CO2_2018

6 SIMON TILLING Burges Salmon LLP, One Glass Wharf, Bristol, United Kingdom REACH For decades, the UK has shaped and influenced EU policies and regulation in the fields of environmental protection and chemicals regulation (as elsewhere). The UK was instrumental in the design of one of the most ambitious and complex regulations the EU has ever created: Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). Indeed, REACH brought in such great regulatory change that, a decade after its introduction, the European chemicals industry is still in a transition period, with the final deadline arriving in May 2018. A huge amount of time, effort and money has been invested in implementing the requirements of REACH along supply chains so far, with still more to be invested in preparing for the final registration deadline. Official estimates predict approximately 25,000 unique substances covered by approximately 60,000 registrations to be submitted before the May 2018 deadline, and registering substances after the deadline is expected to come with disruption to business (2). At the same time as this deadline approaches, the European Chemicals Agency (ECHA) has made clear its view on the legal status of registrations by UK entities after Brexit: such registrations will be “non-existent”. As a matter of law, it must be correct that the registrations cannot be valid, at least not without some new arrangement between the UK and the EU. So what should UK entities do? That is just one of the reasons why there are loud calls for clearer direction from UK government. The reason REACH raises such issues, whereas other environmental and human safety regimes do not, is because REACH is what is known as a European Regulation. As such it is automatically binding on EU member states without any additional action required from domestic legislatures. Consequently, the UK has never had to incorporate REACH into UK law. This significance of this is that the UK, therefore, does not have its own chemicals regulation and neither does it have the technical support mechanisms to implement one, at this stage. EU REACH is supported by a number of such mechanisms, for example ECHA implements REACH across the EU (3) and REACH-IT is the central IT system that industry uses to manage REACH related data (4). Furthermore, all member state competent authorities work together towards the successful implementation of REACH, for example by sharing the burden of substance evaluation across 28 (soon to be 27) member state competent authorities. Outside of the EU, if the UK maintains its INTRODUCTION The UK’s exit from the European Union in March 2019 (widely referred to as “Brexit”) and the relationship that will exist between the UK and the EU after exit is a matter of permanent discussion and commentary within the UK, but for the chemicals industry the issues raised are particularly acute. The UK government’s stated position, embodied in the European Union (Withdrawal) Bill (the “Bill”), is that following Brexit, existing European Union law will be converted to UK law. However, for the chemicals industry, that vague sentiment is not enough, as the UK’s Parliamentary Environmental Audit Committee (EAC) has repeatedly made clear. The real position is far more complicated. Difficult decisions are needed from UK government, and soon, so that the chemicals industry in the UK, in the EU, and elsewhere in the World, can prepare. THE CURRENT STATUS The Bill According to the UK government, the Bill will provide the “maximum possible certainty and continuity” to businesses in the UK, such that those businesses can have confidence that they will not be subject to unexpected changes on the day the UK leaves the EU (1). However, the reality for the chemicals industry is far removed from this. When the UK eventually does leave the EU, it will undoubtedly have more freedom to regulate and set standards for the chemicals industry. Yet, it is this freedom and the consequential potential for departure from European chemicals regulation, intentional or otherwise, that gives the chemicals industry – and many environmental non-governmental organisations (NGOs) – concern. Brexit and REACH: what is the future for UK chemicals regulation? Disentangling UK chemicals regulation from EU REACH on the UK’s exit from the EU is a complex and difficult task. The UK government needs to devote resource to answering the questions that are raised so that the chemicals industry can plan for the future. ABSTRACT KEYWORDS: Chemicals, regulation, REACH, Brexit. REACH Chimica Oggi - Chemistry Today - vol. 36(2) March/April 2018

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