By Laura Donnellan, School of Law, University of Limerick, Ireland
The announcement, on 14 November 2018, that the UK and the EU have agreed – on a ‘technical level’ – the Draft Withdrawal Agreement (DWA) augurs well for the Tripartite Agreement (TPA) between Ireland, the UK and France on the transfer of thoroughbred horses.
The DWA was published on 19 March 2018 and, following months of protracted negotiations, it has been reported that UK and EU officials have agreed the text of the DWA (‘Brexit: UK and EU ‘agree text’ of draft withdrawal agreement’, 14 November 2018, BBC.com, https://www.bbc.com/news/uk-politics-46188790).
The United Kingdom’s membership of the European Union is set to end at 11pm on 29 March 2019 (see section 20 (1) Interpretation, European Union (Withdrawal) Act 2018 (c.16), http://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_20180016_en.pdf).
One of the terms of the DWA is a 21-month transition period, which will end on 31 December 2020, with the possibility of a further extension. At present, it is not clear what effect the DWA will have on the TPA; however, it is surmised that enhanced documentation and record keeping may be required (BHA, ‘The UK leaving the EU: Racing Industry Guidance’, https://www.britishhorseracing.com/regulation/brexit/).
From 1 January 2021, the UK will become a third country and it may decide to conclude an association agreement with the EU. However, working on the premise that a 21-month transition period will be accepted, it could mean that the TPA would remain in force until at least 31 December 2020.
The original TPA pre-dates the UK’s accession to the then European Economic Community (EEC). This agreement provided for the transfer of horses between the UK, Ireland and France without the need for formal veterinary inspections. In 2005, the TPA was amended to include all equidae, with the exception of those being transported for slaughter. 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 response, the Council of Ministers adopted Directive 2009/156/EC on health conditions governing the movement and importation from third countries of equidae (the full text is available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32009L0156). This Directive had implications for the TPA.
Directive 2009/156/EC covers intra-EU movement and importation from outside the EU. The Directive provides for exemptions for equidae used for sporting, recreational or cultural purposes. In the light of the horsemeat scandal in 2013, the TPA was amended; these amendments came into force on 18 May 2014. Under the new rules, the movement of ‘high health’ horses are traceable between Ireland and France and France and the UK.
Article 6 of the Directive provides that member states can implement ‘an alternative control system providing guarantees…as regards movements within their territory of equidae may grant one another derogations…on a reciprocal basis’.
As the TPA from 2014 is based on the derogation under Article 6 of the Directive and thus predicated on EU Law; if there is a 21-month transition period, it would mean the TPA would still govern the transfer of racehorses between Ireland, the UK and France until December 2020. The importance of the TPA is evident from the following statistic: the TPA ‘covers close to 90% of all horse movements within the EU’ (Danielle Rossingh, ‘How Brexit could derail $7 billion horse racing industry’, CNN.com, 7 March 2018, https://edition.cnn.com/2018/03/07/sport/brexit-thoroughbred-breeding-horse-racing-intl/index.html).
Horseracing is the second largest sport in the UK in terms of revenue and attendance (James Allen, Director of Policy, Governance and External Affairs at the Sport and Recreation Alliance, Home Affairs Sub-Committee of the House of Lords EU Committee, p.6, https://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/Letter-from-lord-jay-to-tracey-crouch-on-movement-of-people-in-sport.pdf 27 July 2018.
According to James Allen, in his oral evidence before the Select Committee on the European Union Home Affairs Sub-Committee on ‘Brexit: movement of people in the fields of sport and culture’ on Wednesday 21 February 2018, the horseracing industry is worth around £3.5 billion per year (ibid pp19-20).
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.
With the above figures in mind, the Thoroughbred Brexit Steering Group was established in early 2017 (BHA, ‘The UK leaving the EU: Racing Industry Guidance’, https://www.britishhorseracing.com/regulation/brexit/). This Group includes senior representatives of the BHA, the Thoroughbred Breeders’ Association, the Racehorse Owners Association, and Weatherbys (ibid). It is assisted by a number of sub-groups of industry experts that advise the Thoroughbred Brexit Steering Group in a number of areas including Trade, Taxation and Tariff Group, Horse Movement, Transport & Technical Group, People Movement and Political and Stakeholder Communications (ibid). The Group’s remit is to examine the challenges that Brexit presents as well looking into opportunities outside the EU, in particular, the Middle East (BHA, ‘Brexit and European Racing-Briefing Note’, https://www.britishhorseracing.com/wp-content/uploads/2018/11/Brexit-briefing-Sep-2018.pdf).
According to the Steering Group’s Briefing Note, the annual economic impact of the European Thoroughbred horseracing industry is €12 billion and it employs 155,000 people directly in various roles (ibid). Each year, around 22,000 foals are bred in the EU, which amounts to €760 million in sales, with many of these foals being sold outside of the EU (ibid).
With reference to the TPA, over 26,000 thoroughbred horses move between the three countries for the purposes of sales, breeding and racing (BHA, ‘Brexit and European Racing-Briefing Note’, https://www.britishhorseracing.com/wp-content/uploads/2018/11/Brexit-briefing-Sep-2018.pdf).
The Steering Group identified three main priorities, one of which relates to the TPA. It mandates that the free movement of the thoroughbred horse within the EU be maintained, which will necessitate the continued application of the TPA.
With the announcement of an agreement between the UK and EU on 14 November, it would seem that the TPA will remain in force during the implementation period from 30 March 2018 to December 2020. In anticipation of the current system ending in December 2020, the Steering Group has been in discussions with the European Commission in relation the creation of a new High Health Horse status (3H) that would conform with the EU’s Animal Health Law. The EU Animal Health Law (Regulation (EU) 2016/429) will come into force in April 2021 (the full text is available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.084.01.0001.01.ENG&toc=OJ:L:2016:084:TOC).
The Animal Health Law consolidates a number of current ‘interrelated basic acts’ that were introduced on a sector by sector basis (for a summary of the Regulation see: European Commission, ‘The EU Animal Health Law’, https://ec.europa.eu/food/animals/health/regulation_en). The UK will need to either comply with the Regulation under the conditions required for third countries or will be required to have protections equivalent to those outlined in the Regulation (BHA, ‘The UK leaving the EU: Racing Industry Guidance’, https://www.britishhorseracing.com/regulation/brexit/).
Whilst the discourse has centred on the impact of Brexit on the free movement of persons, the customs union and the creation of a hard border between Ireland and Northern Ireland, the free movement of racehorses is an important consideration. The BHA is concerned about the Aintree festival which begins just a few days after the departure date (Horse Racing Ireland, ‘BHA seeks further talks regarding no-deal Brexit’, 13 October 2018, http://www.goracing.ie/News/?news=0974f406-d370-42c3-8eca-0d924ec05865). A guidance note, from the UK Department for Environment, Food and Rural Affairs (DEFRA), stated that if a no deal Brexit occurs, then UK horses who compete overseas will be refused re-entry into the UK (Horse Racing Ireland, ‘BHA seeks further talks regarding no-deal Brexit’, ibid). Will Lambe, the Executive Director of the BHA, expressed the fears of the BHA:
‘The guidance note reflects the constructive discussions we have been having with Defra officials and Ministers for a number of months, and in particular the fact that the current systems work well in terms of maintaining high health and welfare standards, and facilitating trade and international competition…However, were the EU not to also replicate these current systems, the implications are clear, and stark. There would be disruption, and significant cost, with the impact falling principally on EU members’.
Much ambiguity surrounds the future of the TPA; however, it would seem that it will remain in force until 30 December 2020.
This is welcome news to the horseracing industry in both Ireland and the UK!
Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’