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.

COVID-19 PPE specification (UK)

The government (DHSC) has today (31st March) published its PPE specification – here.

This covers –

(1) gowns,

(2) masks, including respirator masks and hoods

(3) eye protection

General requirements

(1) All products must have their CE marking clearly evident on the product and/or packaging and must conform to the relevant directive:

Medical Devices Regulation 2017/745

(2) Any product that contains phthalates must be indicated on the packaging in accordance with:

Medical Devices Regulation 2017/745.
Personal Protective Equipment Directive 89/686/EEC

(3) In accordance with the Control of Substances Hazardous to Health Regulations 2002 (as amended) (COSHH) safety data sheets for all products that fall under this Regulation must be provided to NHS Supply Chain.

(4) All products and packaging should be latex free where possible. Any products or packaging containing latex must be clearly labelled as such to inform the user.

(5) All products must be supplied with a minimum 3 years shelf life from the date of manufacture.

(6) Where applicable all products must be supplied with instructions for use and disposal/recycling instructions or symbols printed in English.

Please read the attached link – here – for the detailed requirements applicable to each product group.

EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

EU Law in UK 2020 (UK Brexit)

UPDATE (24th Jan) : UK Policy is NOT to implement beyond the Implementation period completion day

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Withdrawal Agreement agreed between the UK and the EU in November 2019 will be ratified in the UK and the EU imminently. This will bring about an ordered UK exit from the EU, and initiate a Transition Period.

The Transition Period will operate for 2020. During the Transition Period EU law enacted and in force by 31st December 2020 will be implemented in the UK, even if it has implementation deadlines after 31st December.

UPDATE (24th Jan) : For our purposes, this means the 2018 EU Circular Waste Economy Package will be implemented in the UK. The 2019 EU Single-Use Plastics Directive would not be implemented.

In addition, EU laws already implemented in the UK but with long tail deadlines for e.g. product bans (e.g. menthol cigarettes) that apply after Exit day or after Implementation period completion day, will still apply in the UK.

The envisaged purpose of the Transition Period is for the UK and the EU to agree alternative arrangements for trade in goods, primarily, that will subsist from 1st January 2021.

For our purposes, this means the new UK chemicals regime, the new UK medicines regime, the new UK equipment label (UKCA Mark), and UK issued certificates of all kinds, will need to be in place by end of 2020. Expect unilateral arrangements for EU goods and chemicals etc circulation in the UK for a limited period after 31st December 2020. I Blog posted a few days ago about hops and the later date available for circulation of EU hops in the UK.

There could also be unilateral arrangements on the EU side for limited time-length goods circulation in the EU.

A key issue is acceptance on both sides of certificates issued, and the matter of double testing for chemicals, medicines etc.

Class Action in Consumer Protection (EU Law)

The Council of the EU today reached agreement on a draft directive on representative actions for the protection of the collective interests of consumers.

The draft directive is here.

The directive empowers qualified entities, such as consumer organisations, to seek, in addition to injunctions, also redress measures, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader in violation of one of the EU legal acts set out in an annex to the directive. These legal acts reflect recent developments in the field of consumer protection and extend to areas such as financial services, travel and tourism, energy, telecommunications and data protection, in addition to general consumer law.

Member states shall, for the purpose of representative actions for redress, be free to choose between an opt-in and an opt-out system. In an opt-in system, consumers will be required to express their wish to be represented by the qualified entity for the purpose of a particular representative action. In an opt-out system, consumers who do not wish to be represented by the qualified entity for the purpose of a particular representative action will be required to make a statement to that effect.

Member states will have 30 months from the entry into force of the directive to transpose it into national law, as well as an additional 12 months to start applying these provisions.

The directive will apply to representative actions brought after the date of application.

On the basis of the agreed text, the Council will start negotiations with the European Parliament with a view to exploring the possibility of an agreement for the swift adoption of the directive at second reading (“early second reading agreement”).

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]

UK Temporary Import Tariff Regime (UK Brexit)

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

Today (8th October) the UK republished it’s temporary Import Tariff Regime that will apply in a no-deal Brexit.

Here

[this Blog does not focus on Customs or VAT]

It is mostly unchanged from the March version. Three aspects have changes – affecting HGVs, bioethanol and clothing –

• lower tariffs on HGVs entering the UK market, striking a better balance between the needs of British producers and the SMEs that make up the UK haulage industry, ensuring that crucial fleet replacement programmes that help to lower carbon emissions can continue

• adjusted tariffs on bioethanol to retain support for UK producers, as the supply of this fuel is important to critical national infrastructure

• tariffs applied to additional clothing products to ensure the preferential access to the UK market currently available to developing countries (compared to other countries) is maintained.

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.

UKCA Mark (UK Brexit)

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

Please remember the UK is bringing in a new UKCA Mark, applicable after Exit day.

The Feb issued instructions on UKCA Mark are here.

This applies to certified goods sold in the UK.

Please follow the links carefully, as some goods will require the UKCA Mark immediately after Exit day.

Other goods will be able to continue with the CE Mark for a limited period.

UK Product Safety and Metrology (UK Brexit)

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

Today, the UK Office for Product Safety & Standards re-issued with updates the March Instructions on Product Safety and Metrology.

This September document – UK Product Safety and Metrology Guidance in a ‘no deal’ Brexit – is here.

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, as amended by the Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019, amend local law and retained EU Law, from Exit day.

These Brexit laws are in the subscribers’ Brexit Law List and consolidation is well underway – in the Brexit Consolidated Law List (next upload – start of October).

(1) The Brexit Law alters those legal provisions in UK regulations and retained EU law that would not work effectively when the UK leaves the EU without changes. The Brexit Law objective is to create a functioning regulated UK market.

(2) The safety and other technical requirements are not specifically changed, but processes are changed.

(3) Products lawfully placed on the EU market before the UK leaves the EU can continue to circulate in the UK (for a temporary period, consultation will occur before this period ends, and a new Brexit Law is required for the temporary period to end).

(4) Lawfully CE marked products will continue to be accepted by the UK, intended to be for a time limited period (see above).

(5) Products being placed on the UK market for the first time after the UK leaves the EU must meet the same technical requirements as before – but labelling or notification requirements will change.

(6) A new UK Conformity Assessed marking (“UKCA”) may be used for products that will be placed on the UK market where conformity assessment has been carried out by a UK approved body (formerly a notified body). This is because after Exit day, the EU no longer recognises UK based Notified Bodies and so they will become UK Approved Bodies. The UKCA mark is not yet set up.

(7) Products intended to be exported to the EU that require an independent third-party conformity assessment – this assessment must be carried out by an EU based Notified Body and the products must be ‘CE’ marked (where required) once they have been successfully assessed. After Exit day, this cannot be carried out by a UK Approved Body.

(8) Where currently allowed, UK manufacturers can continue to self-declare that products meet EU rules and place these products on either the UK or EU markets. [please recheck this with the EU import country]

(9) The UK will continue to recognise EU Notified Body conformity assessments, for a time limited period, so manufacturers and importers will still be able to place goods on the UK market lawfully bearing the CE marking where they have been assessed by an EU Notified Body (where required).

(10) The UK will publish a list of references to designated standards that will have the same function as harmonised standards and give presumption of conformity to legal requirements. On Exit day, these designated standards will be the same as the harmonised standards.

(11) When the UK leaves the EU, the role and responsibilities of the manufacturer will be unchanged. However, some UK businesses which bring products into the UK from an EEA State and who were previously “distributors” from Exit day become “importers” acquiring new legal duties, including complying with an enhanced set of requirements to check product compliance as well as to keep documentation and ensure their address appears on the product.

(12) There is an 18-month transitional period for these “new” importers during which they can put their details on documentation accompanying the product, rather than on the product itself. The same will apply to imports from Switzerland for certain products, for the same 18- month period.

(13) Cosmetic products that have the information of the EU responsible person on the container and packaging will be allowed on the UK market for 2 years after the UK leaves the EU, after which the container and packaging will need to bear the name and address of the UK responsible person.

(14) The EU will not have a transitional period and so UK manufacturers exporting to the EU will need immediately after Exit day to have the address of the relevant EU responsible person on the goods they are exporting.

Please read the September document carefully, and also re-check with the EU import country.