EU Law Revocation (Britain)

Yesterday 22 September ’22, the UK government introduced its bill to revoke and reform en masse (by 31 Dec 2023) retained EU law and domestic subordinate law documents (statutory instruments – Regulations) that draw their power from sections of the 1972 European Communities Act (specifically section 2(2) or paragraph 1A of Schedule 2).

The revocation and reform bill is here.

I will be outlining in the next (September) Email Alert how we will deal with this in Cardinal Environment EHS Legislation Registers & Checklists (Britain, England, Wales and Scotland).

Re OHS – the impact will be felt on Equipment Regulations (not LOLER), and Product Regulations (including obviously UK REACH and safety data sheets). Also the Working Time Regulations.

But Equipment Use Regulations, COSHH, DSEAR, Carriage of Dangerous Goods, the Management Regulations and the Workplace Regulations will be unaffected.

Re ENV – the impact will be substantial in Waste. Also EIA and Habitats and Species Regulations will be re-written (I had already written about this in the blog). Note the Office for Environmental Protection (England) has an investigation underway into the EIA, SEA and Habitats Regulations. This link gives access to written evidence to the Levelling Up and Regeneration Bill Committee, which gives further information.

ODS and F-Gas similarly will require new domestic law.

31st December 2023 is the sunset date written into the Bill.

We will set up a document tracking list, with traffic light colours, as we did with the Brexit law changes that operated from 1st Jan 2021 (the Brexit Consolidated Law list).

It is expected that the relevant government departments will commence review of each affected instrument, and that “reformed” domestic law will be enacted. The new document tracking list will identify progress, to customers of our Cardinal Environment EHS Legislation Registers & Checklists. The Email Alerts will Alert of enactment of new instruments.

This is a complex area. If there are further developments, for example to the sunset date, then I will issue further blog posts.

The EU Law revocation extends to all parts of Britain, but ENV legislation is delegated, so variations might emerge (particularly on timescales).

The EU Law revocation does not currently extend to Northern Ireland.

If you have questions, and you are a client, please send your questions to me by email. Questions asked on this blog post will not be answered.

The above is NOT a full description of the instruments affected. Clients will have the document tracking list inserted in their systems in Jan 2023. The specifics of how we will handle this will be in the September Email Alert (as mentioned above).

Habitats and Water Abstraction Court Case (UK)

On 6th September ’22, the High Court granted judicial review of an Environment Agency decision in 2021 to restrict their investigation of water abstraction impacts on Sites of Special Scientific Interest (SSSI) in Norfolk. The judgment is here. Local press is here.

The claimants were private citizens, farmers, living in the Norfolk Broads, freehold owners of a fen and other land, and concerned that water abstraction (for food production primarily) is causing irremediable damage to the environment, their own land, including ecosystems that are legally protected. Their intervention had been on going for 14 years, and had already been instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. They successfully supported the Environment Agency’s decision to vary the two licences when that decision was challenged on appeal.

The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.

Groundwater is water that is present in the ground. Many ecosystems (habitats and species) are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991.

Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred. For this reason, Natural England (which has statutory responsibility for providing advice to the Environment Agency and others) is an interested party and had advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.

The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long- term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.

The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. The court case is the claimants challenge, seeking judicial review, of the Environment Agency’s refusal to expand the scope of an investigation that it had conducted in 2021 into the effect of 240 abstraction licences. That investigation concerned the impact of abstraction on just three Sites of Special Scientific Interest (SSSIs).

The Environment Agency accepts that it must have regard to article 6(2) of the pre-Dec 2020 European Habitats Directive. It maintained that it had done so and that it had, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputed that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. Irrespective, it maintained that it was acting compatibly with the requirements of article 6(2).

The High Court determined that the GB Habitats Regulations (2017) continue to have effect in domestic law even though they are EU-derived domestic legislation: by means of sections 1B(7) and 2(1) of the European Union (Withdrawal) Act 2018specifically –

“The Habitats Regulations are thus retained EU Law: section 6(7) of the 2018 Act. It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law: section 6(3) of the 2018 Act.

” Questions as to the meaning and effect of retained EU law (so, including the Habitats Regulations, and the obligation under article 6(2) which continues to have effect under section 4) must be decided in accordance with retained general principles of EU law: section 6(3)(a). The precautionary principle is a retained general principle of EU law: section 6(7).

The High Court decided on 4 matters –

(1) The ambit of the obligation, under regulation 9(3) of the GB Habitats Regulations (2017), to “have regard” to the requirements of the pre-Dec European Habitats Directive, including whether that mandates compliance with article 6(2) of that Habitats Directive.

Decision – “…. the duty to “have regard” here does not implicitly permit the Environment Agency to act in a way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.”

“The duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed.”

“It is clear from all of the contemporaneous evidence (including internal emails) that the Environment Agency has regarded itself as bound by the Habitats Directive and has sought to act in compliance with its requirements”

(2) Whether article 6(2) of the pre-Dec 2020 Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021.

Decision – “…. by reason of section 4 of the 2018 Act, article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly.”

Detail – “The parties agree that the question of whether article 6(2) is enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turns on the application of section 4(2)(b) of the 2018 Act, namely whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.”

“… That test is satisfied once a case is identified that recognises article 6(2) as being enforceable in domestic proceedings. The statute expressly provides that it is not necessary for that to be an essential part of the court’s decision. It is not relevant to the section 4(2) test to enquire as to whether the case was correctly decided or was decided per incuriam. The position might be different if the decision had been overturned on appeal, or later overruled, but that is not the case here.”

(3) Whether the Environment Agency has breached article 6(2) of the pre-Dec 2020 Habitats Directive by limiting its investigation of water abstraction to the three SSSIs.

Decision – “The claimants have demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.”

4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs.

Decision – “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the RSA programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It follows that even if (contrary to the findings I have made in respect of issues (1) and (2)) article 6(2) is not enforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds. On this basis, the claimants’ rationality challenge also succeeds.”

Summary

(A) The claimants showed that water abstraction may be causing deterioration of protected habitats or significant disturbance of protected species within The Broads Special Area of Conservation.

(B) The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the pre-Dec 2020 Habitats Directive. It must therefore be in a position to justify any departure from those requirements. The Environment Agency’s obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act. That obligation must continue to be interpreted in accordance with the precautionary principle: section 6 of the 2018 Act.

(C) The Environment Agency must take appropriate steps to ensure that, in the SAC (pre-Dec 2020 European Habitat designation adopted in UK law and applied to areas of Norfolk, including SSSIs), there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.

(D) Having decided to comply with article 6(2), it was not rational for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC.

The High Court will issue Directions.

This was a court case in which the claimants relied on a pre-Dec 2020 EU Directive to gain relief. The judgment confirmed the direct influence of EU Law if, prior to 1st Jan 2021, those rules had been found by a court (the CJEU or a local UK court) to be directly enforceable against public authorities.

The Prime Minister has promised to remove the influence of EU Law by end 2023. Please note my Blog post of some days ago re the forthcoming EOR Regulations (which when enacted may alter or revoke the 2017 Habitats Regulations).

The new DEFRA Secretary has cited water security as a key objective, along with food supplies.

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).