Ireland No Deal Contingency Action Plan (Ireland Brexit)

UPDATE (15 Jan 2019) : Confirmed by the Irish Government – the omnibus Brexit Preparedness Bill (to become the Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Act 2019) won’t be published until late February, and is expected to make it to the floor of Dáil and Seanad only in March.

The Cabinet this morning discussed four memos relating to no-deal planning: on Common Travel Area, transport, medicinal supply, legislation required. Planning permission is not required for airports etc, and Minister for Finance has power to direct the OPW in areas where required.

The Dáil is supposed to be in recess for SPD from Mar 13th to 26th, which may not in fact happen.

UPDATE (14 Jan 2019) : Leo Varadkar confirms that Ireland is bringing forward *ONE SINGLE* omnibus Brexit preparedness bill, to deal with *TWENTY ONE* areas in which primary legislation is needed to respond to the effects of a no-deal Brexit.

Ireland has now published its Brexit no deal contingency action plan. This document is here. It has as an Annex, the EU implementation document for its no deal contingency action plan published today, the Q&A, and the EU action plan published in November (I posted about these earlier).

The Ireland plan identifies substantive new legislation will be introduced in January 2019. A government meeting is scheduled for 3rd January 2019.

I will create an Ireland Brexit Law List and add this to the Cardinal Environment EHS Legislation Registers & Checklists.

EU No Deal Contingency Plan Update (EU Brexit)

As they promised, the European Commission has now published its update to its contingency plan for No Deal – 14 legal measures. This document is here.

(1) The Commission repeats its prior position – the EU no deal measures are unilateral, limited and temporary. Adds that they will not apply to Gibraltar.

(2) Re UK nationals in the EU Bloc, the Commission repeats its prior position that they should get residence permits. Silence re acquired rights.

(3) The Commission will issue guidance on social security coordination.

(4) Re Financial Services, the Commission will use its own secondary law powers to immediately adopt unilateral measures. Two of these were already announced.

EU bloc firms will be permitted one year access to derivatives clearing houses in the UK, and two years access to central securities depositories in the UK that settle trades (already announced), and a year-long window will be opened for EU bloc organisations to change the contractual terms of over the counter derivatives.

(5) Re Aviation and International Road Haulage, two legal acts will allow airlines to fly point to point between UK and European cities, the most basic form of landing rights. Aviation safety certificates are also temporarily extended. [these measures were already announced]

[still no measures for ownership rights, an extremely difficult problem for the International Airlines Group (Aer Lingus, British Airways, Iberia and Vueling), which falls below the threshold to maintain its EU flying licences]

9 months of permit-free commercial road haulage, if reciprocal.

(6) Re Trade in Goods, the Commission confirms that general rules will apply, ie tariffs and non-tariff barriers. Adopts an immediate change to EU customs law and proposes a law on exports of dual use goods to the UK (civil goods with military uses).

Time limits are adjusted for customs declarations, but there are no special waivers to help with ro-to ferries at ports.

(7) Re EU Climate Change Policy, the Commission will immediately adopt three measures to take account of Brexit, one applies from January 2019 already.

FURTHER INFORMATION IS SET OUT IN THIS Q&A here.

I will add this document and the global ENV and OHS relevant legal measures to the Brexit Law List in Cardinal Environment EHS Legislation Registers & Checklists.

F-Gases & ODS (Brexit UK)

The UK Government has today issued a Technical Notice of instructions on using and trading F-Gases and ODS. This notice is here.

If there is no deal :

(1) The UK will regulate fluorinated greenhouse gases (F gas) and ozone-depleting substances (ODS) from 30 March 2019.

(2) The EU F gas and ODS regulations will no longer apply in the UK from 30 March 2019.

(3) New UK regulations will transfer most of the requirements of the EU regulations into UK law. [these are not yet published in draft, when they are published, I will add to the Brexit Law List in Cardinal Environment EHS Legislation Registers & Checklists]

(4) The UK will continue to:

• restrict ODS

• use the same schedule as the EU to phase down HFCs (hydrofluorocarbons, the most common type of F gas) by 79% by 2030 relative to a 2009 to 2012 baseline

That means UK F gas quotas will follow the same phase down steps as the EU:

• limited to 63% of the baseline in 2019 and 2020

• reducing to 45% of the baseline in 2021

(5) The UK will manage its own quota systems, and UK companies will need to register for a UK quota.

Where a company produces, imports or exports HFCs (the main class of F gases) or ODS, or products containing HFCs or ODS, it will need to apply for a:

• UK quota to place them on the UK market

• EU quota to place them on the EU market

If the company imports or exports ODS, including to and from the EU, it will need to apply for a UK import or export licence.

(6) The Environment Agency will administer the systems for the whole of the UK.

(7) After 30 March 2019 a company will need a UK HFC quota if it places on the UK market HFCs equivalent to 100 tonnes or more of carbon dioxide (CO2 ) per year. This total includes any imports to the UK from the EU.

(8) The Environment Agency will manage a new UK F gas system, including UK HFC quota allocation.

Companies will need to register on the new UK F gas system to:

• apply for a UK quota

• report on activities

If the Environment Agency has company data, it may register details for you.

The Environment Agency will publish details of how to use the UK F gas systems in early 2019. [I will update this post, or issue a separate post, at that time]

(9) Leak detection and other obligations will not change.

(10) Further rules are set out in the Notice, this post is not a full summary. Please read the Notice.

Chemicals Regulation – CLP (Brexit UK)

The UK has today updated its Technical Notice on CLP, and this now gives further instructions, here.

If there is no deal :

(1) The UK would establish an independent standalone chemicals regime. [this is looking increasingly likely in any event, deal or no deal]

(2) At the time of exit, as the UK would effectively adopt the GHS in the same way as the EU, the UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for businesses, with amendments to enable functions presently carried out by the EU (including those performed by ECHA), instead being carried out in the UK by the Health and Safety Executive (HSE).

(3) Companies operating in the UK will deal with HSE in place of ECHA.

(4) The main duties and obligations on suppliers to classify, label and package hazardous chemicals placed on the market will remain in place.

This means the duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain.

This would also be the case for the obligations on those suppliers to identify, examine and evaluate available scientific and information on substances and mixtures where it relates to the possible physical, health or environmental hazardous properties of those chemicals to ensure all the requirements of classification are fulfilled.

Suppliers must also comply with mandatory classification and labelling.

[please note, it’s still unclear if current downstream user obligations under REACH will be continue, I posted about this the other day]

(5) Companies importing chemicals into the UK from EU countries would become importers under CLP and would need to be sufficiently competent to comply with the duties and obligations on an importer, just as they would if importing chemicals into the UK from a non-EU country.

(6) HSE would have the ability to put in place new arrangements for mandatory classification and labelling. These arrangements would allow new and revised classification and labelling to be proposed, considered in liaison with the devolved authorities and adopted for the UK.

(7) Companies would be required to use new UK arrangements and IT tools provided by HSE. These IT tools would be a UK mandatory classification and labelling list (of substances) and a UK notification database. The new arrangements will be operational after 29 March 2019.

(8) Responsibility for chemicals being imported into the EU from the UK would rest with whoever is the EU-based importer (remember, a third country importing into the EU will require the use of an EU-based legal entity) – the importer may therefore need details of the chemicals involved from the UK-based company.

Data Protection Law (Brexit UK)

The UK has today issued Guidance on how UK Brexit Data Protection Law will operate. This guidance is here. There is already a UK Technical Notice on the subject.

The EU (Withdrawal) Act 2018 (EUWA) retains the GDPR in UK law. The fundamental principles, obligations and rights that organisations and data subjects have become familiar with will stay the same.

To ensure the UK data protection framework continues to operate effectively when the UK is no longer an EU Member State the Government will make appropriate changes to the GDPR and the Data Protection Act 2018 using regulation-making powers under the EUWA.

The regulations and more detailed guidance will be published in the next few weeks.

These regulations would:

• Preserve EU GDPR standards in domestic law

• Transitionally recognise all EEA countries (including EU Member States) and Gibraltar as ‘adequate’ to allow data flows from the UK to Europe to continue

• Preserve the effect of existing EU adequacy decisions on a transitional basis

• Recognise EU Standard Contractual Clauses (SCCs) in UK law and give the ICO the power to issue new clauses

• Recognise Binding Corporate Rules (BCRs) authorised before Exit day

• Maintain the extraterritorial scope of the UK data protection framework

• Oblige non-UK controllers who are subject to the UK data protection framework to appoint representatives in the UK if they are processing UK data on a large scale

I will add this legislation to the Global OHS and ENV Brexit Law List, in subscription Cardinal Environment EHS Legislation Registers & Checklists.

The Government has also issued 6 Steps for Business to take – here.

Six steps

1 Continue to comply Continue to apply GDPR standards and follow current ICO guidance. If you have a Data Protection Officer, they can continue in the same role for both the UK and Europe.

2 Transfers to the UK Review your data flows and identify where you receive data into the UK from the European Economic Area (EEA). Think about what GDPR safeguards you can put in place to ensure that data can continue to flow once we are outside the EU.

3 Transfers from the UK Review your data flows and identify where you transfer data from the UK to any country outside the UK, as these will fall under new UK transfer and documentation provisions.

4 European operations If you operate across Europe, review your structure, processing operations and data flows to assess how the UK’s exit from the EU will affect the data protection regimes that apply to you.

5 Documentation Review your privacy information and your internal documentation to identify any details that will need updating when the UK leaves the EU.

6 Organisational awareness Make sure key people in your organisation are aware of these key issues. Include these steps in any planning for leaving the EU, and keep up to date with the latest information and guidance.

Chemicals Regulation – REACH (Brexit UK)

This is a repeat post on the subject, this time drawing attention to gaps.

ECHA has guidance (continually updated) to companies in the form of Q&A – here. I posted about this before.

The UK has a Technical Notice (REACH) – here. I posted about that before.

The UK Technical Notice confirms –

“UK would ensure UK legislation replaces EU legislation via the EU Withdrawal Act, establish a UK regulatory framework and build domestic capacity to deliver the functions currently performed by ECHA. The legislation would preserve REACH as far as possible, while making technical changes that would need to be made because the UK has left the EU.”

And“• Businesses with existing EU REACH registrations being automatically grandfathered into the UK regime or authorisations would have to validate their existing registration with the UK authority (the HSE), opening an account on the new UK IT system and providing some basic information on their existing registration within 60 days of the UK leaving the EU. This IT system is being tested with a range of different users so that it is ready to support registrations of chemicals in the UK from March 2019.

• Companies with grandfathered registrations would have two years from the day the UK leaves the EU to provide the UK authority (the HSE) with the full data package that supported their original EU registration and is held on the ECHA IT system.

• Businesses that imported chemicals from the EEA before the UK leaves the EU (but who did not have an EU REACH registration), would need to notify the UK authority and provide some basic data on the chemicals within 180 days of the UK leaving the EU, instead of having to undertake a full registration immediately. This would be an interim arrangement for those importers and they would need to move to full registration at a later date following a review of this approach.

• Importing businesses would be responsible for identifying appropriate risk management measures and recommending them to their customers.”

No Brexit law is yet drafted, but note the above IT system notification requirements. (Reminder, subscribers to Cardinal Environment EHS Legislation & Registers have a global OHS and ENV Brexit Law list supplied, updated)

REACH does not only deal with registration of chemicals, it also has obligations on downstream users to inform, and REACH regulates the content and distribution of safety data sheets.

The ECHA Q&A has it (2017) that UK users of chemicals will have no obligation to inform of uses back up the chain (one of the REACH downstream user obligations). The UK Technical Notice is silent, bar the IT system interaction.

Both are silent on Safety Data Sheets.

I will update this post, if information comes to light this side of Christmas. Otherwise there will be a new post on the general topic in 2019.

EU Settled Status Scheme – Health Workers Pilot (UK)

The EU Settlement Scheme pilot for EU staff working in the health and social care sector will close on Saturday 22 December 2018.

EU citizens working in the NHS can submit their applications as part of the pilot. There is no obligation for these staff to participate at this stage, however, if they do, they will obtain their pre-settled status or settled status ahead of when the scheme opens fully in March 2019.

Further information is here.