1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points.
(1) Explain the basis on which the enabling power cited in the preamble is relied on, given that it expressly confers a power to amend only retained direct minor EU legislation made under Article 8(4) of Council Directive 2002/99/EC.
2.Paragraph 11A of Schedule 2 to the Trade in Animals and Related Products Regulations 2011 (S.I. 2011/1197) enables the Secretary of State to “amend, modify or revoke any retained direct minor EU legislation made under Article 8(4) of Council Directive 2002/99/EC.”
3.The Meat Preparations (Amendment and Transitory Modification) (England) (EU Exit) Regulations 2020 (S.I. 2020/1666) made using this power modifies and amends Commission Decision 2000/572/EC (EUDN 2000/572).
4.The Department notes that, while Commission Decision 2000/572 was adopted under powers included in Council Directive 94/65/EC, that directive was repealed by Article 2 of Directive 2004/41/EC which made provision for how references to Council Directive 94/65/EC should be construed in other EU legislation.
5.Article 4 of Directive 2004/41/EC provides that “With effect from the relevant date, references to the Directives referred to in Article 2 [which includes Council Directive 94/65/EC] or to Annex II to Directive 92/118/EEC shall be construed as being made, as the context demands, to…Directive 2002/99/EC.”
6.Commission Decision 2000/572 continues to refer to 94/65/EC in the preamble citing the powers under which it was adopted, although all other references in the operative part of the text have been replaced through amendments.
7.While Directive 2004/41/EC itself does not form part of retained EU law, it is the Department’s view that the gloss that it provided to Commission Decision 2000/572 when it became part of retained EU law under the European Union (Withdrawal) Act 2018 cannot be ignored.
8.The Department considers that Commission Decision 2000/572 needs to be construed in the same way as it would have been under EU law immediately before IP completion day (the end of the transition period), the point at which it became retained EU law, rather than as it stood at an arbitrary point in the past (such as before Directive 2004/41/EC took effect). Commission Decision 2000/572 should therefore be construed as having been made under Council Directive 2002/99/EC, in accordance with the operation of Directive 2004/41/EC as it applied to it at the end of the transition period.
9.The Department also notes that Article 13 of Council Directive 2002/99/EC provides that:
“1. As from the date referred to in Article 14(1), the animal health rules laid down by the Directives listed in Annex V [including Council Directive 94/65/EC] shall no longer apply.
2. Implementing rules adopted on the basis of such provisions shall remain in force until they are replaced by rules having the same effect adopted on the basis of this Directive …”
10.It is the Department’s view that this envisages that Council Directive 2002/99/EC is a re-enactment of the repealed Council Directive 94/65/EC, which provides the basis for the rule of construction in Article 4 of Directive 2004/41/EC.
(a) whether it is intended that these Regulations come into force:
(i) immediately after the commencement of regulation 40 of S.I. 2020/1462 and (the remaining provisions of) S.I. 2020/1631 at 11pm on 31 December, or
(ii) at the beginning of 1 January 2021; and
(b) how effect is given to that intention
11.Regulation 1(2) of S.I. 2020/1666 provides that the instrument “come[s] into force on the day after the day on which IP completion day falls, immediately following the coming into force of regulation 40 of the Import of, and Trade in, Animals and Animal Products (Miscellaneous Amendments) (EU Exit) Regulations 2020 and the Official Controls (Animals, Feed and Food, Plant Health etc.) (Amendment) (EU Exit) (No. 2) Regulations 2020.”
12.The Department considers that this provides for the instrument to come into force on the day after the day on which IP completion day fell, but not earlier than immediately after the coming into force of regulation 40 of the Import of, and Trade in Animals and Animal Products (Miscellaneous Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1462).
13.Such an approach was considered necessary by the Department given the possibility that IP completion day could have been changed again, and the need to link the coming into force date both to the powers being brought into force under instruments which were themselves linked to the timing of IP completion day and operability amendments being made to Commission Decision 2000/572/EC as it became retained EU law. If IP completion day had been changed, for example to midnight on 31 December 2020, or midnight on any other day, with the result that the instrument would otherwise have come into force at that time, the second limb of the commencement provision ensured that the instrument would still have come into force after regulation 40 of S.I. 2020/1462.
14.The Department considers that the words “immediately following” have to be read as meaning immediately following the coming into force of regulation 40 of S.I. 2020/1462, or as immediately following the coming into force of that regulation as is consistent with the first requirement that the instrument comes into force on the day after the day on which IP completion day falls.
8 March 2021