Sunday, 24 September 2017

Bluffing with an empty hand

Theresa May's use of the phrase "No deal is better than a bad deal" in her Lancaster house speech was seen by some as an "unnecessarily provocative".

I never understood this. If we say "we will not leave without a deal", EU hears "a superficial deal will do, they're not really leaving". If we are not willing to say "No Deal" at any point, we will eventually say Yes to every EU demand. We will be casting ourselves upon the mercy of the EU- not a quality the EU is known for. A guaranteed "bad deal" scenario.

1) The full 100bn exit bill will be extracted, with no offset from any EU assets.

2) EU expats in the UK will be granted full EU freedom of movement and citizen rights, with ECJ jurisdiction and enforcement.

3) The EU will insist upon a border in the Irish Sea, with Northern Ireland having special status within the single Market and Customs Union - in effect separating Northern Ireland from the UK.

4) The EU's negotiating objectives insists upon "safeguards against unfair competitive advantages through, inter alia, tax, social, environmental and regulatory measures and practices". The EU's current grip on social, environmental and regulatory law will not be relaxed, and control will be extended further to cover taxation.

5) The EU have already demanded they retain current fishing access in UK territorial waters. Combined with the same SPS regulations and likely same laws over shoals crossing boundaries, we will have left the CFP in name only.

6) The EU will demand we follow all SPS regulations for agriculture. While we will be outside the CAP subsidy scheme, the EU will regard any divergence from current policy as "unfair competition". We will be in CAP in all but name.

7) Somewhat out of the public eye, the UK Government has signed up to 5 EU Defence Union initiatives since November (see Veterans for Britain  twitter feed and web site). With May's unconditional commitment on security, likely to be bound via an association agreement, we are being de facto signed up to Juncker's EU Army.

8) Foreign Policy. I also expect May's association agreement to encompass foreign policy co-ordination and commitment to the EU's foreign policy aims. It will be impossible to distinguish this from the current position under the EU's Common Foreign Policy.

9) Human rights law. At present we already have pro EU MP's demanding that May sign up to the EU's Fundamental Charter of Human Rights. I expect May's association agreement to also contain similar commitments. So much for repealing Blair's Human Rights Act or establishing a British Bill of Rights.

10) Contributions. Well at least we won't be paying £10bn per annum nett to the EU, you may think. Don't bet on it. The EU will extract commitments to funding EU agencies and bodies and also for generous grants to poorer states in the EU. I doubt there will be any significant savings at all.

11) Four Freedoms and homogeneity of EU law. The EU have repeatedly made clear that the four freedoms are indivisible. Nor are they going to let us diverge from EU law and participate in the Single Market. The EU's negotiating objectives state they will "effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union." At the end of August, Michel Barnier stated UK requests were "simply impossible" as the EU must protect the integrity of the single market.  Barnier again emphasised this on the eve of May's Florence speech 
"It is not – and will not – be possible for a third country to have the same benefits as the Norwegian model but the limited obligations of the Canadian model. And naturally, any agreement must respect the regulatory autonomy of the EU, as well as the integrity of its legal order."
12) Free Trade Deals. Leaving the Customs Union will enable Britain to set and negotiate trade tariffs. But if we opt to retain single market benefits, which means full regulatory harmonisation (as discussed above the EU will not compromise on this), then we will be unable to secure meaningful trade deals on regulations and non-tariff barriers. The major obstacle for many trade partners is the EU's restrictive SPS regime, which blocks agricultural trade. The proposed Swiss-USA FTA foundered on this point. African farmers are excluded from EU market primarily by regulations and non-tariff barriers. If UK financial services remain bound by the EU's particularly restrictive interpretation of global finance regulation frameworks, there is no scope for liberalising trade in this sector with the Rest of  the World.

I think the above is the epitome of a bad deal. It will cost a huge amount of money and will leave us even more enmeshed in and under the control of, the EU. We will no longer have a voice in shaping the direction of the organisation which we would still be shackled to. EU expats in the UK will have legal rights over and above UK citizens enforced by the ECJ. The integrity of the UK is threatened by the EU's Irish border demands. Apart from tariffs there are no gains - we will have less freedom in all economic areas.

Surely the UK Government cannot sign up to anything like this, be it a Norwegian EEA deal or a Canadian FTA? Surely "No Deal" is better than this deal ? Yet that is exactly the trajectory the Article 50 talks are taking us. Why is this ? Lack of leverage. Contrary to May's rhetoric, it appears no preparations have been made for a No Deal scenario.

A report by the BBC's Christopher Cook concluded "government is not behaving like it is really preparing for No Deal - and the EU27 can surely see it.". Dominic Cummings has tweeted how failure to prepare for No Deal is a historic unforgivable blunder - it is hard to disagree. James Arnell, a partner at Charterhouse, in an article for Conservative Home, laments the lack of progress to date and calls on Brexiteer MPs to provide an ultimatum to Mrs May and her government to "demand a proper Brexit plan which is deliverable with or without the cooperation of Brussels".

The failure to prepare for "No Deal" is criminally negligent. May has been bluffing with an empty hand. A disastrous approach which has undermined Britain's negotiating position.  The Government must act urgently to revitalise the government machinery for delivering Brexit. Above all, with just 18 months to go,  a "No Deal" contingency plan should have been prepared and already in the process of implementation. Bureaucratic inertia and delay can be tolerated no longer.

Saturday, 16 September 2017

Flexcit reality check

Simon Nixon's recent Times article "Norway option is not the long term answer to the problems posed by Brexit", drawing heavily on Jean-Claude Piris's article for E!Sharp magazine, has caused a flurry of discontent among proponents of the EFTA EEA option.

Most notably unhappy are Flexcit supporters who propose a permanent EFTA EEA option which they believe can then be amended/reformed to meet our Brexit objectives. I was a Flexcit supporter, until the scales gradually fell from my eyes - a process that started spring 2016 and completed after the Referendum. For me the Nixon/Piris article covered some (of the many) issues I discovered in my journey away from Flexcit.

Freedom of Movement

The EEA Agreement encompasses the EU's "four freedoms", including Free Movement of People. This is often seen as the Achilles heel of the Norway / EFTA EEA option.

Article 112 of the EEA agreement states that where "serious economic, societal or environmental issues arise",  safeguard measures can be used, limited to "what is strictly necessary in order to remedy the situation". Flexciteers claim that these could be used "unilaterally" by Britain to limit freedom of movement. Liechtenstein is quoted as an example of an EFTA EEA country that has imposed immigration quotas via Article 112 safeguard measures.

In 1995, prior to Liechtenstein's EEA accession, the EEA Council recognised that Liechtenstein was a "small inhabitable area of rural character with an unusually high percentage of non-national residents and employees" and effectively pre-authorised the use of safeguard measures assuming no other solution was found. Liechtenstein did not act unilaterally.

As Piris points out that there is no precedent for "unilateral" action, and Britain can hardly expect to gain similar free movement concessions as a tiny, rural, land-locked micro-state like Liechtenstein. Should Britain take the unilateral route, it will be subject to "rebalancing measures"  by other EU/EFTA states under Article 114 of the EEA agreement, i.e. retaliatory measures such as limiting Britain's access to the Single Market by suspending the Financial services passport for example (as suggested on Steven Peers' EU Law Analysis blog).

Still Pay, No Say?

Inevitably there are complaints that the article simply repeats the "still pay, no say" mantra from the Remain campaign. Nixon states that EEA members "contribute to the EU budget". Strictly speaking, Norway pays for participation in EU agencies and selected EU programs, as well as directly funding poorer Eastern bloc EU states via the EEA and Norway grants system. However, it is true to say that without such payments, Norway would not participate in the Single Market. EEA will come with a price tag.

Norway does have "a say" over EU law applying to the EEA agreement - early consultation when EU legislation is first presented to EU Council and observer status on committees. But at best, this is similar to Britain's current status minus voting rights - it cannot be considered an improvement.  

Nixon/Piris point out that post-Brexit Britain could not expect more say over EU law than Norway - no special rights of consultation, recognition of differing British standards, opt-outs on certain legislation. This would put Norway's nose out of joint (whose vote we would need) and more importantly undermines the fundamental EEA principle of homogeneity.

In any case, a key reason for Brexit was the undemocratic nature of the EU and the largely unfettered legislative power of the EU Commission.  How much say Norway has compared with Britain as an EU member state is rather a moot point - it's negligible in either case. We're leaving the EU because we didn't buy the "influence" argument.  The problem with the Norway option is it still leaves us subject to EU legislation.

EEA democratic reform ?

Optimistic EEA supporters (Flexciteers) suggest the EEA could be reformed to create a more democratic "single market of equals" and even devolve legislative power to other intergovernmental organisations. Nixon/Piris scotch that idea -  the ECJ has previously struck down earlier versions of the EEA agreement that gave too much influence to non-EU states.  If anything, the EU might seek to lash the EEA even tighter to EU law. 

Flexciteers cite UNECE WP.29 (world forum for harmonisation of motor vehicle regulations) as an example of the EU ceding legislative power to UNECE. The truth is that this forum has been the basis of European vehicle regulations since 1958 - with many EU member states involved on their own initiative. In 1998, the EU became a contracting party, and required EU member states to sign up to UNECE regulations the EU negotiates and agrees (but allowing member states to retain their own initiative in regulations not covered by EU agreement with UNECE). Since then, the EU has steadily increased its control over member states and now claims sole competence to speak and vote on behalf of member states at WP.29, giving it a block vote of 28, (soon to be 27). Rather than ceding power, the EU has executed a power grab over member states and now has a dominant position in WP.29. 

Juncker's recent "state of the Union" speech stated "trade is about exporting our standards, be they social or environmental standards, data protection or food safety". EU power is centred on its acquis (body of law) and it's ability to impose its acquis on others. Can anyone seriously believe the EU is going to cede legislative power? EFTA EEA is primarily a mechanism for extending EU law to EFTA states - the only reform the EU will be interested in will be to strengthen its grip.

This is precisely my fear regarding Flexcit - in seeking reform of EEA, the EU response will be to simply dust off the Verhofstadt/Duff Associate Membership plan. EEA states becoming associate members will get voting rights in EU law applying to them, but at the price of accepting this EU law having direct effect and primacy in national legislation - as per EU membership.  Verhofstadt/Duff tellingly describe EU associate membership as a "parking place for those states not yet ready for full integration".

EEA is not a given for Britain

The crucial observation by Nixon/Piris is that far from being a ready-made, off-the shelf Brexit option (as Flexciteers have claimed in the past), British membership of the EEA would face a number of immense political obstacles.

  • As a matter of process (Brussels does love its process), Britain has to leave the EU first, then apply to join EFTA and re-join the EEA.
  • The application to re-join EEA will be "mixed competence", requiring unanimous ratification by all EU states and regional parliaments, so is potentially vulnerable to a regional veto (as per CETA and Wallonia).
  • Unanimous consent from the EFTA EEA states is also required. Norway's consent cannot be taken for granted. Norway's position as EEA top dog will be taken by Britain. Norway's political class is pro-EU and still harbours ambitions to join the EU - they will be very ambivalent about Britain joining the EEA.
  • All of this means that a transition arrangement is needed just to achieve the EFTA EEA option.

It's unsurprising that supporters of the EFTA EEA option are critical of Nixon/Piris. They will argue that failure to invoke Article 127 of the EEA agreement (1 years notice to quit) means Britain automatically retains full Single Market Membership (although I dismissed this idea in an earlier post and Lawyers for Britain have also written a good critique). They will insist that the Liechtenstein option must be applicable for Britain (despite plenty of critiques, including a very good critique from Civitas). They will continue to believe that Britain can opt-out of troubling legislation, despite the fact that the EEA is founded upon homogeneity of law (EU law at that).

But Piris cannot be dismissed so easily. As a former director-general of the EU Council’s legal service, he is not lacking in knowledge or expertise.  Even if you think his view slanted, it is highly likely that his thinking represents Brussels thinking. The EU believes Britain cannot automatically retain Single Market membership. Are supporters of the EEA option proposing we will fight and win a legal challenge against the EU on this point ?

It follows that EU agreement is needed to make the EFTA EEA option feasible and so the EU will dictate the terms. The EU is not going to let Britain drive a coach and horses through the four freedoms and homogeneity. The EU is smart enough to head off any such attempts via counter-measures already in the EEA agreement and if need be by extracting additional commitments from Britain via the Article 50 Withdrawal treaty.

Supporters of the EEA option and Flexciteers tend to call other Brexiteers "fantasists". Yet it seems Flexcit is the biggest fantasy of all - the notion that we can shape the EEA to whatever we want. This is why I describe the Nixon/Piris article as a reality check for Flexcit. The only EFTA EEA option on offer will be "as-is" - continued EU law and free movement of people. The only reform on offer will be further entanglement via EU associate membership. It is time to ditch the Flexcit fantasy.

Friday, 1 September 2017

Barnier on Mutual Recognition

The press conference speech by Michel Barnier following the third round of Article 50 negotiations  sparked plenty of confusion and debate, in particular the following comments:
".. protecting the EU legal order and protecting the integrity of the Single Market are core principles of my mandate. The UK decided to leave the European Union. The UK government decided to leave the Single Market and the Customs Union. We respect this sovereign decision. The Single Market, the EU capacity to regulate, to supervise, to enforce our laws, must not and will not be undermined by Brexit.
The UK wants to take back control, it wants to adopt its own standards and regulations. But it also wants to have these standards recognised automatically in the EU. That is what UK papers ask for. This is simply impossible. You cannot be outside the Single Market and shape its legal order."
Further to that, Barnier said some of the recent British proposals showed “a sort of nostalgia in the form of specific requests which would amount to continuing to enjoy the benefits of the single market and EU membership without actually being part of it”.

What does he mean ? Several alternative interpretations have been discussed:

1) The initial response was that Barnier was ruling out mutual recognition, despite the fact that the EU has mutual recognition agreements with numerous third countries. These agreements recognise third country Conformity Assessment Bodies (CABs) as competent to test products against EU standards  (and vice versa) and issue certificates of conformity.

Agreements on conformity assessment do not imply or require regulatory harmonisation - each party will maintain different standards and regulatory regimes. There is no recognition of each other's standards, merely a recognition of CAB's in each others territory. This means exported products undergo an assessment against relevant third country standards for export to the said third country, which is separate and different from the assessment undertaken for the domestic market.

2) It was then suggested "automatic mutual recognition of *divergent* regulations & standards" was the issue. But it's not clear the UK Government has suggested or is asking for such a thing. Certainly, there will be cases where the UK seeks mutual recognition of equivalent regulations with the EU - in line with existing EU-third country precedents.

The most obvious case is  agriculture / SPS regulations. Switzerland has an agriculture equivalence agreement with the EU which waives all border inspections for EU-Switzerland trade in agriculture. Although not in the single market, Switzerland informally harmonises its SPS regulations with the EU's. The EU also has agricultural equivalence agreements with other third countries (e.g. Chile, New Zealand) who are not fully harmonised with EU SPS regulations, but the EU has deemed the third country SPS regime sufficiently equivalent to allow much lower rates of border inspections.

In a recent paper on Data Protection, the UK Government has indicated it will seek to build on "adequacy" provisions in the EU's Data Protection law. The EU Commission can deem third country data protection standards are "essentially equivalent" to EU standards - countries such as Argentina,  Israel, New Zealand, Switzerland, Uruguay already have "adequacy" agreements with the EU.

It seems clear to me that Britain is seeking equivalence agreements based on existing EU-third country precedents. Of course, these require a continued close alignment or harmonisation of regulations - divergence will cause some or all of the agreement benefits to be lost. As far as I can see this is fully understood and I see no evidence that Britain is trying to circumvent that principle.

3) A clue to another possible explanation is in Barnier's reference to "recent UK papers / proposals". "Continuity in the availability of goods for the EU and the UK" was published by the UK Government on 21st August, effectively responding to the EU's paper  "Goods placed on the Market under Union law before the withdrawal date" published 28th June 2017.

The EU paper limits continued free movement of goods to those placed on the single market before the withdrawal date.  Market authorisations (for biocidal, plant protection and medicinal products) will need to be transferred to another competent national authority (i.e. within EU territory). Market surveillance co-operation and exchange of relevant information will cease on withdrawal date (with a case made for continued communication on goods already placed on the market).

The UK paper also proposes continued free movement of goods placed on the single market before the withdrawal date, But the paper also suggests business should not have to repeat compliance activities undertaken prior to exit. Type approvals, certificates and registrations issued prior to exit should remain valid. This is no small matter. Transferring authorisations on medicinal products to an EU-based authority is an expensive business (fees start at  approx. €280,000 per product) . Existing Car type approvals may be at risk, with a cost of £500,000 per model to re-test. The paper emphasises this proposal is set in the context of a smooth transition to a future relationship with the EU.

Here I think we see the heart of the problem. Although Article 50 calls for the withdrawal agreement to be concluded "taking account of the framework for its future relationship with the Union", statements from Barnier and the EU (on mutual recognition and availability of goods etc.) are based on application of EU law to Britain as a third country without any UK-EU agreements in place. It is as if Barnier/EU view the future relationship as no relationship at all. The EU stance to Britain is leave first, paying your exit bill, and then we may consider some trade arrangements.

However, while the EU cannot be compelled to enter into a Free Trade Agreement (FTA), it will be a lot harder to refuse requests for mutual recognition agreements.  The EU is a signatory to the WTO TBT agreement and Article 6.3 "encourages" members to enter into agreements on conformity assessment. Similarly, WTO SPS Agreement Article 4 "encourages" members to enter into agreements on agriculture and SPS measures. Also, WCO (World Customs Organisation) recommend members enter into AEO mutual recognition as part of its SAFE Framework (see page 28 of WCO SAFE Framework 2012 and section 5.5 on page 54 of WCO SAFE Framework 2007).


Claims that Britain is trying to enjoy the benefits of the Single market after it has left seem wide of the mark to me. Britain is seeking mutual recognition and equivalence agreements based on existing EU-third country precedents and is clearly seeking a smooth transition. Barnier is ignoring the EU's commitments to removing trade barriers in various international treaties and its own treaty. Moreover, such agreements will be of mutual benefit: protecting EU supply chains reliant on UK goods and protecting EU traders who export to the UK; costs for market authorisations and type approvals will apply in both directions.

Responses to Barnier's comments ranged from Hard Brexiteers saying "walk away now" to the usual Remain suspects praising  Barnier/EU and condemning Davis/Britain.  Portugal's former Europe Minister Bruno Macaes tweeted that Barniers' comments contradict the EU's position on trade:
  • For years the EU has stated that the "advantages" of the EU's single market can be enjoyed by third countries, as part of a more "Global Europe". 
  • In negotiations with the US for TTIP the goal was "frictionless" trade, which Barnier deems impossible for the UK.
  • Mutual Recognition is on the table in EU trade deals and is included in CETA, yet Barnier rules it out of future UK-EU relationship.

For myself, I think Barnier's comments are another manifestation of the impasse on exit bill versus trade talks arising from the EU's strict sequencing. Open Europe's Pieter Cleppe takes the view that the EU will have to start talking about trade soon - I hope he is right.

Wednesday, 30 August 2017

There is no Mandate for EFTA EEA

As I wrote in a previous blog, "You could be forgiven for thinking the question over the Single Market had been settled." But unfortunately, we now see claims that the Referendum campaign did not provide a mandate to leave the Single Market being revived (again).

1) Pretending that the Referendum campaign did not discuss leaving the Single Market has been categorically debunked, not least in Andrew Neil's demolition of Open Britain's James McGrory.  It is insulting the public's intelligence to suggest that this was not understood. Since the Referendum, we have had the Lancaster House speech, the Conservative and DUP General Election manifestos, the Queens speech based on those manifesto commitments and a vote against Chukka Umunna's Single Market amendment by 322 to 101 - all committed to leaving the Single Market.

2)  Even worse, we then have the argument that voters don't have enough understanding of the EU or Single Market to understand the effects of leaving. This of course is exactly the line of argument used by Remain refuseniks who wish to reject or overturn the Referendum. The same argument used by MacMillan and Heath to get us into the EEC in the first place while concealing the loss of sovereignty involved. The same argument used for decades afterwards as EU treaty after EU treaty was signed without consulting the British public. It amounts to the metropolitan elite and political class saying "its all too complex for you, we know best".

3) The same people who propagate this view of voters are remarkably quick to seize on polling that suggests public support for the single market (the same single market voters apparently do not understand). A Comres poll for the BBC in July 2016 is quoted as showing 66% think retaining the Single Market should be a priority for the Government. Except upon examination, this is actually 66% support for "maintaining access to the single market so Britain can have free trade with the EU". Free Trade access to the Single Market is completely different from being inside the Single Market with all its associated restrictions - as voters and pollsters well know.

A more accurate view of public sentiment is provided by the YouGov Poll of August 2016, which compared the Norway EFTA EEA model with a Canadian Free Trade Agreement (FTA) model. The majority view was that the Norway model was not a good deal and was not seen as respecting the result of the Referendum.

Rather like those arguing over Article 127 of the EEA Agreement, EFTA EEA supporters are making a disingenuous case on "mandate" rather than making a positive case for the EFTA EEA option, precisely because they don't believe people will freely choose EFTA EEA over an FTA. In fact they tend to argue against other options and then defend the EEA option as being "not as bad as you think". Here's a quick preview of the EFTA EEA arguments I've seen:

1) The original case made for EFTA EEA was the 2-year Article 50 deadline - an "off-the-shelf" interim or transitional arrangement was needed to avoid a disastrous cliff-edge scenario and buy time to negotiate a full settlement - a case I argued during the Referendum. But even EFTA EEA supporters now admit that  EFTA EEA is a destination, not a transition.

2) The sacrifice of sovereignty is justified by reduced marginal cost of trading with the EU. But what is this cost of leaving the Single Market and is it outweighed by the impact to domestic economy, trade with rest of the world - never mind the sovereignty sacrifice? If marginal costs to trade with the EU is the over-riding factor, then why not have a Customs Union? Why not stay in the EU? Why not join the Euro (which would eliminate currency exchange costs)? Why not join Schengen (which eliminates the cost of passport checks at the border)?

3) Claiming the EEA agreement is really just a sophisticated FTA based on mutuality and co-operation. In reality, the EEA is founded upon the principle of homogeneity and is designed to export EU single market law to the EFTA EEA states - primarily as a prelude to full EU membership. Wanting the (supposed) advantages of harmonisation while cherry-picking elements to disagree with is very much "cake and eating it" territory - it won't wash with the EU.

4) Claiming EEA safeguard measures can provide us with the same sovereignty over immigration control as a third country. The best rebuttal of this I have seen is an article by Christian Stensrund for Civitas .The EU have been crystal clear regarding the indivisibility of the four freedoms. If the EU wanted to soften this line to accommodate Britain, they would have done so during the negotiations with David Cameron. Even if the claim were true, by itself this does not make EFTA EEA superior to a third country option.

5) EFTA EEA allows Britain to pursue its own trade policy. This is true for tariffs, but lack of regulatory freedom would prevent Britain from negotiating on regulations and non-tariff barriers with third countries - which is where the value of modern free trade agreements lies. EEA Protocol 12 exemplifies this - the EU has sole initiative to negotiate Mutual Recognition Agreements (MRAs) - EFTA EEA states can only make parallel agreements harmonised with the EU MRAs.

I could (and probably will in subsequent posts) go into much more detail on why the case for EFTA EEA is flawed and disingenuous. But I will end this post by emphasising that far from there being no mandate to leave the single market, there is in fact no mandate for the single market. It is for those proposing EFTA EEA to make a compelling case as to the advantages of a permanent EFTA EEA settlement - something they have singularly failed to do so far.

Saturday, 26 August 2017

The Myth of Global Regulations - SPS Measures

In a previous post, I looked at the claim made by supporters of the EFTA EEA option that the EU's technical regulations were simply a "rubber stamp" of global regulations and concluded:
  • There are no "global" regulations, just international standards which are voluntary and only have legal force when implemented in binding regulations in national (or EU) legislation - giving scope for "gold-plating" and regulatory barriers to trade. 
  • The EU's regulations are not fully harmonised with international standards bodies recognised by the WTO. In particular, only 24% of European CEN standards cited in EU law are identical to ISO standards.
  • The EU adopts a protectionist regulatory stance: refusing to recognise international standards that provide equivalent or higher safety levels;  insisting on withdrawal of existing regulations and replacement with European standards in trade relations with third countries - effectively exporting the EU acquis and shutting out other international trade.
A similar story is seen with respect to Sanitary & Phyto-Sanitary (SPS) regulations - i.e. regulations covering animal and plant health. The WTO SPS agreement encourages the use of international SPS standards (Article 3.1), in a similar manner to WTO TBT agreement Article 2.4 and international technical standards. The WTO recognises three international SPS standards organisations:
Codex is also party to an agreement with UNECE (the "Geneva Understanding") to avoid duplication and adopt each others standards where they overlap. Between them, Codex and UNECE provide a large proportion of  international food safety standards.

SPS regulations are cited as the best example of how EU regulations are essentially "global". There are no hard and fast figures available, but it does seem likely that the great majority of the EU's SPS regulations are based on international standards (primarily from Codex and UNECE). Tabloid claims regarding barmy Brussels laws on curvy cucumbers and bent bananas turn out to be international standards with a sensible, trade facilitating purpose behind them.

There are notable exceptions to the EU's acceptance of international standards though. The EU's resistance to Genetically Modifed Organisms (GMO) has held back scientific and agricultural development in Europe and resulted in WTO rulings against the EU from cases brought by US, Canada, Australia, New Zealand. Argentina, Brazil, India and Mexico.

But even though the majority of EU SPS regulations are based on international standards, there is still significant scope for barriers under the WTO SPS Agreement. In particular Article 3.3 allows circumstances where members can introduce SPS measures resulting in a higher level of protection than international standards.

As Derrick Wilknson explains in his blog, there is a wide range of plant protection products (PPPs), veterinary pharmaceuticals (VPs) and biotechnologies, that are severely restricted or banned in the EU. Although international standards have been agreed on maximum allowable residue limits for the PPPs and VPs on food,  the actual limits enforced vary significantly from jurisdiction to jurisdiction.

The recent publicity over "chlorinated chicken" is also informative. The USA puts chicken carcasses through a disinfectant chlorine wash to prevent salmonella. This is a perfectly safe procedure and there is no Codex, UNECE or other international standard prohibiting this. In fact prepared salads sold in the EU are often subjected to a chlorine wash. The EU does not regard the chicken chlorine-wash as unsafe - nevertheless imports of US chicken to the EU are blocked.

The EU's regulatory approach is based on the "precautionary principle" and a "farm-to-fork" approach to secure food safety throughout the supply chain - rejecting the US use of disinfectants. It has been claimed that the EU's approach is a superior form of food safety control, although recent salmonella outbreaks across the EU have rather undermined that claim. What is clear that the EU's approach creates a major non-tariff barrier to trade in agriculture with non-EU nations.

Packaging regulations also provide a major non-tariff barrier for agricultural exports. Combined with onerous rules of origin, they restrict African countries exporting to the EU despite benefiting from a zero-tariff rate for Least Developed Countries (LDC's). Canadian exporters complain that meat exports to the EU require the EU's own health mark on a tamper proof belt applied in the processing plant.

The fact that the EU's SPS regulations are based primarily on international standards from Codex and UNECE does not prevent regulatory barriers to trade.  Choosing the EFTA EEA option means permanently adopting the EU's particular SPS regulations, with all the barriers and protectionism that brings. The claim that EU SPS regulations are simply a "rubber stamp" of global SPS standards is a myth.

Friday, 25 August 2017

Co-operation versus Harmonisation

One of the enduring myths around Brexit is the claim that to trade with the EU we must accept the rule of EU law.

This is not a new line. Peter Shore gave the speech of his life in the 1975 EEC Referendum campaign in which he observed that the aim was the "transfer of our whole democratic system to others" while pouring scorn on the idea that Australia would allow its laws to be set by Japan or Canada would allow its laws to be set by USA, just because they trade with each other.

The modern variant has it that we must continue to abide by the Court of Justice of the European Union (CJEU) and adopt EU laws  - accepting supra-national harmonisation to retain the benefits of frictionless trade inside the single market. Firstly, this assumes the single market is the fount of all prosperity when as Andrew Lilico has noted, even the EU Commission suggest that at best, it added just 2% to GDP in 20 years.  Secondly, this assumes there is no way to remedy non-tariff barriers trading from outside the single market.

A twitter tread by international trade lawyer Robert McDougall describes the difference between regulatory harmonisation and regulatory co-operation, contrasting the EU's single market with Canada-USA trading relations (echoing Shore's 1975 speech) :
  • Regulatory harmonisation affects the whole economy. 
  • Regulatory co-operation can help export industries and preserve domestic policy autonomy
  • Canada seeks regulatory co-operation via NAFTA, but would not accept EU-style regulatory harmonisation with US.
This week the Governments Brexit paper on Enforcement & Dispute Resolution provided some clues as to the post-Brexit role of EU law and the CJEU.  Pre-existing CJEU rulings will be copied into UK law as part of the Repeal Bill and will also be referenced to interpret language/concepts deriving from EU law - which is broadly seen as un-contentious. But the Government also leave open the possibility of future CJEU rulings being "taken into account" where both parties "seek to avoid divergence" - or in other words remain harmonised.

Pro EU supporters think this has handed them a victory and we are set to remain harmonised with large swathes of EU law in an EFTA-EEA like relationship. As I mentioned in my previous blog post, I can see the relevance of this for certain sectors for a transitional or interim arrangement, e.g. aviation / Single Skies. But some have suggested we will remain permanently enmeshed in EU law, citing Data Protection as the prime example where Government has already conceded this. So the Government's latest Brexit paper on Data Protection (published Thursday 24/8/17) is particularly relevant.

In fact, the Government's data protection paper proposes a UK-EU model based on:
  • regulatory co-operation between the UK’s Information Commissioner’s Office (ICO) and EU regulators (paras 4, 22, 24-6, 44).
  • partnership between UK and EU as global leaders in data protection (paras 3, 4, 21, 22, 24, 41, 42).
  • mutual recognition & respecting UK sovereignty (paras 22, 29, 43, 45).
The paper suggests a UK-EU partnership could be based on the adequacy provisions built into the EU's data protection laws (paras 4, 22, 23) and provides a lengthy discourse on the how adequacy facilitates data flows with third countries (paras 32-41) :
  • The EU Commission scrutinises third country domestic legislation/practice and compliance with relevant international standards, to ascertain whether data protection standards are "essentially equivalent" to EU standards (para 35). 
  • 12 adequacy decisions have been issued the under the 1995 Directive, including Argentina,  Israel, New Zealand, Switzerland, Uruguay (para 37).
  • Partial adequacy decisions cover only certain sectors of the economy and have been made with Canada (where PIPED act applies) and USA (where EU-US Privacy Shield applies). (para 38)
  • New EU Data Protection legislation also contain adequacy provisions and provide more detail on the the the adequacy decision process (para 39).
  • Starting from a position of 100% alignment with EU data protection laws, there is no good reason to believe the UK would not be deemed "essentially equivalent". (paras 2, 4, 16, 27, 30, 41)
All of which sounds a long way from the rigid harmonisation of the EFTA EEA model. The proposed UK-EU model based on partnership, co-operation and mutuality is in stark contrast to the one-way direction of EU law implied by EFTA EEA (see also para 47 of the Governments Dispute Resolution paper).  Dominic Raab saying that the UK and EU will keep half an eye on each others courts seems an accurate description. UK sovereignty is protected and if EU data protection develops in a particularly onerous way, "partial" adequacy would allow UK-EU data exchanges to be covered while allowing divergence for UK domestic and other UK-international data flows.

So perhaps those pro-EU supporters championing harmonisation have misunderstood the Government's proposals - either that or we are in violent agreement about the nature of future UK-EU relations. Either way, I'm very happy with the Government's approach - they have chosen co-operation over harmonisation.

Thursday, 24 August 2017

Governments Brexit Dispute Resolution paper - something for everyone

The Governments latest Brexit paper "Enforcement and dispute resolution - A FUTURE PARTNERSHIP PAPER" has been published (23rd August 2017) and seems to contain something for everyone.

The first point I would make is that paper discusses the need for enforcement and dispute resolution with respect to both the withdrawl agreement and the future partnership (paras 13 & 65) - we are not just talking about transitional arrangements.

Much of the speculation around the paper has centred on the role of the Court of Justice of the European Union (CJEU) and the EFTA Court as a possible model or alternative.

Role of CJEU

The paper is crystal clear that that  leaving the EU will bring an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU) (paras 1,6). Rights and obligations arising from UK-EU agreements will be enforced in the UK by UK courts - and enforced in the EU by EU courts.  (para 22).

It is also made clear that the CJEU cannot be the arbitrator for resolving disputes over UK-EU agreements (paras 29, 67).

However, the paper suggests CJEU rulings may still be relevant. For those provisions in UK-EU agreement that "replicate language which is identical in substance to EU law", it may be agreed that:
  • terms should be interpreted in line with relevant pre-existing CJEU rulings. (para 43);
  • on-going co-operation should take account of relevant future CJEU rulings  (para 46);
  • disputes on interpretation can be referred to the CJEU (para 55) if all parties agree (para 58).
Despite couching statements in cautious language, it is clear that the Government accepts CJEU rulings will have a continued role to play. Indeed the Government confirms that the Repeal Bill will give pre-existing CJEU rulings the same status as UK Supreme Court rulings (para 45).

It is highly likely that the UK-EU agreements will include language / concepts borrowed from EU law, for example citizens rights may be described in terms of existing EU law. It is perfectly reasonable that those terms are only fully understood in the context of CJEU case law in force at the time of the agreement. It is also clear that future CJEU changes to the meaning of EU citizens rights cannot be deemed to have been part of the understanding at the time of the agreement. This can be seen as a "static" arrangement.

What is more intriguing is the the prospect of future CJEU rulings having application.  The paper suggests this would apply where both parties agree that divergence in interpretation should be avoided - citing an example of continued close co-operation with EU agencies. This can be seen as a "dynamic" arrangement.

EFTA Court

Despite all the media noise , the paper only refers to the EFTA Court twice:
  • The EFTA Court (formed in 1993) enforces and interprets EU laws (or more accurately, the relevant subset of EU laws applicable to the EEA agreement) within the EFTA EEA states (para 21).
  • Article 105 of the EEA agreement requires constant review of CJEU and the EFTA Court case law in order to identify and address any divergence (para 48).
The paper also notes that the EU will not not allow itself to be bound by any external arbitration panel, including the EFTA Court, on interpretation of EU law (paras 19,38). It is interesting to see how jealously the EU guards the primacy and sovereignty of it's own institutions ! 

The paper cites EFTA Court as one of numerous examples of dispute resolution and is clear that no commitment has been made to any of these examples - in fact the solution may combine a number of these elements (para 30). Other examples cited include:
  • Joint Committees (as per EEA agreement, NAFTA)
  • Arbitration models in Free Trade Agreements (CETA, EU-Vietnam, Moldova/Ukraine Association Agreements, New Zealand-South Korea)
  • WTO’s dispute settlement system
So what is the Government proposing?

The paper is notable in lacking firm commitments to anything much, aside from the commitment to ending direct jurisdiction of the CJEU. 

This allows people to read into the paper what they want to see. Arch-Remainer Ian Dunt, commented that the paper was "good stuff" but also seems convinced that this paper opens the way for using the EFTA Court and EFTA EEA membership.

For myself, I still think a 3-judge arbitration panel (as used in CETA & Association agreements) is a more likely solution than use of the EFTA Court.

What is substantial for me is the discussion of how future CJEU rulings may be "taken into account" where the UK and the EU wish to avoid divergence in interpretation. Of course "avoiding divergence" is just another way of saying "harmonisation". This seems a very strong hint that in a number of cases/sectors the UK Government intends to continue harmonising with EU law and CJEU rulings - along the lines of EFTA EEA harmonisation.

I can see there will be a need for this in the first instance for sectors like aviation, where harmonisation of EU aviation safety law is a pre-requisite for continued participation in ECAA (European Common Aviation Area) / Open Skies. This could suffice for transition while a permanent solution is agreed and implemented. I've seen other areas suggested as requiring harmonisation, including medicines regulation, data protection, Europol, Euratom etc. 

While it seems unlikely that Ian Dunt will get his wish to see the UK harmonise all Single Market laws, some harmonisation will continue past March 2019. The unanswered question is just what limits in scope and duration will apply to continued harmonisation. This is where we must hold the Government to close scrutiny.