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    ECHA opens a 18 days Brexit window for companies to stay on market

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    (8 February 2019) With Brexit day fast approaching, ECHA published a preparedness note encouraging chemicals companies to take action prior to the UK’s withdrawal. In order to maintain market access, UK-based companies will have to transfer their business or appoint an only representative in an EU27/ EEA country. A “Brexit window” for the REACH IT system will be opened from the 12th to 29th of March to enable UK-based companies to change or transfer their registrations. EU27/ EEA downstream users relying on authorisations granted to UK-based companies will also need to make sure they can use another valid authorisation received by an EU27/ EEA-based company.

    ECHA preparedness note

    UK’s deficient REACH replica

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    The Draft Statutory Instrument (SI) serves to replicate the EU REACH regulation and was laid before the UK Parliament on 5 February, being scheduled for debate this month.

    However, stakeholders have highlighted a number of concerns about the SI. Steve Elliot, the head of UK’s Chemical Industries Association (CIA), noted there are some “unresolved” issues that raise major complications for UK firms representing non-EU companies that import to the EU. There are negative competitive consequences for UK importers as well. Further, there is no provision to allow for information exchange forums, which would have enabled companies to avoid duplicating tests. Finally, Michael Warhurst, representing CHEM Trust, highlighted the lack of commitment to mirror EU decisions on hazardous chemicals and the heavily reduced opportunities for stakeholders’ participation.

    Chemical Watch on industry criticism
    CHEM Trust on the Draft Statutory Instrument

    May’s reiterations of a green Brexit

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    (11 February 2019) Prime Minister May issued a response to Corbyn’s letter that set the terms for Labour backing the Withdrawal Agreement. While dismissing the solution of a UK-wide customs union, May’s response touched upon environmental protection and worker’s rights.

    She reiterated that Brexit will not come at the expense of lowered standards and thus recalled the non-regression commitment made in the Protocol on Ireland (Part 2, Article 2). May suggested that legislation can be prepared to give force to this in the UK legal framework, but that automatically following EU norms in these areas could not be supported by the UK government. She proposed instead to give the UK Parliament a say on future EU changes in standards. Maintaining a close relationship in heavily regulated areas was also mentioned in the letter, which would imply participation in ECHA’s proceedings, as already alluded to in the Political Declaration.

    Prime Minister May’s letter
    Jeremy Corbyn’s letter

    Experts talk about a “toothless” environment watchdog post-Brexit

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    (6 February 2019) The Office for Environment Protection (OEP), set out in the UK draft Environment Bill to monitor and report on environmental laws, was the subject of a hearing in the UK Parliament (EU Energy and Environment Sub-Committee).

    Witnesses noted that replacing the enforcement role of the European Commission is a challenging task. They also highlighted the complications of having a holistic assessment of the OEP’s authority, as only parts of the Environment Bill are currently available.

    Criticism was raised in regard to the independence of the body (government’s decisions on OEP’s budget and appointments) and the lack of overall objective for the OEP. The scope of the OEP is also considered to contain a significant gap: the enforcement mechanism will be applicable only in England. This implies that the OEP’s outreach will have to be extended to the devolved nations or parallel bodies will have to operate in similar ways at local level.

    Witnesses on post-Brexit enforcement of environmental law

    UK’s potential future trade partners push for lowered standards

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    A leaked official joint trade review between the UK and India shows how Indian policymakers would demand more regulatory flexibility as part of a new trading relationship with the UK. This includes relaxing REACH chemical regulations, which are said to raise compliance difficulties to Indian businesses. India has also frequently challenged REACH regulations at the World Trade Organisation.

    Greenpeace article on UK-India trade review

    Regulatory and administrative gaps in a no-deal scenario

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    Defra is the second most affected UK department by the European Union Withdrawal Act (EUWA), which will copy across among others existing EU environmental laws. More precisely, the Act impacts 80% of Defra’s work. The legislative work lying ahead is significant: Defra needs to present 95 statutory instruments to implement the EUWA and two additional new bills on agriculture and fisheries to replace the EU Common Agricultural Policy. In case of a no-deal scenario and in order to avoid a regulatory gap, all of this will need to be complete before 29 March.

    Local government, already diminished in size and financially constrained by previous cuts, has not received any additional funding for Brexit preparedness. Furthermore, around 400 staff from local agencies were redeployed centrally to work on Brexit. As EU environmental laws are being copied across to the UK legislative systems, gaps in human and budgetary resources risk hindering their enforcement in the UK. 

    Environmental Politics article on EU environmental policy and Brexit
    Cuts in agencies staff

    UK-based chemical companies – no evidence of preparedness

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    According to ECHA, there is no clear evidence for any significant increase in only representative appointments in the EU27 by UK-based chemical companies. Nevertheless, Brexit related inquiries are increasing, and ECHA is preparing further instructions for companies. According to ECHA’s registration statistics, the UK’s role in the supply chain of chemicals is significant, involving 5,508 importers and/or manufacturers of chemicals and 4,912 only representatives appointed by non-EEA countries in order to import substances to the single market.

    The draft Environment Bill under scrutiny by UK professionals

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    (30 January 2019) Academics and legal professionals were questioned on the draft Environment Bill by the UK’s Parliament Environment, Food and Rural Affairs Committee. The draft Bill sets out how the UK will maintain environmental standards after Brexit.

    The expert witnesses agreed the draft needs significant improvement. The issue of enforcement mechanisms was highlighted unanimously, and is considered to prove a difficult test after Brexit. Other criticism was raised with regard to the independence of the Office for Environmental Protection (OEP) and a failure to bring across all the existing acquis communautaire. According to Professor Maria Lee, the provisions on environmental principles fall short on what has been promised: they are set to have a weak status (policy instead of legal), will be binding only to ministers of the crown (not all public authorities) and will not apply in all their functions (instead only to high level policies).

    Academics and legal professionals questioned on the draft Environment Bill
    Paper on the Environmental Principles after Brexit

    UK out of REACH – a dark picture of higher business costs and environmental deregulation

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    (30/01/2019) With only two months left until Brexit day, the Executive Director of Cefic, René van Sloten, identified a no-deal Brexit as the only relevant planning scenario for chemicals businesses at a Brussels event. What this entails in practice has been outlined by CEFIC and the CIA in a newly published briefing. After 29 March all chemical registrations held by UK entities will be invalid, which means that they will not be able to import into the EU unless they have appointed an EU entity which holds a registration. The UK’s role in the supply chain of chemicals is significant, involving 5,508 importers and/or manufacturers of chemicals and 4,912 only representatives appointed by non-EEA countries in order to import substances, according to ECHA registration statistics. No transition period to allow continuity would take place in this no-deal scenario. EU based companies thus need to identify their UK supply chain exposure and take measures including switching to EU based suppliers.

    The head of UK’s Chemical Industries Association (CIA), Ian Cranshaw, warned about of the negative impact on UK jobs in regions with economic decline and the extra costs of registering chemicals twice, both in the EU and the UK.

    Campaigner Kate Young, from the environmental NGO CHEM Trust, raised the UK government’s announcement to subject all ex-EU law to its target to cut regulatory costs for business by 9 billion GBP. So far EU law has been exempt from this target. She also voiced concerns of regulatory divergence on chemical protection standards in the UK post-Brexit.

    High level debate on Brexit & Chemical sectors, European Economic and Social Committee – Agenda
    CEFIC and CIA briefing note

    EU-Canada investment protection compatible with EU law finds advocate general

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    (29/01/2019) The ECJ’s advocate general finds in an opinion that the Investor State Dispute Settlement (ISDS) mechanism, part of the EU-Canada trade agreement CETA, is compatible with EU law given that the ISDS mechanism would only decide on compensations in case of breaches, while it would be bound by the ECJ’s interpretation of EU law. The ISDS mechanism is accused by campaigns across Europe for putting business above people’s interest. It was also challenged by Belgium over whether it interferes with the exclusive jurisdiction of the ECJ and giving preferential treatment to investors.

    See new campaign: “Rights for People, Rules for Corporations – Stop ISDS”

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