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    Regulatory autonomy in the Brexit deal – skating on thin ice?

    150 150 ioana bere

    Preserving regulatory autonomy is one of the main elements of the Brexit deal. This was a red line for the UK in negotiations. However, experts argue the right to autonomy must be exercised with moderation.

    The deal includes a rebalancing mechanism which can be triggered if significant divergences impact trade or investment in “a manner that changes the circumstances that have formed the basis” for the agreement. Exercising regulatory autonomy can indeed lead to economic impacts and ultimately to different circumstances compared to December 2020. The rebalancing clause “partly offset[s] this autonomy”, says the report of the House of the Lords on the institutional framework of the Brexit deal.

    The rebalancing mechanism is “unusual” and “utterly novel and remarkable” according to law experts Marie Demetriou QC & Prof Dr Holger Hestermeyer.

    Lord David Frost also acknowledged its uniqueness. He indicated it has been introduced as an alternative to an equivalence mechanism, that was requested by the EU.

    The practicability of the mechanism remains to be tested and will largely depend on how certain words will be interpreted – especially “significant divergence” – and the level of evidence required to prove a material impact on trade or investment.

    According to Lord Frost, if the rebalancing is used too much, it could trigger a broader renegotiation of the deal.

    Based on the report Beyond Brexit: the institutional framework, by the House of Lords


    UK Minister casts confusion over the precautionary principle

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    The precautionary principle was given as the reason for authorising use of a bee killing pesticide for sugar beet production, by the UK Secretary of State, George Eustice.

    He said: “The emergency authorisation required for a neonicotinoid in sugar beet is a great example of the precautionary approach in action.”

    This is an inversion of the precautionary principle, invoking it to protect business interests instead of human health and the environment. The principle is normally put in practice where it is decided not to allow a particular course of action unless there is strong evidence it is safe.
     
    The UK Environment Bill creates a duty for ministers to have due regard to the precautionary principle in making policy. Green Alliance, a UK green group, argues that because of “unhelpful framing” the principle is more likely to “fall victim to an overly zealous fixation on new technologies”. Historically, the UK has not been an enthusiastic proponent of the precautionary principle.
     
    The UK committed to respecting the “precautionary approach” in the Brexit deal as well.
     
    The recently published UK draft policy statement on environmental principles is disappointing. Several caveats have been identified by Green Alliance: exclusions for some government departments, an ability for future governments to change the statement and sideline the principles with relative ease.
     
    Green Alliance blog post by Ruth Chambers
    Secretary of State for Environment, George Eustice, intervention in the House of Commons (4 March 2021)

    UK environmental targets are difficult to enforce, lawyers say

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    The binding targets in the UK Environment Bill are embedded in a weak framework.

    The Bill foresees several environmental targets such as on air quality, water, waste, biodiversity. But Client Earth UK points to several weaknesses, relating mainly to a lack of mandatory action.

    First of all, the Secretary of State is instructed to prepare an environmental improvement plan, the main task of which is to improve the environment, not to reach the targets. No minimum content requirements are mandated.

    If targets are missed, the Secretary of State must publish a report presenting steps that have or will be taken to address the issue. But there is no obligation to actually implement those steps.

    Finally, if there are “changes in circumstances” and targets become too hard to be achieved, the government can change their scope or revoke them.

    These loose provisions leave judges with few instruments to enforce the targets, according to Client Earth UK.

    From “A Greener UK Webinar in partnership with Leigh Day Environmental Review – fit for purpose?”


    Promises to improve civil society’s role in trade complaints

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    The European Commission continues in its efforts to align EU policies to the Green Deal objectives, including on trade.

    Parity, accessibility and transparency are three keywords that will define the EU’s trade complaints mechanism, according to the chief trade enforcement officer, Denis Redonnet.

    Sustainable development provisions in trade deals are linked to a trade test, so that a violation of sustainable development has to demonstrate an impact on trade. This puts civil society at a disadvantage, which does not usually have direct access to trade information.

    The complaint mechanism, called the single entry point, tries to address this barrier. It allows a complaint to be submitted on a sustainable development violation, without having to provide evidence about impact on trade. This helps to create parity, as it puts claims on sustainable development and market access on the same level.

    The European Commission will also make a particular effort to help less-resourced stakeholders during the pre-complaint process e.g. with assistance in filling in the form.

    The single entry point has been in operation since the end of last year, but no complaints on trade and sustainable provisions have yet been received. However, the Commission is engaged in several pre-complaint discussions. It remains to be seen how efficient the mechanism is in addressing sustainable development violations.  

    DG Trade and other parts of the Commission have undergone a re-organisation, to reflect the new focus on implementation and enforcement of trade deals. Redonnet nevertheless recognises that it needs “boots on the ground”, such as more involvement from EU missions in third states and possible use of the network of member states’ embassies.

    European Parliament, INTA committee discussion with the EU chief trade enforcement officer, Denis Redonnet (24 February 2021)
    Brexit Watch number 57 on the single entry point mechanism


    Could the UK influence EU regulations behind closed doors?

    150 150 ioana bere

    Regulatory cooperation in seemingly technical meetings and without Parliament’s democratic scrutiny might influence EU legislation, according to a policy paper commissioned by the Greens in the European Parliament.

    It gives the example of Canada that tried to influence, among other issues, the EU’s hazard-based approach inside CETA‘s regulatory committees. Documentation on this was disclosed at the request of Foodwatch Netherlands.

    This should inform the implementation of the Brexit deal, according to law Professor Dr. René Repasi who wrote the paper.

    Within the framework of EU-UK technical regulatory cooperation, the parties may (1) inform each other about legislative proposals or review and (2) to the extent feasible, consider each other‘s approach on the matter, (3) provide information and discuss regulatory measures.

    Such an “early exchange of regulatory plans can also mean that the contracting parties have an influence on draft regulation at a time before the European legislator has received these drafts”, said Repasi.

    Therefore, he proposes the appointment of a permanent European Parliament representative to the regulatory cooperation committees, who should be present in the room and get early access to the discussions.

    Professor Dr. Rene Repasi policy paper on Options for a stronger parliamentary involvement in the implementation of the TCA with the UK
    Foodwatch Netherlands report (2020)
    EU–UK TCA text, Article GRP.12 on Regulatory cooperation activities, page 193


    A complaint mechanism for civil society’s trade tool box

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    Since the conclusion of the EU-UK agreement, one of the big questions among stakeholders and MEPs has been: how can civil society have a role in monitoring and enforcing the deal?


    The Single Entry Point (SEP) was introduced by the European Commission last year, together with the appointment of the Chief Trade Enforcement Officer. The latter was promised in President von der Leyen’s political guidelines (2019) and is part of a growing recognition that ‘trade is not an end in itself’, that trade deals must have ambitious sustainable development chapters and compliance needs to be improved.

    The SEP allows EU citizens, NGOs, trade unions, companies and other entities to bring complaints about violations of commitments in trade and sustainable development chapters. The European Commission will review lodged complaints in wide-ranging interdepartmental consultations, which could eventually culminate in a dispute settlement procedure. The complainant will receive notification of receipt of their complaint, will be informed as to whether an enforcement action is started and might receive updates depending on the sensitivity and confidentiality of the issue at stake. 


    This could be an important avenue for civil society to support the implementation of the EU-UK agreement, in addition to the Domestic Advisory Groups (DAGs) and Civil Society Forum, both foreseen in the deal, but which have a weak role.

    A similar complaint mechanism for civil society has not yet been developed in the UK.
     
    Political guidelines of President Ursula von der Leyen – My agenda for Europe
    On the Trade Chief Trade Enforcement Officer and the Single Entry Point
    Operating guidelines for the Single Entry Point and complaints mechanism

    The Environment committee wants to make full use of the non-regression clause

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    ‘I urge the Commission to be strict should the agreement not be fully respected’, said Pascal Canfin, chair of the ENVI committee in the European Parliament.

    This week the ENVI committee published its opinion on the EU-UK trade deal in a six-page letter.

    The letter stresses the European Commission should ‘stand ready to make full use of dispute resolution tools available in the Agreement’. In case the UK regresses on environmental standards, the committee believes the link to trade and investment ‘should be broadly interpreted’. This trade test is mandatory for accessing the dispute settlement mechanism.

    ENVI says it will maximise its scrutiny of the deal’s implementation. The European Parliament’s committees should be involved in future review processes of the deal and should hold the European Commission accountable for its participation in the Partnership Council (the highest governance entity of the deal).

    It also calls on the Parties to aim for dynamic alignment of climate targets and environmental protections, and welcomes future negotiations on a closer form of cooperation on chemicals safety management.

    ENVI committee, opinion letter on the EU-UK trade deal
    European Parliament, press release 27 January 2020

    The UK Environment Bill – a distant star

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    Earlier this week, the UK Government postponed again its Environment Bill, which Prime Minister Johnson has previously called ‘the huge star of our legislative programme’.

    UK environmental groups such as RSPB, WWF and Greener UK are unhappy with the delay as it risks weaker environmental protections. The aim of the Bill is to bridge the governance gap created by Brexit, by establishing a domestic framework for monitoring and enforcing environmental laws.  

    ‘Our only hope is that this delay is used to improve the bill’, said Beccy Speight, the RSPB’s chief executive.

    For example, campaigners are calling for improvements to the environmental targets in the Bill (including legally binding interim targets) and for environmental principles (such as the precautionary principle) to be strengthened, i.e. via a duty on government to apply them.

    This is the third time the Bill has been delayed, on which work first began in July 2018. According to the UK government, it will return in the next Parliamentary session (spring 2020), which means it’s unlikely to pass Parliament before autumn 2020.

    BBC on the delay of the Environment Bill
    Previous Brexit Watch articles on the Environment Bill and the Office for Environment Protection: BW 27BW 21, BW 20, BW 15BW 12, BW 5.

    MEPS are concerned with the level playing field enforcement mechanism

    150 150 ioana bere

    The European Commission was given a hard time when it briefed MEPs on the level playing field mechanism in the EU-UK Trade and Cooperation Agreement (TCA).

    MEPs asked pointed questions about what constitutes regression and what action could be taken if the EU-UK level playing field is undermined. However, some of their concerns were not fully addressed. MEP Pascal Canfin (RE, FR) said he was not satisfied with the Commission’s replies and might submit written questions.

    MEP Bas Eickhout (Greens, NL) gave some concrete examples, such as the UK’s recent interest in enabling greater use of gene-edited crops – and asked if this was a form of regression. If the EU strengthens its legislation banning the use of neonicotinoids (bee-killing pesticides), what happens if the UK does not follow?

    NGOs’ and think tanks views on the weakness of the non-regression clause were echoed in the Parliament. ‘Is it sufficient to safeguard the level playing field if the burden of proof is so high?’ asked MEP Pietro Fiocchi (ECR, IT).

    Committee on Environment, Public Health and Food Safety, exchange on the Trade and Cooperation Deal, 14 January 2021

    The start of a deregulation race?

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    In a call involving more than 250 leading businesses, Prime Minister Johnson invited the UK industry to come up with ideas for regulatory and legislative reform to support future economic growth. However, changes to existing environmental and social legislation could be constrained by the non-regression obligation in the EU-UK Trade and Cooperation Agreement.

    The UK government has launched a consultation on enabling the use of gene-edited crops. The EU does not ban the use of GMOs or gene-edited food, but its approval process is stringent. The EU process is based on the precautionary principle, which the UK committed to respect under the EU-UK Trade and Cooperation Agreement.

    Article by The Financial Times on call with businesses (subscription needed)
    Article by The Financial Times on gene-edited food consultations (subscription needed)

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