• substances of human origin;
• chemicals;
• pesticides and biocides;
• waste;
• environment and energy efficiency;
• marine equipment;
• food—general, hygiene, ingredients, contact material, and, other matters;
• animal feed—products and hygiene;
• Genetically Modified Organisms;
• live animals, germinal products and products of animal origin;
• plant reproductive material;
• sanitary and phytosanitary standards;
• ‘other’, including provisions relating to crude oil, tobacco, crystal glass, weapons.

This means the 2019 Single-Use Plastics Directive would be implemented in Northern Ireland, as it would be in Ireland.

Northern Ireland systems (subscribers’ EHS Legislation Registers & Checklists) are marked Brexit Transition, as are GB systems and GB variants (England, Scotland, Wales), but please note the Register layout will differ (to take account of the Protocol).

Please continue to follow this Blog, as further details emerge.