The Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020

PART 1 Introduction

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020.

(2) This Part, and Part 5, come into force immediately before IP completion day.

(3) Parts 2, 3 and 4, and Schedules 1 and 2, come into force on IP completion day.

(4) Parts 2 and 3, and Schedules 1 and 2, extend to England and Wales and Scotland.

(5) Part 4 extends to Northern Ireland.

PART 2 Retention of legislative functions: restriction of hazardous substances in electrical and electronic equipment

Interpretation

2.  In this Part and in Schedule 1—

“the 2012 Regulations” means the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012(1);

“EEE” has the meaning given in regulation 4 of the 2012 Regulations, and a reference to a numbered category of EEE is a reference to the category of EEE so numbered in Schedule 1 to the 2012 Regulations;

“exemption” means an exemption, for a specified application of a specified material or component of EEE, from the restriction in regulation 3(1) of the 2012 Regulations on the use of certain hazardous substances in EEE;

“expiry date”, in relation to an exemption in Table 1 in Schedule A2 to the 2012 Regulations(2), means the date specified in the sixth column of that table as the date on which, subject to regulation 5(8), the exemption expires;

“GB REACH” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)(3);

“homogeneous material” has the meaning given in regulation 3(3) of the 2012 Regulations;

“restricted substance” means a substance listed in Schedule A1 to the 2012 Regulations(4);

“the list of restricted substances” means the list of substances set out in Schedule A1 to the 2012 Regulations;

“waste” means any substance or object which the holder discards or intends or is required to discard.

Power to amend list of restricted substances and maximum concentration values

3.—(1) The Secretary of State may, by regulations, make provision for or in connection with—

(a) amending the list of restricted substances;

(b) prescribing maximum concentration values by weight of restricted substances in homogeneous materials which may be contained in EEE placed on the market.

(2) Regulations under paragraph (1) may only be made—

(a) for the purpose of contributing to achievement of the objective of the protection of human health and the environment, including the environmentally sound recovery and disposal of waste EEE, and taking account of the precautionary principle; and

(b) following a review of the list of substances.

(3) When carrying out a review of the list of substances or making regulations under paragraph (1), the Secretary of State must—

(a) take into account other relevant legislation relating to chemicals, including among other things Annexes 14 and 17 to GB REACH, and use publicly available knowledge obtained from the application of such legislation;

(b) take into account whether a substance, including substances of very small size or with a very small internal or surface structure, or a group of similar substances—

(i) could have a negative impact during EEE waste management operations, including on the possibilities for preparing for the reuse of waste EEE or for recycling of materials from waste EEE;

(ii) could give rise, given its uses, to uncontrolled or diffuse release into the environment of the substance, or could give rise to hazardous residues, or transformation or degradation of products through the preparation for reuse, recycling or other treatment of materials from waste EEE under current operational conditions;

(iii) could lead to unacceptable exposure of workers involved in the waste EEE collection or treatment processes;

(iv) could be replaced by substitutes or alternative technologies which have less negative impacts.

Power to prescribe detailed rules for complying with maximum concentration values

4.  The Secretary of State may, by regulations, make provision for or in connection with prescribing detailed rules for complying with maximum concentration values.

Power to grant, extend or revoke exemptions

5.—(1) The Secretary of State may, by regulations, amend Schedule A2 to the 2012 Regulations to make provision for or in connection with granting, renewing or revoking an exemption.

(2) Regulations under paragraph (1) may only be made if they are for the purposes of—

(a) adapting Schedule A2 to take into account scientific or technical progress; and

(b) contributing to achievement of the objective of the protection of human health and the environment, including the environmentally sound recovery and disposal of waste EEE.

(3) The Secretary of State must, when making regulations under paragraph (1)—

(a) when determining whether to grant or renew an exemption, take into account the availability of substitute materials or components and the socioeconomic impact of substitution;

(b) when determining the duration of an exemption, take into account any potential adverse impacts on innovation;

(c) where relevant, take into account the overall environmental, social and economic impacts of an exemption over the whole duration of the exemption.

(4) The regulations may not make any provision which the Secretary of State considers would weaken the environmental or health protection afforded by GB REACH.

(5) The regulations may not grant or renew an exemption unless the Secretary of State considers that—

(a) the elimination or substitution of the material or component, via design changes or use of materials or components which do not include any restricted substances, is scientifically or technically impracticable;

(b) the reliability of substitute materials or components is not ensured; or

(c) the total negative environmental, health and consumer safety impacts caused by substitution of another material or component is likely to outweigh the total environmental, health and consumer safety benefits of the substitution.

(6) Subject to paragraph (9), regulations which grant or renew an exemption must specify its expiry date.

(7) The expiry date must be not more than—

(a) 5 years from the date on which the exemption or renewal comes into force, for an exemption relating to EEE in category 1 to 7, 10 or 11;

(b) 7 years from the date on which the exemption or renewal comes into force, for an exemption relating to EEE in category 8 or 9.

(8) The expiry date for an exemption is subject to—

(a) any regulations which may be made by the Secretary of State to revoke the exemption from an earlier date, or to renew the exemption; and

(b) the exemption continuing into force after its expiry date under regulation 6(4) or 7(4), or the expiry date not applying by virtue of regulation 10(3), where the circumstances specified in those paragraphs apply.

(9) Regulations need not specify an expiry date for an exemption if the exemption is for spare parts for EEE manufactured before a date specified in the regulations.

(10) The Secretary of State must make regulations to revoke an exemption if the Secretary of State considers that—

(a) the exemption weakens the environmental or health protection afforded by GB REACH; or

(b) the relevant condition in paragraph (5) is no longer fulfilled in relation to the exemption.

Applications for granting, renewing or revoking an exemption

6.—(1) Subject to paragraph (5), a person specified in paragraph 1 of Schedule 1 may make an application to the Secretary of State for the granting, renewal or revocation of an exemption.

(2) An application—

(a) must be made in such form and manner as the Secretary of State may specify;

(b) must include the information set out in paragraph 2 of Schedule 1; and

(c) if the application is for the renewal of an exemption, must be made no later than 18 months before the exemption expires.

(3) Where the Secretary of State receives an application in accordance with paragraphs (1) and (2), the Secretary of State must—

(a) within one month, provide to the applicant—

(i) an acknowledgement of receipt of the application; and

(ii) an estimate of the time within which the Secretary of State will determine the application and, if applicable, the time within which the Secretary of State will make regulations to implement the determination;

(b) publish a summary of the application;

(c) consider, in particular, the matters referred to in paragraphs (2) to (5) of regulation 5;

(d) consult such persons as the Secretary of State considers appropriate about the application; and

(e) publish a summary of the responses to the consultation.

(4) If an application is made under paragraph (1) for the renewal of an exemption in Table 1 of Schedule A2 to the 2012 Regulation, the expiry date for the exemption does not apply, and instead—

(a) the exemption continues in force until the Secretary of State determines the application; and

(b) thereafter regulation 7(3) or (4) applies.

(5) No application may be made for the renewal of an exemption if—

(a) the expiry date of the exemption is before 1st July 2022; or

(b) regulation 10(2) applies.

Determinations

7.—(1) When the Secretary of State determines whether to grant, renew or revoke an exemption, the Secretary of State must publish a summary of the determination and, if applicable, the date on which the exemption is to cease to apply.

(2) If the determination is to grant or renew an exemption, or to revoke an exemption before its expiry date, the Secretary of State must make regulations under regulation 5 to give effect to the determination.

(3) If the Secretary of State decides to renew an exemption, the exemption remains in force until the Secretary of State makes regulations to give effect to the determination.

(4) If the Secretary of State decides—

(a) not to renew an exemption; or

(b) to revoke an exemption before its expiry date,

the exemption remains in force until such date as the Secretary of State determines, which must be not less than 12 months and not more than 18 months after the date on which the determination is made.

Consultation

8.—(1) Before making any regulations under this Part, the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(2) The Secretary of State must publish a summary of the responses to a consultation under paragraph (1).

(3) A consultation on regulations under regulation 3(1) must contain at least the following information—

(a) precise and clear wording of any proposed restriction, or amendment of a restriction;

(b) references and scientific evidence for the restriction, or amendment of a restriction;

(c) information on the use of the substance, or the group of similar substances, in EEE;

(d) information on detrimental effects and exposure, in particular during waste EEE management operations;

(e) information on possible substitutes and other alternatives, and on their availability and reliability;

(f) justification for the proposed provision being the most appropriate measure;

(g) a socioeconomic assessment of the effect of the proposed provision.

(4) Paragraph (1) does not apply—

(a) to regulations under regulation 3(1) which are implementing a review of the list of restricted substances, if the Secretary of State has already consulted as part of that review, provided that such consultation satisfies the requirements in paragraph (3);

(b) to regulations under regulation 5 if—

(i) the Secretary of State has already consulted in accordance with regulation 6(3)(d) or 10(9) before deciding to make the regulations; or

(ii) regulation 9(3)(b) or 10(8)(b) applies.

Transitional provision: new exemptions

9.—(1) Paragraph (3) applies where—

(a) the Secretary of State proposes, either on an application under regulation 6 or on the Secretary of State’s own initiative, to make regulations under regulation 5(1) granting an exemption (“the proposed exemption”); and

(b) the conditions in paragraph (2) are satisfied in relation to the proposed exemption.

(2) The conditions are that—

(a) before IP completion day, an application has been made to the European Commission for an exemption to be granted under Article 5 of Directive 2011/65/EC;

(b) on or after IP completion day, the European Commission publishes a decision to grant that exemption (“the EU exemption”); and

(c) the proposed exemption has substantially the same effect as the EU exemption.

(3) Where this paragraph applies—

(a) the Secretary of State may treat the requirements in paragraphs (2) to (5) of regulation 5 as satisfied, without considering or determining any of those matters; and

(b) the Secretary of State is not required to consult before determining the application (if any) or making the regulations.

Transitional provision: renewal of exemptions

10.—(1) In this regulation—

(a) a “relevant exemption” means an exemption in Table 1 in Schedule A2 to the 2012 Regulations (“the table”) in respect of which either—

(i) in the entry in the table, in the column headed “expiry date or status”, it states “transitional case”(5); or

(ii) paragraph (i) does not apply but, before IP completion day, an application has been made to the European Commission for renewal of the corresponding EU exemption;

(b) “the corresponding EU exemption”, in relation to an exemption in the table, means the exemption in Annex 3 or 4 to Directive 2011/65/EC with the number specified in the fourth column of the entry in the table for that exemption.

(2) No application may be made to the Secretary of State for the renewal of a relevant exemption.

(3) If an expiry date is specified in the entry in the table for a relevant exemption, that expiry date does not apply.

(4) A relevant exemption remains in force until the Secretary of State makes a determination under paragraph (5) or (6), and thereafter regulation 7(3) or (4) applies.

(5) The Secretary of State must determine whether or not to renew a relevant exemption if the European Commission has published a decision whether to renew the corresponding EU exemption.

(6) Where, in relation to a relevant exemption, the European Commission has not published a decision whether to renew the corresponding EU exemption, the Secretary of State may, at any time, determine on the Secretary of State’s own initiative whether to renew the relevant exemption.

(7) When making a determination under paragraph (5) or (6), the Secretary of State must take into account—

(a) any publicly available information about the application for renewal of the corresponding EU exemption; and

(b) if the European Commission has published its decision on that application, that decision.

(8) Where the Secretary of State proposes to make a determination under paragraph (5) which has substantially the same effect as the European Commission’s decision in relation to the corresponding EU exemption—

(a) the Secretary of State may treat the requirements in paragraphs (2) to (5) of regulation 5 as satisfied, without considering or determining any of those matters; and

(b) the Secretary of State is not required to consult before making the determination, or (if the determination is to renew the exemption) before making any regulations to give effect to the determination.

(9) Except where paragraph (8) applies, before making a determination under paragraph (5) or (6) the Secretary of State must consult such persons as the Secretary of State considers appropriate.

Regulations: general

11.—(1) Regulations by the Secretary of State under this Part are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(2) Regulations under this Part may—

(a) include consequential, incidental, supplementary, transitional or saving provision (including provision amending, repealing or revoking enactments);

(b) make different provision for different purposes.

PART 3 Amendment of subordinate legislation: Great Britain

The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012

12.—(1) The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012 are amended as follows.

(2) In regulation 2—

(a) in the definition of “the Directive”, for “Commission Delegated Directive (EU) 2019/178” substitute “Commission Delegated Directive (EU) 2019/1846”(6), and read in accordance with regulation 2B”;

(b) for the definition of “importer”, substitute—

““importer” means a person who is established in—

(a)

the United Kingdom, who places on the market EEE from a country outside of the United Kingdom; or

(b)

Northern Ireland, who places on the market EEE that has been supplied to that person for distribution, consumption or use in the course of a commercial activity, whether in return for payment or free of charge, from an EEA state;”;

(c) in the definitions of “make available on the market” and “place on the market”, for “on the EU market” substitute “on the market of Great Britain”;

(3) In regulation 3—

(a) in paragraph (1), for “Annex II to the Directive, as amended from time to time” substitute “Schedule A1”;

(b) in paragraph (2), for “that Annex, as so amended” substitute “Schedule A1”;

(c) in paragraph (4), for “Annex III and IV to the Directive, as amended from time to time” substitute “Schedule A2”.

(4) In regulation 14, in paragraph (5), omit “in the United Kingdom”.

(5) In regulation 16, for paragraph (2) substitute—

“(2) The UK marking must be affixed to—

(a) the EEE;

(b) a data plate affixed to the EEE; or

(c) where paragraph (2A) applies—

(i) a label affixed to the EEE; or

(ii) a document accompanying the EEE.

(2A) This paragraph applies to EEE that is placed on the market within a period of 24 months beginning with IP completion day.”.

(6) In regulation 24, for paragraph (2) substitute—

“(2) Paragraph (1) does not apply where—

(a) either—

(i) it is not possible to set out the information referred to in paragraph (1) on the EEE; or

(ii) the importer has imported the EEE from the EU and places it on the market within the period of 24 months beginning with IP completion day; and

(b) before placing the EEE on the market, the importer sets out the information referred to in paragraph (1) on the packaging of the EEE or in a document accompanying the EEE.”.

(7) After regulation 34A(7), insert—

“Expiry of regulation 34A

34B.— (1) Subject to paragraphs (2) and (3), regulation 34A ceases to have effect at the end of the period of 12 months beginning with IP completion day.

(2) Notwithstanding the expiry of regulation 34A—

(a) any EEE which was placed on the market pursuant to regulation 34A may continue to be made available on the market on or after the expiry of regulation 34A;

(b) any obligation to which a person was subject in respect of EEE placed on the market pursuant to regulation 34A continues to have effect after the expiry of regulation 34A, in respect of that EEE.

(3) Regulation 34A continues to apply to EEE that—

(a) was available on the market in the EU prior to IP completion day; and

(b) is placed on the market on or after IP completion day.

(4) Where EEE is placed on the market pursuant to paragraph (3), regulation 24(1) does not apply where—

(a) the importer has imported the EEE from the EU; and

(b) before placing the product on the market, the importer sets out the information referred to in regulation 24(1) in a document accompanying the EEE.

Qualifying Northern Ireland goods

34C.— (1) Where paragraph (2) applies, EEE is to be treated as being in conformity with these Regulations.

(2) This paragraph applies where—

(a) the goods which are EEE—

(i) are in conformity with these Regulations as they apply in Northern Ireland; and

(ii) are qualifying Northern Ireland goods; and

(b) an importer has complied with the obligations set out in paragraph (3).

(3) The obligations referred to in paragraph (2)(b) are that, before placing the EEE on the market, the importer—

(a) complies with regulation 21; and

(b) ensures that the manufacturer has done all of the following in relation to the EEE, in accordance with these Regulations as they apply in Northern Ireland—

(i) carried out the conformity assessment procedure in accordance with regulation 12(1);

(ii) drawn up the technical documentation; and

(iii) affixed the CE marking.

(4) For the purposes of this regulation—

(a) “in conformity with these Regulations” means, in relation to EEE, that—

(i) the EEE is not prohibited by regulation 3 from being placed on the market; and

(ii) each person who has obligations under this Part in respect of the EEE has complied, or is complying, with those obligations;

(b) “CE marking” and “technical documentation” have the meanings given in regulation 2 of these Regulations as they apply in Northern Ireland;

(c) “qualifying Northern Ireland goods” has the meaning given to it from time to time in regulations made under section 8C(6) of the European Union (Withdrawal) Act 2018.”.

(8) Before Schedule 1, insert Schedules A1 and A2 as set out in Schedule 2 to these Regulations.

The Packaging (Essential Requirements) Regulations 2015

13.—(1) The Packaging (Essential Requirements) Regulations 2015(8) are amended as follows.

(2) After regulation 6 insert—

“Qualifying Northern Ireland Goods

6A.— (1) Where paragraph (2) applies, packaging is to be treated as being in conformity with these Regulations.

(2) This paragraph applies where—

(a) the packaging—

(i) is in conformity with these Regulations as they apply in Northern Ireland; and

(ii) is a qualifying Northern Ireland good.

(3) For the purposes of this regulation—

(a) “in conformity with these Regulations” means, in relation to packaging, that—

(i) the packaging is not prohibited by regulation 4 or 5 from being placed on the market; and

(ii) the responsible person has complied, or is complying, with any obligations under this Part in respect of the packaging;

(b) “qualifying Northern Ireland goods” has the meaning given to it from time to time in regulations made under section 8C(6) of the European Union (Withdrawal) Act 2018.”.

PART 4 Amendment of subordinate legislation: Northern Ireland

The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012

14.—(1) The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012 are amended as follows.

(2) In regulation 2—

(a) in the definition of “CE marking” after “RAMS” insert “as amended from time to time before or after IP completion day”;

(b) in the definition of “the Directive” for “Commission Delegated Directive (EU) 2019/178” substitute “Commission Delegated Directive 2019/1846”;

(c) in the definition of “importer”—

(i) for “within the EU” substitute “in a relevant state”;

(ii) for “EU market” substitute “relevant market”;

(d) in the following definitions for “EU” substitute “relevant”—

(i) “make available on the market”;

(ii) “place on the market”;

(e) after the definition of “recall notice” insert—

““relevant market” means the market comprised of the market in Northern Ireland and the markets of the EEA states;

“relevant state” means Northern Ireland or any EEA state;”.

(3) In regulation 3, in paragraphs (1) and (4), at the end insert “before or after IP completion day”.

(4) In regulation 14, omit paragraph (4).

(5) In regulations 20(b), 26(2)(b) and 30(2)(b), for “member States” substitute “relevant states”.

(6) In regulation 22(1), for “the EU” substitute “a relevant state”.

(7) In regulation 29, in paragraph (1)(b), for “Member State” substitute “relevant state”.

(8) In regulation 42—

(a) omit paragraphs (1) and (2);

(b) in paragraph (5), omit “(or in Scotland, the Lord Advocate)”.

(9) In regulation 43(2), omit the words from “(in England” to “(in Scotland)”.

(10) In regulation 46(2), omit “other”.

(11) In Schedule 1, in paragraph 12, after “security of” insert “the United Kingdom or”.

The Packaging (Essential Requirements) Regulations 2015

15.—(1) The Packaging (Essential Requirements) Regulations 2015 are amended as follows.

(2) In regulation 2(1)—

(a) in the definition of “importer” for “the United Kingdom” substitute “Northern Ireland”;

(b) in the definition of “responsible person”, in sub-paragraph (e), after “in” insert “Northern Ireland or”.

(3) In regulation 3(5), for the words from “provisions” to the end, substitute “provisions of the Hazardous Waste Regulations (Northern Ireland) 2005(9)”.

(4) In regulations 4(1) and 5(1), after “on the” insert “Northern Ireland or”.

(5) In regulation 7(1), omit sub-paragraph (a).

(6) In regulation 9—

(a) in paragraph (1)(a)—

(i) omit paragraph (i);

(ii) in paragraph (ii), omit “Scotland or”;

(b) in paragraph (1)(b), omit “Scotland or”;

(c) in paragraph (2)—

(i) omit sub-paragraph (a);

(ii) in sub-paragraph (b), omit “Scotland or”.

(7) In regulation 10(2), omit the words from “(in England” to “(in Scotland)”.

(8) In regulation 12(2), omit “other”.

(9) In Schedule 2—

(a) in paragraph 2(1)(b) and 2(2), after “established in” insert “Northern Ireland or”;

(b) in paragraph 2(2), for “within” substitute “in Northern Ireland or”.

(10) In Schedule 3, in paragraph 2(1), for “within” substitute “in Northern Ireland or”.

(11) In Schedule 4—

(a) in paragraph (1)—

(i) in sub-paragraph (c), omit “in England and Wales, and Northern Ireland,”;

(ii) omit sub-paragraph (d).

PART 5 Amendment of EU Exit legislation

The Waste (Miscellaneous Amendments) (EU Exit) (No. 2) Regulations 2019

16.—(1) The Waste (Miscellaneous Amendments) (EU Exit) (No. 2) Regulations 2019(10) are amended as follows.

(2) In regulation 18(2), omit sub-paragraphs (c), (e) and (f).

The Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019

17.—(1) The Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019(11) are amended as follows.

(2) In regulation 14—

(a) in paragraph (2), in paragraph 2(a) of the inserted Article A1—

(i) for “Community” substitute “the Community”;

(ii) for “United Kingdom” substitute “Great Britain”;

(b) in paragraph (5)(b)(i)—

(i) for “European” substitute “the European”;

(ii) for “United Kingdom” substitute “Great Britain”.

(3) In regulation 16—

(a) in paragraph (4)(c)(ii)(aa)—

(i) for “Community” substitute “the Community”;

(ii) for “United Kingdom” substitute “Great Britain”;

(b) in paragraph (6)(b)(ii), for “the United Kingdom” substitute “Great Britain”.

Rebecca Pow

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

17th December 2020