1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points:
(1) In relation to regulation 10(3), new regulation 2A, explain:
a. whether it is intended that new regulation 2A is both applying the Directive in full and also introducing modifications;
b. if that is the intention, why are provisions that refer to EU institutions not modified (see e.g. Articles 4(2), 7, 8(2), 11); and
c. if that is not the intention, how is it made clear which provisions of the Directive are to apply; and
explain the same in relation to the other regulations in this instrument which modify Directives.
2.New regulation 2A is not intended to apply the Directive (that is, Directive 2000/53/EC on end-of life vehicles) in full.
3.Regulation 10(2)(a) amends the definition of “the Directive” in regulation 2 of the End-of-Life Vehicles (Producer Responsibility) Regulations 2005 (“the EoLV Regulations”) to provide that it is to be read in accordance with new regulation 2A. Regulation 2A(1) provides that for the purpose of those Regulations, the Directive is to be read in accordance with regulation 2A.
4.In the Department’s view it is clear from these provisions taken together, and from the absence of any statement that the Directive applies in full, that:
a)provisions of the Directive are to apply after EU exit only to the extent that other provisions of the Regulations refer to them in terms which indicate that they apply, and
b)regulation 2A is an interpretation provision, and its purpose is that provisions of the Directive which are referred to in other provisions of the Regulations are to be read with the modifications contained in it.
5.In the EoLV Regulations as they will apply after exit day, the only provisions referring to the Directive are regulations 12(1) and 26(1) and (2). Regulation 12(1) requires things to be done “in accordance with the requirements of Article 6 and Annex I of the Directive”. Regulation 26(1) confers powers “for the purpose of implementing the detailed rules of Article 5(4) of the Directive, and regulation 26(2) refers to “the objectives set out in Article 1 of the Directive”.
6.Consequently, Article 6 and Annex I apply for the purposes of regulation 12(1), and Articles 1 and 5(4) apply for the purposes of regulation 26(1) and (2). For these purposes, Articles 5(4) and 6 are to be read with the modifications in regulation 2A.
7.Regulation 2A also modifies or disapplies some other provisions of the Directive because they are linked to the provisions mentioned in the previous paragraph. For example, Article 5(3) is modified because Article 5(4) cross-refers to it. Article 2(1), (2), (5) and (8) are disapplied because they contain definitions of terms used in those provisions, and new regulation 2A(3) instead applies the definitions of those terms which are set out in regulation 2.
8.The provisions referred to in part b of the Committee’s question are not modified because they are not referred to in the EoLV Regulations, and are not linked to any of the provisions of the Directive which are referred to.
9.The same approach has been taken in relation to each of the other regulations in this instrument which modify Directives. In each case, Articles have only been modified if they are cross-referred to in the domestic regulations or linked (in ways such as those in the examples in paragraph 7) to provisions that are cross-referred to. Other Articles of Directives have not been modified because they will neither be part of domestic legislation after exit day nor need to be referred to in order to interpret domestic legislation, and accordingly they do not require modification.
10.The Department has also taken the same approach in other EU exit SIs amending legislation which contains references to Directives, for example in the draft Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019, which were considered by the Committee on 20th February 2019.
(2) Explain why the modifications to Directive 2008/98/EC made by regulation 10(3), new regulation 2B(7) and (8), omit the reference to Community legislation in the phrase “national or Community legislation” and an obligation on member States to send information to the Commission, but the modifications to the same Directive made by other regulations do not (e.g. in regulation 14(3), new regulation 2A; 15(3), new regulation 2C; in regulation 16(3), new regulation 3D; in regulation 17(2)(c), new regulation 2A).
11.On the approach that the Department has taken, the modifications that have been made to a Directive for the purposes of a particular domestic instrument are dependent on which provisions of the Directive that instrument applies or refers to.
12.The reference and the obligation mentioned in the Committee’s question are contained in Articles 23(5) and 25 of Directive 2008/98/EC (the Waste Framework Directive). The modifications made by regulation 10(3) omit them, because Articles 23 and 25 are referred to in new regulation 2A(6)(b)(i)(bb) of the EoLV Regulations, and the omission of those parts of them is necessary for those references to be operable following EU exit.
13.The modifications made to the Waste Framework Directive by new regulation 2A in regulation 14(3), new regulation 2C in regulation 15(3), and new regulation 2A in regulation 17(2)(c) do not include modifications of Articles 23 and 25, because in each of those cases the instrument being amended does not contain any references to those Articles.
14.New regulation 3D in regulation 16(3) modifies Article 23 because regulation 22 of S.I. 2011/988 (the instrument amended by regulation 16) refers to it. This modification of Article 23 differs from the modification made by new regulation 2B(7) in regulation 10(3), in that it does not omit the reference to Community legislation in Article 23(5). This is because regulation 22 of S.I. 2011/988 does not refer to that paragraph, but refers specifically to Article 23(1), (3) and (4), thereby differing from the reference in the EoLV Regulations which is to the whole Article.
(3) There appears to be no regulation 2A in the Regulations being amended by regulation 13, whether in the version now in force or the version as amended by this instrument. Clarify what provision “except for regulation 2A” as inserted by regulation 13(3) is intended to refer to.
15.The insertion of those words is an error, and regulation 13(3) should not have been included in the instrument.
(4) Confirm that regulation 14(2)(b) ought to refer to “the definition of the “Waste Framework Directive” (as inserted by regulation 6(2)(b))” not “the definition of “the Waste Directive” (as inserted by regulation 7(2)(b))”, and that it is not necessary to include both paragraphs (2)(b) and (2)(c).
16.It is confirmed that paragraph (2)(b) should not have been included in regulation 14. Paragraph (2)(c) is correct.
(5) In regulation 18(25), new paragraph 26(vi), explain what “the technical standards” and “the parts that have been applied” refer to.
17.It is acknowledged that paragraph (vi) does not make sense as drafted. It was intended to read “where the designated standards have not been applied in full, the technical documentation must specify the parts that have been applied”. However, this would not add anything to paragraphs (iv) and (v), so paragraph (vi) should not have been included.
18.The Department apologises for the errors identified by the Committee’s questions 3, 4 and 5, and will correct them at the first available opportunity.
Department for Environment, Food and Rural Affairs
5 March 2019
Published: 15 March 2019