Comment—EU-UK Trade and Cooperation Agreement impact on environmental law

Comment—EU-UK Trade and Cooperation Agreement impact on environmental law

The EU-UK Trade and Cooperation Agreement (TCA) agreed between the EU and the UK contains some ambitious language on climate change, but the effect of the broader provisions on environmental protection remains uncertain. The preamble to the TCA acknowledges the parties' commitment to high environmental standards and the fight against climate change. Provisions concerning environmental matters are scattered, but the underlying principle is that the parties remain free to determine their own domestic regulation on environment and climate change. Vanessa Jakovich, partner at Freshfields Bruckhaus Deringer, comments on the agreement, noting that there is room for optimism in terms of future co-operation on environmental regulation after the Brexit transition period ends at 11 pm on 31 December 2020 (IP completion day).

Original news

On 24 December 2020, the UK Government and the European Commission announced a deal in principle on the legal terms of the future UK-EU relationship. A copy of the draft EU-UK TCA, agreed at negotiator level (to be ratified) has been published, along with a number of associated declarations and agreements including a separate Nuclear Cooperation Agreement and an Agreement on Security Procedures for Exchanging and Protecting Classified Information. For background reading, see: Brexit Bulletin—draft EU-UK Trade and Cooperation Agreement published, LNB News 28/12/2020 12.

Impact on environmental law

In terms of the impact on environment and climate change, Vanessa Jakovich, partner at Freshfields Bruckhaus Deringer says:

'The agreement includes some fairly ground-breaking language on climate change, tying both the UK and EU to their existing, ambitious decarbonisation targets in a way that has not been seen before in international free trade agreements. Whilst the practical impact of this language is difficult to measure, given the strong political impetus and public and business support for these targets in any event, this sets a good example and positions both the UK and EU as international climate leaders ahead of COP26 in Glasgow.

The effect of the broader environmental protection provisions is less clear, with the heavily negotiated commitment around "non-regression" in environmental standards only applying to changes "affecting trade or investment" between the UK and the EU. It remains to be seen how this distinction will be applied. There are some other areas of uncertainty where more detail would have been welcomed, such as REACH, but co-operation on environmental regulation is contemplated by the deal's framework, so there is room for optimism.'

Guidance and preparation for IP completion day

Much of the official guidance issued in preparation for IP completion day remains relevant, though it may be subject to further amendment and review. A wide range of Brexit transition guidance has been published by the UK and the EU relevant to environment. [For details, see Practice Note​: Brexit—guidance for businesses from IP completion day (environment)].

Following the announcement of the TCA, a number of government departments have published updated guidance to help stakeholders prepare for the end of the transition period and beyond. Both the UK and EU are keeping their Brexit-related guidance under review and re-issuing stakeholder notices where necessary or appropriate. As revised Brexit notices and guidance documents are being issued it is a good idea to bookmark the relevant guidance pages and check for updates, in particular:

• GOV.UK—Transition guidance and regulation

• European Commission: Getting ready for the end of the transition period

The draft text of the deal is accessible here.

Source: Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Community, of the one Part, and the United Kingdom of Great Britain and Northern Ireland, on the other Part


 

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