Brexit Status – next steps (UK Brexit)

Exit day is currently set as 12pm CET 29th March 2019.

Yesterday, the UK Parliament voted down the Withdrawal Agreement and Political Declaration package that had been agreed between the EU and UK to provide for an orderly exit.

On the UK side, although some laws are on the statute book, there is still substantive Brexit legislation that only exists in draft form, or not at all. But UK Technical Notices are published, and some Government ministries have issued more detailed information, notably HMRC, the Department for Transport, and the Home Office. Blog posts set these out (category UK Brexit Notices).

Subscribers to Cardinal Environment EHS Legislation Registers & Checklists have a continually updating Brexit Law List loaded to their UK systems (or jurisdictional UK variants).

On the EU side, EU Brexit Preparedness Notices are issued, and a Contingency Plan is in place, with a useful Q&A. Blog posts set these out (category EU Brexit Notices).

The international EU-UK land border is on the island of Ireland. I posted recently on Ireland’s Brexit Preparedness. An omnibus bill of measures will be introduced shortly. I updated my Blog post online, please scroll down the latest posts.

Next steps :

(1) today, the UK Government faces a no confidence motion, which it is expected to win

(2) Monday will see the UK Prime Minister give a statement to Parliament

(3) the next days will see the UK Government explore other sorts of arrangements for an orderly exit, and it is possible the exit day could be put back to give more time.

I will issue a new Blog post next week, with any progress made.

As I said in recent Blog posts, if subscribers to the Cardinal systems wish to set up a Brexit telecon with me, to run through specifics, please email me. At the moment, I am holding these telecoms at no extra charge.

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.

EU Council – EU27 Leaders 13-14 Dec (EU)

[clarification – the EU Council is a full EU28 council, consideration of Brexit is EU27]

The European Council (of EU27 leaders) commencing today (13-14 December 2018) will focus on the EU’s long-term budget, the EU single market, migration and external relations. EU27 leaders will also discuss Brexit today and the euro area tomorrow.

In his letter of invitation, President Donald Tusk said –

“Given the seriousness of the situation in the UK, let me start with Brexit. The intention is that we will listen to the UK Prime Minister’s assessment, and later, we will meet at 27 to discuss the matter and adopt relevant conclusions. As time is running out, we will also discuss the state of preparations for a no-deal scenario.”

The EU began issuing Brexit Preparedness Notices in 2017, and in 2018 it also issued Contingency Planning documents (I posted these at the time). It is essential to have read these documents, and the information presented in all places, in full. Once again, the information is here (please look in all places on this site).

France already enacted a local Brexit contingency law (I posted about this), Germany has now draft local Brexit contingency laws published on relevant Ministry websites, Ireland has signalled it is stepping up local No Deal contingency measures. It is essential to follow local contingency measures, where relevant, these will be additional to the EU measures. Further measures and instructions at EU level may be forthcoming, also.

The UK has more than a hundred Technical Notices, and HMRC, the Department for Transport, and the Department of Health & Social Care have each issued further instructions, and further can be expected. Please check this blog for the links (category Brexit, EU Brexit Notices and new category UK Brexit Notices).

In addition, bi-laterals are in place in some areas that will create variations to the above, these should be set out in the local Instructions, if not now, shortly. The best approach is to read the EU information and then check locally. If in the UK (or dealing with the UK) then also read the UK information.

Unless the date is pushed back (unlikely) or Brexit does not occur at all (unlikely), the UK is a Third Country from 12pm CET 29 March 2019, and the rules of engagement change. The biggest effect is on the UK statute book, and subscribers to Cardinal Environment EHS Legislation Registers & Checklists now have a constantly updating Brexit Law List (of changes to the UK global ENV and OHS legislation).

However, activities in all EU27 member states will be affected to some extent, and the rules for engaging with the UK will alter.

Please continue to follow this Blog. In addition, although based in London, UK, I am now regularly in Ireland, and it’s possible to meet with me there.