The United Kingdom and Ireland joined the then European Economic Community (EEC) on the 1st of January 1973. As Ireland and the UK are dualist countries, a domestic Act was required to incorporate the three Community Treaties (European Coal and Steel Community Treaty, the EEC Treaty and EURATOM) into the respective national legal systems. In Ireland, the European Communities Act 1972 was enacted in order to give expression to EEC law. Similarly in the UK, the European Communities Act 1972 gave cognisance to the supremacy of EEC law over domestic law. Over the years, the 1972 Act in both jurisdictions has been amended to reflect changes in membership and to give effect to amending Treaties, the most recent being the European Union (Amendment) Act 2008 in the UK and European Union Act 2009 in Ireland which gave effect to the Lisbon Treaty. In July 2017 the European Union (Withdrawal) Bill (or the Great Repeal Bill as it is more commonly referred to) was put before the House of Commons (the full text can be accessed here: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf). This Bill purports to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the UK from the EU. On exit day, the 1972 Act will be repealed, however, with regard to EU-derived domestic legislation, section 2 states that such legislation will remain in force on and after the exit of the UK from the EU. This must be read in conjunction with section 5 and Schedule 1 of the Bill. Section 5 states that the doctrine of supremacy will no longer apply on and after exit day. Schedule 1 details further provisions about exceptions to savings and incorporation.
In an article by Arthur Beesley published in the Financial Times on the 4th of October 2017, titled “Irish horseracing fears Brexit could handicap industry”, Mr Beesley asserts that “a threat hangs over Ireland’s important horseracing industry — Brexit, which could shatter vital links with the UK, the biggest market for Irish horses and a leading racing centre for Irish owners, trainers and jockeys”. Of significance is the tripartite agreement (TPA) between Ireland, the UK and France on the transfer of racehorses. It raises the question of whether the TPA will be repealed, amended or replaced. At the moment this is mere conjecture, as UK will cease be a Member State of the European Union on exit day, the TPA as an EU measure may no longer apply to the UK. If a hard Brexit ensues and the domestic legislation incorporating the EU Directive is repealed, then it would mean that the free movement of racehorses would be effected as additional veterinary checks could be required at Customs which would both be costly and time consuming. Additional documentation/certification would also be required. As noted above, section 2 of the Bill provides that pre-exit EU-derived legislation will continue to remain in force unless it is repealed by domestic legislation. If the UK decides not to repeal the Directive on which the TPA is based, then a modified version of the TPA may be the best solution.
The TPA has been in existence for four decades. In the 1970s, a tripartite agreement (TPA) on the movement of horses between the United Kingdom, Ireland and France was established. Under the TPA, horses could be transferred without the need for formal veterinary inspections between the three countries. In 2005 the TPA was amended to include all equidae, with the exception of those being transported for slaughter. Under the 2005 agreement, equidae could freely move between the three countries without health checks so long as each animal had a passport. The amended TPA caused much concern among equine welfare bodies as the risk of undetected disease and the movement of horses destined for slaughter became increasingly apparent. In 2009, an EU Directive 2009/156/EC on health conditions governing the movement and importation from third countries of equidae was introduced, which had to be incorporated into the national systems. The Directive covers intra-Union movement and importation from outside the European Union. Under the Directive, exemptions may be granted for equidae used for sporting, recreational or cultural purposes. The Directive had consequences for the TPA. In light of the horse meat scandal which erupted in 2013, it was decided that the TPA would be amended; these amendments came into force on the 18th of May 2014. Under the new rules, the movement of “high health” horses are traceable between Ireland and France and France and the UK.
The TPA is an example of a derogation given to Member States under Article 6 of Council Directive 2009/156/EC. Article 6 provides:
“Member States which implement an alternative control system providing guarantees equivalent to those laid down in Article 4(5) as regards movements within their territory of equidae may grant one another derogations from the provisions of the second sentence of Article 4(1) and Article 8(1)(b) on a reciprocal basis.
They shall notify the Commission thereof”.
Article 4 (1) states that equidae must show no clinical sign of disease at inspection and inspection must be carried out 48 hours in advance of the embarkment or loading of the animal. Article 8 (1) (b) requires that a health certificate complying with the template provided for in Annex III of the Directive.
The Directive was incorporated into Irish Law under S.I. No. 357/2011 - European Communities (Equine) Regulations 2011 and in the UK under The Trade in Animals and Related Products Regulations 2011 (England), The Trade in Animals and Related Products Regulations (Northern Ireland) 2011, The Trade in Animals and Related Products (Wales) Regulations 2011 and The Trade in Animals and Related Products (Scotland) Regulations 2012. There is much uncertainty in the wake of Article 50 of the TEU (a Member State withdrawing from the EU) being invoked, however, secondary legislation will continue to have effect until and if they are repealed by domestic legislation.
The British Horseracing Authority (BHA) has stated that 22,000 horses move in and out of the UK every year with the total amount in trade estimated at £300 million (Robin Mounsey, an official spokesperson for the BHA quoted by Business Insider UK, http://uk.businessinsider.com/bha-horseracing-expert-brexit-eu-impact-300m-thoroughbred-trade-2017-3). Mr Mounsey contends that only certain ports would allow the transport of horses.
As the TPA 2014 is based on the derogation under Article 6 of the Directive from 2009, a new TPA would need to be drafted so that its basis was no longer predicated on EU law. As EU secondary legislation is cited throughout the TPA, a new agreement or a heavily modified agreement would arguably need to be drafted. The full text of the TPA can be accessed at: http://www.equinerescuefrance.org/wp-content/uploads/2010/12/TPA-ENGLISH-PDF.pdf.
If the TPA is repealed and not replaced or modified then the issue of animal welfare becomes an important consideration. The idea behind the revised TPA in 2014 was based on a number of concerns including animal welfare and biosecurity. The UK and Ireland have a shared health status for horses. The UK has been at the forefront of animal welfare legislation dating back to the 1822 Ill Treatment of Cattle Act (the world’s first contemporary animal welfare statute) and the establishment of the SPCA in 1824 which received Royal Assent in 1840 and became known as the RSPCA. Up until March 2014 and the commencement of the Animal Health and Welfare Act 2013 our animal welfare legislation dated back to 1911, the Cruelty to Animals Act 1911. As long as the UK maintains protections comparable to those required by EU law, then an agreement between Ireland and the UK and the UK and France could be concluded. It would be subject to the other Member States approving such an agreement with a non-EU Member State (or third country), in this situation, the UK. Although the original TPA dates back to the pre-accession of Ireland and the UK to then EEC, the agreement at that time was intergovernmental in nature. In contrast, the 2014 TPA falls under the derogation under the 2009 Directive. Ireland and the UK could negotiate an agreement between themselves; however, this would be subject to the approval of the other 26 Member States. The fact that a pre-Accession agreement existed will be irrelevant as Ireland being a Member of the EU is bound by EU law and EU law is supreme and supersedes any conflicting domestic legislation.
If the TPA is repealed then customs duties on horses could be introduced as horses are goods for the purposes of EU law. Currently, Article 28 of the Treaty on the Functioning of the European Union (TFEU or Lisbon) applies to the UK and that provides that customs duties and charges having equivalent effect are prohibited. With regard to third countries, there is a common customs tariff. If the UK is no longer part of the common market then customs duties will need to be paid on the horse at arrival at Customs. Once the customs are paid in one Member State then the horse can move freely without incurring any more customs duties. Also, there could be VAT implications.
Until the UK exits the EU, the status of the TPA remains uncertain. It is hoped that a special arrangement between the UK and Ireland could be brokered that would protect the TPA, as Beesley refers to the UK horseracing industry and its concerns over the free movement of horses. He cites Will Lambe, the executive director at the British Horseracing Authority (BHA), who proffers that there is a “‘special case’ to be made for the retention of current arrangements”.