Rail Transport (UK from 1st January 2021)

Rules change from 1st January 2021 (as a result of Brexit).

The UK Department for Transport issued on 1st July, text applicable to Rail Transport from 1st January 2021. This text is here.

The UK text also refers the reader to the already existing European Commission Notice, updated 28 April, here.

Note the following (this is not an exhaustive list, please read the text behind the links).

Note the deadlines – 1st January 2021 and 1st January 2022. Note the different rules in Northern Ireland.

(1) EU-based operators must apply to the Office of Rail and Road (ORR) for documentation to run services in Britain – the necessary documentation is required by 31 January 2022.

For Northern Ireland, the UK text says “non-UK operators are currently not subject to a time-limited period”. This flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

(2) The UK text says “It is likely that certificates and licences issued in the UK will not be valid in the EU from 1 January 2021”.

If this is the case, operators of cross-border services will be subject to the recognition implications set out in both UK and EU rules.

(3) The UK will continue to recognise certain EU-issued documents until 31 January 2022 for services in Britain. These are operator licences, safety certificates, and train driving licences.

For Northern Ireland, the UK text says “The 2-year time limit from 31 January 2020 on recognition of these categories of EU-issued documents does not currently apply to Northern Ireland.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any future arrangements with France are expected to deal with the Channel Tunnel itself but not with the routes into continental Europe (beyond Calais-Fréthun). UK operators and train drivers will need to obtain additional licences and safety certificates to operate or work in the EU.

(4) The UK’s formal participation in the EU Agency for Railways (ERA) ended on 31 January 2020 and the UK is not seeking membership of ERA. The UK text says “The UK intends to put in place appropriate arrangements for regulatory co-operation with ERA where this is necessary to secure the safety of international rail services.”

(5) After 31 January 2022, operators with an EU operating licence will need to hold an ORR-issued licence to operate in Britain. Establishment in the UK is not necessary, but the UK ORR licence will need to have been applied for and obtained by 31 January 2022 to continue operating after that date.

Operators holding an ORR-issued licence that run domestic services in the EU will need to re-apply for an operator licence in an EU member state, consulting the relevant guidance and following the requirements from the EU or the relevant member state. The licence must be in place by 1 January 2021.

This is also the case for UK-based operators seeking to run new domestic services in an EU member state.

Operators of cross-border services between the UK and the EU holding an ORR-issued licence will need to re-apply for an operator licence in an EU member state. The licence must be in place by 1 January 2021.

(6) ORR-issued Part A and Part B safety certificates will be valid for UK-based domestic operators operating in Britain until their normal expiry.

EU established operators running a domestic-only service in Britain, with a Part A safety certificate issued in the EU before 31 January 2020, will be able to use these certificates until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to UK regulations will allow EU established operators running a domestic-only service in Britain with a Part A safety certificate issued in the EU before 31 January 2022 to run services in Britain until 31 January 2022. These changes are to be made in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

This will also apply to operators running services with a single safety certificate issued under Directive (EU) 2016/798, which will be deemed equivalent to a UK Part A safety certificate during the period between 31 December 2020 (subject to the changes to regulations coming into force) and 31 January 2022.

If trains are operated in Britain on the basis of an EU-issued safety certificate, the relevant safety certification issued by the ORR is required by 31 January 2022 at the latest. An ORR-issued Part B certificate associated with an EU-issued Part A safety certificate or a Single Safety Certificate will expire alongside the parent certificate. An operator obtaining new safety certification will also be required to apply for and obtain a new Part B safety certificate.

Establishment in the UK is not required to obtain relevant safety certification issued by the ORR, but a UK address must be supplied in the application.

For Northern Ireland – the UK text says – “non-UK based operators running a domestic-only service with a Part A safety certificate issued in the EU are not currently subject to a time-limited recognition period.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any EU operator seeking to run domestic services in Britain based on an EU-issued Single Safety Certificate, issued under Directive (EU) 2016/798 until 31 January 2022, will also have to obtain a Part B safety certificate from the ORR before it can do so.

UK-based operators running domestic services in the EU who hold an ORR-issued, or Northern Ireland-issued, Part A safety certificate need to obtain an EU safety certificate by 1 January 2021. This also applies to UK-based operators seeking to run new domestic services in an EU country.

Operators established in the UK who operate cross-border services and hold an ORR-issued Part A safety certificate will need to obtain EU safety certification by 1 January 2021.

(7) Entities in charge of maintenance (ECM) that maintain vehicles in the EU on the basis of an ECM certificate issued in the UK by the ORR or an accredited certification body need to apply for and obtain a new ECM certificate from a certification body in an EU country.

Vehicles used in international traffic between the UK and the EU also have the option of obtaining a certificate according to the legal framework of the Convention concerning International Carriage by Rail (COTIF). The validity of ECM certificates issued in the UK by the ORR or an accredited certification body will be unchanged for freight wagons running purely on the UK mainline railway. ECMs that hold a certificate issued in accordance with COTIF can continue using these certificates in the UK for operations involved in international traffic. ECMs may also rely on certificates issued in the EU in accordance with Commission Regulation 445/2011 to maintain freight wagons for use in domestic operations.

Proposed changes to regulations will allow ECMs to rely on certificates issued in the EU in accordance with the new Commission Implementing Regulation (EU) 2019/779 to maintain freight wagons for use in domestic operations. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

(8) Drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2020, are able to drive trains on the basis of those licences until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to regulations will allow train drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2022, to use this documentation until the 31 January 2022. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

From 31 January 2022, train drivers working in Britain will need to have obtained a UK train driving licence from the ORR to continue operating. The validity of train driving certificates is unaffected. However, operators must ensure that certificates held by newly re-licensed drivers (and their registers of those certificates) refer to the correct licence.

This means that, UK train driving licences are required by 31 January 2022.

Train drivers operating international services or driving domestic services in an EU member state on the basis of an ORR-issued train driving licence will need to re-apply for a train driving licence in an EU country. The new licence will need to be in place by 1 January 2021. Train drivers should apply for and obtain this as soon as possible, where they have not already done so.

(9) From 1 January 2021, the placing of interoperability constituents on the UK market will be based on a UK conformity assessment process, requiring compliance with applicable UK National Technical Specification Notices (NTSNs).

For Northern Ireland, the UK text says “Further updates may be provided in relation to Northern Ireland due to a review of obligations under the Northern Ireland Protocol.” This is the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

The UK text says “It is currently expected that an interoperability constituent placed on the EU market up to 31 December 2020 with a certificate of conformity from a UK notified body will be able to be used within the EU for the period of validity of that certificate in subsystems or vehicles authorised before 1 January 2021.”

(10) Vehicles first authorised in the UK from 1 January 2021 will need to be authorised in the EU as well before they can be used in the EU. Vehicle authorisations issued in the EU up to 31 December 2020 will remain valid in the UK if the vehicle is already in use here prior to that date.

From 1 January 2021 vehicles first authorised outside the UK will require an additional authorisation before they are first used in the UK. This system will be operated in accordance with the UK’s COTIF international obligations.

UK-EU Future Relations (UK)

Today sees the publication by the UK of a number of trade relevant documents –

(1) the UK Global Tariff (UKGT) that will replace the EU’s Common External Tariff from 1st January 2021 – here

(2) the draft UK legal texts in the ongoing trade talks with the EU – here

The UKGT will apply to all goods imported into the UK unless:

• an exception applies, such as a relief or tariff suspension

• the goods come from countries that are part of the Generalised Scheme of Preferences

• the country imported from has a trade agreement with the UK

This Blog does not focus on Trade or Customs. Note – commencing in July 2020, we (Cardinal Environment Limited) will be putting some staff through the UK Customs Academy Level 4 qualification, this is in order to improve our services in the areas of Trade and Customs, that impinge on goods movement.

Trade talks are underway with the EU and the US.

The UK Government will announce shortly it’s proposals for how Northern Ireland based traders will benefit from the UKGT. The Withdrawal Agreement Ireland-Northern Ireland Protocol creates special arrangements for Northern Ireland. I will Blog post separately at that point.

Brexit and COVID-19 measures (UK)

The UK left the EU at end of January 2020, and will leave the transition period at end of December 2020.

The World Health Organisation (WHO) declared COVID-19 a pandemic on 11th March 2020.

These two events are prompting substantive changes in many occupational, health and safety, and environment related measures in the UK (substantive measures are also being taken in other countries, and at EU level).

The UK’s Brexit measures are found here.

[the vast majority of the UK’s Brexit measures are unchanged since any update made in February 2020]

The UK’s COVID-19 measures are found here.

[the vast majority of the UK’s COVID-19 measures date March 2020]

The UK’s Brexit and the COVID-19 measures are rooted in law. Cardinal Environment Limited advises on occupational health and safety law and environmental law via Email Alert to subscribers to Cardinal Environment EHS Legislation Registers & Checklists. The next Email Alert on UK Registers & Checklists will be at end March (the monthly UK Email Alert as usual).

Subscribers are reminded that they can request Annual Review (a teleconference) on renewal of annual subscriptions.

Of particular note are –

(1) changes around borders

(2) changes around goods transport

(3) changes around people mobility, including across borders

(4) changes around workplace organisation, particularly additional requirements to keep the workplace safe and provide for home working

(5) temporary bans on the opening of some business premises on health grounds

(6) changes around worker employment (this Blog does not address detailed matters of Employment Law)

EU Readiness Notices (EU Brexit)

The UK is exiting the transition period on 31st December.

The European Commission is reviewing – and where necessary updating – the over 100 sector-specific stakeholder preparedness notices it published during the Article 50 negotiations with the UK.

The documents (updated so far) are published as ‘notices for readiness’ for 1st January 2021 –

(1) Air Transport – here

(2) Aviation safety – here

(3) Consumer protection and passenger rights – here

(4) Cosmetic products – here

(5) Animal feed – here

(6) Food law – here

(7) Industrial products – here

(8) Medicinal products for human use and veterinary medical products – here

(9) Movements of live animals – here

(10) Online sale of goods with subsequent parcel delivery – here

(11) Plant health – here

The transition period ends on 31st December, unless it is extended by agreement.

UK-EU CFTA (UK Brexit)

I posted earlier about the UK policy paper published on its proposed Comprehensive Free Trade Agreement (CFTA) with the EU.

Note : the UK government has since notified it does not wish to seek continued relationship with EASA (the EU’s aviation safety regulator) or EWRS (the EU’s early warning and response system), and it will not seek a waiver from the EU’s safety and security declarations. Accordingly, it envisages (and has notified relevant GB business via stakeholder notice, reported in the Daily Telegraph this morning) the EU will implement the UCC safety and security requirements on GB-EU trade. The UK will set its own requirements.

These EASA and EWRS aspects were already reported in the press.

The extract published by the Daily Telegraph’s Peter Foster (twitter) indicates the UK’s Border Delivery Group (BDG) expects to publish further on the matter of safety and security declarations at the end of March.

Please remember, different arrangements will apply in Northern Ireland.

This Blog does not focus on customs, vat or tariffs.

Immigration Bill (UK Brexit)

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill (a Brexit Bill) was introduced in the House of Commons today (5 March 2020). This Blog does not focus on immigration or social security policy or law, and this post will be the only one on this matter.

The purpose of the Bill is to end free movement of persons in UK law and make nationals from the European Union (EU), the European Economic Area (EEA) and Switzerland, and their family members, subject to UK immigration control.

The Government’s intention is at the end of the transition period, 31 December 2020, citizens of the EU, the EEA EFTA states of Iceland, Norway and Liechtenstein, and of Switzerland, and their family members, will require permission to enter and remain in the UK under the Immigration Act 1971.

The Bill protects the immigration status of Irish citizens once free movement ends.

It also contains provision for the Government (and/or, where appropriate, a devolved authority) to amend retained direct EU legislation relating to the social security co-ordination regime, which is retained in UK law by the EUWA 2018.

The Bill was first introduced in the Commons in the previous Parliament where, in the 2017-2019 session, it reached Report stage after completing a Public Bill Committee. The Bill fell when Parliament was prorogued before the December 2019 General Election. I posted about it at the time.

There have been no substantial changes to the content of the Bill since it was previously considered in the last Parliament. The only changes made are minor drafting clarifications in places, and updates to the list of retained EU law to be repealed to avoid duplication of changes already made through the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 (2019/745) which come into force on 31 December 2020.

The Government has legislated to protect resident EEA citizens and their family members through the EUWAA 2020, which protects the residence rights of EEA citizens and their family members who are resident in the UK by the end of the transition period.

The Government fully opened the EU Settlement Scheme (EUSS) to all EEA citizens and their family members on 30 March 2019. The Scheme is set out in the Immigration Rules to enable EEA citizens and their family members to apply for UK immigration status, so their current rights continue, and their status is clear when the new global points-based immigration system begins.

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 made under the EUWAA 2020, provide individuals who apply under the EUSS or for an EUSS family permit or travel permit, after 31 January 2020, with a right of appeal against decisions affecting their entitlement to enter and remain in the UK under the EUSS, and against decisions in relation to applications for EUSS family permits or travel permits.

Those individuals who have a right to apply under the EUSS will have until 30 June 2021 to do so, provided they arrived in the UK by the end of 2020.

This period of six months between the end of the transition period (31 December 2020) and 30 June 2021 is referred to as ‘the grace period’ and is a requirement of Articles 18(1)(b) and 18(2) of the UK-EU Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements). Statutory instruments to be made under the powers in the EUWAA 2020 will protect EEA citizens and their family members’ existing rights of residence, entry and exit until then. These savings will also extend to those with pending applications to the scheme and those with unresolved appeals.

The Government will also bring forward a statutory instrument to ensure individuals who are in the UK as frontier workers by the end of the transition period can continue working from January 2021 onwards. Frontier workers are individuals who are resident outside the UK, but employed or self-employed in the UK.

Further information may be obtained from these Bill Explanatory Notes – here.

UK-EU Comprehensive Trade Deal (UK Brexit)

Today the UK Government published its policy paper setting out its approach to negotiations for a Comprehensive Free Trade Agreement (CFTA) with its neighbours, the EU27 bloc. The document is here.

Key aspects –

* It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.

* The Comprehensive Free Trade Agreement (CFTA) should be – on the lines of the FTAs already agreed by the EU in recent years with Canada and with other friendly countries.

* The CFTA should be supplemented by a range of other international agreements covering, principally, fisheries, law enforcement and judicial cooperation in criminal matters, transport, and energy.

* All these agreements should have their own appropriate and precedented governance arrangements, with no role for the Court of Justice.

The EU27 and the UK confirm a progress review will take place in June (this was in the Withdrawal Agreement). In the event that progress is not made, the EU27 and the UK will revert to No Deal. [The Withdrawal Agreement includes an option to extend the transition period for 1-2 years.]

Please note, the Brexit Notices issued by the EU27 and the UK in 2018 and 2019 set out the arrangements that would have applied in 2019 if the Withdrawal Agreement was not agreed (No Deal). The Withdrawal Agreement having been agreed, connectivity, on for the most part the same basis as before, is provided to the end of the transition period (Dec 2020) – the period we are in at the moment.

The 2018/2019 Brexit Notices now apply to No (EU-UK relations) Deal from 1st January 2021. Some updates, notably to processes, documents and dates, are included (as you will have been noticing as I have been posting on this blog).

Whilst it is envisaged that a basic level of travel connectivity will continue after end Dec, organisations and individuals wherever located should now prepare for the new arrangements, tariffs etc, between the EU27 and the UK, that will apply from 1st January 2021. This Blog does not notify on customs, VAT or tariffs, it is focused on ENV and OHS related regulatory matters.

Please keep following this Blog, as further details of the arrangements that will apply for ENV and OHS related regulatory matters from 1st January 2021, are published.

Please note, we expect to meet the deadline for supply of the necessary new UK Registers & Checklists (in all regional variants) by 1st January 2021.

Subscribers will note that provision is already starting to appear on their existing websites.

EU-UK Relations from 1st Jan 2021 (Brexit)

The EU today adopted a decision authorising the opening of negotiations for a new partnership with the UK, and formally nominating the European Commission as EU negotiator. The EU also adopted negotiating directives which constitute a mandate to the European Commission for the negotiations.

Per EU Press Release – here

The EU wishes to establish an ambitious, wide-ranging and balanced economic partnership with the UK. The mandate stresses that the future partnership should be underpinned by robust commitments to ensure a level playing field for open and fair competition, given the EU and the UK’s geographic proximity and economic interdependence.

The EU intends to establish a free trade agreement with the UK which ensures that zero tariffs and quotas apply to trade in goods. This agreement should provide for cooperation on customs and regulatory aspects. It should also include effective management and supervision, dispute settlement and enforcement arrangements.

On fisheries, the mandate outlines that the future partnership should uphold the existing reciprocal access to waters as well as stable quota shares. The agreement on fisheries should be established by 1 July 2020, to give time for determining fishing opportunities after the end of the transition period.

The mandate also contains provisions for future cooperation in areas such as digital trade, intellectual property, public procurement, mobility, transport, and energy.

The EU will seek to establish a comprehensive security partnership with the UK. The partnership should comprise law enforcement and judicial cooperation in criminal matters, as well as foreign policy, security and defence. The mandate foresees that the future partnership should be embedded in an overall governance framework covering all areas of cooperation.

Link to EU negotiating directives.

Explosives Precursors from 1 Jan (UK Brexit)

The UK has not confirmed that it’s explosives precursors regulation system will continue in its current form after 1 January 2021. No notice is yet issued.

The matter is presently addressed (for the EU27) by a 98/2013 EU Marketing and Use Regulation, that will be replaced on 1st February 2021 by a 2019/1148 EU Explosives Precursors Regulation.

In the UK, this 2013 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems). There is also domestic law.

The current UK explosive precursors regulation system is explained (2018) here.

The 2019 EU Regulation tightens controls (for the EU27 from 1st Feb 2021) on “explosives precursors”—chemical substances that have a legitimate purpose but can also can be used in home-made explosives—to keep pace with the evolving security threat.

The changes will further restrict access to explosives precursors and clarify the rights and obligations of those involved in the supply chain. It will distinguish between ordinary members of the public, who would require a licence to purchase restricted explosives precursors above a specified concentration limit, “professional users” who need the substances for their own trade, business or profession, and “economic operators” who trade in them. Professional users will not require a licence but will have to explain the purpose for which restricted explosives precursors were to be used. This information will then be available to EU27 national law enforcement and inspection authorities.

Until a UK notice is issued on the matter, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – that have explosives precursors included in their systems – will have the 2013 EU Regulation (repealed in EU27 on 1 Feb 2021) in the Retained EU Law section of the Registers. The 2019 EU Regulation (applicable in the EU27) will appear below Guidance, with other supplied EU Law (applicable in EU27). They will also have the domestic law.

Persistent Organic Pollutants from 1st Jan (UK Brexit)

The UK has confirmed that it’s persistent organic pollutants (POPs) regulation system will continue in its current form after 1 January 2021.

The matter is presently addressed (for the EU27) by a 2019/1021 recast EU POPs Regulation that came into force in 2019. In the UK, this 2019 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems).

The UK confirmation is here.

The UK notice confirms all existing obligation and protections will continue because the UK is a signatory to both the Stockholm Convention and the Convention on Long-Range Transboundary Air Pollution. These Conventions are UNECE Conventions. The UK did not leave the UNECE (UN Economic Commission for Europe).

There is no change to the UK competent authorities.

Future updates will reflect Stockholm Convention decisions and agreed scientific and technical progress, and not necessarily changes to the EU POPs Regulation if it diverges.

Accordingly, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – will have both conventions added, where POPs are included in their UK systems. This is in addition to the necessary Retained EU Law.

The list of restricted, banned and monitored substances, with the exemptions, set out in the annexes to the current EU POPs Regulation will be amended this year (2020) to reflect decisions made at the last Stockholm Convention conference.

The Environment Agency is accordingly addressing changes pertinent to Perfluorooctane sulfonate (PFOS). The EA document is here.

These changes can be expected in amendments to existing domestic law.

The UK notice confirms identification of potential new POPs substances, with the exception of pesticides, will be managed initially through the UK chemicals regulatory regime that will replace EU REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) in the UK.

The UK notice confirms if all the characteristics of a POP emerge from the evidence gathering, the UK will develop a dossier for the Stockholm Convention’s POP Review Committee to assess.

Now that the UK has left the EU, this UK POPs notice confirms further changes to UK regulation of POPs will result from the review processes set up under UNECE Conventions.