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In May 2017 the UK Government issued its policy paper on the negotiations to exit from the European Union. Section 8 dealt with free trade with the Government asserting its priority to secure the freest and most frictionless trade possible in goods and services but without joining the Single Market. The exit model of bilateral trade between the UK and the EU upon exit will be significant.
This will be the first time for many years that the UK has negotiated its own terms of trade with another country or group of countries. Usually terms of trade are negotiated by the European Union on behalf of its member states. Failure to agree on terms of trade upon exit will mean that the UK reverts to World Trade Organisation (WTO) rules. These are far from ideal but provide a fall-back position if agreement on trading terms cannot be reached.
The question of whether the UK wished to retain its membership of the European Economic Area (EEA) will also be significant. Like Norway, countries can be members of the EEA but not of the European Union. EEA countries enjoy free trade with the European Union and adopt most European law with the exception of that relating to agriculture or fisheries. However they must also abide by the terms of the Single Market which has already been ruled out by the UK Government.
Over the short-term the application of waste law will continue on an almost ‘business as usual’ basis. UK legislation relating to waste is already derived from the EU Waste Framework Directive and there is no question that this will not be retained at least over the short-term. Regulations relating to the transfer of waste across national borders, the TFS or Transfrontier Shipment of Waste 2007, will also be retained. As previously stated, UK court rulings on pre-exit EU law relating to waste will be retained as will be CJEU rulings on Pre-exit EU law. These are likely to include the definition of waste, the definition of recovery and disposal of waste, as well as the definitions of by-products and end of waste. Post-exit any CJEU rulings on waste or other matters will no longer be binding on the UK courts.
Over the longer-term the situation regarding waste law is less certain. The status and nature of waste law may depend on the nature of the exit agreement between the UK and the EU. There is likely to be the retention
46 LUBE MAGAZINE NO.143 FEBRUARY 2018
of the current waste legislative framework and it is also likely that the UK will not want to see, or be seen, to have environmental law that is second-best to that of Europe or other countries around the world.
The status of the core definitions which have governed so much of waste law in the past, is also less certain. Will waste mean waste? What about the end of waste definition, or that of ‘by-products,’ recovery and disposal, the waste hierarchy, waste oils or regeneration could all be up for debate. The situation is made more complex as environmental law has been devolved to the four nations of England, Scotland, Wales and Northern Ireland which together makeup the United Kingdom.
Current waste law is comprised of a set of different regulations, directives and case law built over a number of years and emanating from a number of sources. Case law from either UK courts or the CJEU, European Commission guidance, UK legislation and EU directives all go to make up this body of law.
The core principle that current EU waste law is “retained” on the date of the UK’s exit from the EU, stands. Direct regulations like the TFS will continue to apply automatically. Those directives not directly applicable will need to be transposed into UK law and UK transposing legislation retained. Just how faithful English law is to the waste Framework Directive remains to be seen. However the principle of the supremacy of EU law over UK law ends on the date of exit. Pre exit CJEU and UK case law will be retained, but there will be no references by UK courts to CJEU after the date of exit. Similarly any future CJEU decisions will not be binding on UK courts and the Supreme Court could also over-rule prior CJEU rulings.
Over the longer-term the status of waste law is likely to be driven by the nature of the exit agreement between the UK and the EU. Over time there is scope for significant future divergence in law from the rest of Europe and scope for significant future divergence from that law which has already been enacted within the UK. In light of this it is beneficial if businesses prepared for continued compliance and reviewed their commercial contracts in light of this.
LINK
www.vincentbrown.eu
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