What is happening re the Withdrawal Agreement (Northern Ireland Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

UPDATE : the revised Ireland/Northern Ireland Protocol is here.

Open Europe has usefully done a track changes here.

At 1.08am this morning Tony Connolly (RTE News) tweeted the following re the Customs and Consent aspects RTE News understands is agreed between the EU and UK negotiators re a new Ireland Protocol to the EU-UK Withdrawal Agreement – [I have numbered]

[the EU and the UK are presently negotiating a revised Ireland Protocol (“backstop”) to the Withdrawal Agreement (the “deal”), in the hopes that it can be agreed by the UK Parliament where the original Withdrawal Agreement had failed before]

[remember : in the original Withdrawal Agreement, the Ireland Protocol (backstop to prevent a hard land border) would kick in once the Transition/Implementation period and any time extension to it had elapsed, and it would operate until a new Free Trade Deal (FTA) had been agreed between the EU and the UK.]

[remember : if the Withdrawal Agreement is agreed, and the necessary Withdrawal Implementation Bill is enacted in the UK, then the UK exits on 31st October, but stays aligned with the EU, accepting EU Law, and the operation of the Brexit Law is delayed, until December 2020 (the end of the Transition/Implementation Period unless it itself is extended)]

(1) Customs: Northern Ireland is legally in the UK’s customs territory, but would apply the EU’s rules and procedures on tariffs.

(2) Northern Ireland would also be aligned with the rules of the single market for industrial goods and agri-food products, meaning both regulatory and customs checks and controls on the Irish Sea for goods going from Great Britain to Northern Ireland.

(3) However, the extent of the controls would be reduced thanks to a series of tariff exemptions.

(4) There would be an automatic exemption for personal goods and possessions carried by those travelling back and forth between Northern Ireland and Great Britain, or, for example, if an individual was moving house.

(5) However, there would potentially be a broader category of goods and tradable products that could be exempt from tariffs and controls if there was no risk whatsoever of such goods entering EU’s single market across the land border.

(6) These categories of goods would be decided on in the future by the Joint Committee of EU and UK officials by consensus.

(7) The Joint Committee was established in the original Withdrawal Agreement as a way for both sides to manage the new arrangements.

(8) The intensity and scope of Irish Sea checks would be limited by a risk-analysis. However, the EU would, through the Joint Committee, have a veto over which kinds of goods would enjoy an exemption from tariffs and controls.

(9) There would also be a system of rebates for goods shipped from Great Britain to Northern Ireland if those goods attracted an EU tariff that was higher than the UK tariff.

(10) Consent: The mechanism essentially provides a qualified opt-out of the revised backstop arrangements via the NI Assembly.

(11) Northern Ireland would take on the new customs and regulatory regime for four years after the end of the transition period, which is due to conclude at the end of 2020.

[presumably the date of the start of this new customs and regulatory regime could be delayed by extending the transition period, the original Withdrawal Agreement allowed for the transition period to be extended as an alternative – Tony Connolly does not say] UPDATE – the option to extend the transition period is in the Withdrawal Agreement – deadline is 30 June 2020 for UK-EU Joint Committee to decide whether to extend transition beyond 31st December 2020.

(12) At that point Stormont would have to take a view as to whether or not to opt out of the new arrangements.

[Stormont is the Northern Ireland Assembly that has not met for 1,000 days, efforts are underway to restart it]

(13) If Stormont voted to opt out, then there would be a two year cooling off period, during which all sides would have to find an alternative way of complying with the Good Friday Agreement and avoiding a hard border.

(14) If at the end of the two years no alternative was found, then the Protocol would lapse, meaning Ireland would be back to a hard border scenario.

(15) However, if the Stormont Assembly were to collapse during that period, then the default would be that the Protocol arrangements would continue to apply (ie, the revised backstop).

(16) But there will also be important variations on how Stormont votes for a potential exit.

(17) If Stormont decides to use a simple majority vote, which is seen as less favourable to the DUP, then if that vote to opt out does not succeed, then Stormont would vote again four years on an opt out.

(18) However, if Stormont decided to go for a cross-community majority vote, which is seen as more favourable to the DUP, and the vote did not pass, then Stormont would have to wait another eight years before having another opt-out vote.

[the UK has already issued its temporary arrangements for waiving customs and checks applying to goods moving from Ireland to Northern Ireland, I Blog posted about that]

EU Eco-Design & Energy Labelling (EU)

UPDATE : these new rules are now agreed – 10 Ecodesign regulations – press release – here.

The European Commission is currently working on eleven draft Ecodesign-regulations which are aimed at ecodesign requirements for various so-called energy-consuming products (the Ecodesign-regulations), and six Energy Labels.

With these Ecodesign-regulations, the Commission focuses, among other things, on the reparability of products in order to exploit a product’s full potential. The Commission aims to do this by introducing a set of repair requirements which should be met by manufacturers and importers by April 2021, in order to be able to keep marketing their products in the European Union (EU).

The current EU Eco-Design Directive is Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of eco-design requirements for energy-related products.

It establishes a framework for minimum eco-design requirements which goods that consume energy must meet before they can be used or sold in the EU. It does not apply to transport used to carry people or goods.

KEY POINTS

(1) Eco-design requirements cover all stages of a product’s life: from raw materials, manufacturing, packaging and distribution to installation, maintenance, use and end-of life.

(2) For each phase, various environmental aspects are assessed by bodies designated by EU countries. They verify aspects such as the materials and energy consumed, expected emissions and waste and possibilities for reuse, recycling and recovery.

(3) Manufacturers must construct an ecological profile of their products and use this to consider alternative design possibilities.

(4) Products which satisfy the requirements bear the CE marking and may be sold anywhere in the EU.

The Energy Efficiency Directive 2012/27/EU amended the 2009 legislation to further promote energy efficiency. It requires national authorities to do the following –

(1) Establish an indicative national energy efficiency target.

(2) Approve a long-term strategy to renovate residential and commercial buildings.

(3) Renovate, from 1 January 2014, 3 % of the total floor area of government-owned buildings.

(4) Introduce energy efficiency obligation schemes to achieve an annual 1.5 % energy saving by final customers between 1 January 2014 and 31 December 2020.

(5) Submit large enterprises to an independent energy audit from 2016.

(6) Ensure customers are billed on their actual consumption at least once a year.

(7) Inform the Commission, by 31 December 2015, of the potential for efficient co-generation and district heating and cooling.

The energy labelling requirements for individual product groups are created under the EU’s energy labelling framework regulation, in a process coordinated by the European Commission. 16 product groups require an energy label. 

Companies can create their own labels for energy efficiency using a range of labelling tools.

The ecodesign requirements for individual product groups are created under the EU’s ecodesign directive in a process also coordinated by the European Commission.

This is a list of energy efficient products Regulations: by product group – here.

This is the notice to stakeholders re UK Exit – here.

This is a FAQ on the EU Energy Labelling Regulation – here.

This is a FAQ on the EU Eco-Design Directive – here.

This is the Link to the useful CoolProducts summary of new Law proposals (the summary has links to each proposal) – here.

UK Exit Statement – the Exit day is 31st October 2019, unless these NEW EU proposals are enacted by that date, the UK is not bound (the UK is bound by existing EU law, incorporated as EU Retained Law).

Products sold IN the EU must comply.

A BBC summary is here.

UK Industrial Goods Export to EU (EU Brexit)

Exit day is 31st October 2019.

The EU issued in February a Q&A document answering questions arising on the specifics of UK Industrial Goods circulation in the European market following Exit. This document is here.

Please examine this document carefully, particularly as respects the point in the circulation when the Third Country regime would apply, and the matter of Technical Dossier transfer (Category D).

Any questions not addressed by this Q&A should be made to the UK BEIS department.

The UK has said it would permit CE marked Goods to circulate in the UK market after Exit day, as far as I can determine, this is not reciprocated by the EU (as respects UKCA marked Goods). If anyone has an update on this, perhaps they would email me it. Thank you.

[the Exit day may change, please continue to follow this Blog]

CE Mark (Ireland Brexit)

Exit day is 12th April (this Friday) – Exit time is 12.00 CET midnight

On 13th April, the UK will be a third country and UK Notified Bodies will lose their status as EU Notified Bodies. These “Notified Bodies” assess the conformity of products before they can be placed on the EU market. Once approved by the Notified Body, the CE Mark can be affixed to them.

At present, there are 1,500 Notified Bodies (NBs) in the EU, 174 operating in the UK including 50 NBs for Construction.

9 NBs are in Ireland, 3 of which are the NSAI (National Standards Authority of Ireland).  The NSAI is a Notified Body for Construction Products, Medical Devices and Non-Automatic Weighing Scales.

Irish products which currently rely on a UK Notified Body for CE marking will no longer be able to be placed on the EU market.

Irish companies with products certified by UK Notified Bodies will also not be able to continue to export these to the UK, despite the fact that the UK government issued guidance earlier in the year stating that the CE Mark would continue to be recognised for an unspecified period of time until the mark is replaced by a proposed new UKCA mark.

This is because the UK bodies which issued those CE Marks will no longer be authorised to do so by the EU. The certification would need to be transferred to an EU Notified Body.

Companies must also be mindful of the Declaration of Conformity, which is a legal document that must accompany all CE Marked products sold in the European Union and other countries which recognise the mark.

After Exit day, “distributers” of UK products in Ireland will become “importers” or, they may become authorised representatives, or they may even be treated as a manufacturer if they are marketing the products under their own brand. These roles all entail further legal obligations.

Where a product is being sourced from the UK or another country and no longer carries a CE Mark, other steps will need to be taken. The certification will need to be transferred from the UK Notified Body to an EU27 Notified Body or a new CE Mark applied for.

Further information is here.

[the Exit day may change, please keep following this Blog]

HSA Brexit Guide (Ireland Brexit)

From 30th March 2019, the UK will become a “third country”. The Health and Safety Authority (HSA) is the Competent Authority for a range of EU Regulations and Directive in Ireland.

The HSA has now issued a Brexit Overview document – here.

Cardinal Environment will be setting up a Brexit Law List for Ireland EHS Legislation Systems and Checklists, shortly. We will place this and other guidance on that list.

This HSA Brexit Overview reminds :

(1) Products imported from the UK from 30 March 2019 need to be EU compliant.

(2) Irish companies need to know the full supply chain for all their products (for example machinery, chemicals) and how it is linked to the UK or NI, including via distributors.

(3) Unless Irish companies can source their product from another EU supplier, the Irish company may become an EU importer after Brexit, with additional legal responsibility for compliance of the product with EU law. I posted about this recently.

(4) After Brexit, Irish companies will no longer be able to rely on notified bodies based in the UK to undertake 3rd party conformity assessments required under relevant EU law. They will need to source a notified body legally designated to carry out conformity assessments in the EU27.

This applies to Chemicals, Machinery, Transportable Pressure Equipment, and other classes of Industrial Products.

The above also applies in the rest of the EU27, and in the EEA.

UKCA mark (UK Brexit)

I posted earlier that the Government issued instructions on the CE mark and the new UKCA mark. This post sets out more detail.

The UK issued a technical notice on Construction Products – here.

The UK then issued instructions re the new UKCA mark – here.

A couple of points :

(1) Manufacturers will not have to use the UK marking (UKCA mark) immediately. In the event that the UK leaves the EU without a deal manufacturers will be able, for a period of time, to continue to use the CE marking when placing their products on the UK market (if their product meets the relevant EU requirements). This would include products that have had any necessary third-party assessment carried out by an EU-recognised notified body. The Government would consult businesses before taking a decision on when this period would end.

(2) Products being exported to the EU will need to carry the CE marking (CE mark) to demonstrate compliance with the relevant EU regulatory requirements.

(3) Manufacturers will need to use the UK marking if their products require third party assessment of conformity and if this has been carried out by a UK-based Notified Body (post-exit called an ‘Approved Body’). In that case you will have to apply the new UKCA marking after 29 March 2019 as the EU will cease to recognise UK notified bodies. This will not be the case if the certificate of conformity has been transferred to an EU-recognised Notified Body (in which case the CE marking would apply, and would be valid for both the EU and UK markets.

Questions about the UK mark should be sent to BEIS in the first instance: goods.regulation@beis.gov.uk  They are receiving a high volume of correspondence at the moment but will endeavour to get back to you as soon as possible.

I am hearing that CE marks can continue for medical devices, I will post a separate post when I have more details.

Border changes : partnership pack (UK Brexit)

In a major update and bringing together of already issued instructions, the new Partnership Pack (borders) is now issued. Here

Please note the Hauliers sections, and the sections for Specialist Traders.

Note : I already posted about bi laterals in place to continue existing transboundary waste movement contracts. But note the further work that needs to be done in this area.