Brexit and Environmental Law - UKELA files/brexit...This report examines the implications of Brexit on the UK’s future involvement in a range of specialist cooperation bodies, networks

The UK and European Cooperation Bodies 1

Brexit and Environmental LawThe UK and European Cooperation Bodies

January 2018

2 Brexit and Environmental Law

The UK Environmental Law Association is the foremostbody of environmental lawyers in the UK. UKELA aimsto promote better law for the environment and toimprove understanding and awareness ofenvironmental law. UKELA is composed of 1,400academics, barristers, solicitors, consultants, andjudges involved in the practice, study and formulationof environmental law across England, Scotland, Walesand Northern Ireland.

UKELA remained neutral on the Brexit Referendum. Inorder to ensure regulatory stability and continuedenvironmental protection UKELA considers itimperative that the UK ‘s current environmentallegislation is preserved pending proper review, andfull and open consultation on options for change.UKELA’s full position on Brexit can be found atwww.ukela.org/ukelaposition.

UKELA’s Brexit Task Force was established inSeptember 2016 to advise on all matters relating toand arising from the UK’s decision to leave theEuropean Union insofar as this impacts environmentallaw, practice and enforcement in the UK. The TaskForce has been examining the legal and technicalimplications of separating our domesticenvironmental laws from the European Union and themeans by which a smooth transition can be achieved.With the assistance of UKELA’s specialist workingparties the Task Force aims to inform the debate onthe effect of withdrawal from the EU, and drawattention to potential problems which may arise.

The UKELA Brexit Briefing Papers have beenproduced under the guidance and approval ofUKELA’s Brexit Task Force chaired by Andrew Bryceand Professor Richard Macrory, and with input fromrelevant UKELA Working Parties and individuals.They do not necessarily and are not intended torepresent the views and opinions of all UKELAmembers.

This report is one of a series to be published byUKELA on the implications of Brexit forenvironmental law.

Other reports already available include:

• Brexit and Environmental Law: Exit from theEuratom Treaty and its EnvironmentalImplications

• Brexit and Environmental Law: Enforcement andPolitical Accountability Issues

• Brexit and Environmental Law: Brexit, Henry VIIIClauses and Environmental Law

• Brexit and Environmental Law: the UK andInternational Environmental Law after Brexit

• Brexit and Environmental Law: Wales, Brexit andEnvironmental Law

Forthcoming reports include:

• Brexit and Environmental Law: EnvironmentalStandard Setting after Brexit

• Brexit and Environmental Law: Scotland, Brexitand Environmental Law

• Brexit and Environmental Law: Scotland andInternational Environmental Law after Brexit

First published in Great Britain in 2018 by: UK Environmental Law Association (UKELA)One Glass Wharf, Bristol, BS2 0ZX

www.ukela.org

© UK Environmental Law Association

ISBN: 978-1-9997986-6-6

All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication maybe reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means(electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of boththe copyright owner and the publisher of this book.

https://www.ukela.org/content/doclib/316.pdf












Table of ContentsExecutive Summary .......................................................................................................3

Introduction ....................................................................................................................7

Background................................................................................................................................................................................................8

Observations ...................................................................................................................11

Interaction with withdrawal and trade negotiations..................................................................................................................11

Funding .......................................................................................................................................................................................................11

Participation without voting rights ...................................................................................................................................................12

Jurisdiction of the Court of Justice of the European Union .....................................................................................................12

European Neighbourhood Partnership ...........................................................................................................................................13

Conclusions .....................................................................................................................15

Endnotes .........................................................................................................................17

Annex 1: European Cooperation Bodies ....................................................................21

European Environment Agency (EEA) ..............................................................................................................................................22

European Chemicals Agency (ECHA)................................................................................................................................................26

European Environmental and Sustainable Development Advisory Councils Network (EEAC) ...................................30

European IPPC Bureau (the Seville Process)...................................................................................................................................32

European Network for the Implementation and Enforcement of Environmental Law (IMPEL) ..................................35

European Network of Prosecutors for the Environment (ENPE) .............................................................................................41

European Union Forum of Judges for the Environment (EUFJE) ............................................................................................44

ENVI CrimeNet (ECN) ..............................................................................................................................................................................45

European Food Safety Authority (EFSA) ..........................................................................................................................................47

Water Framework Directive Common Implementation Strategy (WFD CIS) .....................................................................49

Marine Strategy Framework Directive Common Implementation Strategy (MSFD CIS) ...............................................51

European Fisheries Control Agency (EFCA)....................................................................................................................................53

European Maritime Safety Agency (EMSA).....................................................................................................................................55

Fisheries Advisory Councils (FACs).....................................................................................................................................................58


Euratom Supply Agency (ESA) ............................................................................................................................................................60

European Nuclear Safety Regulators’ Group (ENSREG) ..............................................................................................................61

European Radiological Data Exchange Platform (EURDEP)......................................................................................................63

European Community Urgent Radiological Information Exchange (ECURIE) ...................................................................65

Annex 2: EU funding mechanisms...............................................................................67


Executive summaryThis report examines the implications of Brexit on theUK’s future involvement in a range of specialistcooperation bodies, networks and agencies relevantto environmental law. It forms part of a wider analysisof environmental governance after Brexit whichUKELA has undertaken in the Brexit and EnvironmentalLaw series.

The functions performed by the European bodieswhich the UK currently participates in vary greatly.Some bodies are informally constituted, and facilitatecooperation, policy exchange and best practice; othersare creations of specific legislative programmes, taskedwith development, implementation and enforcementof environmental law across Europe. This paperanalyses the eighteen bodies and networks of greatestimportance to environmental law.

This report considers three key questions. First, as anon-EU Member State, will the UK be legally permittedto continue participate in each of these bodies as a fullmember, an associate member or as an observer?Second, what would the benefits be for the UK tocontinue to participate in each of these bodies? Third,if UK participation is not possible under currentlegislation what functions would the UK be losing interms of environmental governance? The full findingsin relation to each body are set out in Annex 1.

UKELA has used this information to prioritise theimportance of continued participation in eachenvironmental body after Brexit. Highest priority isgiven to three organisation: the EuropeanEnvironment Agency, the European Chemicals Agency(ECHA) and the Seville Process. The second tier ofimportance includes a broader range of organisations,including the European Network for theImplementation and Enforcement of EnvironmentalLaw (IMPEL), the European Food Safety Authority(EFSA), ENVI CrimeNet (ECN), the European NuclearSafety Regulators’ Group (ENSREG), and the EuropeanCommunity Urgent Radiological InformationExchange (ECURIE).

A number of themes emerging from this analysis areexplored in more detail in the report including:

• the impact of ongoing uncertainty resulting fromnegotiations with the EU on the terms ofwithdrawal and future relationship. At present it isunclear whether the UK will continue toimplement the relevant acquis or align withspecific areas of European environmental policy,some of which form a precondition for futureparticipation in bodies as a non-Member State;

• the possibility that the UK may be able to regainmembership of certain bodies if it negotiatescontinued membership of the European EconomicArea, or participation in the EuropeanNeighbourhood Partnership;

• the existence of possible barriers to continued UKinvolvement in bodies, such as accepting evenlimited jurisdiction of the CJEU in resolvingdisputes relating to membership of a body, andthe possibility of participating in bodies withoutvoting rights; and

• the interaction between participation inenvironmental bodies and EU funding streams.LIFE is the only EU fund dedicated to theenvironment, but other funding streams relevantto the environment have been identified which are‘mainstreamed’ into other funds within the EUbudget, notably the Structural and CohesionFunds. Further detail on each of these fundingstreams is set out in Annex 2 of this report.

The report ends by suggesting an order in whichparticipation in each body should be addressed,based on weighing the relative importance of eachbody again the barriers (or lack thereof ) to continuedparticipation. The conclusions are that there are:

• four environmental bodies which the UK cancontinue to participate in after Brexit withoutamendment to underpinning legislation: theEuropean Environment Agency, EFSA, ENPE andthe EEAC. It is recognised that acceptance of therelevant acquis and limited acceptance of CJEUjurisdiction would be required for the EuropeanEnvironment Agency and the EFSA;

• two environmental bodies which the UK would notbe able to participate in as a third country undercurrent rules, but where amendment to thoseregulations should not be a substantial obstacle:IMPEL and EUFJE;

• one maritime safety body which the UK cansatisfactorily seek observer status in: EMSA;

• two nuclear bodies which the UK can retainobserver status in, but that nevertheless fullmembership should be negotiated: ENSREG andEURDEP;


• eight environmental bodies which the UK cannotretain membership of as a third country, andwhere amendment to the underpinning rules willnot be straightforward. Of these there are:

˚ three which we consider to be of the greatestimportance, and should therefore beprioritised: ECHA, the Seville Process andECURIE;

˚ two which we consider to be less urgent: WFDCIS and MSFD CIS; and

˚ three bodies where an accurate assessment oftheir priority level cannot be made becausetheir importance for post-Brexit environmentalgovernance hinges on the UK’s futurerelationship with the relevant EU regimes:EFCA, ESA, and the FACs; and

• one body for which we could not obtain the rulesof membership: ECN.


List of Acronyms BATs Best Available TechniquesBPC Biocidal Products Committee (ECHA)BREFs BAT Reference DocumentsCAP Common Agricultural PolicyCF Cohesion FundCFP Common Fisheries PolicyCIRCABC Communication and Information Resource

Centre for Administrations, Businesses andCitizens

CJEU Court of Justice of the European UnionCLP Classification, Labelling and Packaging

RegulationCOSME Competitiveness of Enterprises and small

and medium-sized enterprisesDBEIS Department for Business, Energy and

Industrial StrategyDefra Department for Environment, Food and

Rural AffairsDExEU Department for Exiting the European

UnionEA Environment AgencyEAFRD European Agricultural Fund for Rural

DevelopmentECHA European Chemicals AgencyECN ENVI CrimeNetECURIE European Community Urgent Radiological

Information ExchangeEEA European Environment AgencyEEA European Economic AreaEEAC European Environmental and Sustainable

Development Advisory Councils NetworkEFCA European Fisheries Control AgencyEFEH European Federation of Environmental

HealthEFSA European Food Safety AuthorityEFTA European Free Trade AreaEIA Environmental Impact AssessmentEionet European environment information and

observation networkEMFF European Maritime and Fisheries FundEMSA European Maritime Safety AgencyENAC Early Notification and Assistance in the

case of a nuclear accident or radiologicalemergency

ENFORCE Environmental Network for OptimizingRegulatory Compliance on Illegal Traffic

ENP European Neighbourhood PolicyENPE European Network of Prosecutors for the

EnvironmentENSREG European Nuclear Safety Regulators’ GroupERDF European Regional Development FundESA Euratom Supply AgencyESF European Social FundESI European Structural and Investment fund

ETCs European Topic CentresEUFJE European Union Forum of Judges for the

EnvironmentEURDEP The European Radiological Data Exchange

PlatformEUSF European Union Solidarity FundFACs Fisheries Advisory CouncilsGES Good Environmental StatusIED Industrial Emissions Directive (formerly the

IPPC Directive)IMPEL European Network for the Implementation

and Enforcement of Environmental LawIPPC Integrated Pollution Prevention and

Control DirectiveIRMIS International Radiation Monitoring

Information SystemIUU Illegal, unreported and unregulated

fishingLCP Large Combustion Plants DirectiveLDAC Long Distance Fleet Advisory CouncilMB Management Board (ECHA)MOU Memorandum of UnderstandingMS Member StateMSC Member State Committee (ECHA)MSCG Marine Strategy Co-ordination Group

(MSFD CIS)MSFD Marine Strategy Framework DirectiveMSFD CIS Marine Strategy Framework Directive

Common Implementation Strategy NFPs National Focal PointsNIEA Northern Ireland Environment AgencyNRCs National Reference CentresNRW Natural Resources WalesNSAC North Sea Advisory CouncilNWWAC North-Western Waters Advisory CouncilPAC Pegalic Advisory CouncilPIC Prior Informed Consent Regulation

RegulationRAC Committee for Risk Assessment (ECHA)RASFF Rapid Alert System for Food and FeedREACH Registration, Evaluation, Authorisation and

Restriction of Chemicals RegulationSEA Strategic Environmental AssessmentSEAC Committee for Socio-economic Analysis

(ECHA)SEPA Scottish Environment Protection AgencySVHC Substances of Very High ConcernTFS Trans-frontier ShippingTWG Technical Working Group (Seville Process)WFD Water Framework Directive WFD CIS Water Framework Directive Common

Implementation StrategyWID Waste Incineration Directive



Brexit and EnvironmentalLaw: the UK and EuropeanCooperation BodiesIntroduction1 This paper examines the implications of Brexit on the UK’s future involvement in a range of specialist European

cooperation bodies, networks and agencies which facilitate cooperation, policy exchange and development inthe environmental field. UKELA was neutral on the Brexit referendum1, and this paper forms part of a wideranalysis of environmental governance after Brexit and the gaps which may emerge in these systems.2

2 The functions performed by the EU environmental bodies studied vary greatly. Some bodies are activelyinvolved in the formation, implementation and enforcement of EU environmental law. These range from well-known bodies with a general scope, such as the European Environment Agency, to very specific and lesser-known bodies, such as the Marine Strategy Framework Directive Common Implementation Strategy (MSFD CIS).Other bodies provide more informal advice or facilitate knowledge sharing, such as the European EnvironmentalAdvisory Councils (EEAC). Some are institutions set up under EU legislation either expressly (such as theEuropean Environment Agency) or as a direct consequence of the legislation in question (such as the SevilleProcess for industrial emissions standards). We have also found examples of bodies and networks which havedeveloped much more informally – not as a result of the initiative of the European Commission or Member Stategovernments, but because people and groups working in the environmental field have found it useful to have aforum for exchanging views and experience (examples include the European Association of Prosecutors for theEnvironment, ENPE). We have included in this report such bodies where they largely consist of public officials ororganisations. There are a range of other European networks of environmental NGOs (such as the EuropeanEnvironmental Bureau) and trade associations but these are not covered in this report.

3 We have examined 18 bodies or networks. 13 of these are established under EU legislation, while the remaining 5are networks or bodies governed by their own rules or constitutions. After the UK withdraws from the EU there arethree key questions concerning such bodies and networks. First, as a non-EU Member State, is UK participationlegally permitted, either as a full member, an associate member, or as an observer? This depends on the terms ofthe legislation establishing such bodies or their articles of association. Second, if participation is possible, shouldthe UK or UK bodies continue to participate in such bodies? There may be a tangible benefit from continuedparticipation, even if there is regulatory divergence from the EU, for example where a body facilitates crucialinformation sharing and know-how. Third, if UK participation is not currently possible, are the benefit of continuedparticipation such that this should be a priority for the Government? In some areas negotiating the rule changethat would allow for continued UK participation may be mutually beneficial, both for the UK and our Europeanpartners.3 Importantly, some of these bodies carry out work that may have a continuing influence on our domesticenvironmental regulation after Brexit, for example if the terms of withdrawal or of a trade agreement require UKrules to converge with EU rules.4 Answering the second and third questions posed above is a matter of judgment,and views may differ. We have nevertheless indicated in the conclusion to this paper our view and undertaken aranking in terms of priority, based on consultation with experts within UKELA.

4 As part of this study we have also looked at the various EU financial initiatives for funding in the environmentalfield. It is uncertain whether, post-Brexit, the UK will remain eligible to access to these funding streams. Factorssuch as the conditions attached to these funding initiatives and the rules underpinning these funds need to beconsidered.

5 Two annexes accompany this report. Annex 1 summarises each body’s core activities and the potential benefitsof continued membership after Brexit. The rules that currently govern participation in each body are set out,including whether these would allow continued UK participation after Brexit (whether as a full member, observerstatus or in some other capacity). If the rules do not currently allow UK-participation, we consider what stepsmight be needed to enable continued UK participation, distinguishing where amendments would need to bemade to EU legislation from where changes would need to be made to more informal documents. In doing so


we have consider the viability of securing these changes. We also considered other conditions of membership,such as financial contributions, alignment with European legislation, and requiring the jurisdiction of the Courtof Justice of the European Union (CJEU).

6 Annex 2 addresses EU funding streams concerning the environment. The relevance each funding stream has forthe environment is addressed in the first column. The rules that currently govern participation in each fundingstream, and the possibility of continued UK participation, are then set out.

Background7 The UK’s departure from specialist EU bodies has been described as “a Brexit loss nobody’s talking about”.5 This is

still largely the case. Although there have been some comments on the issue, the impact of Brexit on the UK’smembership of EU agencies and cooperation bodies has not attracted the level of debate that other aspects ofBrexit have.6

8 The Government has maintained a non-committal, but consistently public position about the UK’s futurerelationship with EU bodies. The February 2017 White Paper said that:

There are a number of EU agencies […] which have been established to support EU Member States and theircitizens. These can be responsible for enforcing particular regulatory regimes, or for pooling knowledge andinformation sharing. As part of exit negotiations the Government will discuss with the EU and Member States ourfuture status and arrangements with regard to these agencies.7

9 A spokesperson for DExEU has similarly said that:

The UK is leaving the EU and will be ready for all outcomes of negotiations. There are a number of EU agencieswhich enforce particular regulatory regimes, or facilitate information sharing. As part of exit negotiations, thegovernment will discuss with the EU and member states the UK’s future status and arrangements with regard tothese agencies, and will consider all practical options.8

10 Specific questions have been asked by members of both Houses of Parliament about the future relationship ofthe UK to EU bodies, both in general and specifically in relation to the environment, however the Government’sresponse to date has been consistently non-committal.9

11 There has been some discussion of the impact of Brexit outside Parliament, in relation to specific fields. UKELA’spaper on the environmental implications of leaving the Euratom Treaty drew attention to the “need to consider non-member engagement with ECURIE [the European Community Urgent Radiological Information Exchange]” andquestioned “whether the UK could continue as a member of [ENSREG] European Nuclear Safety Regulators’ Group”.10

Similarly, the issue was considered in relation to the European Chemicals Agency by the Environmental AuditCommittee in their inquiry in to The Future of Chemicals Regulation after the EU Referendum. Their short report didnot reach any positive solutions, stating only that “[e]stablishing a fully stand-alone system of chemicals regulation forthe UK is likely to be expensive for both the taxpayer and for industry”.11 Future participation in fisheries related bodieswas also considered by the House of Lords European Union Committee in their report on Brexit: Fisheries.12

12 We have found three systematic analyses of European bodies. The first is a highly-partisan polemic which reachedunjustified and unevidenced conclusions.13 The second is a well-researched report by the former high-rankingBritish diplomats and civil servants which, while thorough, focuses on EU Single Market regulatory agencies.14

13 The third is an authoritative analysis by the House of Commons Library.15 This represents the mostcomprehensive legal discussion of EU Agencies and bodies published to-date. The paper raises the question ofthe UK’s membership of (or future participation) in EU agencies, either as observers or participants, noting thevarious routes through which the UK could seek ‘observer status’ in EU bodies. It explores the possibility ofcontinued UK participation if it were an EFTA state, a European Neighbourhood Country, or if it concluded aninternational agreement with the EU.16 In the latter category the paper suggests that: “Participation might bebased on an administrative arrangement or a memorandum of cooperation between the EU or the EU agency – thereare legal questions about the power of the agencies themselves to conclude agreements of this kind - and the UK”.17

The authors also note that the founding regulations of some bodies preclude the option of third-party stateparticipation; others may allow for participating without voting rights. Conditions of participation may includecontributing to the agency’s budget and accepting the jurisdiction of the CJEU.


14 This study is intended to complement the House of Commons Library’s analysis, expanding it to cover a broaderrange of bodies in the environmental field, including informal bodies and networks. We aim to emulate theirattention to producing objective analysis. We have elaborated further on the benefits of continued participationin each body; expanded on the possible obstacles to future participation; and provide a more detailedexplanation of the possible legal basis for the UK’s continued participations. However we have departed fromthe Library’s style by positing a subjective, but informed, view on which bodies UKELA believes that the UKshould endeavour to remain part of.



ObservationsInteraction withwithdrawal and tradenegotiations15 As the Government has highlighted,18 the nature of

any eventual withdrawal or trade agreement withthe EU will have a significant bearing on whichbodies the UK can continue to participate in. Theseagreements will impact the desirability ofcontinued participation European bodies, thebenefits of this participation will bring, and thelegal basis on which it can be achieved.

16 There are a range of bodies which require theimplementation of specific areas of EU legislation(full alignment with the relevant acquis) andparticipation in these bodies will largely dependon whether the UK agrees to continue aligning itsenvironmental legislation with the EU. Forinstance, the UK may be able to participate in theEuropean Maritime Safety Agency (EMSA) underthe legal mechanism provided for by Article 17 ofRegulation (EC) No 1406/2002; however, this isonly applicable if the UK “adopted and areapplying” EU law in the field of maritime safety andprevention of pollution by ships. The UKGovernment’s position is that continuedparticipation with the Agency, as well as continuedcooperation in the field of maritime safety, remainsa matter for negotiations.19 It is possible that underthe terms of the Article 50 agreement the UK willcontinue to apply the relevant EU legislation, andmay therefore elect to continue to participate inthe EMSA. However, if the UK opts for a ‘hardBrexit’, or otherwise elects to depart from this areaof EU law, then the UK may be precluded frompursing this option. Furthermore, if the UK soughta policy of regulatory divergence from the EU thenthe desirability of participating in a commonframework would be diminished.

17 The outcomes of the negotiations, and the UK’sfuture relationship with the EU on an institutionallevel, may have knock-on effects. For instance, anagreement which would allow the UK to remain amember of the European Economic Area (EEA)would allow the UK to remain a member of anumber of other organisations, such as the Article13 Forum of the IPPC Bureau. Knock-on effects canalso be seen between different bodies, and in theaccess the UK may have to EU fundedprogrammes. For instance, if the UK negotiatedongoing membership of the European

Environment Agency, then this in turn would allowfor the UK to participate in other agencies, such asThe European Network of Prosecutors for theEnvironment (ENPE). Furthermore, continuingmembership of the European Environment Agencymay allow the UK to participate in projectsdelivered by other bodies, where these projects aresupported by LIFE funding.20

18 However, while the agreement that arises from theBrexit negotiations provides an importantframework, it is unlikely to be conclusive. The UK’sfuture participation in some bodies will likely beachieved through ‘satellite’ agreements, collateralto both an EU-UK withdrawal agreement or anysubsequent trade agreement. As Merijn Chamonpoints out, the usual way for a third state toparticipate on a structural basis in an EU body is toconclude a specific international agreement withthe EU. The UK may seek a middle option, insteadincluding negotiations in relation to individualbodies in the wider Brexit negotiation, the result ofwhich may be that the “Article 50 agreement might [] set out the framework for further futurearrangements”.21 In any event collateral agreementsare likely to be necessary to settle finer details ofcontinued UK participation.

Funding19 Our research has flagged up the interaction

between the UK’s participation in certain bodiesand continued access to EU funding programmes.Although LIFE is the only EU fund dedicated to theenvironment we have examined all fundingstreams relevant to the environment. We note thatfunding is ‘mainstreamed’ into other funds withinthe EU budget, notably the Structural andCohesion Funds,22 and our analysis of thesefunding streams is set out in Annex 2.

20 IMPEL and ENPE are delivering LIFE fundedprojects, which are set to continue until after theUK withdraws from the EU. The ENPE-LIFE project isparticularly salient. The project is aimed atimproving compliance with EU environmental lawby addressing uneven and incompleteimplementation across Member States, and it isdelivered through improvements to the efficiencyand effectiveness of prosecutors and judges incombating environmental crime. The project runsuntil July 2020, with a budget of over €1 million.Delivery of this multi-partner project is being ledby the Environment Agency.


21 The Environment Agency will be able to retain membership in ENPE after Brexit, but it is important to note thatUK-based agencies may not be able to continue to participate in LIFE funded projects. Article 5 of the LIFEregulations sets out the requirements for participation of third countries in the LIFE programme. 23 After the UKleaves the EU it will not satisfy these requirements, unless the UK retains membership of the EuropeanEnvironment Agency. It is unclear what implications this will have for the continuation of this project if a UK-based agency, which is a member of ENPE is no longer able to participate. It may be possible in the future foractivities outside the EU to be funded in accordance with Article 6, provided that this is in accordance with theOverseas Association Decision and “provided those activities are necessary to achieve Union environmental andclimate objectives”.24

22 Comparison might be drawn with Horizon 2020 funding, where the European Commission has clarified that “theeligibility criteria must be complied with for the entire duration of the grant. If the United Kingdom withdraws from theEU during the grant period without concluding an agreement with the EU ensuring in particular that British applicantscontinue to be eligible, you will cease to be eligible to receive EU funding (while continuing, where possible, toparticipate) or be required to leave the project on the basis of Article 50 of the grant agreement.”25 Although the termsof funding agreements are different (notably, Horizon 2020 provides co-funding with Member States) it shouldbe noted that the Commission may pursue similar policies in relation to other funding streams.

23 Although the UK Government has said that it wants to continue to participate in funding streams such asHorizon 202026, the possibility of this is sensitive to political constraints. First, this issue will be part of widernegotiations for the UK’s withdrawal from the EU and future relationship27. Second, participation in EU funding istypically dependent on payments into the EU budget.28 While detailed political analysis is beyond the scope ofthis paper, it should be noted that the resolution of this issue will have a direct bearing on the UK’s ability toeffectively participate in different environmental bodies.

Participation without voting rights24 For the UK to continue to participate in some bodies as a non-Member State this may require the UK to

implement decisions which it was not able to vote on. For instance, involvement in the European ChemicalAgency (ECHA) would be possible as an EEA member, but this form of membership would not give the UK theright to vote on either the ECHA’s Management Board, Committees, the Forum or various other networks.29

Although this is the position accepted by Norway, Iceland and Liechtenstein it may be politically unpalatable tobe bound by decisions on chemicals regulation without having influence in those decisions. Nevertheless, if theUK is to maintain regulatory equivalence with REACH, allowing UK scientists to interact with EU scientists whenthey are evaluating substances may allow the UK to maintain informal influence in decision making.30

Jurisdiction of the Court of Justice of theEuropean Union25 Participation in some bodies may require acceptance of the jurisdiction of the CJEU as ultimate arbiter of

disputes. This is a point which was highlighted by the House of Commons in their report.31 Doing so would becontroversial, not least because accepting this would run against the Government’s position that leaving the EUwill “bring about an end to the direct jurisdiction of the Court of Justice of the European Union”.32

26 The most straightforward reason why the jurisdiction of the CJEU may be necessary if the UK wishes to continueparticipating in a body is because of the legislative framework underpinning that body. For instance, Articles 6(access to information) and 18 of Regulation (EC) No 401/2009 (Agency liability) require that if the UK were toparticipate in the European Environment Agency it would accept the CJEU as the ultimate arbiter of certaindisputes. Although this would not apply if the UK were to participate in agencies created outside the EU legalframework (such as IMPEL), similar problems may arise in relation to EU funding steams directed through thesebodies (such as LIFE funding for IMPEL projects) as the legislation underpinning the funding may itself requireCJEU jurisdiction.

27 It is unlikely that the jurisdiction of the CJEU can be removed through negotiations concerning the terms of UKparticipation in individual bodies. If the UK were to participate in EU bodies without accepting the jurisdiction ofthe CJEU, then this may place EU member states in breach of the EU law. The Opinion of the Court in a case


regarding the creation of a unified patent litigation system voices the arguments that that it would be unlawfulfor Member States to allow for the resolution of disputes by courts which are outside the EU legal order, withouthaving in place sufficient safeguards to protect the supremacy and uniform application of EU law.33 The practicaleffect is that, were the UK to be a member of a body regulated by EU law, the final arbiter of any dispute wouldhave to be the CJEU or a national court within the EU legal order (i.e. not UK courts, to which the EuropeanTreaties would not apply). Therefore it may be necessary, if it were deemed imperative for the UK to participate ina body, for the UK to concede the possibility of allowing for a limited oversight role for the CJEU in strictlydefined areas.34

28 This issue may also arise where informal participation is sought. For example, although membership of the ECHAis not possible for the UK without amending the legislative foundations of the Agency, the UK could ask theManagement Board to invite it to participate in the work of the Agency under Article 106 of Regulation (EC) No1907/2006. Article 94 states that the route of appeal, once the internal Board of Appeal route is exhausted, is theCJEU. It is unclear whether an invitation to participate under Article 106 would require an acceptance of theCJEU jurisdiction to arbitrate on any disputes arising from the UK’s participation.

European Neighbourhood Partnership29 If the UK were to participate in the European Neighbourhood Partnership (whether in its current form, or

otherwise) then this could facilitate involvement with a number of bodies. Article 8 TEU states that the EU “shalldevelop a special relationship with neighbouring countries, aiming to establish an area of prosperity and goodneighbourliness, founded on the values of the Union and characterised by close and peaceful relations based oncooperation”. At present the ENP comprises 16 Middle Eastern and Mediterranean countries.

30 A 2006 Communication from the Commission outlined “the possibility for ENP partner countries to participate incertain Community policies and programmes or to establish closer cooperation with them”35. Two distinct forms ofparticipation for ENP countries are outlined in the Communication: one for participation in Community agencies;and the second for the participation in Community programmes. The Communication expressly states that thepossibility of ENP country participation in agencies within the first limb includes the European EnvironmentAgency, EMSA and the EFSA.36

31 As the House of Commons Library Briefing sets out, the “Prime Minister has emphasised in speeches and WhitePapers that the UK will be leaving the EU but not Europe”.37 Nevertheless it is not clear whether legislativeamendment would be necessary for the UK to take advantage of the ENP. Furthermore, it is unclear whethermembership through the ENP would give the UK voting rights in the body’s decision-making process, requireacceptance of CJEU jurisdiction, and/or require contributions to the body’s budgets.38



Conclusions32 We have identified four environmental bodies which the UK can continue to participate in after Brexit, without

amendment to underpinning legislation. These are the European Environment Agency, the European Food SafetyAuthority (EFSA), the European Network of Prosecutors for the Environment (ENPE) and the EuropeanEnvironmental and Sustainable Development Advisory Councils (EEAC). We consider the importance of the UKmaintaining participation in European Environment Agency is HIGH, EFSA is HIGH/MEDIUM, ENPE is MEDIUM andthe EEAC MEDIUM/LOW. There are potential barriers to the UK continuing to participate in these bodies. In the caseof the European Environment Agency the UK would have to accept the jurisdiction of the CJEU (at least as the finalarbiter) if it were to remain a member of the Agency under existing rules. In the case of EFSA the UK would have tocontinue applying the relevant acquis in the area of food safety before an agreement could be reached whichwould allow continued participation. Weighing up these barriers against the benefits of continued participation,UKELA recommends that the UK maintains or negotiates membership of each of these four agencies.

33 We have identified two environmental bodies which the UK would not be able to participate in as a third countryunder current rules, but where amendment to those regulations should not be a substantial obstacle. These arethe European Network for the Implementation and Enforcement of Environmental Law (IMPEL), and theEuropean Union Forum of Judges for the Environment (EUFJE). We consider the importance of the UKmaintaining participation in IMPEL is HIGH/MEDIUM and for EUFJE it is MEDIUM. As IMPEL and EUFJE are bothgoverned by the association’s own rules rather than EU legislation, seeking amendment to these rules should notpresent an insurmountable problem. UKELA recommends that the UK negotiates renewed membership witheach of these bodies.

34 Our analysis shows that the UK can retain membership with observer status in three bodies. Two of these bodies arenuclear bodies: the European Nuclear Safety Regulators’ Group (ENSREG) and the European Radiological DataExchange Platform (EURDEP). We consider the importance of the UK maintaining participation in ENSREG isHIGH/MEDIUM, and for EURDEP it is MEDIUM. Although the UK is eligible to be nominated for observer status withENSREG it is doubtful whether the UK’s participation at this level would be adequate. Similarly, although the UK canmaintain voluntary arrangements with EURDEP in the short-term, a deeper and more formal relationship should bepreferable. Each of these bodies is established by EU legislation. While recognising that observer status is possiblewith both of these agencies, UKELA recommends that the UK negotiates full membership of both agencies.

35 The third body where the UK can retain membership with observer status is the European Maritime SafetyAgency. We consider the importance of the EMSA to be MEDIUM. Ideally the UK would seek third partymembership of EMSA, however given the barriers to doing so (implementing the relevant acquis, CJEUjurisdiction and budgetary contributions) we do not think that this is the highest priority.

36 There are eight environmental bodies which the UK cannot retain membership of as a third country, and whereamendment to the underpinning rules will not be straightforward. Negotiating changes to these rules willrequire political commitment and these have therefore been ranked in terms of priority.

37 There are three which we consider to be of greatest important, owing to their environmental and/or regulatoryimportance. These are the European Chemicals Agency (ECHA), the European IPPC Bureau (the Seville Process) andthe European Community Urgent Radiological Information Exchange (ECURIE). We consider that the importance ofretaining membership of ECHA is HIGH, for the Seville Process is also HIGH and ECURIE is HIGH/MEDIUM.

38 There are two which which we consider be less urgent. These are the Water Framework Directive CommonImplementation Strategy (WFD CIS) and the Marine Strategy Framework Directive Common Implementation Strategy(MSFD CIS). UKELA judge the importance of retaining the WFD CIS as MEDIUM, and the MSFD CIS as MEDIUM/LOW.

39 There are three bodies where an accurate assessment of their priority level cannot be made because theirimportance for post-Brexit environmental governance hinges on the UK’s future relationship with the relevant EUregimes. These are the European Fisheries Control Agency (EFCA), the Fisheries Advisory Councils (FACs), and theEuratom Supply Agency (ESA). We are alert to the fact that it is highly unlikely that the UK will continue toparticipate in these regimes. However, if the UK does continue to participate in these regimes then UKELA believesthat on balance the importance of the EFCA is MEDIUM, the FACs is MEDIUM, and the ESA is also MEDIUM.

40 There is one body where the rules of membership were not found. This was ENVI CrimeNet (ECN). We considerthe importance of retaining membership to be HIGH/MEDIUM.



Endnotes1 UKELA was neutral on the Brexit referendum. UKELA’s position is that the preservation of existing environmental

law pending proper and open review is vitally important for regulatory stability and the continued protection ofthe environment: for UKELA’s position statement see, www.ukela.org/UKELAposition. Although the immediatefocus has been on the challenges of rolling-over the substance of EU environmental law, UKELA is committed toexamining the other, vitally important systems of environmental governance, which will not simply roll-overupon Brexit.

2 UKELA published a previous report examining the impact of Brexit on the enforcement of environmental law,when the systematic and independent supervisory functions of the CJEU and the European Commission cease.UKELA, ‘Brexit and Environmental Law: Enforcement and Political Accountability Issues’ (July 2017). We are alsopreparing a paper on the setting of environmental standards in the UK after Brexit. UKELA, ‘Brexit andEnvironmental Law: Environmental Standard Setting after Brexit’ (forthcoming).

3 For example, anecdotal evidence from a former Chair of the Management Board of the European EnvironmentAgency suggests that the Agency, as well as its member states, would be glad to have the UK continue toparticipate in its work, including participating in information to EIONET and collaborating with Europe-widescientific research: ‘UK should keep working with the EU on the environment’, The ENDs Report, 20 December2017.

4 See paragraph 15ff, below.5 Simon Sweeney, ‘EU agencies: a Brexit loss nobody’s talking about’, The Conversation, 13 April 2017.6 Where it has received attention, the focus has been on the relocation of EU agencies currently located in the UK

rather than the important regulatory roles these bodies provide. See, for instance, Contiguglia, Collis & Paun‘Everything you need to know about the EU agencies leaving London because of Brexit’, Politico, 30 July 2017.

7 HM Government, ‘The United Kingdom’s exit from and new partnership with the European Union’ (cmd 9417,February 2017).

8 ‘UK set to keep EU regulations after Brexit’, Financial Times, 26 March 2017. This position has since been repeatedby DExEU officials ‘Brexit Britain Could Retain Membership Of EU Banking And Science Agencies’, Huffington Post,9 August 2017.

9 See, for instance:• Caroline Lucas MP, 27 November 2017, Q115838, “To ask the Secretary of State for Environment, Food

and Rural Affairs, pursuant to the Answer of 21 November to Question 113594, what assessment hisDepartment has made of the range of functions carried out by EU bodies on environmentalprotection, and which of these would end in the UK should the UK cease to be an EU Member State.”Answered by Dr Thérèse Coffey, 5 December 2017, “As part of our preparations to leave the EU, we areassessing the functions carried out by EU bodies on environmental protection. Our future relationshipwith the EU is still to be determined and is the subject of negotiations. This will include discussionsover our future status and relationship with these bodies and their environmental functions.”

• Stephen Kinnock MP, 14 November 2017, Q113008, “To ask the Secretary of State for Environment,Food and Rural Affairs, whether the Government plans to seek the UK’s continued participation withthe European Chemicals Agency, as set out under Article 106 of EU Regulation 1907/2006, after the UKleaves the EU.” Answered by Dr Thérèse Coffey, 17 November 2017, “The Withdrawal Bill will convertcurrent EU law into domestic law wherever practical, giving consumers and businesses as muchcertainty as possible. This includes laws relating to chemicals. The UK is strongly committed to theeffective and safe management of chemicals. That will not change when we leave the EU. While itwould not be appropriate to pre-judge the outcome of the negotiations we will discuss with the EUand Member States how best to continue cooperation in chemicals regulation in the best interests ofboth the UK and the EU.”

• Stephen Kinnock MP, 15 November 2017, Q113233, “To ask the Secretary of State for Business, Energyand Industrial Strategy, whether the Government plans to enter a contract with the EURATOM SupplyAgency after the UK leaves the EU.” Answered by Richard Harrington, 23 November 2017, “TheGovernment’s stated objective in the forthcoming negotiations with the EU on our future relationshipis to seek maximum continuity with Euratom, which is in the mutual interest of both parties. Thosenegotiations have not yet started, so the precise nature of that relationship, including with theEuratom Supply Agency, cannot be set out at this stage.”

• Mary Creagh MP, 6 October 2017, Q106113, “To ask the Secretary of State for Environment, Food andRural Affairs, what assessment he has made of the cost to the public purse of replicating the relevantfunctions of the European Chemicals Agency after the UK leaves the EU.” Answered by Dr ThérèseCoffey, 3 November 2017, “No decisions have yet been made on our future relationship with the EU’sagencies and bodies, including the European Chemicals Agency, after leaving the EU. Prior to any

http://www.ukela.org/UKELAposition


https://www.endsreport.com/article/58156/uk-should-keep-working-with-the-eu-on-the-environment

https://theconversation.com/eu-agencies-a-brexit-loss-nobodys-talking-about-76222

http://www.politico.eu/article/brexit-ema-eba-european-banking-authority-european-medicines-agency-everything-you-need-to-know-about-the-eu-agencies-leaving-london-because-of-brexit/amp/

https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper

https://www.ft.com/content/64d30780-10b5-11e7-b030-768954394623

http://m.huffpost.com/uk/entry/uk_598af7e6e4b0d793738b8ac2/amp

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-11-27/115838/





decisions on replicating relevant functions, the Government will always look to minimise disruptionand costs, which will include considering a number of options. Defra, along with all other Governmentdepartments, continues to take a responsible approach in preparing for all exit scenarios.”

• Stephen Kinnock MP, 14 November 2017, Q112899, “To ask the Secretary of State for Transport,whether the UK plans to seek formal co-operation with or third country participatory membership ofthe European Maritime Safety Agency after the UK has left the EU.” Answered by John Hayes MP, 22November 2017, “The Government is considering carefully all the potential implications arising fromthe UK’s exit from the EU, including the implications for the continued participation in the EuropeanMaritime Safety Agency. The UK’s continued participation with the Agency as well as continuedcooperation in the field of maritime safety, will be a matter for negotiations.”

• Tom Brake MP, 4 September 2017, Q7479, “To ask the Secretary of State for Exiting the EuropeanUnion, of which EU institutions and other EU-related bodies the UK is a member; and what assessmentthe Government has made of the financial cost and benefit to the UK of membership of thoseinstitutions and bodies.” Answered by Steve Baker MP, 12 September 2017, “Until the point of exit, theUK remains a full member of the European Union, its institutions and related bodies. We want toachieve a deep and special partnership between the UK and the European Union, but the precisenature of this future relationship is a matter for the negotiations. It would not be appropriate topublish information which might undermine our negotiating position – a principle that wasoverwhelmingly supported by the House of Commons in October last year.”

• Alistair Carmichael MP, 17 July 2017, Q5546 “To ask the Secretary of State for Exiting the EuropeanUnion, how many EU agencies of which the UK is a member the Government plans to replace withnational or other agencies after the UK leaves the EU; and whether his Department has made anestimate of the cost of setting up those new agencies”. Answered by Robin Walker MP, 21 July 2017,“Our relationship with the EU’s agencies upon exit will be evaluated in light of delivering the twelveobjectives outlined by the Prime Minister to achieve a deep and special partnership between the UKand the EU. No decisions have yet been made on our future relationship with the EU’s decentralisedbodies after leaving the EU. Prior to any decisions on establishing new agencies, the Government will,however, always look to minimise disruption and costs, which will include considering alternativeoptions. The European Union (Withdrawal) Bill makes clear that any decision on creating new agencieswould require the approval of both Houses of Parliament under the affirmative procedure.”

• Tom Brake MP, 17 July 2017, Q5349 “To ask the Secretary of State for Exiting the European Union, whatestimate his Department has made of the number of EU institutions and other EU-related bodieswhich the UK will leave on leaving the EU; and what assessment it has made of the financial andstaffing implications of replicating the role of those organisations in the UK”. Robin Walker MPanswered on 25 July 2017, “No decisions have yet been made on our future relationship with the EU’sinstitutions and decentralised bodies after leaving the EU. We are considering very carefully a range ofoptions. Our relationship will be evaluated in light of delivering the twelve objectives outlined by thePrime Minister to achieve a deep and special partnership between the UK and the European Union.Prior to any decisions on establishing new agencies, the Government will, however, always look tominimise disruption and costs, which will include considering alternative options. The European Union(Withdrawal) Bill makes clear that any decision on creating new agencies would require the approvalof both Houses of Parliament under the affirmative procedure.”

• Lord Lester of Herne Hill, 10 July 2017, HL628, “Her Majesty’s Government what is their assessment ofthe benefits and costs to the UK of membership of the European Maritime Safety Agency.” Answeredby Lord Callanan, 21 July 2017, “The European Maritime Safety Agency (EMSA) hosts a range ofinformation systems that are used by the UK Maritime and Coastguard Agency and the MarineAccident Investigation Branch More broadly, EMSA’s supporting role is broadly in line with theGovernment’s vision of a maritime transport system driving forward economic growth and marketefficiencies. With regard to the Government’s contribution to the EMSA budget, the UK makes acontribution to the EU Budget as a whole, and not to individual spending programmes within it.However, the Government is represented on EMSA’s Administration Board the EMSA managementtakes full account of better regulation and value for money principles in its ongoing delivery of itsservices. The Government is considering carefully all the potential implications arising from the UK’sexit from the EU, including the implications for the continued participation in the European MaritimeSafety Agency (EMSA). As part of the exit negotiations the Government will discuss with the EU andMember States how best to continue cooperation in the field of maritime safety, pollution andsecurity.”

• Lord Lester of Herne Hill, 4 July 2017, HL448 “Her Majesty’s Government what is their assessment ofthe benefits and costs to the UK of membership of the European Environment Agency.” Answered byLord Gardiner of Kimble, 18 July 2017, “Within the European Environment Agency budget it is notpossible to identify the membership cost for any individual EU Member State. The European


http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-09-04/7479/



https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Lords/2017-07-10/HL628/

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Lords/2017-07-04/HL448/

https://www.parliament.uk/biographies/lords/lord-gardiner-of-kimble/4161


Environment Agency undergoes regular independently-conducted evaluations and the UKGovernment is fully engaged with the evaluation currently in progress. When published in 2018, thisevaluation will enhance our understanding of the benefits of European Environment Agencymembership. In common with other EU agencies, as part of exit negotiations the Government willdiscuss with the EU (and European Environment Agency Member Countries) any potential futurerelationship with the European Environment Agency.”

• Martyn Day MP, 26 June 2017, Q1155 “To ask the Secretary of State for Exiting the European Union,what his priorities are during negotiations on the UK leaving the EU on the UK’s future relationshipwith (a) the European Chemicals Agency and (b) the European Maritime Safety Agency”. Answered byRobin Walker MP, 4 July 2017, “As part of the exit negotiations the Government will discuss with the EUand member states how best to continue cooperation in the maritime and chemicals sectors in thebest interests of both the UK and EU. Our relationship with the European Union’s bodies upon exit willbe evaluated in light of delivering the twelve objectives outlined by the Prime Minister in herLancaster House speech on 17 January to achieve a deep and special partnership between the UK andthe European Union. We are working closely with colleagues across government to make sure that wehave a regular dialogue with the maritime and chemicals sectors.”

See also:• possible issues facing the UK’s membership of EU agencies that were discussed in general terms in a

blog post by Richard Corbett MEP, who set out 10 key agencies which the UK stood to losemembership of, and the options available to the UK: Richard Corbett MEP, ‘Brexit and EU Agencies’, 21February 2017. These options were (1) setting up domestic equivalent agencies (2) continuing tofollow the recommendations and decisions of these agencies and (3) asking to remain members ofthem. As discussed below, in many cases we consider the options to vary, depending on the agency.

• Caroline Lucas MP has also flagged up the issue in relation to wider questions of safeguarding the UK’senvironmental protection: Caroline Lucas MP, ‘Exiting the EU, Not the Environment’, Spring 2017, atpage 9, point #6. See also: The Guardian, ‘UK unprepared for exiting Europe’s green legislation, saysLucas’, 13 February 210.

10 UKELA (Stephen Tromans QC and Paul Bowden), ‘Brexit and Environmental Law: Exit from the Euratom Treaty andIts Environmental Implications’, July 2017.

11 House of Commons Environmental Audit Committee, ‘The Future of Chemicals Regulation after the EUReferendum: Eleventh Report of Session 2016–17’, 25 April 2017; note also the evidence of Andreas Herdina,Director of Co-operation ECHA before the Committee.

12 House of Lords European Union Committee, ‘Brexit: Fisheries’, 6 December 2016.13 The Red Cell, ‘The Tangled Web: Dealing with EU Agencies after Brexit’, May 2017. See page 27 on the post-Brexit

functions of the European Environment Agency: “Given that plenty of EU environmental legislation has been ill-thought out, by a heavy-handed target-creating bureaucracy, the UK would do well in leaving [the EuropeanEnvironment Agency] behind. The tendency for the EU to see itself as leading the world in environmentallegislation has given its agencies the tendency to overreach themselves and damage the economies of thecountries they regulate.”

14 Senior European Experts Group, ‘Brexit and EU Regulatory Agencies’, September 2017. While this is a consideredreport, it focuses on very different bodies than are explored in this report, emphasising the potential forregulatory divergence.

15 House of Commons Library, ‘Briefing Paper 7957: EU Agencies and post-Brexit options’, 28 April 2017.16 ibid, pages 13-14.17 ibid, page 4.18 See paragraphs 8-9, below.19 Stephen Kinnock MP, 14 November 2017, Q 112899: “To ask the Secretary of State for Transport, whether the UK

plans to seek formal co-operation with or third country participatory membership of the European MaritimeSafety Agency after the UK has left the EU.” Answered by John Hayes MP, 22 November 2017: “The Government isconsidering carefully all the potential implications arising from the UK’s exit from the EU, including theimplications for the continued participation in the European Maritime Safety Agency. The UK’s continuedparticipation with the Agency as well as continued cooperation in the field of maritime safety, will be a matterfor negotiations.” See further, questions 1155. For the House of Lords, see also question asked by Lord Lester ofHerne Hill, 10 July 2017, HL628.

20 See paragraph 21, below.21 Merijn Chamon, ‘Consequences of Brexit for EU Agencies’, Blogactive, 4 July 2016.22 See further, the Manual of European Environmental Policy written by the Institute for European Environmental

Policy: Farmer, A.M. (2012) (Editor). Manual of European Environmental Policy. 1043pp. Routledge, London.23 Regulation (EU) No 1293/2013 of the European Parliament and of the Council of 11 December 2013 on the establishment

of a Programme for the Environment and Climate Action (LIFE) and repealing Regulation (EC) No 614/2007.


http://www.richardcorbett.org.uk/brexit-european-agencies/

https://www.carolinelucas.com/sites/carolinelucas.com/files/Safe%20Guarding%20Environment%20after%20Brexit.pdf

https://www.theguardian.com/environment/2017/feb/13/uk-unprepared-for-exiting-europes-green-legislation-says-mp

https://www.theguardian.com/environment/2017/feb/13/uk-unprepared-for-exiting-europes-green-legislation-says-mp



https://publications.parliament.uk/pa/cm201617/cmselect/cmenvaud/912/912.pdf

https://publications.parliament.uk/pa/cm201617/cmselect/cmenvaud/912/912.pdf

https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/78/78.pdf

http://www.theredcell.co.uk/uploads/9/6/4/0/96409902/the_tangled_web_-_eu_agencies_after_brexit.pdf

http://senioreuropeanexperts.org/wp-content/uploads/2017/09/brexit-eu-regulatory-agencies.pdf

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7957

https://www.parliament.uk/biographies/commons/stephen-kinnock/4359


https://www.parliament.uk/biographies/commons/mr-john-hayes/350


https://www.parliament.uk/biographies/lords/lord-lester-of-herne-hill/2037

https://www.parliament.uk/biographies/lords/lord-lester-of-herne-hill/2037

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Lords/2017-07-10/HL628/

http://eutarn.blogactiv.eu/2016/07/04/consequences-of-brexit-for-eu-agencies/

https://ieep.eu/uploads/articles/attachments/f75d3618-b8ca-40a9-9376-95aa3831ec74/12.1_Overview_of_EU_policy_Funding_instruments_-_final.pdf?v=63664509869

https://ieep.eu/uploads/articles/attachments/f75d3618-b8ca-40a9-9376-95aa3831ec74/12.1_Overview_of_EU_policy_Funding_instruments_-_final.pdf?v=63664509869


24 Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territorieswith the European Union.

25 Commission note to British applicants to Horizon 2020, October 2017.26 HM Government ‘Collaboration on science and innovation: A future Partnership Paper’ [undated]; See also,

Financial Times ‘Science paper sets out UK plan to remain in EU projects’.27 See paragraph 15ff, below.28 House of Commons Library, Briefing Paper 7847, ‘Brexit: UK Funding from the EU’, 10 January 2018, see page 29.29 See, the ECHA website.30 House of Commons Environmental Audit Committee, Oral evidence: The Future of Chemicals Regulation after

the EU Referendum, HC 912. See answers given by Dr Camilla Alexander-White to questions 54 and 80.31 House of Commons Library, ‘Briefing Paper 7957: EU Agencies and post-Brexit options’, 28 April 2017, page 15ff.32 HM Government, ‘Enforcement and dispute resolution: a future partnership paper’.33 Opinion 1/09 of the Full Court (8 March 2011) concerning the legality of a previous draft of an international

agreement to establish a Unified Patent Court, at [80].34 Richard Gordon QC and Tom Pascoe, ‘Preparing for Brexit & The Great Repeal Bill: The Legislative Options’, 5 April

2017, see page 23 for discussion of self-contained regimes for replicating the structure of EU law (includingincorporating the jurisdiction of the CJEU) within specialist fields, such as intellectual property law or, potentially,environmental law.

35 ‘Communication from the Commission to the Council and to the European Parliament on the general approachto enable ENP partner countries to participate in Community agencies and Community programmes’COM/2006/0724 final.

36 ibid, page 5: “As the European legislator creates each agency through respective secondary legislation,establishing specific provisions for each agency, the legislator has laid down varying conditions for theparticipation of third countries, depending on the sector in which each such agency is active (see Annex B).” Notethat in relation to the second limb (participation in EU programmes) the Communication states that while an“additional protocol on a framework agreement” may facilitate third country participation in “programmeswhose legal basis includes the provision of ‘opening up’ to the ENP countries (see Annex C)” (page 11), this wouldnot include LIFE, EAFRD or EUFF funding stream (see pages 33 and 39-40).

37 House of Commons Library, ‘Briefing Paper 7957: EU Agencies and post-Brexit options’, 28 April 2017, pages 13-14.

38 ibid

http://ec.europa.eu/research/participants/portal/desktop/en/support/about.html

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/642542/Science_and_innovation_paper.pdf

https://www.ft.com/content/88af3f8c-9172-11e7-a9e6-11d2f0ebb7f0


https://echa.europa.eu/about-us/partners-and-networks/member-states-and-competent-authorities

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/eu-chemicals-regulation/oral/47529.html

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/eu-chemicals-regulation/oral/47529.html


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/639609/Enforcement_and_dispute_resolution.pdf

https://consoc.org.uk/publications/the-great-repeal-bill/

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52006DC0724




Annex 1: EuropeanCooperation Bodies

22Brexit and Environm

ental Law

EuropeanEnvironmentAgency (EEA)

The EEA’s mandate is to help theCommunity and member countriesmake informed decisions aboutimproving the environment, integratingenvironmental considerations intoeconomic policies and moving towardssustainability. The EEA has diverseresponsibilities, including specificresponsibilities under key Directives(including MSFD, Waste and WaterFramework Directives, etc.).

Ongoing query about the extent towhich information is reported directly tothe European Environment Agency andhow much this is done for the EU28 bythe European Commission. The EEA isnot responsible per se for environmentallegislation however it informs decision-making by producing and disseminatingindependent information on theenvironment, including evaluatingimpacts and cost-benefit analyses.Furthermore, it assists in integratingpolitical, legal, economic and socialaction. Additionally it coordinates theEuropean environment information andobservation network (“Eionet”) as aforum for information sharing betweenMSs.

Very valuable

Produces and provides independentinformation on the environment, such asgood annual reports in the field of AirPollution. Query how much of this will bepublicly available for UK authorities to useif the UK no longer participates in the EEA.

Publishes regular reports on the state ofthe environment.

Forum for sharing information betweenMSs, such as good practice and what isworking in other MSs. This is a key loss,although parallel informal informationsharing systems could be be created withagencies in the EU27.

Good at establishing integration betweenpolitical, legal, economic and strategicaction. This will be less important asintegration between these actions will bedone within and between the UK anddevolved governments.

Coordinates efforts to protect theenvironment and secure sustainabledevelopment in Europe by providingdecision makers with information to

Membership is open to non-EU MSunder EU regulations, but this wouldprobably involve acceptingjurisdiction or complaintmechanisms of the CJEU (coveringdisputes over public access toinformation held by the Agency andAgency liability).

There are currently 33 membercountries of the EEA. Non-EU memberstate members are Iceland,Liechtenstein, Norway, Switzerlandand Turkey. The co-operating (non-member) countries are: Albania, Bosniaand Herzegovina, the Republic ofMacedonia, Montenegro, Serbia andKosovo (under UN Security CouncilResolution 1244/99).

The EEA is governed by Regulation(EC) No 401/2009 of the EuropeanParliament and of the Council of 23April 2009 on the EuropeanEnvironment Agency and theEuropean Environment Informationand Observation Network (Codifiedversion). Article 19 provides formembership of the EEA by non-MS,stating:

HIGH

Name What does it do?Benefits to UK of continued

participation, including ramifications of not doing so

Is continued UK participationpossible, including regulations Priority

https://www.eea.europa.eu/

http://www.eea.europa.eu/about-us/countries-and-eionet/intro

http://www.eea.europa.eu/about-us/countries-and-eionet/intro

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009R0401&from=EN

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009R0401&from=EN


Eionet is a partnership network of theEuropean Environment Agency (EEA)and its member and cooperatingcountries. It consists of the EEA itself, sixEuropean Topic Centres (ETCs) and anetwork of around 1000 experts from 39countries in up to 400 national bodiesdealing with environmental information.These experts are the National FocalPoints (NFPs) and the National ReferenceCentres (NRCs).

The Eionet partnership is crucial to theEEA in supporting the collection andorganisation of data and thedevelopment and dissemination ofinformation. The organisations andindividuals in the network are supportedby an extensive information technologyinfrastructure (referred to as e-Eionet).

Through Eionet, the EEA coordinates thedelivery of timely, nationally validated,high-quality environmental data fromindividual countries. This forms the basisof integrated environmental assessmentsand knowledge that is disseminated andmade accessible through the EEAwebsite. This information serves tosupport environmental managementprocesses, environmental policy makingand assessment, and public participationat national, European and global levels.

shape, implement and assessenvironmental policies. This advisoryfunction extends to the Commission aswell as MSs.

Key body for assembling statistics,evaluating impacts and conducting cost-benefit analysis. Overlap with tasks donedomestically by the EAC and the NAO. UKlegislation current includes reportingrequirements to the EEA.

EEA provides a conduit to internationalbodies and equivalent agencies in othercountries (such as the US EnvironmentalProtection Agency, Environment Canada,and the State Environmental ProtectionAdministration in China).

Membership of EEA allows access to LIFEfunding programmes.

The Agency is open to countrieswhich are not members of theCommunity but which share theconcern of the Community and theMember States for the objectives ofthe Agency under agreementsconcluded between them and theCommunity following the procedurein Article 300 of the Treaty [nowArticle 218 TFEU].

A Communication from theCommission to the Council and to theEuropean Parliament on the generalapproach to enable ENP [EuropeanNeighbourhood Policy] partnercountries to participate in Communityagencies and Community programmesmakes specific provisions for theinvolvement of third parties. TheCommunication states at pages 2 and6 that the EEA is currently exploringpossibilities for participation ofselected ENP countries in certain EEAactivities and it is giving priority tocooperating with ENP partners inregional cooperation processes. Thismay take the form of selectivecooperation as an external partner inspecific activities, and may not involveparticipation in all EU environmentalprogrammes.






ental Law

This is consistent with Article 8 TEUwhich provides that the EU mayconclude specific agreements todevelop a special relationship withneighbouring countries. However, theENP is an EU foreign relationsinstrument seeking to tie thosecountries to the east and south of EUterritory to the Union: it does not covercountries which are in the current EUenlargement agenda, the EuropeanFree Trade Association or the westernEuropean microstates. It has beenargued that “The 2003 explanatorynotes from the Convention Praesidiumthat drafted the Treaty establishing aConstitution for Europe in 2003-04argued that this Article [Article 8 TEU]removed the need to create a specialassociate status for withdrawingstates.” (see House of Commons LibraryBriefing Paper 7957, page 13 fn 18).However whether Art 8 TEU or the ENPwould allow the UK to enter into anagreement under Art 19 of Regulation(EC) No 401/2009 remains unclear.

Furthermore it is likely that continuedparticipation in the EEA would involveaccepting the jurisdiction or complaintmechanisms of the CJEU. This is theview taken by the House of CommonsLibrary Briefing Paper (page 19). This




http://researchbriefings.files.parliament.uk/documents/CBP-7957/CBP-7957.pdf


analysis likely derives from Article 6 ofRegulation 401/2009, wherein alldecisions taken by the ManagementBoard under Article 8 of Regulation(EC) No 1049/2001 (confirmatoryapplications relating to access todocuments) may form the basis of anaction before the CJEU. To a lesserextent also Article 18(1) says that theCJEU shall have jurisdiction overcontractual liability where this ispursuant to an arbitration clausecontained in a contract concluded bythe Agency.





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EuropeanChemicalsAgency (ECHA)

The ECHA manages the technical,scientific and administrative work toimplement REACH, the EU’s registrationsystem for chemicals. It is mandated tocover REACH, CLP, Biocides and PIC, butalso covers elements of the IPPCDirective and the Water FrameworkDirective.

The ECHA assists in fulfilling registrationrequirements under these directives.REACH requires companies to provideinformation on the hazards, risks andsafe use of chemical substances thatthey manufacture or import, which theyregister with ECHA. CLP requiresnotification of ECHA of classification andlabelling of companies’ chemicals.Companies not allowed to place on themarket a substance designated aSubstances of Very High Concern(SVHC), unless they have been givenprior authorisation to do so. The ECHAprovides a source of information forbusinesses on SVHCs, as well asassistance in phasing them out.

Main bodies

The Management Board (MB) is thegoverning body of the ECHA. It has asupervisory role with generalresponsibility for: budgetary and

It would be highly beneficial from bothan environmental and a practicalperspective for the UK to retainparticipation in the ECHA.

The Chemicals industry is the biggestmanufacturing exporter in the UK andemploys over 500,000 people. There arestrong reasons for maintaining regulatoryequivalency with the EU in relation tochemicals.

The expensive but vital process of testing,evaluating and authorizing chemicals assafe for use is carried out jointly throughthe ECHA, to save money and avoidduplication.

ECHA provides an effective regulatorysystem which UK industry spent lots ofmoney on implementing and gainedbenefits from market access andharmonisation.

If the UK leaves the ECHA, we would needto set up our own agency, agreeequivalency rules and mutual recognitionas well as procedures to resolve differences.

Continued involvment will help keep theUK aligned with and abreast of regulatorydevelopment, as REACH etc. constantlyevolving.

Membership would not be possiblewithout amendment tounderpinning legislation, butinvolvement with organs of the ECHAcan be achieved and, alternatively, acooperation agreement may bepossible. In both cases it is unclear towhat extent CJEU jurisdiction wouldhave to be accepted.

The ECHA was established byRegulation (EC) No 1907/2006. TheECHA engages with non-MS but it isnot open to them becoming members,i.e. there is no equivalent in Regulation(EC) No 1907/2006 to Art 19 ofRegulation (EC) No 401/2009 allowingnon-MSs membership of the EEA.

The Management Board is composed ofEU28 MSs; six representatives of theCommission (including 3 memberswithout voting rights appointed torepresent interested parties); tworepresentatives of the EuropeanParliament; one observer each fromIceland, Liechtenstein and Norway whichthe Management Board has invited.

Invitation of Iceland etc. to theManagement Board is not achievedthrough Article 79, which sets out thecomposition of the Board and does not

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planning matters; the appointment ofthe Executive Director, the members andthe Chair of the Board of Appeal; and thereporting of ECHA’s activities to EUinstitutions.

The Member State Committee (MSC)participates in several REACH processessuch as evaluation and authorisation. TheMSC is responsible for resolvingdivergences of opinions among MemberStates on proposals for the identificationof Substances of Very High Concern(SVHCs). The Committee provides opinionson ECHA’s draft recommendation for theauthorisation list (Annex XIV) and draftCommunity Rolling Action Plan (CoRAP)for the substance evaluation process. If anagreement is not reached within the MSC,the matter is referred to the EuropeanCommission for decision-making.

The Committee for Risk Assessment(RAC) prepares the opinions of ECHArelated to the risks of substances tohuman health and the environment inthe following REACH and CLP processes.The final decisions are taken by theEuropean Commission.

The Committee for Socio-economicAnalysis (SEAC) prepares the opinions ofECHA related to the socio-economic

Involvement also allows UK experts tomake comments on draft evaluationdecisions, particularly where that mightimpact a supply chain of interest to aBritish company.

In total the ECHA is referred to in about100 EU Regulations as well as 19 Directives,and 16 domestic pieces of legislation.

See also, the evidence of ECHA, EA andHSE at the Environmental AuditCommittee inquiry on the Future ofChemical Regulation.

As Andreas Herdina, Director of Co-operation said at the Environmental AuditCommittee inquiry on the Future ofChemical Regulation:

Norway is, as an EEA member, both in ourmanagement board and in the scientificcommittees influencing all our decisionsas an EEA member. I think one of theconcerns that I would have from a Britishpoint of view is that now the UKspecialists make comments on draftevaluation decisions that we have, but infuture they would not be in the room tomake any comments there even if thedraft decision might impact on acompany in the supply chain of interestto a British company.

include provisions for EEA/EFTA states.Instead it would appear that this isachieved through Article 106 whichsets out an alternative form ofinvolvement with the ECHA. It states:

The Management Board may, inagreement with the relevantCommittee or the Forum, inviterepresentatives of third countriesto participate in the work of theAgency.

Note that the General Report of theECHA 2016 shows that although Norwayand Iceland have observer status on theManagement Board by virtue of beingan EEA/EFTA country the latter hasmembers on other Committees (theMSC, RAC, SEAC, BPC) and the Forum(page 112). The ECHA website states thatEuropean Economic Area countries“participate in these bodies andnetworks without the right to vote”.

This may be the mechanism throughwhich involvement in Committees orthe Forum of the ECHA can be achieved.However, it is not clear whether, as amatter of law, involvement throughArticle 106 would necessarily precludevoting rights etc., particularly on bodiesother than the MB.




http://eur-lex.europa.eu/search.html?textScope0=te&qid=1490967028489&DB_TYPE_OF_ACT=regulation&CASE_LAW_SUMMARY=false&DTS_DOM=ALL&typeOfActStatus=REGULATION&type=advanced&lang=en&andText0=%22European%20Chemicals%20Agency%22&SUBDOM_INIT=ALL_ALL&DTS

http://eur-lex.europa.eu/search.html?textScope0=te&qid=1490967165155&DB_TYPE_OF_ACT=directive&CASE_LAW_SUMMARY=false&DTS_DOM=ALL&typeOfActStatus=DIRECTIVE&type=advanced&lang=en&andText0=%22European%20Chemicals%20Agency%22&SUBDOM_INIT=ALL_ALL&DTS_S

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/eu-chemicals-regulation/oral/48515.pdf

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/eu-chemicals-regulation/oral/48515.pdf

https://echa.europa.eu/documents/10162/2413601/mb-45_general_report_2016_en.pdf/799e7f88-78e1-13a4-b4e0-86f3b172214a

https://echa.europa.eu/documents/10162/2413601/mb-45_general_report_2016_en.pdf/799e7f88-78e1-13a4-b4e0-86f3b172214a

https://echa.europa.eu/about-us/partners-and-networks/member-states-and-competent-authorities


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impact of possible legislative actions onchemicals. The final decisions are takenby the European Commission.

The Biocidal Products Committee (BPC)prepares the opinions of ECHA related toseveral BPR processes. The finaldecisions are taken by the EuropeanCommission. The processes include, interalia: applications for approval andrenewal of approval of activesubstances; identification of activesubstances which are candidates forsubstitution; and scientific and technicalmatters concerning mutual recognitionin accordance with Article 38.

The Forum for Exchange of Informationon Enforcement (Forum) is a network ofauthorities responsible for theenforcement of the REACH, CLP and PICregulations in the EU, Norway, Icelandand Liechtenstein.

Furthermore, Article 120 addressescooperation, and particularlyinformation sharing, with TP countriesand international organisations:

Notwithstanding Articles 118 and119 [Access to Information andElectronic Public Access], informationreceived by the Agency under thisRegulation may be disclosed to anygovernment or national authority ofa third country or an internationalorganisation in accordance with anagreement concluded between theCommunity and the third partyconcerned under Regulation (EC) No304/2003 of the EuropeanParliament and of the Council of 28January 2003 concerning the exportand import of dangerous chemicalsor under Article 181a (3) of the Treaty,provided that both the followingconditions are met:

a) the purpose of the agreementis cooperation on theimplementation ormanagement of legislationconcerning chemicals coveredby this Regulation;

b) the third party protects theconfidential information asmutually agreed.





The ECHA’s Factsheet on InternationalCooperation expresses the body’ssupport for the EU’s external relationspolicy, including the enlargementpolicy and the EuropeanNeighbourhood Policy, as well asengaging countries at the immediateexternal border of the EU. Engagingwith the ECHA in this way wouldinvolve an European Neighbourhoodand Partnership Instrument (ENPI).

The UK could seek a cooperationagreement with the ECHA. Activitiesunder these agreements are focused onexchanging information, best practiceand scientific knowledge. The ECHA hascooperation agreements withregulatory agencies in four countries:Australia, Canada, Japan and the UnitedStates of America (MOUs andStatements of Intent with peer agenciesin these counties can be found here).

It should be noted that Article 94 statesthat the route of appeal, once theinternal Board of Appeal route isexhausted, is the CJEU. It is not clearwhether and to what extentinvolvement or cooperation wouldnecessitate an acceptance of CJEUjurisdiction. Current Article 120 MOUsdo not require this, however it is unclearwhether Article 106 would require this.




https://echa.europa.eu/documents/10162/13558/factsheet_international_cooperation_en.pdf/21b3ef72-9a66-479f-89ba-d9b08a1e760b

https://echa.europa.eu/about-us/partners-and-networks/international-cooperation/support-to-eu-external-relations-policies

https://echa.europa.eu/about-us/partners-and-networks/international-cooperation/support-to-eu-external-relations-policies

https://echa.europa.eu/about-us/partners-and-networks/international-cooperation/cooperation-with-peer-regulatory-agencies


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EuropeanEnvironmentaland SustainableDevelopmentAdvisoryCouncilsNetwork (EEAC)

EEAC is a network of advisory bodiesestablished by national or regionalgovernments. The EEAC was establishedin 1993 and has evolved over more thantwo decades.

EEAC members offer independentadvice to their respective national orregional governments and parliamentsrelated to the environment andsustainable development.

Members of the EEAC provide policyadvice, steer public and stakeholderdialogues, and exchange knowledgeand experience on environmental andsustainable development debates,including:

• the state of relevant indicators andtargets;

• the identification of favourable andunfavourable trends as well asemerging issues;

• the assessment of strategies,roadmaps and polices;

• policy recommendations; • better governance, including policy

coherence between different layersand sectors of government andpublic participation;

• research and education.

EEAC Network provides an operationalframework for joint activities, knowledgesharing, dialogue, informed debate anddeliberation among different stakeholdersand disciplines. It seeks to bridge the gapbetween scientific knowledge andpolicymaking and to enrich the advice thatindividual advisory bodies can give to theirgovernments by encouraging exchange ofexperience among members.

The EEAC Network also enables itsmembers to better anticipate and preparefor forthcoming strategic issues at theEuropean level and in international andglobal sustainable development relatednegotiations and debates.

Future participation in the EEACwould be possible, as membership isnot confined to bodies within EUMembers States, or theimplementation of specificlegislation.

Membership is determined by theFramework for the European Environmentand Sustainable Development AdvisoryCouncils (EEAC) Network [not availableonline]. Rule 3.1 states that a nationaladvisory councils engaged in givingenvironmental policy advice and/orgiving advice on sustainabledevelopment issues are eligible tobecome members of the EEAC Network.Rule 3.2 sets out the institutionalcharacteristics of an advisory council:

a it is established by a national,subnational or local governmentor by a national or subnationalparliament for the tasks ofgiving advice on environmentaland/or sustainable developmentissues, stimulating informeddebate and/or communicatingwith a wider public andfostering the involvement ofcivil society;

b it is composed of councilmembers who are appointed,

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The network brings together expertrepresentatives from academia, civilsociety, the private sector and publicbodies.

Fourteen advisory bodies from elevenEuropean countries and regions aremember of the EEAC Network. Atpresent there is no UK Member Council,although The Royal Commission onEnvironmental Pollution and theSustainable Development Commissionwas actively involved before its abolitionin 2011.

A key mechanism of collaboration in theEEAC network are working groups,which bring together the views ofindividual advisory bodies on selectedand strategic topics (i.e. circulareconomy, energy and climate change,marine and water affairs and sustainabledevelopment).

nominated or elected and whocome to decisions and opinions onthe basis of their own internalprocedures. Council membersrepresent a spectrum of disciplinesand expertise, often including civilsociety organizations and /orstakeholders; and

c it has a secretariat whichfacilitates the deliberations andactivities of the council.

Rule 3.3 states that in order to become anEEAC Network member, a council musthave the characteristics of an advisorycouncil as described in Articles 3.1 and3.2, support the principles and objectivesof the EEAC Network, and makesubscriptions payments.

At present, membership includes bodiesfrom states which are within theEuropean geographical region whichare not member states. For example, theMontenegro National Council forSustainable Development and ClimateChange is a member.

Therefore an officially establishedadvisory council giving policy advice onenvironmental policy or sustainabledevelopment issues within the UK couldapply for membership.





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The EuropeanIPPC Bureau (theSeville Process)

The European IPPC Bureau wasestablished in Seville to organise anexchange of information betweenMember States and industries to setstandards for Best Available Techniques(BATs) for industrial processes under theIED (formerly the IPPC Directive). BATsare technical prescriptions for differentkinds of industrial processes designed toprevent or reduce emissions andenvironmental impacts.

The Information Exchange Forum (“Art13 Forum”) is the formal expert groupwhich generally oversee the informationexchange process on BAT. The Forum iscomposed of representatives from MSs,industry and eNGOs. The Forum has acrucial role delivering opinions on therolling work programme for theelaboration and review of BAT ReferenceDocuments (BREFs) and on theproposed content of the final draftBREFs. This last opinion has to be madepublicly available by the Commissionand has to be taken into account for thepurposes of adopting decisions on theBAT conclusions through the IED Article75 Committee.

The IED “Art 75 Committee” is a bodyestablished by Article 75(1) of the IED,assisting the Commission in elaboration

Continued participation would give theUK some degree of influence over futureEU BAT Reference Documents that setstandards for industrial processes.

It is possible that future BAT ReferenceDocuments might be applied in the UKafter Brexit, for example if a tradeagreement were to require that UKstandards converge with EU standards;under a soft Brexit where the UK remains amember of the EEA; or, because it isdeemed appropriate to align with futureEU standards as a matter of domesticpolicy.

Should UK and devolved governmentsdecide to set industrial process standardsdomestically, future BAT ReferenceDocuments may well form the startingpoint when considering what ourdomestic standards should be.

UK experts who participate in the TWG foreach BREF will bring to the table the BREFend-user perspective. This has beenparticularly important for the UK, forexample, as IEMA reports, UK participationin the TWG for the LCP BREF review hasbeen extensive.

Note that even if the UK joins theEuropean Economic Area the IED would

Not without amendment tounderpinning legislation, inparticular the Industrial EmissionsDirective

Article 13 ForumThe Art 13 Forum is establishedpursuant to Art 13(3) of the IEDDirective which states:

The Commission shall establishand regularly convene a forumcomposed of representatives ofMember States, the industriesconcerned and non-governmental organisationspromoting environmentalprotection.

This was put into effect by CommissionDecision 2011/C 146/03. Article 4(1) ofthis decision shows that membershipis established in line with Art 13(3).This would prima facie preclude the UKfrom retaining membership afterwithdrawing from the EU, unless thelegislation was changed:

Members shall be Member States,international organisationsrepresenting industries concernedby the activities covered by AnnexI of the Directive and non-

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http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011D0517(01)


of implementing acts. The Committee iscomposed of the Member States and ischaired by the Commission. TheCommittee adopts decisions on BATconclusions.For each BREF, the EuropeanIPPC Bureau sets up a Technical WorkingGroup (TWG) to carry out the exchangeof information on BAT. A TWG usuallyconsists of between 100 to 200 expertsrepresenting Member States, industries,non-governmental organisations (NGOs)promoting environmental protectionand the Commission. TWG members arenominated to participate in theinformation exchange primarily basedon their technical, economic,environmental or regulatory expertise(especially in permitting or inspectingindustrial installations) as well as ontheir ability to bring into the informationexchange process the BREF end-userperspective.

The EUIPPCB exists to catalyse anexchange of information between MSand the industries concerned on BAT asrequired by Article 13(1) of the IED. TheBureau organises the work of the TWGs,fosters the exchange of information,makes a scientific and technical analysisof the vast amount of informationexchanged, proposes compromisesolutions on issues when views of TWG

continue to apply, but the UK would havelittle influence over new rules. Businessorganisations, such as the BDI in Germany,would prompt changes to the BREFprocess but it is likely that after Brexit theUK would be excluded from talks.

governmental organisationspromoting environmentalprotection.

The UK cannot attend the Art 13Forum under separate rules for non-members. Articles 5(3) and (4) ofCommission Decision 2011/C 146/03set out the means by which EEA (EUand EFTA countries) and accessioncountries are respectively invited toattend meetings of the forum. Norwayattends by virtue of Article 5(3), andTurkey by virtue of Article 5(4). Unlessthe UK joins the EEA it cannot rely onthese provisions.

Technical Working Group (TWG)TWGs were established under Art 13(1)of the IED Directive which similarlylimits state-level participants to MSs:

In order to draw up, review and,where necessary, update BATreference documents, theCommission shall organise anexchange of informationbetween Member States, theindustries concerned, non-governmental organisationspromoting environmentalprotection and the Commission.





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members differ, and writes the BREF. TheEuropean IPPC Bureau acts as a neutral,technically competent and permanentbody to all TWGs.

Article 75 CommitteeThe Art 75 Committee is established byArt 75(1). Art 75(2) defines theregulatory procedure to follow byreference to Articles 5 and 7 ofDecision 1999/468/EC. This precludesthe UK from retaining membershipafter withdrawing from the EU. Art 5(1)states:

The Commission shall be assistedby a regulatory committeecomposed of the representativesof the Member States and chairedby the representative of theCommission.

General constraintsIf legislative change were possible toallow UK participation in all (or evensome) of the Seville Process, it appearslikely that the UK would have to applythe IED domestically, as part of therelevant acquis, as well as acceptingthe jurisdiction of the CJEU in relationto dispute resolution.




http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1999D0468:20060723:en:PDF


EuropeanNetwork for theImplementationandEnforcement ofEnvironmentalLaw (IMPEL)

IMPEL is an international association ofenvironmental authorities. Set up in1992 as an informal body acting as aninter-governmental, non-integrated EUcooperation network, in 2008 ittransformed into an internationalassociation of environmental authorities.IMPEL has developed into a well-regarded organisation in theenvironment field and is mentioned in anumber of EU legislative and policydocuments.

The objective of IMPEL is to create thenecessary impetus in the EU to makeprogress on ensuring a more effectiveapplication of environmental legislation.

The core of IMPEL’s activities take placewithin a project structure and concernawareness raising, capacity building,peer review, exchange of informationand experiences on implementation,international enforcement collaborationas well as promoting and supporting thepracticability and enforceability ofEuropean environmental legislation.

IMPEL organises its work into fivethematic areas: industry regulation;waste and TFS; water and land; natureprotection; and, cross-cutting tools andapproaches.

Membership of IMPEL would continueto be beneficial for maintaining bestpractice in the implementation andenforcement of environmental law inthe UK.

The EA is a founding member of IMPEL andremains active in the organisation.

After the UK leaves the EU there may beregulatory divergence on environmentallaw between the UK and the EU,depending on the agreement reachedbetween the UK and the EU, but there islikely to be significant similarities in thedifficulties faced in implementing andenforcing these laws in both the UK andEU MS.

Regulators in the UK benefit fromexchanges of information and capacitybuilding in relation to the enforcement ofenvironmental law with their Europeancolleagues and counterparts. Continuedparticipation in IMPEL makes UKprosecutors better informed and thereforemore effective regulators. The topics whichIMPEL continues to work on (see ‘Outlook2015 - An overview of IMPEL projects’) willcontinue to be relevant to the UK afterBrexit, if all EU law is rolled-over asretained EU law.

UK environmental authoritiescannot participate in IMPEL as a fullmember without amendment to theunderpinning statute of theorganisation. However, amendmentwould appear to be an achievablehurdle, notwithstanding possibleissues with LIFE+ funding. The UKcould alternatively seek observerstatus.

IMPEL currently has 51 members from36 countries including all EU MemberStates, the former Yugoslav Republic ofMacedonia, Serbia, Turkey, Iceland,Kosovo, Albania, Switzerland andNorway. There are two observers, theEuropean Federation of EnvironmentalHealth (EFEH) and the ThemisNetwork.

While working closely with EUinstitutions IMPEL is not itself an EUinstitution. The 2009 Memorandum ofUnderstanding on cooperationbetween IMPEL and the Commissionformalises the close relationship IMPELhas with the Commission (areasincluding informing the Commission’sAnnual Work Programme andconsulting on new policy initiativesand legislative development: see Art2). Article 3 makes clear that the

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In the area of international shipments ofwaste, IMPEL has signed a MOU with theBasel Convention Secretariat and is it amember of the Environmental Networkfor Optimizing Regulatory Complianceon Illegal Traffic (ENFORCE).

IMPEL also actively engages with otherstrategic partners such as ENPE andEUFJE. In December 2015 IMPELformalised its cooperation with theTHEMIS Network by signing an MOU.

The UK feeds into IMPEL a lot and it isunderstood that the other members ofIMPEL see UK agencies as valuedmembers. For instance, the EA has donesome of the major prosecutions under theTFS waste regime, and one EA prosecutorhas done several officer-level trainingworkshops around Europe for IMPEL onTFS.

Continued membership by UK regulatorscould facilitate continued alignment withbest practice and co-ordination which isparticularly problematic in cross-borderenvironmental problems.

In relation to the devolved administrations,it has been noted that continuedinvolvement in IMPEL after Brexit couldenable Scotland to continue engaging inEuropean environmental governance, andaligning with EU environmentalregulations and policies on devolvedmatters, although it is suggested that thisrelationship could be pursued both‘informally’ and ‘autonomously’ (this pointis made in ‘The implications of Brexit forenvironmental law in Scotland’’ (SULNE,2017), pages 3-4ff). It is suggested thatregulatory alignment would be particularlyimportant however in relation to NorthernIreland.

Commission is only an observer inIMPEL projects, meetings and events.

IMPEL is registered in Belgium and itslegal seat is in Brussels (LegalRegistration No: 6/CH/15.598/S,Registration Date: 09/05/08, Company#898.135.767).

The original statute for IMPEL has beenamended, and a consolidated statutehas been in force from June 2016 (notethat an English language version of thestatute was obtained from theSecretariat, but is not available online).Article 4 of the consolidated precludesthe UK from being a member afterBrexit:

(1) A member of the Association canbe an Environmental Authority orassociation of EnvironmentalAuthorities which:

(a) is based in:

(i) a Member State of theEuropean Union;

(ii) an acceding country orcandidate country of theEuropean Union, or

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http://www.basel.int/Implementation/TechnicalAssistance/Partnerships/ENFORCE/Overview/tabid/4526/Default.aspx



http://www.themisnetwork.eu/

http://www.ejustice.just.fgov.be/tsv_pdf/2008/06/04/08081851.pdf




IMPEL is the recipient of LIFE+ fundingfrom the Commission, a tool designed tofinance environment-related projects. Thisaccounts for between up to 70% of thenetwork’s funding. Commission’sfinancing differ to some extent from thebudgetary rules applicable for LIFE+project funding in the EU Member States.

Continued participation in IMPEL wouldnot bind the UK or UK-basedenvironmental authorities in any way thatcould be considered an encroachment onUK sovereignty.

(iv) a Potential Candidate tojoin the European Union

(v) a Potential Candidate tojoin the European Union, asindicated in the EuropeanCouncil Conclusions atThessaloniki in 2003[] andspecifically those in theWestern Balkans: Albania,Bosnia and Herzegovinaand Kosovo[]

(b) is, according to the nationallaw of the country concerned, alegal entity or part of a legalentity. In this latter case, theapplication for membership ison behalf of the legal entity.

(2) In derogation of article 4,paragraph 1b, a Member can alsobe a legal entity to which anEnvironmental Authority belongs,which after admission as member,is represented by that authority.

However under Article 5 the UK maybe able to get observer status to theGeneral Assembly.

The General Assembly may admitobservers to the Association





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Article 8(3)(a) states that it is for theGeneral Assembly to validateapplications for either membership orobserver status. It may also be possiblefor amendment to the Statute to berequested to allow for continuedparticipation by UK agencies. Article21(1) states that:

Amendments to the Articles andthe dissolution of the Associationrequire a two-thirds majority ofthe National IMPEL Coordinatorsor the National IMPELRepresentatives present.

It appears that Article 21(1) was used toamend Article 4 from the original textbefore. In addition to adding what is nowArt 4(a)(iv), the amendment removed alist of founding members of IMPEL fromArt 4(3), which included the “EnvironmentAgency of England and Wales”.

It should be noted that this is in linewith IMPELs strategic direction. ‘Betterimplementation for the future - a newstrategic direction for IMPEL’,published in August 2014, sets out thepriority of “Improving the level ofengagement with IMPEL’s membersand with others… take forwardopportunities to develop partnerships




http://impel.eu/wp-content/uploads/2014/08/New-Strategic-Direction-for-IMPEL.pdf




and joint working with other networksthat are working in the field ofenvironmental protection andenforcement in Europe andinternationally”.

It is therefore possible for UK agencies,or the UK Government to seekamendment to this constitution toallow for EU agencies to remaininvolved. Prima facie there is no reasonwhy doing so would require eitherformal application of the sameenvironmental legislation, or acceptingthe jurisdiction of the CJEU.

It should be noted that a MOU reachedwith the Commission clearly envisagesmembership of IMPEL to be limited tocertain states. Recital 5 of the MOUstates that IMPEL is “a legal entity inthe form of an international non-profitassociation under Belgian lawcomposed of environmentalauthorities in the EU Member States,EEA EFTA countries and accedingcountries, which promotes theindependent status of IMPEL and itsfull ability to act on its own.” However,Article 1(2) of the MOU says thatnothing in it “shall prejudice themanner in which the Statutes of IMPELare applied and interpreted”. And 1(4)





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says that the MOU “is by its nature nota contract and does not have anylegally binding effect”.

There may be a further complication inrelation to the delivery of LIFE+funding in two ways. First, in relationto whether the delivery of that projectis through a UK agency. If this is thecase, and this funding would bedisrupted, then it may beadvantageous for the UK to continueparticipation in IMPEL. Second, theremay be interaction with applicableterms to funding agreements underLIFE+, such as a clause limiting the useof those funds by non-MSs. On thestandard terms of a LIFE+ GrantAgreement (which can be found here)we note the possibility of term I.10 forsituations where beneficiaries are non-MS, but that this may not be containedin agreements entered before Brexit.Furthermore, it is likely that LIFE+funding will form part of the Article 50negotiations between the UK and theEU. The LIFE 2014-2020 Regulation (EC)No 1293/2013 restrict scope forfunding activities beyond the EU andwould likely allow the Commissionsome scope to terminate projects if itwishes.




http://ec.europa.eu/environment/life/toolkit/pmtools/life2014_2020/grantagreement.htm

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http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2013.347.01.0185.01.ENG


The EuropeanNetwork ofProsecutors forthe Environment(ENPE)

ENPE assists connections betweenenvironmental prosecutor practitioners;shares experiences and data onenvironmental crime; and looks atcrucial issues linked to the environmentand human health.

ENPE seeks to:

• support the operative work ofenvironmental prosecutors;

• promote the exchange ofinformation and experience of theenforcement and prosecution ofenvironmental crime betweenmembers;

• foster knowledge of environmentallaw among prosecutors and promotethe development of environmentalcriminal law as an integral part ofcriminal law enforcement generally;

• share experience of investigations,prosecutions and sanctions in thefield of environmental criminal law;

• contribute to better understanding,implementation and enforcement ofenvironmental criminal law;

• encourage and support co-operationbetween Members and facilitatecapacity building in relation to theprevention and prosecution ofenvironmental crime;

Membership of ENPE would continue tobe beneficial for maintaining bestpractice in the prosecution ofenvironmental crime in the UK.

Membership of ENPE is for agencies withincountries (such as the EnvironmentAgency, the Crown Prosecution Service,the Scottish Environment ProtectionAgency, Natural Resources Wales, NorthernIreland Environment Agency) rather thanthe UK itself. The organisation iscooperative and aims to share information,therefore its programme does notconstrain the actions of the UK, but ratherenhances them.

The UK-based EA was a founding memberof ENPE, and its work programme has beendriven by UK regulators, in collaborationwith EU partners.

Because environmental crime does notrecognise international boundaries,agencies across the ENPE network arestrengthened by having contacts andcolleagues in ever more countries. Thisapplies whether the UK is an MS or not.

After the UK leaves the EU there may beregulatory divergence on environmentallaw between the UK and the EU,depending on the agreement reached

The EA will be able to continueparticipation in ENPE as a FullMember after Brexit, although itlooks unlikely that SEPA, NRW andNIEA will be able to continueSupporting Membership withoutamendment to ENPE’s statute. Therewill be no UK Directors able to voteon the ENPE board unless there isamendment to the rules.

Under the Articles of Association,membership is defined at Article 1(4)by reference to Article 6. The firstsentence of Article 6.1.1 states that“Full Membership is granted to theFounding Members as a result of thedue signature and execution of theseArticles of Association.” As the EA is afounding member of ENPE it can primafacie retain full membership.

Other UK environmental prosecutorsshould qualify as ‘SupportingMembers’ under Article 6.1.2 (acountry is only allowed one ‘FullMember’, representing the country as awhole, but any number of otherenvironmental prosecutors within thatcountry may qualify as ‘SupportingMembers’). This would normally beachieved under Article 6.1.2(2) whichstates that “any Organisation, which

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• facilitate collection of data aboutenvironmental crime across Europeand enforcement action taken inrelation to environmental crime;

• identify and develop good (andwhenever possible, best) practice, forsuccessful prosecutions and produceguidance, tools, common standardsand approaches to the prosecutionof environmental offences; and

• share training programmes inrelation to environmental criminallaw.

between the UK and the EU. NeverthelessUK-based environmental prosecutors willbenefit sharing experiences and data onenvironmental crime, and the same maybe true vice-versa.

Other ENPE members and the Board arelikely to want to ensure continued UKinvolvement after Brexit. Anne Brosnan,Chief Prosecutor at the EA, is the currentPresident of ENPE.

There is an ongoing LIFE-ENPE project, amulti partner project aimed at improvingcompliance with EU Environmental Law byaddressing uneven and incompleteimplementation across MS throughimprovements to the efficiency andeffectiveness of prosecutors and judges incombating environmental crime. Therunning of this project is led by theEngland-based EA and involves aconsortium of 4 other partners, includingEUFJE. It runs until July 2020, with abudget of over 1 million Euros.

Continued participation in ENPE would notbind the UK or UK-based environmentalprosecutors in any way that could beconsidered an encroachment on UKsovereignty.

would be eligible for Full Membershipsave for the fact that the Associationhas already admitted a Full Member inrespect of that Organisation’sQualifying Country”. Neither NIEA norSEPA are founding members of ENPE,and therefore would not be eligible asFull Members under Article 6.1.1.Supporting Membership for theseorganisation would need to beachieved under Article 6.1.2(c) (sic), ona case-by-case basis and at Boarddiscretion.

Note that the situation is different forrepresentation on the Board underArticle 10. First, note that the UK willno longer be a ‘Qualifying Country’within the meaning of Article 1(7),unless it remains in the EEA/EFTA, orretains membership of the EuropeanEnvironment Agency. Second, notethat the composition of the Board isdefined by Article 10.1.1 as beingcomposed of Directors. Finally, Article10.2.2(6) automatically terminates theterm of office of a Director if she“ceases to be a qualified lawyerinvolved in the prosecution ofenvironmental crimes in a QualifyingCountry”. Prima facie this wouldremove any UK representatives fromthe Board.





Modification of these rules to allow theUK would be possible in accordancewith Article 14(1), which states thatany amendment would be made by avote of the Board of Directors by asimple majority.We are aware of the‘supplementary agreements’ betweenthe EA and ENPE, and with theCommission for the provision of LIFE+funding. On issues relating to LIFE+funding and the mechanics of UK-based organisations retainingmembership, see discussion underIMPEL, above.





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The EuropeanUnion Forum ofJudges for theEnvironment(EUFJE)

The purpose of the EUFJE is to promote,in the perspective of sustainabledevelopment, the implementation ofNational, European and internationalEnvironmental Law.

EUFJE particularly seeks to:

• share experience on judicialtraining in environmental law;

• foster the knowledge ofenvironmental law amongjudges;

• share experience onenvironmental case law; and

• contribute to a betterimplementation and enforcementof International, European, andnational environmental law.

Lord Carnwath of the Supreme Court isone of four founding members of EUFJE.Other judges in the UK are alsomembers of EUFJE.

Membership of EUFJE would continue tobe beneficial for UK judges to continueto develop their knowledge andexperience of environmental case law.

After the UK leaves the EU there may beregulatory divergence on environmentallaw between the UK and the EU,depending on the agreement reachedbetween the UK and the EU. NeverthelessUK judges may benefit from betterunderstanding the implementation of EUlaw in other jurisdictions, and the samemay be true vice-versa.

Continued participation in EUFJE wouldnot bind the UK or UK judges in any waythat could be considered an encroachmenton UK sovereignty to make and implementlaws.

UK-based judges will not be able toremain members of EUFJE, withoutamendment to the Forum’s bylaws.

Participation in EUFJE is governed bythe Bylaws. Article 4 sets out that judgessatisfying the following criteria can beMember of the Association:

…every judge interested in environmentallaw who is member of the Court of Justiceof the European Communities, theEuropean Court of Human Rights or acourt or tribunal of a Member State of theEuropean Union or a Member State of theEuropean Free Trade Association.”

There are other provisions in Article 4which grant Observer Status to judgesfrom accession countries and members ofEuropean and international organisations.However, Lord Carnwath, who is set out inArticle 4 as a Founding member, would notsatisfy any of these criteria, and it is unlikelythan any other judge in the UK whichworks in the field is likely to qualify.

Under Article 18 a two-thirds majorityvote of the General Assembly is neededto amend these rules.

There is no requirement for judges to befrom a states that either applies EU law, oraccepts the jurisdiction of the CJEU.

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ENVI CrimeNet(ECN)

ECN is an informal network connectingpolice officers and other crime fighters inthe field of environmental crime to learnfrom each other about the extent andnature of environmental crime, and thebest practices to combat it.

Key areas of the ECN’s work include:

• the illegal import and export of wasteproducts;

• the smuggling of protected animaland plant species;

• the forgery of transport documentspertaining to waste products, andprotected animal and plantspecies; and

• waste-related crime.

ECN aims to improve the results of thefight against environmental crime by,inter alia:

• ensuring that member states becomeaware of the fight againstenvironmental crime at the strategiclevel;

• mutual sharing of expertise;• establishing relevant risk assessments that

can be exchanged amongst theparticipants;

• learning from one another in the fields ofrisk assessments and interventionstrategies;

In relation to global issues such as climatechange and damage to biodiversity it isimportant that police forces are involved ina coordinated effort to combatenvironmental crime.

Unknown, no rules of membershipwere found. However as an informalnetwork it is likely that the UK willbe able to continue to participate.

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• establishing tactical analyses ofparticular forms of environmentalcrime;

• establishing joint investigations intoenvironmental crime;

• exchanging investigation methods;• exchanging information prior to

initiating the operational phase;• to create the right training and

schooling possibilities in cooperationwith Cepol.





European FoodSafety Authority(EFSA)

EFSA is an independent EU agency. Itwas set up in 2002 to be a source ofscientific advice and communication onrisks associated with the food chainfollowing a series of food crises in thelate 1990s. The agency was legallyestablished by the EU under the GeneralFood Law – Regulation 178/2002.

The General Food Law created aEuropean food safety system in whichresponsibility for risk assessment(science) and for risk management(policy) are kept separate. EFSA isresponsible for the former area, and alsohas a duty to communicate its scientificfindings to the public.

In their role as risk assessor the EFSAproduces scientific opinions and advicethat form the basis for EU policies andlegislation. This remit covers: food andfeed safety; nutrition; animal health andwelfare; plant protection; and, planthealth.The EFSA also considers, throughenvironmental risk assessments, thepossible impact of the food chain on thebiodiversity of plant and animal habitats.

Continued participation in EFSA isimportant.

Scientific opinions of the EFSA are likely tohave a continued impact on producers inthe UK, exporting to the single market.Thedecisions taken by the EFSA are likely tohave an impact of policy formation.

If the UK’s Food Safety Agency assumesthe jobs currently undertaken by the EFSAthen questions need to be answered inrelation to capacity.

It has been suggested by the Chair of theFood Standards Agency board that therelationship between the FSA and theEFSA will continue in some form afterBrexit.

Statistics generated by the EFSA suggestthat the body may be open to UK continuedparticipation. The UK has the highest shareof organisations in the Article 36 list (11%);the value of contracts signed with UKcontractors represents 19% of the totalbudget consumed under EFSA scienceprocurements in the period 2012-2016; andthe value of awarded EFSA grants to UKbeneficiaries represents 23% of total budgetconsumed under EFSA grants in the period2009-2016. UK staff also make up a highpercentage of the Scientific Panel of Experts.

UK membership OF EFSA is unlikely,however the UK could participate asa third country, provided itcontinued to implement therelevant acquis and EU policy toqualify for a third countryagreement.

The EFSA is governed by the GeneralFood Law (Regulation (EC) No178/2002 of the European Parliamentand of the Council of 28 January 2002laying down the general principles andrequirements of food law, establishingthe European Food Safety Authorityand laying down procedures inmatters of food safety).

Full membership of EFSA is premisedon being a member state.

Article 49 governs the participation ofthird countries in EFSA. This states thatEFSA shall be open to the participationof countries “which have concludedagreements with the EuropeanCommunity by virtue of which theyhave adopted and apply Communitylegislation in the field covered by thisRegulation”. The second paragraphstates that such arrangements willinclude provisions “specifying inparticular the nature, extent and

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https://www.foodmanufacture.co.uk/Article/2017/08/07/FSA-to-continue-working-with-EFSA-after-Brexit

https://www.efsa.europa.eu/sites/default/files/event/AF171205-p6_EFSA_PPT%20BREXIT.PDF.


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Participation in the rapid alert system isalso of high importance. Although createdby the same legislation as EFSA, this is infact a separate entity.

manner in which these countries willparticipate in the Authority’s work,including provisions relating toparticipation in the networks operatedby the Authority, inclusion in the list ofcompetent organisations to whichcertain tasks may be entrusted by theAuthority, financial contributions andstaff.”

Article 50 also provides for a rapidalert system, notifying members of adirect or indirect risk to humanhealth deriving from food or feed.This network, RASFF, is a separateentity to EFSA, however articleArticle 50 allows for theparticipation of non-member states,including third countries, on thebasis of agreements between the EUand a third country: this may formpart of an agreement under Article49.




https://ec.europa.eu/food/safety/rasff_en


WaterFrameworkDirectiveCommonImplementationStrategy (WFDCIS)

The Water Framework Directive sets aframework for the protection of inlandsurface waters, transitional waters, coastalwaters and groundwater. This frameworkapproach leaves important matters ofdetail for member states.

In order to ensure a consistent approachto implementation of the Directive,Member States, the EuropeanCommission and Norway have agreedon a Common Implementation Strategy(CIS).

The four main activities of the CIS are:

• information sharing; • developing guidance on technical

issues, such as monitoring, statusassessment and exemptions to theenvironmental objectives;

• information and data management;and,

• application, testing and validation.

The Communication and InformationResource Centre for Administrations,Businesses and Citizens (CIRCABC) is theweb-based platform provided by theEuropean Commission used to sharedocuments (including meetingdocuments) under the WFD CIS.

If domestic authorities (i.e. EA, NRW, SEPAand NIEA) were able to remain members ofthe CIS this would enable continued accessto information from EU member statesabout the water environment, bestpractice for regulating it etc. Thisinformation can better inform domesticregulatory decisions.

UK participation would also enable acontinuing UK influence in thedevelopment of future CIS guidancedocuments. These documents, though notlegally binding, in practice set the approachregulators take to implementing theDirective. It may make sense for regulatorsto continue to follow CIS guidancedocuments when implementing theDirective after Brexit, so as to benefit fromdeveloping EU wisdom (albeit it would beopen to the UK and devolvedadministrations to direct them not to do so).

Membership by UK authorities doesnot appear possible, unless speciallynegotiated.

The WFD CIS page on the Europawebsite indicates that:

Organisations interested injoining the Strategic Co-ordination Group, or any of theWorking Groups under theCommon ImplementationStrategy must fulfil the eligibilitycriteria set out in the Rules ofProcedure.

The link on that webpage connects withthe Strategic Co-Ordination Group Rulesof Procedure. This states at 2.2 that:

The strategic co-ordination groupis chaired by the Commission anda Member State representative,proposed by the Member Statesand for a minimum period of 18months. The group includesrepresentatives of all MemberStates, EFTA countries, acceding,candidate and potentialcandidate countries, stakeholderorganisations representingBusiness and Industry (B&I), non-governmental organisations

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https://circabc.europa.eu/w/browse/46dddfab-0509-4e56-a831-d72fda730959

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The CIS also supports theimplementation of the Floods Directive(and to a lesser extent the DaughterDirectives on Groundwater andon Priority Substances).

(NGO) and inter-governmentalorganisations (IGO), as well as theleaders of the CIS WorkingGroups.

Under the text that follows it is clearthat the UK Government would notqualify for membership under any ofthese heads.

UK-based NGOs, business and industrygroup (and possibly UK-basedregulators) may qualify under the“General Interest Organisations” [2.2.1]and “Technical Interest Organisations”[2.2.2] provisions for organisationswishing to participate specific workinggroups, although the criteria for theformer are likely to prohibit many UK-based organisations.




http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32007L0060

http://ec.europa.eu/environment/water/water-framework/groundwater/resource.htm

http://ec.europa.eu/environment/water/water-dangersub/pri_substances.htm


Marine StrategyFrameworkDirectiveCommonImplementationStrategy (MSFDCIS)

The Marine Strategy FrameworkDirective (MSFD) requires from MSdetailed and coordinated input tomanage the marine environment. Theaim of the Common ImplementationStrategy (CIS) is to allow, as far aspossible, a coherent and harmoniousimplementation of the MSFD within theEU. The MSFD CIS is an informalprogramme of coordination.

The highest level political group in theCIS are the Marine Directors who focuson ensuring the overall implementationof the Directive. The main role of theMarine Directors is their function as theinitiators and drivers of the CIS, focusingon more political and high level issues ordifficult technical issues that could notbe resolved in MSCG.

Within the CIS there are also threeWorking Groups which prepare commonmethods for implementation of theMSFD. These are:

• Good Environmental Status, tosupport Member States in thedetermination of GES;

• Economic and Social Analysis, todevelop common methodologiesand approaches to carry out theeconomic and social analysis of the

Benefits of continued membership aresimilar to those of the Water FrameworkDirective (see above). Developingcommon approaches and sharinginformation is perhaps even moreimportant given the number of countrieswhose waters are part of the North-EastAtlantic Ocean.

The MSFD CIS Strategic document (includinga work programme for 2014 and beyond)“Learning the lessons and launching a re-enforced phase of implementation” states inthe introduction that:

The CIS together with similar ways underother directives of working between theEuropean Commission, the MemberStates and other interested parties, arerecognised as a useful process toimplement EU legislation and anexample of good governance at EU level.

No, not without amendment to therules. Highly unlikely that the UKcould participate with the MarineDirectors, and Rules of Procedureadopted by the Marine Directorspreclude UK participation in theMarine Strategy Coordination Groupand at least one Working Group.

It is unclear how the Marine Directorsare established. However, as a highlevel political group, it is highlyprobable that this is limited to MSs.

Article 2(2) of the Rules of Procedurefor the Marine Strategy CoordinationGroup restricts membership of theMSCG to MSs, and the UK would notqualify as an observer under criteria(a)-(c) for admitting representatives ofthird counties.

The WG GES follows the rules of theMSRG. Annex 3, Part 1, section 4 of“Learning the lessons and launching are-enforced phase of implementation”says that in relation to the Mandate ofthe Working Group on GoodEnvironmental Status “the WG isorganised in line with the MSCG rulesof procedures”.

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use of the marine waters, and;• Data, Information and Knowledge

Exchange, to support Member Stateswith their data reporting obligations.

There are also two Technical Subgroups,focusing on emerging areas ofunderwater noise and litter which are ofparticular concern.

The link between Marine Directors andWorking Groups is the Marine StrategyCo-ordination Group (MSCG) whoprepare material for the Marine Directorsand oversee the work of the WorkingGroups. This group (and its subgroups)is a Commission expert group within themeaning of Commission decisionC(2016)3301.

Similar to the WFD CIS the CIRCABC isused as the web-based platformprovided by the European Commissionto share documents (including meetingdocuments) under the MSFD CIS.





EuropeanFisheriesControl Agency(EFCA)

The EFCA is a European Union agency.The agency’s mission is to promote thehighest common standards for control,inspection and surveillance under theCFP.

The agency, together with the nationalspecialised services of Member States,ensures uniform and effectiveapplication of the rules of the CFP.

Specifically it:

• coordinates control and inspectionby MSs relating to their control andinspection obligations;

• coordinates the deployment of thenational means of control andinspection pooled by the MemberStates concerned in accordance withthe CFP;

• assists MSs in reporting informationon fishing activities and control andinspection activities to theCommission and third parties;

• assists Member States and theCommission in harmonising theapplication of the CFP throughout theEU;

• contributes to work by MSs and theCommission on research into anddevelopment of control andinspection techniques;

Membership of ECFA would continue tobe beneficial for maintaining bestpractice in the control and inspection inthe UK. However, much depends on theUK’s future relationship with the EU inthe area of fisheries.

Much depends on the future of the UK’srelationship with the EU in relation tofisheries, and specifically any divergencewith the control and inspectionobligations under the CFP and IUUregulations.

To the extent that the EFCA coordinatesthe dissemination of best-practiceamongst regulatory agency, or contributesto the training of inspectors, it may bebeneficial for UK-based agencies to haveobserver status in EFCA.

If the UK intends to maintain regulatoryalignment with the EU’s fisheries policy (forinstance, to enable trade in fish and fisheriesproducts) it may benefit the UK to contributeto the development of control andinspection techniques, if those techniqueswill need to be applied in the UK.

Participation by the UK on theAdministrative Board of the EFCA isnot possible without amendment toEU Regulations. Participation in theAdvisory Board is contingent on theUK’s participation in the RegionalAdvisory Councils under the CFP.

The Community Fisheries ControlAgency (CFCA) was establishedpursuant to Council Regulation (EC) No768/2005 of 26 April 2005 whichentered into force on 10 June 2005. Itsobjective is refined in Article 1 as:“organise operational coordination offisheries control and inspectionactivities by the Member States and toassist them to cooperate so as tocomply with the rules of the CommonFisheries Policy in order to ensure itseffective and uniform application.”

Numerous activities with Third Partiesare envisaged, without them beingmembers of EFCA:

• Under Article 4(1) the EFCA “shall,at the request of the Commission:(a) assist the Community andMember States in their relationswith third countries and regionalinternational fisheriesorganisations of which theCommunity is a member”.

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• contributes to the coordination ofinspector training and the exchangeof experience between MSs; and

• coordinates the operations tocombat illegal, unreported andunregulated (IUU) fishing inconformity with Community rules.

• Under Article 4(2) the EFCA mayalso “at the request of theCommission, cooperate with thecompetent authorities of thirdcountries in matters relating tocontrol and inspection in theframework of agreementsconcluded between theCommunity and such countries.”

• Under Article 7(d): In order to assistMember States to better fulfil theirobligations under the rules of thecommon fisheries policy, the EFCAshall elaborate criteria for theexchange of means of control andinspection between Member Statesand between Member States andthird countries and for the provisionof such means by the Member States.

The composition of the AdministrativeBoard is governed by Art 24, which limitsparticipation to MSs and the Commission.

Article 31(1) states that the AdvisoryBoard shall be composed ofrepresentatives of the Regional AdvisoryCouncils provided for by Article 31 ofRegulation (EC) No 2371/2002 on theconservation and sustainable exploitationof fisheries resources under theCommonFisheries Policy. This is on thebasis of one representative designated byeach Regional Advisory Council.





EuropeanMaritime SafetyAgency (EMSA)

EMSA provides technical and scientificadvice to the European Commission onsafety at sea and the prevention ofpollution by ships. It has someoperational responsibility for, amongstother things, oil pollution response.

EMSA also monitors the developmentand implementation of new maritimelegislation and assists MSs in theimplementation of forthcoming ornewly adopted Legislation in the field ofship related pollution.

EMSA also assists the Commission, MSsand the maritime industry in meeting,implementing and monitoringinternational and European legislationand initiatives. These include:

• the reduction of SOx and NOxemissions;

• development of alternative fuels forships as well as abatement methods;

• the EU MRV CO2 Regulation as wellas the International context on futurepolicy developments in this area;

• the PRF Directive; and, • Ship Recycling, in particular

regarding Title II of the regulationand the Inventories of HazardousMaterials.

In the environmental field it would beparticularly beneficial for the UK tocontinue to exchange data in relation tomonitoring situations involving oil spills.

UK participation with EMSA isunlikely. The UK could be a thirdparty member of EMSA, however itwould need to be implementing thecorrect legislation to qualify, whichis unlikely, and this would requirebudgetary contributions to theoperation of the agency.Alternatively the UK could attendmeetings as an observer.

EMSA is established by Regulation (EC)No 1406/2002. Recital (4) states thatthe EMSA “should be open to theparticipation of these States and toother third countries which haveconcluded agreements with theCommunity whereby they adopt andimplement Community legislation inthe field of maritime safety andprevention of pollution by ships.”

Article 17 provides the legalmechanism for the participation ofthird countries:

1. The Agency shall be open tothe participation of thirdcountries, which have enteredinto agreements with theEuropean Community,whereby they have adoptedand are applying Community

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law in the field of maritimesafety and prevention ofpollution by ships.

2. Under the relevant provisionsof these agreements,arrangements will bedeveloped which shall, interalia, specify the nature andthe extent of the detailed rulesfor the participation by thesecountries in the work of theAgency, including provisionson financial contributionsand staff.

Rule 4.2 of the EMSA Rules ofProcedure state that “Representativesof third countries having entered intoagreements with the EuropeanCommunity in accordance with article17 of the Regulation shall be entitledto attend Board’s meetings under theterms and conditions specified in suchagreements.”

However, under Article 13(5) theAdministrative Board may also “inviteany person whose opinion can be ofinterest to attend its meetings or partof its meetings as an observer”. Rule4.3 of the Rules of Procedureprescribes certain categories of county


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http://www.emsa.europa.eu/who-are-we/admin-board/rules-of-procedure.html

http://www.emsa.europa.eu/who-are-we/admin-board/rules-of-procedure.html


to which this provision applies,however Rules 4.1 and 4.3 give theBoard the broad discretion to invite“any person whose opinion can be ofinterest” and “Representatives of thirdcountries […] in case an agenda itemis of particular interest to thesecountries”.

Under Article 8 the CJEU hasjurisdiction pursuant to any arbitrationclause contained in a contractconcluded by EMSA, and any cases ofnon-contractual liability relating to thecompensation for damage. UnderArticle 18(1)(b) a third country couldbe required to contribute to thebudget.

Continued participation in EMSAwould require participation in thebudget of the organisation, underRegulation (EC) 911/2004.





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FisheriesAdvisoryCouncils (FACs)

Introduced by the CFP, FACs arestakeholder-led organisations whichprovide the Commission and MSs withrecommendations on fisheriesmanagement matters.

‘Stakeholders’ include both the fishingsector (including catching, processingand marketing sectors, and tradeunions), and other groups of interest(environmental NGOs, consumers andcivil society).

Each of the different ACs have slightlydifferent terms of reference, howevergoals broadly include conservation ofmarine biodiversity and the sustainableuse of fishing resources, as well ascombatting IUU fishing. As well ascontributing data to support thesegoals, FACs may also provide advice onconservation and socio-economicaspects of management, and onsimplification of rules.

FACs are consulted in the context ofregionalisation. The following ACs are ofparticular relevance to the UK:

• the North Sea AC (NSAC);• the North-western waters AC

(NWWAC); • the Pelagic AC (PAC); and

Membership of FACs may be beneficial forenvironmental goals, particularly theconservation of marine biodiversity, thesustainable use of fishing resources, andcombatting IUU fishing. However, the trueextent of any benefits depends largely onthe UK’s future relationship with the EU inthe area of fisheries, as the functionality ofthe FACs derives from their interactionwith the CFP.

The House of Lords European UnionCommittee report on “Brexit: Fisheries” setsout two different schools of thought onFACs before concluding that becausefisheries management in UK-watersdepends on the cooperation of other MSs,the UK would benefit from continuedparticipation in FACs.

192. Though some witnesses, notablyUKIP, argued the UK should not spendits resources on influencing EU policy,Mr Landmark suggested that theinternal regionalised processes in theEuropean Union minimised the roomfor compromise between the EU andother parties about stockmanagement. Norway was thereforelooking for ways to influence theincreasingly regionalised decision-making processes in the EU, though asolution had yet to be found. He

It is unlikely that organisationsrepresenting UK-based fisheriescould continue to participate inFACs, without renegotiation.

Part XI of the CFP sets out the rulesgoverning FACs. Article 45(1) sets outthe composition of FACs as:

(a) organisations representing thefisheries and, where appropriate,aquaculture operators, andrepresentatives of the processing andmarketing sectors;

(b) other interest groups affected by theCFP (e.g. environmentalorganisations and consumergroups).

It is possible that ‘interest groups’could continue to participate in FACs,although it is unlikely that UK-based‘organisations representing fisheries’could continue to participate. As WWFstate in their evidence to the House ofLords enquiry:

The regional decision-making lieswith the so called High LevelGroups, which are made up ofMember State representatives.The UK would lose its seat in theseHigh Level Groups and it is

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• the Long Distance Fleet AC (LDAC).

The CFP also envisages the creation offour additional FACs, of which thoserelating to Aquaculture, Markets andOutermost Regions may be relevant tothe UK.

concluded that this was “a realobstacle to co-operation”.

193. The Angling Trust argued thatthe Government should seek topreserve influence in EU fisheriesmanagement. The Trust argued thatthe UK should pursue a new approachto the EU’s Advisory Councils (ACs),including negotiating to become anobserver in the North Sea, NorthWestern Waters and Pelagic AdvisoryCouncils5 while the NEF suggestedestablishing “super-ACs”, which wouldinclude all countries in a region,regardless of EU membership.Continued influence andparticipation in the ACs, the AnglingTrust suggested, could be an avenuefor the UK to influence the EU’sapproach to fisheries managementoutside the CFP.

194. As we have concluded, fisheriesmanagement cannot be seen inisolation from that of neighbouringstates. The UK could seek to negotiatecontinued participation in AdvisoryCouncils in order to maintain adegree of influence over theregionalisation of fisheriesmanagement in the EU.

difficult to envisage analternative. Similarly, UKstakeholders (industry and otherinterest groups) would lose theirright to retain membership of anyof the regional advisory councils,as they will not be EU members.There could be opportunities forstakeholders (and governmentrepresentatives) to attend some ofthe AC meetings, but only asobservers rather than activemembers.

However, much depends on the re-negotiation of access rights and theprocess for catch allocation whichemerges from the WithdrawalAgreement and any subsequent TradeAgreement between the UK and the EU.





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EuratomSupply Agency(ESA)

Established under Art 52 of the EuratomTreaty, the ESA ensures a regular andequitable supply of nuclear fuels to EUusers in line with the objectives of Art2(d) of the Euratom Treaty.

The ESA focuses on enhancing thesecurity of supply of users located in theEuropean Union and sharesresponsibility for the viability of the EUnuclear industry.

The ESA is responsible for the creation ofa nuclear market observatory. It ismandated to exercise its powers tomonitor the market to make sure thatthe market activities of individual usersreflect security of supply.

ESA also has a right of option topurchase nuclear materials produced inthe Member States. The ESA monitorstransactions involving services in thenuclear fuel cycle (enrichment,conversion and fuel fabrication).

Operators are required to submitnotifications giving details of theircommitments. ESA verifies andacknowledges these notifications.

The environmental implications ofcontinued participation in the ESA arebeyond the scope of this paper,particularly as the UK’s relationship withthe ESA is bound up with matters relatingto ownership and supply of special fissilematerials.

It would not be possible undercurrent rules for the UK to continueto participate in the ESA.

Council Decision of 12 February 2008establishing Statutes for the EuratomSupply Agency governs thefunctioning of the ESA. Chapter 3establishes the Advisory Committee.Article 11 sets out the composition ofthe Advisory Committee frommembers of the MSs. Article 11(1)states that “The Committee shall becomposed of members from theMember States as set out in the tablebelow.”

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http://ec.europa.eu/euratom/mission.html





EuropeanNuclear SafetyRegulators’Group(ENSREG)

ENSREG is an independent, expertadvisory group created to facilitateconsultation, coordination andcooperation of national regulatoryauthorities in the EU.

All EU MSs that operate nuclearinstallations follow the basic principlesset internationally for assuring nuclearsafety and the safe management ofradioactive waste and spent fuel. Theseprinciples are established inthe Convention on Nuclear Safety andthe Joint Convention on the Safety ofSpent Fuel Management and on theSafety of Radioactive WasteManagement. ENSREG’s role is to help toestablish the conditions for continuousimprovement and to reach a commonunderstanding in these areas.

As an independent authoritative expertbody, ENSREG works to:

• improve the cooperation andopenness between Member Stateson nuclear safety and radioactivewaste issues;

• improve the overall transparency onnuclear safety and radioactive wasteissues; and

• as appropriate, advise the EuropeanCommission on additional European

Collaboration on safety issues is highlydesirable.

The NIA say that “The UK has a robustsafety regime implemented by itsindependent Office for Nuclear Regulation,and its decision to leave Euratom will notresult in the industry being less safe.Similarly, safety standards in the EuratomCommunity will not be impacted by theUK’s withdrawal… However, theinternational nature of the nuclear sectormeans that going forward close co-operation and collaboration on safety andother regulatory matters is vital. Theindustry faces significant challenges andopportunities in the years ahead. The EUand the UK should strive to continue towork closely together on nuclear policyand regulatory issues. In particular thereneeds to be continued UK engagement onsafety and regulation issues via WENRAand ENSREG (if at all possible), and onbroader policy issues via a new UK-Euratom consultative body.”

As UKELA has previously said in our reportExit from the Euratom Treaty and itsEnvironmental Implications: “‘Observerstatus’ for experts from EEA states atcertain high level meetings is permissibleunder the ENSREG Rules of Procedure19,but it is doubtful whether the UK’s

The UK cannot retain membershipof ENSREG or the Working Groups,unless Council Decision2007/530/Euratom is amended. Itmay be possible for the UK to benominated for observer status ofeach, without rule change.

Article 2 of the Rules of Procedure setsout the requirements for membership.Article 2.1 states: “Each EU MemberState shall nominate two seniorrepresentatives as Members to theENSREG having competence in theareas covered by the ENSREG.” TheRules of Procedure for the ENSREGWorking Groups provide for parallelcriteria at Article 2.1

This reflects the legislative basis forENSREG. Commission Decision2007/530/Euratom on establishing theEuropean High Level Group on NuclearSafety and Waste Management statesat Art 3(1) that membership is forappointed representatives of EUmember states.

However, the rules may allow the UK tobe nominated for Observer Status.Article 2.2 of the Rules of Procedurestates “2.2 Senior representatives,nominated from EEA Member States,

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http://www.ensreg.eu/

https://www.niauk.org/wp-content/uploads/2017/10/FORATOM-Brexit-impact.pdf

http://www.ensreg.eu/sites/default/files/HLG_p%282011-15%29_76.pdf

http://www.ensreg.eu/node/2307

http://www.ensreg.eu/node/2307




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rules in the fields of the safety ofnuclear installations and the safety ofthe management of spent fuel andradioactive waste.

NSREG has established four workinggroups to undertake its workprogramme:

• Nuclear Safety;• Management of spent fuel;Waste

regulation; and• Transparency Arrangement.

ENSREG’s role is to help to establish theconditions for continuous improvementand to reach a common understandingin the areas of nuclear safety andradioactive waste management.

participation at this level would beadequate. This collaboration on safetyissues is essential and new arrangementswill need to be devised.”

However, the Nuclear Institute advocatefor the UK to “retain at least associatestatus at ENSREG meetings so as tomaintain alignment with EU nuclearregulatory developments and in order toinfluence decisions that may have an effecton the UK”.

the States that are candidates foraccession to the EU, and otherEuropean countries may be invited toparticipate as Observers.” As the UKwill remain a European countryoutside the UK, prima facie it is eligiblefor nomination as an observer as an“other European” country.

This reflects Commission Decision2007/530/Euratom. Article 4(5)provides for the participation ofobservers. ENSREG has the power toset its own rules of procedure underArticle 4(6).

Under the first sentence of Article 4(5)“Experts from EEA States and Stateswhich are candidates for accession tothe European Union may attend themeeting of the High Level Group asobservers.” However the secondsentence provides that: “The HighLevel Group and the Commission mayinvite other experts and observersattend its meetings” (emphasis added).




http://www.nuclearinst.com/21-02-17-Euratom-Brexit


The EuropeanRadiologicalData ExchangePlatform(EURDEP)

EURDEP is a network for the exchange ofradiological monitoring data betweenEuropean countries, developed andmaintained by the Joint Research Centreof the European Commission.

The benefits of continued participation inEURDEP relate to issues beyondenvironmental protection; however datadelivery during a radiological emergency isobviously extremely important.

Participation in EURDEP also satisfies someof the UK’s international obligations.EURDEP assumes the role of EuropeanRegional HUB for the InternationalRadiation Monitoring Information System(IRMIS), under provisions given by theConventions on Early Notification andAssistance in the case of a nuclear accidentor radiological emergency (ENAC).

No, negotiations would be requiredfor continued membership ofEURDEP, although voluntaryparticipation for non-EU counties isavailable.

As the UKELA report Exit from theEuratom Treaty and its EnvironmentalImplications states: “There are similarquestions [vis-a-via ENSREG] as to theUK’s future ability to deliver Safetywere it no longer to be a member ofthe European Radiological DataExchange Platform (EURDEP)20. Heretoo new arrangements for continued(voluntary) membership would berequired.”

Participation in EURDEP is regulated byCouncil Decision 87/600/Euratom onCommunity arrangements for the earlyexchange of information in the eventof a radiological emergency. ThisDecision does not expressly set outmembership requirements, but itrefers to ‘Member States’ throughout.There are no provisions for associatemembership, etc. of non-MSs.

Article 5(1) provides for thetransmission of information fromoutside the EU to MSs. This states thatEURDEP “shall forward to all Member

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https://remon.jrc.ec.europa.eu/About/Rad-Data-Exchange

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31987D0600:EN:HTML


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States any information it receivesabout significant increases in the levelof radioactivity or about nuclearaccidents in non-Community countriesand especially those adjacent to theCommunity.” There is no statutorybasis for the external communicationof information about radioactivityfrom within the EU.

However, EURDEP’s website states that“The participation of non-EU countriesis on a voluntary basis. There ishowever a gentlemen’s agreementthat participating to EURDEPautomatically means that data deliverywill continue during emergency.”

The statutory foundation of EURDEPalso includes Recommendation2000/473/ Euratom.




https://remon.jrc.ec.europa.eu/About/Rad-Data-Exchange

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000H0473&from=EN

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000H0473&from=EN


EuropeanCommunityUrgentRadiologicalInformationExchange(ECURIE)

ECURIE the European early notificationsystem in the event of a radiological ornuclear emergency. The system is thetechnical implementation of the CouncilDecision 87/600/Euratom onCommunity arrangements for the earlynotification and exchange ofinformation in the event of a radiologicalor nuclear emergency.

Decision 87/600/Euratom requires thatECURIE Member States promptly notifythe European Commission and all theMSs potentially affected when theyintend to take counter-measures inorder to protect their population againstthe effects of a radiological or nuclearaccident. The EC will immediatelyforward this notification to all MemberStates. Following this first notification, allMSs are required to inform theCommission at appropriate intervalsabout the measures they take and theradioactivity levels they have measured.

There are strong reasons for the UK tocontinue to participate in systemsdesigned to provide any and allnotification in the event of a radiological ornuclear emergency.

No, the UK cannot not remain amember of ECURIE. The UK couldparticipate as a third country,however at present this is notpossible unless the agreementallowing for such were amended.

ECURIE is open to third countryparticipation, although amendment tothe statutory basis of third countryparticipation would be necessary.

28 EU Member States (as members ofEuratom) as well as Switzerland andCroatia have signed the agreementbetween the European Atomic EnergyCommunity (Euratom) and non-member States of the European Unionon the participation of the latter in theCommunity arrangements for the earlyexchange of information in the eventof radiological emergency.

Article 1 sets out that the agreement isapplicable to “Participating Countriesor a Member State of Euratom”. TheParticipating Countries are defined inthe preamble, and does not includethe UK. An amendment or protocol tothis agreement would be necessary ifthe UK were to be able to participate inthe agreement.

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https://rem.jrc.ec.europa.eu/RemWeb/activities/Ecurie.aspx

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22003A0429%2801%29



Annex 2: EU fundingmechanisms


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LIFE LIFE is the only EU fund dedicated to the environment which the EUbodies we are looking at receive funding through. LIFE aims tocontribute to the implementation, updating and development of EUenvironment and climate policy and legislation, in particular theintegration of the environment into other policies.

IMPEL and ENPE currently deliver LIFE funded projects, which are setto continue until after the UK withdraws from the EU. The ENPE-LIFEproject is aimed at improving compliance with EU environmental lawby addressing uneven and incomplete implementation acrossMember States. It is delivered through improvements to the efficiencyand effectiveness of prosecutors and judges in combatingenvironmental crime. The project runs until July 2020, with a budgetof over €1 million. Delivery of this multi-partner project is being ledby the Environment Agency.

Commission Implementing Decision 2014/203/EU on the adoption ofthe LIFE multiannual work programme for 2014-17 sets theframework for the next four years for the management of the newLIFE Programme 2014-2020. Funds are made available for two sub-programmes: one for the environment and one for climate action.

It is not known what work programme, if any, will be adopted for theperiod beyond 2020.

The UK is unlikely to be able to continue participating in LIFEfunded projects, unless the UK retains membership of the EuropeanEnvironment Agency.

The LIFE programme is administered in accordance with Regulation (EC)No 1293/2013.

Article 5 permits the participation of third countries which are EFTAmembers, countries to which the European Neighbourhood Policyapplies, or members of the European Environment Agency. EFTAmembership currently appears an unlikely outcome of Brexitnegotiations, and the European Neighbour Policy currently applies onlyto Southern and Eastern neighbouring states. The most likely route forthe UK to engage Article 5 is therefore continued membership of theEuropean Environment Agency. Any such participation in LIFE underArticle 5 is subject to bilateral or multilateral agreements establishingthe general principles for such third countries participating in EuropeanUnion programmes.

Article 6 may be relevant to LIFE financing of activities outside the Unionin British Overseas Countries and Territories in accordance with theOverseas and Association Decision (2001/822/EC, now 2013/733/EC)provided such activities are necessary to achieve the Union’s climatechange and environmental objectives.

Name Environmental relevance Is continued participation by the UK possible?

http://ec.europa.eu/environment/life/about/

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:JOL_2014_116_R_0001

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:JOL_2014_116_R_0001

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013R1293


Horizon 2020 Horizon 2020 is the biggest EU Research and Innovation programmeever, with nearly €80 billion of funding available over the 7 yearperiod covering 2014 to 2020.

Applications for most H2020 funding must be done by a consortiumof organisations, usually made up of at least three organisations fromdifferent countries. These may include private companies, universities,research organisations and public bodies.

The scope of H2020 is not limited to environmental matters; butenvironmental programmes fall within the actions and opportunitiesfor collaboration under the Societal Challenge ‘Climate action,environment, resource efficiency and raw materials’.

This is an important funding stream. As the Institute for Governmenthas reported, in 2015 76% of the money the UK received from the EUfor research and development came from Horizon 2020 (€1.2bn).

At present UK-based organisations will not be able to continue toreceive Horizon 2020 funding after Brexit. However, it may bepossible for the UK to negotiate participation in the programme asan associate member, or under the terms of cooperation with thirdcountries.

The Commission has confirmed that the UK-based organisations can“participate and receive funding in Horizon 2020” until the UK leaves theEU. However, it has also said that: “the eligibility criteria must becomplied with for the entire duration of the grant. If the United Kingdomwithdraws from the EU during the grant period without concluding anagreement with the EU ensuring in particular that British applicantscontinue to be eligible, you will cease to be eligible to receive EUfunding (while continuing, where possible, to participate) or be requiredto leave the project on the basis of Article 50 of the grant agreement.”(Commission note to British applicants to Horizon 2020, October 2017).

The UK Government has responded, saying that this “simply refers to theexisting terms and conditions of the EU research and innovationframework programme agreements”. In relation to any discontinuationof funding it has said that it has “[underwritten] the payment of suchawards, even when specific projects continue beyond the UK’s departurefrom the EU” (DBEIS ‘Horizon 2020 Underwrite Q&A’, 23 October 2017).The UK Government has said that it wants to continue to participate inH2020.

Regulation (EU) No 1291/2013 establishes the Horizon 2020 programme.Article 7 allows non-Member States to be classified as “AssociateCountries”, but this is unlikely to be applicable to the UK post-Brexit. Thisassociation is open to acceding countries, candidate countries andpotential candidates (not relevant here), countries covered by theEuropean Neighbourhood Policy (currently only Southern and Easternneighbouring countries) and EFTA Members. Association with Horizon2020 takes place through the conclusion of an international agreementbetween the EU and the third country. This agreement specifies the



https://ec.europa.eu/programmes/horizon2020/

https://www.instituteforgovernment.org.uk/blog/domestic-politics-negotiating-brexit-eu-money

https://www.instituteforgovernment.org.uk/blog/domestic-politics-negotiating-brexit-eu-money

http://ec.europa.eu/research/participants/portal/desktop/en/support/about.html

https://www.ukro.ac.uk/authoring/public/documents/171023_h2020_qa_underwrite.pdf



https://ec.europa.eu/research/participants/data/ref/h2020/legal_basis/fp/h2020-eu-establact_en.pdf


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terms and conditions of participation of the associated country inHorizon 2020, including the financial contribution based on the GDP ofthe associated country.

An alternative to associate membership of the H2020 programme wouldbe international cooperation. Article 27 of Regulation 1291/2013provides for international cooperation with third countries. Art 27(1)states that legal entities established in third countries are eligible toparticipate in indirect actions of Horizon 2020 under the conditions setout in Regulation (EU) No 1290/2013.

Article 7 of Regulation 1290/2013 states that legal entities, regardless oftheir place of establishment, may participate in an action provided thatconditions set out in the Regulation have been met, together with anyconditions laid down in the relevant work programme or work plan. Therelevant work programme may restrict the participation in Horizon 2020or parts thereof of legal entities established in third countries whereconditions for the participation of legal entities from Member States (ortheir affiliated entities established in a third country) in the thirdcountry’s research and innovation programmes are considered to beprejudicial to the Union’s interests. Article 10 states that any legal entityestablished in a third country identified in the work programme will beeligible for funding from the EU under H2020. In the case of aparticipating legal entity established in a third country that is not eligiblefor funding under that provision, funding from the Union maynevertheless be granted provided that either (a) the participation isdeemed essential for carrying out the action by the Commission or therelevant funding body; or (b) such funding is provided for under abilateral scientific and technological agreement or any otherarrangement between the Union and the international organisation or,for entities established in third countries, the country in which the legalentity is established.



EuropeanRegionalDevelopmentFund (ERDF)

ERDF is one of the funds set up by the European Commission as partof the European Structural and Investment (ESI) fund. The currenttotal budget for EU structural funds is €454bn and the majority offunds are allocated to three funds: ERDF, ESF and the Cohesion Fund(which the UK does not receive funding from). ESI funds are managedby Member States.

This fund aims to strengthen economic and social cohesion withinthe EU by reducing imbalances between regions or social groups.Funding goes to projects that support current priority investmentareas. One such priority is the low-carbon economy, such as the RE:FITscheme that works to retrofit public buildings in order to make themmore energy efficient. The objectives of the fund are pursued withinthe framework of sustainable development and the Communitypromotion of the goal of protecting and improving the environment.

Specific funding opportunities relevant to the environment relate tothree objectives, the most important of which is ‘European territorialco-operation’. This objective aims to reinforce co-operation acrossnational borders to promote common solutions to a range of sharedeconomic, social and environmental problems.

As well as cross-border and interregional cooperation, this objectivealso funds cross-border cooperation, including beyond memberstates’ external frontiers.

There are a number of EU Directives which have strong interactionswith the ERDF because these funds play an important role insupporting their implementation. This includes the Birds, Habitats,IPPC, Waste Framework, Landfill, Water Framework, SEA and EIADirectives.

Examples of projects that have received ERDF funding include £1mfor the Port of Sunderland for the redevelopment with a low carbonbusiness hub.

The UK is unlikely to be able to continue to receive funds from theERDF, although it may be able to participate in programmesinvolving sea basin strategies and macro-regional strategies.

The rules governing the ERDF are Regulation (EU) No 1301/2013 on theEuropean Regional Development Fund and on specific provisionsconcerning the Investment for growth and jobs goal and repealingRegulation (EC) No 1080/2006.

The Common Provisions Regulation lays down common principles, rulesand standards for the implementation of the five European Structuraland Investment Funds (Regulation (EU) No 1303/2013 of the EuropeanParliament and of the Council). These funds are:

• the European Regional Development Fund;• the European Social Fund;• the Cohesion Fund;• the European Agricultural Fund for Rural Development; and • the European Maritime and Fisheries Fund.

After Brexit the UK will not receive a national allocation from the fund.Article 76 of the The Common Provisions Regulation empowers theCommission to commit resources directly to individual Member States inaccordance with agreed national allocations (‘enveloping’) on the basisof which Member States determine their co-financing plans.

There may be limited scope for UK participation in projects fundedunder the Common Provisions Regulation. Within these regulations thedefinitions of ‘macro-regional strategy’ and ‘sea basin strategy’ mayencompass, where appropriate, third countries. Under Articles 47 and 48third countries may be invited to participate in monitoring committees.


http://ec.europa.eu/regional_policy/en/funding/erdf/




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EuropeanSocial Fund(ESF)

ESF is one of two separate funds set up by the European Commissionas part of the European Structural and Investment (ESI) fund.

The ESF is the European Union’s main financial instrument forsupporting employment, enhancing education and skills, andimproving job prospects. It is relevant to the environment only to theextent that its investment priorities shall be used to further thethematic objective of supporting the shift towards a low-carbon,climate-resilient, resource-efficient and environmentally sustainableeconomy, through the improvement of education and trainingsystems necessary for the adaptation of skills and qualifications, theup-skilling of the labour force, and the creation of new jobs in sectorsrelated to the environment and energy.

The UK is unlikely to be able to continue to receive funds from the ESF.

The relevant rules are set out in Regulation (EU) No 1304/2013 on theEuropean Social Fund. The mission of the ESF, as set out in Article 2, isapplicable only to Member States; no provisions are made for ThirdCountries, non-Member States, or even accession countries in these rules.

The ESF is governed by the Common Provisions Regulation (see above).


http://ec.europa.eu/esf/home.jsp

http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1511283075905&uri=CELEX:32013R1304


EuropeanAgriculturalFund for RuralDevelopment(EAFRD)

The European Agricultural Fund for Rural Development (EAFRD) isoften referred to as the ‘second pillar’ of the Common AgriculturalPolicy (CAP) or the ‘Rural Development Regulation’ and provides aframework for providing support for farmers, foresters and other ruralactors for undertaking activities that contribute to sustainable ruraldevelopment.

The main environmental objectives of the fund are to improve thecompetitiveness of agriculture and forestry; to improve theenvironment and countryside by supporting land management; andto improve the quality of life in rural areas and encouragediversification.

The UK is unlikely to be able to continue to receive funds from theEAFRD.

The relevant rules are set out in Regulation (EU) No 1305/2013 of theEuropean Parliament and of the Council of 17 December 2013 onsupport for rural development by the European Agricultural Fund forRural Development (EAFRD). The programming content, as referred to inArticle 6, is restricted to actions within Member States. There is limitedscope for support made to third countries under Articles 44 and 52;however, these are limited to applications of LEADER local developmentfrom the EAFRD, covering inter-territorial co-operation projects betweengroups in Member States and in third countries.

Commission Delegated Regulation (EU) No 807/2014 supplementsRegulation (EU) No 1305/2013 and introduces transitional provisions,however these do not appear relevant to questions of third countryparticipation.

The EAFRD is governed by the Common Provisions Regulation (seeabove).


https://ec.europa.eu/agriculture/cap-funding_en




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EuropeanMaritimeFisheries Fund(EMFF)

The EMFF is a central element of the CFP structural policy. The EMFFseeks to assist those working in the fishing and aquaculture sectorsand coastal populations to adapt to the CFP for the period 2014-2020.

The EMFF co-finances projects with EU countries that providenational funding. EU countries draw up an operational programmestating how they intend to spend the money allocated. Once theEuropean Commission approves these programmes, it is up to thenational authorities to decide which projects will be funded.

The UK will not be able to co-fund projects under the EMFF. Theallocation of resources under the EMFF is done by CommissionImplementing Decision, which allocates funds to member state.

Articles 5 and 6 of Regulation (EU) No 508/2014 of the EuropeanParliament and of the Council of 15 May 2014 on the European Maritimeand Fisheries Fund limit the objectives and priorities of the EMFF toMember States applying the CFP. There are only very limited provisionsfor engagements with third countries (such as cooperation activities forcommunity-led local development within Member States under Article64).

The EMFF is governed by the Common Provisions Regulation (see above)

Commission Implementing Decision 2014/372/EU of 11 June 2014setting out the annual breakdown by Member State of the globalresources of the European Maritime and Fisheries Fund available in theframework of shared management for the period 2014-2020 has not yetentered into force.

EuropeanUnionSolidarityFund (EUSF)

The European Union Solidarity Fund, created following the floods of2002, provides financial assistance to EU countries facing majornatural disasters with serious repercussions on the naturalenvironment.

Following the disbursement of funds the beneficiary state shallprovide an implementation report which details, inter alia, theexperience gained from the natural disaster and the measures takenor proposed to ensure environmental protection and resilience inrelation to climate change and natural disaster.

The UK will not be able to access the EUSF after Brexit.

The relevant rules are set out in Council Regulation (EC) No 2012/2002 of11 November 2002 establishing the European Union Solidarity Fund, asamended by Regulation (EU) No 661/2014. Under the amended Article2(1) an ‘eligible state’ (formerly called a ‘beneficiary state’) is defined as a“Member State or country involved in accession negotiations with theEuropean Union”.





http://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=celex:32014D0372

http://ec.europa.eu/regional_policy/en/funding/solidarity-fund/





http://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=celex:32014R0661


Competitivenessof Enterprisesand small andmedium-sizedenterprises(COSME)

COSME is the EU programme for the Competitiveness of Enterprisesand SMEs, running from 2014 to 2020, with a budget of €2.3billion.COSME will support SMEs in the following areas: facilitating access tofinance; supporting internationalisation and access to markets;creating an environment favourable to competitiveness; encouragingan entrepreneurial culture.

Although it has minimal environmental implications it does providefor the creation of the Enterprise Europe Network (“the Network”), aone-stop-shop for business support by helping enterprises toimprove their competitiveness and explore business opportunities inthe internal market and beyond. Actions undertaken through theNetwork may include measures to increase SME access to energyefficiency, climate and environmental expertise.

The UK may be able to participate in COSME as a third country, or ona self-financing basis.

The relevant rules are set out in Regulation (EU) No 1287/2013 of theEuropean Parliament and of the Council of 11 December 2013establishing a Programme for the Competitiveness of Enterprises andsmall and medium-sized enterprises (COSME) (2014 - 2020). UnderArticle 6, EFTA Countries, accession countries and countries with thescope of the European neighbourhood policies may (provided certainconditions are met) participate in COSME. If the UK remains in EFTA thenit may be able to participate in their fund.

Further information on third country participation in COSME is providedby the European Commission website. After listing the criteria underArticle 6 it says “At present, there is no legal basis for other countries tojoin the programme. However, COSME legal basis allows entities fromother countries to participate in certain projects on a self- financingbasis.” The basis for this appears to be Article 7.


http://ec.europa.eu/growth/smes/cosme_en

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R1287

http://ec.europa.eu/DocsRoom/documents/23201


UKELA is grateful to the Economic and Social Research Council for their assistance in publishing these reports.


Brexit and Environmental Law:the UK and European Cooperation Bodies

This report examines the impact of Brexit on the UK’s future involvement in a range of specialist cooperationbodies, networks and agencies relevant to environmental law.

The functions performed by the European bodies which the UK currently participates in vary greatly. Somebodies are informally constituted and focus on facilitating cooperation and best practice. Others are creationsof specific legislative programmes, tasked with development, implementation and enforcement of the acquisacross Member States. All form part of a complex network of environmental governance.

This report analyses the eighteen bodies and networks of greatest importance to environmental law andconsiders key questions in relation to each. Is it legally possible for the UK to continue to participate in some ofthese bodies as a non-EU Member State, whether as an observer or as a third country? What are the origins ofthe rules underpinning each body? What would the benefits be of continued participation in each of thesebodies, and what functions would be lost if it left them?

A number of themes emerging from this analysis are explored in detail. The impact of uncertainty about theterms of withdrawal and the UK’s future relationship with the EU is explored, including the implicationsdifferent negotiated outcomes may have on the possibility of continued membership. Possible barriers tocontinued UK involvement in bodies are outlined, such as where third country membership may requireongoing alignment with the relevant acquis, oversight from the Court of Justice or future financial contributionsto running costs; this is balanced against options for observer status and the possibility of participation withoutvoting rights. The interaction between participation in environmental bodies and the rules governing EUfunding mechanisms is also analysed.

These findings are set out in two comprehensive annexes accompanying the report. The data is also used toconclude on possible priorities for continued participation in each environmental body after Brexit, and todetail the difficulties faced in achieving this.

January 2018

The UK Environmental Law Association (UKELA) is the foremost body ofenvironmental lawyers in the UK. UKELA aims to promote better law for theenvironment and to improve understanding and awareness of environmental law.

UKELA remained neutral on the Brexit Referendum. UKELA’s Brexit Task Force wasestablished in September 2016 to advise on all matters relating to and arising fromthe UK’s decision to leave the European Union insofar as this impacts environmentallaw, practice and enforcement in the UK.

The Task Force has been examining the legal and technical implications ofseparating our domestic environmental laws from the European Union and themeans by which a smooth transition can be achieved. The Task Force aims to informthe debate on the effect that withdrawal from the EU will have, and to drawattention to potential opportunities and problems which may arise.

This report is printed on sustainably sourced paper.

Registered charity number: 299498 (Registered in England and Wales) Company listed by guarantee: 2133283 (Registered in England and Wales) 9 781999 798666

ISBN 978-1-9997986-6-6