The European Chemicals Agency (ECHA) has recently launched a section on their website offering information and advice on what will happen to the regulatory obligations of UK entities and EU Member States following Brexit (aka “Britain’s Exit” from the EU). The new dedicated webpage provides guidance for companies and other stakeholders following the UK’s withdrawal from the EU.
The EU’s chemical legislation applies in 31 European countries – the 28 EU Member States, and the three members of the European Economic Area (Iceland, Liechtenstein and Norway) – while Switzerland also implements provisions of the Biocidal Products Regulation (BPR) on the basis of a Mutual Recognition Agreement.
On March 29, 2017, the UK government invoked Article 50 of the Treaty of the European Union (TEU), and notified its intention to withdraw the UK from the EU. This means that under current circumstances, the UK will become a non-EU (“third”) country as of March 30, 2019. While this date may change, it can happen only by mutual agreement in the course of the withdrawal negotiations.
The UK is the only Member State to have ever withdrawn from the EU, making this withdrawal process a unique and unprecedented affair. As such, more certainties will emerge as it evolves.
What impact will Brexit have on the UK’s relationship with ECHA?
The UK’s decision to leave the EU will have a number of profound implications, as the EU regulatory regimes that have been established for numerous sectors of the internal market economy will no longer apply to the United Kingdom.
This means that the UK will no longer be bound to European chemicals legislation, and there will be no legal provision for ECHA to cooperate with UK authorities. ECHA has stated that Brexit will “significantly reduce” their cooperation with UK authorities, and “will not leave stakeholders untouched.”
How else will Brexit affect UK authorities?
A major impact of Brexit is that UK authorities will potentially lose access to the world’s largest database on the properties of chemical substances. Once the UK have withdrawn from the EU, these agencies will only have access to public information on ECHA’s website.
In addition, the UK will no longer take part in ECHA’s Committees for Risk Assessment (RAC) and Socio-Economic Analysis (SEAC), its Enforcement Forum, and its other networks such as HelpNet. ECHA says that alternative members will be appointed in advance to take over from RAC or SEAC UK rapporteurs, and will publish a list of such rapporteur mandates at a later date.
In June 2016, ECHA did state that “third” countries can be invited to participate in their work, subject to the agreement of ECHA’s management board, and earlier this year, a report from the House of Lords European Union Committee asserted that the UK must continue to push its “informal influence” on EU discussions on chemicals legislation following Brexit. Time will tell as to the extent to which this materialises.
How will UK-based companies be affected?
Following Brexit, the UK will no longer be legally required to maintain a national help desk to provide UK-based companies with advice and assistance in fulfilling their obligations under EU chemicals legislation. Companies that wish to seek assistance from the ECHA help desk should get in touch via the dedicated contact form. ECHA have stated that as third country entities, UK-based companies will join others based outside the EU and the EEA to whom the help desk “regularly replies.”
ECHA also advises UK businesses to closely follow national legislative developments, as well as the Brexit withdrawal negotiations, as they are likely to determine their future obligations, while companies that are part of a supply chain which links them to others located within EU Member States will face “some fundamental changes.” Similarly, EU-based companies with UK businesses in their supply chain could potentially face new and different UK rules on the import and use of chemical substances.
Despite the uncertainties of the Brexit process, ECHA has pledged to continue to seamlessly implement chemicals legislation within the EU and EEA beyond the UK’s withdrawal, and will continue to update the webpages as developments unfold. It is also worth noting that the information and advice on the website is based on the current state of affairs, and the UK Government’s plans for a “hard Brexit.” Should deals be made between the United Kingdom and the EU or ECHA over the course of the negotiation process, these positions may change.
(A few weeks ago, two members of the UL team – Regulatory Consultant Dr. Amy Lawrence and Senior Consultant Britt Smith – attended Chemical Watch’s inaugural Brexit Workshop in London. You can find out the key insights from the day here.)