Brexit-EU Law
As we enter the ‘flexible extension’ period of Brexit, with its (current) cut-off date of 31st October 2019, nothing is clear at all, save for the fact that the UK remains an EU member state. Even if it does exit, the majority of EU law will remain in place and the legal challenges over the next decade will lie in monitoring, firstly, the precise nature of both the residual EU law and its application to business and industry and, secondly, those aspects of EU law which are allowed to ‘fall away’ as the UK exercises its ‘rediscovered sovereignty’ and what we end up being left with in their place. Legal advising on Brexit will demand a sound working knowledge of EU law as it now stands and as it continues to develop over the next decade. In addition to having his post-graduate Masters degree in EU law, the client assignments and conference presentations detailed below illustrate Vincent Brown’s credentials in the field of EU law, and therefore of Brexit.
Client assignments involving in-depth EU law expertise:
European Commission – multi Member State EU Law Compliance Study Project
Acted as specialist legal adviser to the European Commission on a four year project, comprising the cross-border, multi-jurisdictional investigation of the national laws and legal/regulatory systems of several EU Member States, involving in-depth, line-by-line, analysis of around 40 critical EU environmental Directives, covering all of the principal elements of EU environmental law, including among others the Directives on industrial emissions and permitting, habitats and species protection, water pollution, air pollution, environmental impact assessment, vehicle fuel emissions, and the entire collection of waste directives including the waste framework directive itself, the hazardous waste directive, and the directives on landfill, waste incineration, end of life vehicles, waste electrical and electronic equipment, packaging and packaging waste, and the case law of the European Court of Justice. All of this was analysed against the individual legislation and administrative practices of five EU Member States, taking account of the main language versions of the EU Directives, using expert translators and local lawyers, with the key deliverables for the Commission being a succession of high level, multi-jurisdictional reports which formed basis of EU investigations into infraction proceedings in the Court of Justice of the EU.
Application of EU Chemicals (REACH) Regulation to importation to UK of chemical products
Advised Clyde Gateway Urban Regeneration in detail on the EU REACH Chemicals Regulation in the context of the procurement, import, testing and application in the UK of a chemical land remediation product manufactured in the Far East and where the point of importation into the EU was the UK port, including detailed advice on the importation and authorisation requirements of the REACH Regulation
Application of EU Water Framework Directive and Groundwater Directive to surface mining project
Advised Scottish Coal on specific requirements of these core items of EU water environment legislation – the Water Framework Directive and the Groundwater Directive – in the context of a highly contentious surface mining project involving the draining and remediation of a lake, with specific focus on legal submissions around correct interpretation of the core term ‘deterioration’ contained in the directives, involving detailed submissions on the application of EU law with Government and regulatory authorities
Application of European Court case law to UK waste oils recovery litigations – initiating a change in English law application of ECJ case law in the Court of Appeal
In the conduct of various items of litigation and commercial advice to the leading UK waste oils recovery operator, OSS Group, carried out exhaustive analysis of the case law of the European Court of Justice on the supremacy of EU law and the definitions of waste and complete recovery of secondary raw materials, which through these client assignments lead to a fundamental change in English law and its interpretation of EU law in these areas. It is likely also that the change in the law which was initiated through this study and subsequent litigation has become so ‘English’ that it will survive post-Brexit as purely English law
Application of EU Industrial Emissions Directive in fuel combustion sector – initiating a change in English law and regulation
Conducted an in-depth analysis of the precise language of the core EU industrial regulation directive – the EU Industrial Emission Directive 2010 – in order to frame successful challenges in the High Court and before the European Commission, on behalf of the UK waste oils industry trade body, the Oil Recycling Association and one of its leading members, Protreat Ltd, against UK Government policy on one aspect of the Directive as applied in the fuel combustion sector, assessing the meaning of core definitions of the Directive and successfully articulating a purposive interpretation of these definitions as demanded by the case law of the European Court, and compelling a change of English regulatory practice in the sector for the benefit of the client sector
Application of EU Waste Incineration Directive and Industrial Emissions Directive in steel sector – initiating a change in English law and regulation
Successfully petitioning the European Commission to have UK Government change its legal position on a question of EU waste law as applied to the steel sector, to outlaw the combustion of waste oils in steel foundries outside the controls of the Waste Incineration Directive (since replaced by Part IV of the Industrial Emissions Directive), examining in close detail the wording and overall schemes of and interaction between those Directives, the Waste Framework Directive and the general case law of the European Court
Joint Application of EU Environmental Directives and Energy Taxation Directives in the quarry sector
Advised international quarrying and lime corporation, Lhoist Group, on the potential interaction of EU waste and environmental directives with EU energy taxation directives, and drafted submissions on their behalf before the UK Government and the European Commission in relation to the use by them of fuels processed from waste oils and solvents, and the taxation applied to these at EU and UK levels
Application of EU Chemicals (REACH) Regulation cross-border between EU member state and non-EU state in the offshore and onshore oil industries
Conducted review for international offshore oil services operator, TWMA Group, of the cross-border legal position in the UK (as a then EU member state) and Norway (as a non-EU member but member of the European Economic Area) under the EU REACH Chemicals Regulation, with specific focus on the practical interplay between EU waste law and the REACH Regulation applied to recovered fuel oils from the treatment of offshore drilling wastes in both the UK and Norway
Cross-border application of EU waste and recycling law between UK and Republic of Ireland in the waste oils and fuel sectors
Examined on behalf of UK waste oils processor, OSS Group, the cross-border implications of EU law interpretation in one member state (UK) when applied to similar processes and products in a neighbouring member state (Republic of Ireland), negotiating the significant differences of interpretation of EU law to support client’s export strategy based on pre-Brexit supremacy of EU law and necessity for common interpretation in single market context. This kind of analysis will become even more important in the years following Brexit in the application of the post-Brexit legal landscape as between Northern Ireland and the Republic of Ireland in particular, but also as between the rest of the UK and the EU
Application of EU waste, sewage treatment and agricultural directives in the EU waste water/sewage sector
Acted as specialist legal consultant to a multi-disciplinary project team working across several EU Member States, part-funded by the European Commission and directed from the UK by the water company United Utilities plc, which was exploring legal and technical options at a European-wide level aimed at breaking down legal and technical barriers to the commercialisation of various ‘product’ derivatives from the treatment of sewage sludge. This included several detailed studies of the application to the EU waste water and sewage sector of several EU environmental, waste and agricultural laws and applicable case law of the European Court of Justice on product derivatives from waste and the presentation of legal papers to industry audiences in the UK, Spain and Brussels
Cross-border application of EU waste and recycling law between UK and Norway in the offshore oil sector
Advised North Sea oil industry drilling wastes operator, TWMA Group, in respect of the legal position under EU law in both the UK and Norway of the solid residues produced from the onshore thermal treatment of the drilling wastes, establishing a sound legal basis for the commercialisation of such residues as secondary aggregates and fill material, and applying EU law in non-Member State Norway via the application of the treaties on the European Economic Area
Application of EU waste shipment regulation in recovered waste oils exports to Netherlands
Advised leading UK waste oils processor, Regroup Refining, on rights and obligations as regards international shipment of recovered waste oils and framed successful submissions to Dutch authorities pursuant to the EU Waste Shipment Regulation
Application of EU end of waste law in Netherlands waste oils sector
Held discussions with legal officers of the Netherlands Environment Ministry on comparative applications in different member states of EU law on waste and product definition, and trans-frontier aspects affecting Dutch operators and ongoing court actions and governmental initiatives in the Netherlands
International law and EU law interaction in North Sea oil and gas sector – strategic study for global operator
Provided Marathon Oil Europe with strategic advice on future EU and international legal drivers affecting the offshore oil and gas exploration sector required in-depth analysis of most of the EU law on environmental and marine protection and its interaction with international treaties operative in the North Atlantic and North Sea to which the UK and the EU are signatories
Strategic EU law review in offshore drilling wastes and oilfield services sector
Conducted a strategic review for international oilfield services and drilling wastes operator, Scomi, to ‘future-proof’ within a 10-year projection corporate regulatory and expansion strategy, examining in-depth key industrial impacts of current and future EU and UK law on offshore operations, including EU Carbon Capture and Storage Directive, Marine Strategy Framework Directive and the other main waste, climate change, and emissions Directives.
Application of EU waste directives to UK steel plants
Acted for Hull-based oil refinery, Regroup Refining, in securing regulatory position with UK Government in relation to the disposal by third parties of waste oils and recovered fuel oils into blast furnaces and coke ovens of UK steel plants, which practice caused competitive disadvantage and feedstock supply issues to client. Framing successful submissions to UK authorities based on multiple EU law arguments, including early deployment of ‘waste hierarchy’ arguments and case based around the Industrial Emissions Directive.
International and national Conference Presentations on EU Law
Paris – “The UK case law in context of EU law definition of waste”. Contributions presented to a conference of judges, academics and EU officials at the Cour de Cassation, Paris, France, February 2008. Also lodged submissions and legislative drafting on certain Articles and definitions in the draft Waste Framework Directive 2008 concerned with recycling, the waste hierarchy, end of waste and energy from waste, at the invitation of the Rapporteur to the European Parliamentat Paris Conference.
Glasgow – “The EU legal definition of waste – assessment of the case law and practical implications for industry”. Presentation to Conference organised by Chartered Institute of Waste Management, Glasgow, April 2008.
Torbay – “The EU legal doctrine of end of waste – a practical analysis” . Presentation to the national conference of the Chartered Institute of Waste Management, Torbay, June 2008
Bologna – “The ARCO Chemie judgment of the European Court of Justice – analysis”. Presentation at the invitation of the Universities of Bologna and Florence, to an audience of Italian and German industrialists, government officials and academics, on the leading CJEU case law on waste definition, University of Bologna, Italy, June 2008.
Glasgow – “Analysis of UK case law on EU waste directives”. Presentation to National Waste Industry Conference, Hilton Hotel, Glasgow, UK, 8th October 2008
Aberdeen – “Industrial waste law in the Oil & Gas sector from EU law perspective” Presentation to oil and gas industry workshops, Aberdeen, UK, February, 2009
Edinburgh – “The new EU Waste Framework Directive: commercial and industrial implications” – Presentation to the Scottish Environmental Technologies Network, Annual Conference, Edinburgh University, May 2009.
Leeds – “Achieving EU law by-product and end of waste classifications in the sewage industry” – Presentation to 14th Annual European Biosolids Conference, Leeds, 10th November 2009
Edinburgh – “EU legislation, liability and business implications” – presentation to Zero Waste Conference organised by Holyrood Conferences and Scottish Government, Edinburgh, 1st June 2010.
Manchester – “EU Law on Waste to Energy and Waste to Product” – Semple Fraser LLP Industry Conference, City Inn, Manchester, 8th September 2010.
Manchester – “EU Law on Waste to Energy and Waste to Product” – Semple Fraser LLP Second Industry Conference, City Inn, Manchester, 11th November 2010.
Brussels – “Legal and contractual issues affecting chemicals industry in light of EU Chemicals Regulation (‘REACH’) and the new EU Classification and Labelling Regulation” – presentation to European Chemicals Industry Conference, Brussels, Belgium, 16th March 2011.
Manchester – “Waste to Product Status – an overview of EU and UK law” — presentation and conduct of industry workshop organised by Envirolink North West – Manchester University, 1st November 2011
Liverpool – “Securing Product Status for Industrial Wastes and Residues under EU Law” – a presentation on the practical industrial application of European case law and recent EU legislation on by-products, secondary products and other industrial resources and residues, to an industrial conference organised by the North West National Industrial Symbiosis Programme and the Knowsley Chamber of Commerce – Knowsley, Liverpool, 3rd November, 2011
Salford – “Current EU Legal Landscape on Biofuels” – presentation to the Biofuels Group of the National Industrial Symbiosis Programme (NISP), Salford, Manchester, 7th December 2011, examining EU renewables law and waste recovery law.
Berlin – “EU Legal Responsibilities: Waste Recovery and Management, and related liability issues in the Agrochemical Manufacturing sector” – presentation to European Agrochemicals Manufacturing Conference, Berlin, 28-29 February 2012 on the subject of increased producer responsibilities for manufacturing wastes and residues under new EU industrial laws
Florence – “The Developing Law and Practical Application of EU Law on End of Waste to Derivatives from Sewage Treatment” – presentation to the Annual International Solid Waste Conference, Florence, 18th September, 2012.
Brussels – Industrial Impacts of the Revised EU Directive on Waste Electronic and Electrical Equipment” – Chaired the Panel Session on this subject at the Annual EU Waste Conference of the Academy of European Law, Brussels, 27th September 2012, co-ordinating and commenting on contributions from the European Commission and Samsung Europe.
Brussels – “Waste to Energy in light of the revised EU Waste Framework Directive” – Presentation to the Annual EU Waste Conference of the Academy of European Law, Brussels, 28th September 2012, examining in detail the key regulatory issues and opportunities affecting the Energy from Waste sector under EU law, and specifically various different themes and legislative provisions of the revised Waste Framework Directive.
London – “The Law on End of Waste – where re we now?” Invited to present to the Annual Environmental Law Conference of the UK Environmental Law Association, chaired by Stephen Tromans QC, London, April 2013, examining the critical issues now facing the recycling industry and industrial and commercial waste producers in light of looming conflicts between EU law and UK law, and conflicts between Directive provisions and ECJ and UK case law.
Brussels – “EU Law and Practical Strategies for Tyre Recycling” – accepted an invitation from the European Tyre Recycling Association, 16-18 March 2016, to present an address to their 23rd Annual Conference on the shifting EU legislation and case law governing standards for recycling of tyre and rubber into various material, oil and gas products
London – “The proposed new EU Waste Framework Directive and Impacts on Industrial Operations” – accepted an invitation from MBL Seminars, June 2016, to address a London legal conference on Environmental Law.
Belfast – “Re-use and the End of Waste under EU Law: How Brexit will affect Waste Law in NI”. Presentation at invitation of the Chartered Institute of Wastes Management (Northern Ireland), March 2017.
Nottingham – “EU Waste Law in the UK after Brexit”. Invited to present to the AGM of the UK Oil Recycling Association, October 2017, on the likely impacts upon hazardous waste law in the sector as a result of Brexit and the EU Withdrawal Act
Leamington Spa – “The New EU Waste Framework Directive and Brexit: impacts on definition of waste and End of Waste between now and the mid-2020s”. Invited to present to the AGM of the UK Oil Recycling Association, October 2019, on the key developments affecting industrial end of waste under changing EU law in 2020 and in light of current and possible future legislative permutations of UK exit, viewed two weeks before schedule exit.