Documents considered by the Committee on 16 January 2019 Contents

1Market surveillance

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information awaited; drawn to the attention of the Business, Energy and Industrial Strategy Select Committee

Document details

Proposal for a Regulation of the European Parliament and of the Council laying down rules and procedures for compliance with and enforcement of Union harmonisation legislation on products and amending Regulations (EU) No 305/2011, (EU) No 528/2012, (EU) 2016/424, (EU) 2016/425, (EU) 2016/426 and (EU) 2017/1369 of the European Parliament and of the Council, and Directives 2004/42/EC, 2009/48/EC, 2010/35/EU, 2013/29/EU, 2013/53/EU, 2014/28/EU, 2014/29/EU, 2014/30/EU, 2014/31/EU, 2014/32/EU, 2014/33/EU, 2014/34/EU, 2014/35/EU, 2014/53/EU, 2014/68/EU and 2014/90/EU of the European Parliament and of the Council

Legal base

Articles 33 (customs co-operation), 114 (internal market), and 207 (common commercial policy) TFEU; ordinary legislative procedure; QMV

Department

Business, Energy and Industrial Strategy

Document Number

(39394), 15950/17 + ADDs 1–11, COM(17) 795

Summary and Committee’s conclusions

1.1The Minister (Kelly Tolhurst MP) has provided the Committee with an update1 on the progress of negotiations regarding this proposal for a Regulation, which would strengthen enforcement of EU goods rules through a wide range of measures, including the creation of a Union Compliance Network, a system of pre-export checks and controls, and the introduction of a requirement for there to be an authorised representative in the Union who is responsible for compliance.

1.2Various aspects of the proposed regulation which have implications for third countries are relevant to the UK in the context of EU exit, most obviously the requirement for businesses to appoint an authorised representative in the Union responsible for compliance, but also other provisions which might potentially increase or decrease the level of market surveillance-related formalities which take place at the EU’s external borders. The proposed Regulation is explained in greater detail in the Committee’s first report, published on 9 May 2018.2

1.3In its most recent report on 21 November 2018,3 the Committee granted the Government a conditional waiver to participate in Council in November at which there was to be a vote on a General Approach. The Minister had informed the Committee4 that the Commission’s proposed text had been made significantly more proportionate by the Presidency, with decisions of the Union Product Compliance Network taking the form of legally non-binding recommendations, addressing the Committee’s concerns about encroachment on Member State competence. However, the Minister indicated that she retained significant concerns about the proposal for an authorised representative to be based within the EU, and said that unless the Austrian Presidency adopted a more risk-based approach, which ensured that the provisions were limited only to products which carry a higher degree of risk to the consumer, the Government would not support the proposal. The Committee requested an update from the Government in the New Year.

1.4In her latest update the Minister informs the Committee that an informal mandate to begin trilogues was adopted at a meeting of the Committee of Permanent Representatives to the European Union (COREPER) on 23 November 2018. She states that Article 4 (the requirement to have a person in the EU responsible for compliance) was discussed, and that the UK supported other Members States’ interventions to remove it entirely, but that there was insufficient support for removal and COREPER instead adopted the Working Group’s revised text, which better targets the provisions towards products representing a risk to the consumer. The Minister does not, however, provide any further detail about how the original proposal has been modified in this regard (e.g. which product categories are in scope of the provision).

1.5The Minister states that trilogue negotiations are underway, with 6 technical and 3 political trilogues taking place in December. She considers that the Council’s General Approach is more proportionate and better preserves Member State competency than the Commission’s original proposal, and is much more closely aligned to the UK position than the European Parliament’s mandate.

1.6The Minister states that there has been “significant progress” on the proposal, and that it appears that the European Parliament may be willing to move towards the Council’s position on some articles, notably on Article 4 (the requirement to have a person in the EU responsible for compliance); however, she also notes that, on other points, including Article 5 (Declaration of conformity), Article 15 (Market surveillance measures) and Article 20 (Union testing facilities), the Council may move towards the position of the Parliament. The Minister adds that it is not clear whether the amendments made by the Council Working Group to Article 31 (Union Product Compliance Network) will be retained through the trilogue process.

1.7The Minister concludes that the Romanian Presidency is committed to finalising the proposal as soon as possible with further trilogues scheduled through January with a view to securing final agreement in the first week of February. It is anticipated that the proposal will go before the Competitiveness Council on 18–19 February.

1.8The Minister emphasises that, given the differences between the Council and Parliament positions on a number of articles, it is too soon to have clarity on what the final compromise text will look like. She reiterates that the Government supports the overarching principles of the proposal, but states that it is awaiting the compromise text before taking a view on whether the proposal is sufficiently risk-based. The Minister requests that the scrutiny reserve be lifted or waived so that the UK can take a position of opposition or abstention, depending on how trilogue negotiations develop and what provisions are secured or conceded in the final text.

1.9We thank the Minister for her update following the informal negotiating mandate issued by COREPER in November, and her helpful summary of subsequent trilogue negotiations. Nonetheless, we regret that the summary of the mandate issued by COREPER does not provide further information about how Article 4 of the proposal (mandating the presence of a person in the EU responsible for compliance) was revised, which would enable us to evaluate the extent to which the Government had achieved its negotiating objective on this point and the implications for UK stakeholders.

1.10Although the Minister requests that the scrutiny reserve be lifted or waived so that the Government can take a position of opposition or abstention at the final vote in Council in February, depending on how trilogue negotiations develop and what provisions are secured or conceded in the final text, given the evident relevance of many of the provisions in the proposal to the UK in the context of EU exit, and the lack of certainty regarding the outcome of trilogue negotiations, we are not yet willing to grant the Government clearance or a waiver on the basis of the information that has been provided.

1.11We therefore request that the Government provide us with:

1.12We also ask that the Government clarify:

1.13We understand that providing us with this information in sufficient time for us to clear it from scrutiny in advance of Competitiveness Council on 18–19 February—presumably, at our meeting of 13 February—may prove logistically challenging depending on when provisional agreement on a text is reached, but we consider the proposal to be of sufficient importance not to be willing to grant the Government a scrutiny waiver without substantially greater clarity about the compromise text. We ask that you liaise closely with our clerks to ensure that we can report again on the proposal in advance of its adoption in Council.

1.14In this meantime, we retain this proposal under scrutiny, and draw it to the attention of the Business, Energy and Industrial Strategy Committee.

Full details of the documents:

Proposal for a Regulation of the European Parliament and of the Council laying down rules and procedures for compliance with and enforcement of Union harmonisation legislation on products and amending Regulations (EU) No 305/2011, (EU) No 528/2012, (EU) 2016/424, (EU) 2016/425, (EU) 2016/426 and (EU) 2017/1369 of the European Parliament and of the Council, and Directives 2004/42/EC, 2009/48/EC, 2010/35/EU, 2013/29/EU, 2013/53/EU, 2014/28/EU, 2014/29/EU, 2014/30/EU, 2014/31/EU, 2014/32/EU, 2014/33/EU, 2014/34/EU, 2014/35/EU, 2014/53/EU, 2014/68/EU and 2014/90/EU of the European Parliament and of the Council: (39394), 15950/17 + ADDs 1–11, COM(17) 795

Previous Committee Reports

Forty-fifth Report HC 301–xliv (2017–19), chapter 1 (21 November 2018); Twenty seventh Report HC 301–xxvi (2017–19), chapter 2 (9 May 2018).


1 Letter from the Minister to the Chair of the European Scrutiny Committee (9 January 2019).

2 Twenty Seventh Report HC 301–xxvi (2017—2019), chapter 2 (9 May 2018).

3 Forty-Fifth Report HC 301–xliv (2017—2019), chapter 1 (21 November 2018).

4 Letter from the Minister to the Chair of the European Scrutiny Committee (13 November 2018).

5 HM Gov, UK Government Commitments to Northern Ireland and its integral place in the United Kingdom (9 January 2018).




Published: 22 January 2019