Summary
In the agro-food sector the repeal of the 1972 European Communities Act could leave a legal vacuum with regard to EU rules set in place through regulations which were directly applicable. This includes, for example, rules governing food safety and import inspection and control systems. Legal uncertainty could impact on sourcing practices of UK retailers. There would appear to be a need for ACP exporters to ‘look out for things that have been missed’ in the sphere of agro-food sector trade. The ACP may well need to make a political issue of ensuring legal certainty in all areas affecting UK imports of agro-food products, with collaboration with the UK Fresh Produce Consortium potentially offering a cost effective means of getting to grip with this issue.
In April 2017 the legal firm of Mills & Reeve posted a briefing on the legal implications of Brexit for the agricultural sector. While this dealt with a host of legal issues relating to domestic UK agricultural regulation, it also provided a useful review of the types of legal complications which could arise for third country agricultural suppliers, including ACP agro-food exporters (1).
The most important area of the analysis in the regard related to the distinction made between the different legal foundations for the transposition of EU legislative acts into UK law. It notes how EU regulations were ‘directly applicable’ in the UK and became part of UK law without any need for domestic legislation. EU directives however required domestic legislation in order to be implemented.
The proposed repeal of the 1972 European Communities Act will therefore require new legislation to fill the legal vacuum arising from the non-applicability of EU regulations which were ‘directly applicable’ and which have no independent foundations in UK law.
While this will leave unaffected the estimated 15,000 EU directives which have already been transposed into UK laws by previous legislation, it will require new legislations for the estimated 5,000 pieces of EU legislation which were ‘directly applicable’ and which will hence require new UK legislation to be legally enforceable under UK law (1).
The Mills & Reeve review notes how complex the legal situation can be, citing the case of food labelling rules, some of which were introduced by EU directives an some by EU regulations, some rules will therefore ‘automatically remain in force and others will disappear’ (1).
The challenge for the UK government will be identify those specific rules which will remain legally in force and those which will require new legislative acts. This will require the UK government to ‘sift through all inherited EU law to decide whether it should be retained, amended or repealed’. It notes how the UK will need ‘a flood of new legislation’, creating a situation where ‘the chances of it all being well thought through and skilfully drafted are not so great’.
Mills & Reeve warn agro-food sector stakeholders to ‘look out for things that have been missed’. As an example it cites the issue of the future use of the EU ‘kitemark’, noting ‘without the EU “kitemark” to show that our products…comply with certain standards, it may well be more difficult to sell them in the EU and elsewhere’ (1).
It warns that while not a lot will change immediately, a situation could arise where things look the same but from a legal standpoint are not so. This will create considerable uncertainty while the flood of potential new legislative actions is waded through by UK civil servants.
In closing its review Mills & Reeve warn that without the influence of French farmers agriculture is likely to be further down the agenda of UK government concerns than is the case in an EU context. It notes in particular that the UK system of agricultural subsidies is likely to be ’very different from what we have today’ (1).
| Comment and Analysis The invocation to agro-food sector stakeholders to ‘look out for things that have been missed’ would appear to be equally relevant for ACP exporters. There are a multiplicity of EU rules impacting on imports from ACP countries which were directly applicable’ and which once the 1972 European Communities Act is repealed will no longer have a basis in UK law. For example, the EU’s General Food Law (Regulation 178/2002), EU Food hygiene requirements (Regulation (EC) No 852/2004 for all Food and Feed and Regulation (EC) No 853/2004 for animal products) and official inspection and control requirements (Regulation (EC) No 882/2004) are all laid down in EU regulations, which were ‘directly applicable’ and not in EU directives which required specific UK legislation to enter into force. This could potentially create a legal vacuum for the exercise of food safety controls at all levels (including imports) unless appropriate new legislation is drafted and approved by the time the UK formally leaves the EU. It is far from clear what implications this would carry for imports of food products, since these regulations, amongst other things, deal with who is legally responsible for ensuring food placed for sale on the UK market is safe. In some sectors this issue of the legal responsibility for ensuring only safe food is placed on the market had a bearing on the sourcing practices of supermarkets, who in some high risk sectors preferred to leave it to third party importers to carry the risk, rather than the supermarket itself engaging directly in importing the required items. The foregoing case is merely illustrative of the trade implications of the type of legal vacuum which could potentially arise in the agro-food sector following on from Brexit. ACP exporters can expect bodies like the UK Fresh Produce Consortium to take a keen interest in these issues. The FPC CEO Nigel Jenney has already urged the UK government to ensure a ‘seamless’ Brexit, with early clarity being provided on the rules which will need to be followed. However, this will be by no means a simple process given the enormity of the task faced. At a recent discussion on Brexit at the London Produce Show, UK officials responsible for plant health inspections advised importers to work with the appropriate EU body (there is no corresponding UK body) to identify emerging problems (3). This suggests a danger may exist of government and private sector bodies playing ‘pass the parcel’ on these complex legal issues until the music of Brexit negotiations comes to an end. In this context the ACP may well need to make a political issue not only of the need to ensure continuity of current ACP tariff preferences on exports to the UK post Brexit, but also for ensuring legal certainty on the multiplicity of non-tariff regulatory issues which are essential to facilitating a smooth, low cost trading relationship. In this area the ACP Group may find it has an interest in developing close cooperation with the UK Fresh Produce Consortium. |
Source:
(1) Mills & Reeve, ‘an overview of the legal implications of Brexit for those involved in the agriculture industry’, April 2017
http://www.mills-reeve.com/files/Publication/7de6aeaf-628a-4b1e-a836-32ac285b6206/Presentation/PublicationAttachment/b7458ea6-4350-43e7-97d2-37c191994240/PhoneyWar_April2017.pdf
(2) europeanlawmonitor.org, ‘What is an EU Directive?’
http://www.europeanlawmonitor.org/what-is-guide-to-key-eu-terms/eu-legislation-what-is-an-eu-directive.html
(3) Freshplaza.com, ‘Both challenges and opportunities for the sector’, 13 June 2017,
http://www.freshplaza.com/article/176937/Brexit-Both-challenges-and-opportunites-for-the-sector
| Key words: BREXIT, Legal implications, EU Directive, EU regulations Area for Posting: BREXIT |