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.

IP and Brexit (UK Brexit)

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

This Blog does not post on intellectual property. But, in the interests of completeness, and because the matter of exhaustion of IP rights is a (possibly overlooked) aspect of the circulation of goods, this Blog post publicises the UK Intellectual Property Office (IPO) instructions on IP and Brexit (updated today 11th September).

Here

Extract

Intellectual property rights give rights holders the right to control distribution and re-sale of a product that is protected by IP after they have been put on the market.

Currently, exhaustion of IP rights occurs in the UK when an IP-protected good is placed on the market anywhere in the European Economic Area (EEA). This means that rights holders (such as the owner of a brand) may not prevent the movement of those goods within the EEA. These goods are known as parallel goods, which are genuine goods (that is not counterfeit).

While the UK remains a full member of the EU, intellectual property rights remain exhausted after the first sale of a good. This is with the right holders permission and within the territory of the European Economic Area (EEA).

If there is a no-deal, the UK will continue to recognise EEA exhaustion so the rules affecting imports of goods into the UK will not change. Goods placed on the market [in the EU], after the UK has exited the EU, will continue to be considered exhausted in the UK. This means that parallel imports of these genuine goods from the EEA to the UK will continue unaffected.

However, there may be restrictions on the parallel export of goods from the UK to the EEA. This is because goods placed on the UK market, after the UK has exited the EU, will not be considered exhausted in the EEA.

Businesses that wish to export IP-protected goods to the EEA that have already been legitimately put on the market in the UK, may need the rights holder’s consent. All businesses may wish to seek legal advice on how this arrangement could affect their business model or intellectual property rights.

Manufactured Goods (UK Brexit)

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

Yesterday (10th Sept) HMG re-published its instructions on Manufactured Goods.

Here

I did Blog post these instructions in March, note the UKCA mark. The UKCA mark is not available yet. CE marks will continue for a temporary period.

The Sept publication has an update reminder that Distributors will be Importers.

By now, everyone should be Brexit Ready.

The specific text re Importers – (note the EEA and Switzerland reference)

If you are currently a UK distributor, you need to confirm whether you or your supplier will become an ‘importer’ once the UK leaves the EU. This will usually be the case if you are the one bringing goods into the UK from the EU, EEA or Switzerland, and want to put them on the UK market after Brexit.

If you are becoming an ‘importer’ you will need to ensure you understand your legal obligations. You will need to make sure:

• goods are labelled with your company’s details, including your company’s name and a contact address (for 18 months after Brexit you can provide these details on the accompanying documentation rather than on the good itself)

• the correct conformity assessment procedures have been carried out and that any good you import carries the correct conformity markings

• the manufacturer has drawn up the correct technical documentation and complied with their labelling requirements

• you maintain a copy of the declaration of conformity for a period of 10 years

• you do not place a good you import on the market if you have reason to believe it does not conform with the relevant essential requirements