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UK confirms it would like to remain in EU chemicals law REACH, but will it meet the EU’s conditions?

In a speech on Friday March 2nd the UK Prime Minister Theresa May stated that the UK wished to discuss the possibility of remaining part of the EU chemicals agency ECHA after Brexit.

CHEM Trust welcomes this announcement, but it is important to realise that the other EU governments (the EU27) will inevitably set specific conditions for such participation, and that the risk remains that participation may be considered ‘cherry picking’ by the EU. The contrasting experiences of Norway and Switzerland in gaining – and not gaining – access to ECHA are instructive.

CHEM Trust has been calling for the UK to stay in the EU chemicals regulatory system REACH since the EU referendum. REACH is the most sophisticated chemicals regulatory system in the world. In our view leaving it will weaken the protection of human health and the environment in the UK from harmful chemicals – as well as damaging UK businesses.

May’s speech stated:

We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency.

We would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution.

May describes this as ‘associate membership’ of these agencies.

However, May’s ask for “associate membership” poses many questions. Only countries in the European Economic Area (like Norway) have a relationship like this with Echa, which allows them to participate in discussions at ECHA and access the crucial REACH database on chemical safety and use.

From what we know about the experience of Switzerland, CHEM Trust expects that the EU will set at least the following conditions for the UK to participate in REACH:

1) The UK would need to fully follow all decisions on chemicals in REACH, without a vote on these decisions, but with the opportunity to be involved in the discussions (as Norway is);

2) The UK would have to continue to implement and follow a number of other chemical-related EU laws, such as those on factory pollution and worker health.

3) The UK would need to accept the supervision of the European Court of Justice (ECJ), or something very similar, like the European Free Trade Area (Efta) court, which EEA countries like Norway use.

The EU27’s draft negotiating guidelines [not yet an official link], released on 7th March 2018, clearly show that their understanding of the UK’s current position on issues like ECJ jurisdiction means that the UK could not be part of the EU agencies:

The European Council further reiterates that the Union will preserve its autonomy as regards its decision-making, which excludes participation of the United Kingdom as a third-country to EU Institutions, agencies or bodies.

However, these guidelines also state:

The above approach reflects the level of rights and obligations compatible with the positions stated by the UK. If these positions were to evolve, the Union will be prepared to reconsider its offer

Dr Michael Warhust, CHEM Trust Executive Director, said

“CHEM Trust welcomes the UK Prime Minister’s desire to explore the possibility of the UK remaining within the EU’s world-leading chemical agency ECHA. However, it is clear that the UK will need to fulfil a number of key conditions in order to have a chance of the EU27 saying yes to request.

These conditions will include being bound by decisions in the EU chemicals law REACH, being accountable to the ECJ or something similar, and continuing to follow a number of other EU laws relating to protection of the environment and human health from hazardous chemicals. In return the UK should be able to participate in REACH decision making – without a vote – and access the crucial REACH chemical safety database.

There are clear advantages to the EU27 of the UK remaining within REACH, including an assurance that the UK won’t pollute the European environment and that UK companies won’t undercut EU ones through reducing chemical safety. Effective chemicals regulation is a ‘public good’, and permitting the UK to participate in REACH should not be viewed as ‘cherry picking’.

Update, 28th March 2018 – UK accepts role of ECJ in order to be involved in EU Chemicals Agency ECHA

On 27th March 2018, the UK Government Minister Suella Fernandes, Parliamentary Under Secretary of State at the Department for Exiting the European Union, appeared in front of the UK House of Common’s EU Justice Sub-Committee and confirmed (at 11.46 in the video) the intention of the UK to respect the remit of the ECJ in certain instances:

“As the Prime Minister set out she referenced three specific sectors, chemicals, medicine and aviation and their associated agencies. And we will respect the remit of the ECJ in those instances”