Brexit - Environmental law
Brexit will have minimal impact on companies if their business is located in Belgium and oriented towards the Belgian market. In Belgium, the competent authorities for regulating environmental law are the Flemish, Walloon and Brussels Capital Region (not the Federal Government). These Regions currently – and will continue to – implement EU Directives in national law and apply EU Regulations. However, there might be some substantial changes for companies of which the business is located in the UK or oriented towards the UK market. The immediate legal impact of Brexit will depend on the future trade agreement governing the relationship of the UK with the EU. During the negotiation and transition period, which started on 1 February 2020 and which will lasts until 31 December 2020, all environmental rules that derive from EU law will remain in place. The transition period has not been extended, meaning that the EU and the UK have to reach an agreement on their new relationship at the latest on 31 December 2020 (meaning that on this date the EU member states have to agree to the new agreements). If no trade agreement is reached on that date, there will be a no-deal Brexit.
Just as Belgium and other EU countries have done, the UK has implemented EU regulations regarding environmental law directly in national law in the past. The applicable rules after the transition period have yet to be settled between the EU and the UK in the context of negotiations on the future relationship.
Under the future trade agreement, the UK may decide to retain (some of the) national laws that implemented the EU Directives. Legislation on climate change and waste targets are likely to be retained. However, other legislation is often seen as restricting the economic development and growth, in which case the UK Government will most likely be prompted to add “flexibility” to or even repeal such legislation. E.g., port authorities and developers have criticised the possible restrictions on developments stemming from the Bird and Habitats Directive. Critics have also criticised the Environmental Impact Assessment for major developments on cost and administration grounds.
The “Great Repeal Bill” of the UK already enabled the transposition of existing and directly applicable EU law into UK law. In any case, the European Court of Justice will no longer be competent to rule on these laws. Even though, the UK absolutely wanted more independency in their case law, the downside will be that EU regulations will be interpreted differently on national level.
In 2006, the REACH Regulation placed various requirements on EU manufacturers and importers regarding the registration, evaluation, authorisation and use restrictions of chemicals for their safety and environmental impact. Each producer of a chemical substance in the EU has to register this substance with the ECHA (European Chemicals Agency) in case of a minimum production of 1 tonne per year. The same registration duty applies to importers of chemicals produced in non-EU/EER countries. The REACH Regulation is directly applicable, and there is also a significant amount of soft law (in the form of a guidance) issued by the ECHA. The UK may (i) make a bilateral agreement with the EU regarding this legislation, (ii) decide to remain in the EER, or (iii) drop the regime entirely and adopt a separate, new regime. In that last event, downstream users in the EU working with an UK supplier will be seen as importers under the REACH legislation, and will thus have to submit an own REACH registration. The British registrations will no longer be valid after the transition period. Consequently, UK-based manufacturers and sellers of chemicals would be confronted with difficulties to market their products in the EU without, at the very least, obtaining a registration from the ECHA, which would effectively passport the products throughout the EU.
The key point is that, if UK-based exporters want to see their products in the EU, they will have to comply with many of the product-related laws and standards that currently exist or that will be imposed in the future.
The Political Declaration setting out the framework for the future relationship between the EU and the UK as agreed at negotiators’ level on 17 October 2019, already stated that disciplines on technical barriers to trade should set out common principles in the fields of standardisation, technical regulations, conformity assessment, accreditation, market surveillance, metrology and labelling. The EU and the UK will also explore the possibility of cooperation of UK authorities with EU agencies such as the ECHA.
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