Why ‘unique formula identifiers’ for hazardous mixtures will not apply in Great Britain
EU Regulations were incorporated into law in Great Britain on 1st Jan 2021. But what happens to the GB versions of those Regulations when the EU continues to make amendments?
EU Regulations were incorporated into law in Great Britain on 1st January 2021. What happens to the GB versions of those Regulations when the EU continues to make amendments to their version of the Regulations?
Jonathan Teale looks at the treatment of these amendments in Great Britain and looks at a particular example where EU manufacturers and importers of hazardous mixtures are required to supply ‘unique formula identifiers’ to national poisons authorities.
Interpreting and summarising the changes to legislation resulting from Brexit has been an interesting, and at times very complex, challenge for Legislation Update Service.
Many of you will already be aware that EHS European Regulations were ‘copied’ into law in Great Britain by the European Union (Withdrawal) Act 2018. (These copied Regulations are referred to as ‘GB Retained Regulations’). The key date for this was 11pm on 31st December 2020, i.e. any European Regulation which was directly applicable in Great Britain before that time and date was copied into GB law as at 1st January 2021.
So far so good.
But what happens when the European Union issues amendments to European Regulations which have been copied into GB law? For example, the European Union frequently issues amendments to the ‘REACH’ Regulation or the CLP Regulation.
The answer in relation to Amendment Regulations is the same as for the Principal Regulations; if an amendment was issued and became operative prior to 11pm on 31st December 2020, it is incorporated into the GB version of the regulations, but anything after that date is not. That means that amendments issued by the European Union which become operative on or after 1st January 2021 will appear in the updates section of the EU version of the regulations in LUS but will not appear in the GB version. In this way, the GB Retained versions of regulations will start to diverge from their original EU counterparts. Of course, the UK Government may choose to keep the GB Retained version in line with their EU counterparts, but they are not bound to do so.
There is an added level of complexity which (confession time) did catch us out for a short time. Amendment Regulations usually state something like “This Regulation shall enter into force on the day after its publication in the Official Journal of the European Union”. So presumably if it ‘came into force’ before 1st January 2021 it gets included in GB retained law? Seems straightforward – right? However, there is sometimes a difference between when the Regulation ‘comes into force’ and when it ‘becomes operative’. The Regulation may ‘come into force’ before 1st January 2021, but individual provisions within the Amendment Regulation may state something like “importers and downstream users shall comply with this Annex from 1st January 2024”. In this case, those provisions will not ‘become operative’ until 1st January 2024. In this case, the European Union (Withdrawal) Act 2018 specifically provides that those provisions will not be incorporated into GB law.
Earlier this year, in a small number of cases, we incorporated amendments into the LUS entries for GB Retained Regulations, where those amendments had ‘come into force’ before 1st January 2021, but which had not yet ‘become operative’. We have since identified those amendments and revised them to make it clear that they do not become law in Great Britain. The most significant of these was an amendment to the CLP Regulation which provided detail concerning the requirement for producers and importers to supply national poisons authorities with ‘unique formula identifiers’ in relation to hazardous mixtures. Those provisions which apply to the EU version of the Regulation do not apply in Great Britain.
Reminder: if you are a producer or importer in Northern Ireland, you continue to apply the EU version of the Regulation, not the GB Retained version.
Like we said at the beginning of this article … at times complex!
- EU Regulations which were operative in the UK before 11pm 31st December 2020 were ‘copied’ into law in Great Britain as at 1st January 2021.
- Amendments to EU Regulations are only copied into law in Great Britain if they are also ‘operational’ before 11pm 31st December 2020. Amendments which only become operative after that date will only apply to the EU Regulations which they amend. They will not be incorporated into GB law.
- Businesses in Northern Ireland should continue to apply the EU versions of Regulations, not the GB Retained versions.
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