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    Michel Barnier: regulatory level playing field – sine qua non for the future EU – UK trade agreement

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    It is clear now the UK will be divided post-Brexit between US and EU approaches, with the UK’s choice being a decisive factor in determining what type of trade agreement it will reach with both parties.

    Michel Barnier, former head of the Brexit negotiations task force and now in charge of the UK task force for the new European Commission, has clearly indicated on several occasions that if UK rolls back social and environmental standards, this will result in proportional consequences over UK access to the EU market. A future EU – UK trade deal could even be blocked in a scenario where the UK embarks on a considerable deregulatory path. Barnier also added that striking a trade agreement in only 11 months is not realistic.

    The Guardian article (October 2019)

    High environmental standards left unprotected by the UK Environment Bill

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    (30 October 2019) A letter signed by 23 experts in environmental law and published in the Telepgraph draws attention to the defective UK Environment Bill. Signatories complain that former Government’s promises on ensuring high environmental standards are maintained post EU departure have not yet been delivered. The Bill does not provide any commitment to non-regression of existing standards and does not enshrine environmental principles into law. The legislative framework allegedly allows for a set of standards to be repealed (such as air and water quality) and gives the executive questionably significant control over choosing which standards will be set over compliance.

    The Environment Bill passed its second reading but dropped with the dissolution of Parliament. All major parties plan to bring back the Bill post-election.  

    The letter signed by the 23 experts

    US pressures UK to diverge from EU standards

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    (27 November 2019) Leaked confidential documents of UK – US trade working group meetings over the last 30 months give new insights into how the US is pushing the UK to divert from EU regulatory approaches and standards.

    The papers show the US prefers a regulatory autonomous UK post-Brexit. Rolling back EU legislation would facilitate future alignment with the US regulatory system, and would also suit US business interests. During these meetings, US trade representatives highlighted the “philosophical difference” between the US and EU approaches to food and environmental regulations. The US is also allegedly threatening to refuse any future trade agreement with the UK if it agrees to remain aligned with the EU. It is made clear in the papers that any mention of climate change cannot be included in a future UK – US trade deal. Additionally, US officials apparently advised UK trade negotiators on how to publicly “sell” the idea of chlorinated chicken to British customers.

    Unearthed article (27 November 2019)
    Open democracy article (27 November 2019)
    Global justice article (27 November 2019)

    New Brexit deal and future relationship: UK insists on regulatory divergence, the EU on a level playing field

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    (17 October 19) The new deal achieved by EU and UK negotiators brings significant changes to the earlier deal agreed under the Prime Minister May: it allows the UK to diverge from EU environmental and health protection standards.

    The Withdrawal Agreement no longer contains an environmental non-regression clause for the UK and keeps only Northern Ireland aligned with many EU standards in order to maintain an open border in Ireland.
    The Political Declaration still includes text on a level playing field, but the details remain to be worked out during trade negotiations. The Declaration says that both parties pledge to uphold “the common high standards applicable in the Union and the United Kingdom at the end of the transition period” and then maintain high environment standards “at the current high levels provided by the existing common standards”. A reference to the Paris Climate Agreement has been inserted as well. The text continues to mention the possibility of co-operation with EU chemicals agency ECHA, however the text following this in the original political declaration, a commitment “to consider aligning with Union rules in relevant areas” has been deleted.

    The chemical industry has cautiously welcomed the deal, noting there is still possibility of co-operation between the UK authorities and Union’s agencies such as the European Chemicals Agency.

    Revised Political Declaration and Protocol on Ireland and Northern Ireland
    CEFIC’s reaction

    UK Environment Bill opens REACH replica for future changes

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    (15 October 2019) The UK Environment Bill sets out a process for amending the UK’s REACH law. UK’s REACH replica is largely a copy of the EU’s chemical safety law, REACH, though with significant differences concerning governance arrangements. The Environment Bill covers a wide range of environmental provisions (nature, air, waste and product standards) and now includes two specific REACH-related sections: re-amending the UK regulations to enforce UK-REACH (setting penalties etc.) and creating an amendment process for the Articles in the main UK-REACH text. This process would allow the Government to amend major parts of the UK-REACH and thus deviate from the EU’s approach. However, it also lists a number of “protected” articles which cannot be modified.

    The UK government has previously announced a “Brexit red tape challenge’” aimed at deregulation. As mentioned above, it has also removed text from the former Political Declaration which said that the UK would “consider aligning with Union rules in relevant areas” in order facilitate co-operation with EU chemicals agency ECHA.

    Latest news on the UK Environment Bill

    UK proposals: no need for “extensive level playing field arrangements”

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    (2 October 2019) The UK government has set out its proposals for a Brexit deal, which drops a customs union and with no commitments for “extensive level playing field arrangements” which were put in place in the Protocol on Ireland/Northern Ireland. Annex 4 of the Protocol notably established a non-regression clause on the level of environmental protection and required the UK to respect EU Treaty principles, including the precautionary principle. The discussion on “open and fair competition” should be developed in the EU-UK future relationship, according to the UK.

    Explanatory note on UK’s proposals

    A level playing field: the EU’s red line in trade negotiations with the UK, hears Trade Commissioner-designate

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    (1 October 2019) The significance of a level playing field in the future EU-UK relationship post-Brexit emerged during the hearing of Commissioner-designate for trade, Phil Hogan.

    Danuta Maria Hübner, Polish EPP Member of the European Parliament, raised the importance of ensuring a level playing field and common cross-borders standards. According to Hübner, this would be particularly important when taking into account the proximity and the size of the UK, as well as the current UK government’s position on regulatory divergence. She alluded this should be treated as a red line by the EU.

    Phil Hogan praised the Withdrawal Agreement as a balanced one, with reassuring provisions on the level playing field and standards varying from environment to state aid. He also presumes such a framework should be included in the negotiation mandate for the future agreement. Hogan expects the European Parliament to have its say over such a mandate. 

    Phil Hogan’s hearing in the European Parliament

    A new EU watchdog for the trade and sustainable development chapters in trade agreements

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    More details over the future Chief Enforcement Officer were provided by Commissioner-designate Hogan, after its creation was announced by Ursula von der Leyen in her agenda for Europe. The Chief Enforcement Officer will hold the position of Deputy Director General in DG Trade, will be politically accountable and be given enough resources to have “teeth”. This role will be entirely focused on implementation issues in trade agreements and will be expected to involve engagement with a large range of stakeholders, including those outside the trade circle. Taking into account Members of European Parliament’s numerous complaints over the implementation of trade and sustainable development chapters in trade agreements, it seems highly probable this will become a focus point for the enforcement officer. The position is expected to be created as soon as possible starting from 2020. 

    Phil Hogan’s hearing in the European Parliament

    ECHA reiterates its call for companies to get no-deal exit ready

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    (12 September 2019) On 1 November 2019, chemical registrations under REACH made by UK companies will become void. This means they will no longer hold licenses allowing them access to the EU market. Therefore, ECHA is again issuing a call on companies to transfer their business or registration to the EU if they want to maintain business links with the EU. Despite multiple previous calls and Brexit deadline extensions, a large share of substances which are only UK registered have not yet been transferred (estimated at around 40%), suggesting that major supply chain disruptions and enforcement issues should be expected in case of no-deal exit.

    Energy Efficiency First

    From a policy win to sound national plans – Part II: eight country stories

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    The EU’s new Governance rules for climate and energy policies from 2018 raised expectations for a better and more integrated energy planning, but had little impact so far.

    Rushed national consultations, ineffective energy efficiency measures and inconsistent EU funding programming are the key findings from our country assessments. This report also explores the impacts of the new Governance framework on national energy planning and policy making, and is aimed at supporting the next steps towards finalising the NECPs.

    It is based on interviews with stakeholders at national level in eight Member States and is the second part of the study published in April 2019 “Energy Efficiency First – from a policy win to sound plans”.

    Study by Ioana Bere, Marion Santini and Stefan Scheuer (Stefan Scheuer Consulting)
    Commissioned by European Climate Foundation

    Download

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