Saturday, 31 March 2018

A Brexit Turkey (part 3) - Customs Union is not a Brexit solution

Some bad ideas seem reluctant to die. The Institute of Directors (IoD) have published a "partial" Customs Union proposal (based on Turkey's Customs Union agreement with the EU), primarily to eliminate preferential Rules of Origin (RoO) in UK-EU trade.

In my previous post, I discussed how  preferential RoO are far from insurmountable. How significant are the costs associated with preferential RoO ? Open Europe assumed leaving the EU Customs Union would add 4% to cost of trade transactions (RoO costs & customs admin) leading to a 1% loss of GDP. Other studies suggest RoO adding less than 2% to transaction costs. One detailed study suggests RoO is a one-time cost that does not increase with increased volume of transactions.

A Customs Union seems a very blunt instrument to use, especially as trade with 3rd countries would still be subject to RoO. Are there other ways to address this issue ?

Rule of Origin Solutions

Blockchain technology has been touted as a way to simplify the administration & auditing of complex supply chains, hence minimising RoO administration costs. However, as promising as this technology may appear, we are probably a decade away from fulfilling this potential.

recent paper examined preferential RoO for the Food & Drink Federation, a sector which makes particular use of global supply chains:
- Five case studies are examined, identifying challenges provided by use of non-local content in qualifying for tariff-free trade via preferential RoO.
- Both Pan-European Mediterranean (PEM) RoO and CETA RoO are compared for each case.
- The first case study is UK wholemeal bread, which uses flour milled in the UK from grains sourced from UK, US and Canada: PEM RoO require grains to be sourced entirely locally;  CETA RoO limits non-local grains to 20% by weight of final product. Otherwise the EU tariff of 9% would be payable on exports to the EU.

Some context is required here: 
- Bread is primarily produced and consumed locally: 85% of wheat used by UK flour millers is home-grown, with most of the imports from Canada; UK domestic sales amount to £3.5bn per annum ("Bakery & Snacks"). 
- By contrast, UK bread exports to the EU amounted to just £87.5m for the first 9 months of 2016, i.e. ~£117m per annum ("BakeryInfo"). 
- The UK runs a massive trade deficit with the EU across the whole food and drink sector (Food & Drink Federation statistics).

The Food & Drink Federation paper makes a number of suggestions for addressing these RoO issues, which could also apply to others sectors:
- Allow 10% non-originating product content without losing originating status (already provided in PEM RoO, under article 5.2 (a) );
- Full bi-lateral cumulation in EU-UK trade so that EU content counts as local in UK exports to EU and vice versa - almost certain to be part of an UK-EU FTA;
- Full diagonal cumulation with EU FTAs, e.g. so that UK, EU and Canada can count each other's content as local in trade between themselves;
- Exempt Least Developed Country (LDC) origin content in UK-EU trade so that LDC content counts as local
- Exempt products / content where EU & UK have same MFN tariffs. i.e. count products as local where there is no risk of trade diversion arising from different MFN tariffs - a form of halfway house to the UK governments customs partnership concept);
- Allow origin to be determined on final value OR weight criteria (protects products where local processing adds high vale to a premium product);
- Simplify RoO documentation.
Another approach would be to abandon preferential RoO in favour of simpler non-preferential / Most Favoured Nation (MFN) RoO (as suggested by Hosuk Lee-Makiyama). Non-preferntial RoO typically determines origin on the simple basis of where last substantive processing was performed, rather than where inputs are sourced :
"... the world trading system could do without preferential rules of origin. Preferences can be granted on the basis of most favoured nation (MFN) rules of origin anyway. Empirical literature suggests that, if the purpose for enacting preferential rules of origin was to facilitate commerce or promote inward investment, then their implementation has in practice defeated the purpose. Beneficiaries of preferences often prefer to trade using MFN rules of origin, rather than going though cumbersome procedures to show that they can ‘benefit’ from preferential rules. Thus, in the end, preferential rules of origin are neither necessary for preferences to be granted, nor have they facilitated trade or investment. Our policy recommendation for the negotiators of the Harmonized Working Programme (HWP), which aims to establish common rules of origin for all WTO members, is to also decide to outlaw preferential rules of origin. "   Abstract from "The case for dropping preferential rules of origin" by Edwin Vermulst and P. Mavroidis 
Adopting amended or simplified RoO for UK-EU trade will of course be entirely dependent on EU agreement, which may not be forthcoming. Is there perhaps a more simple and radical way to avoid preferential RoO ?
- IoD's contention is that (i) preferential RoO is a significant trade barrier (ii) tariffs on manufactured products and processed foods are in any case low - so low that they offer no leverage in securing trade agreements with third countries.
- This actually chimes with arguments for "Unilateral Free Trade" as proposed by Economists for Britain, who argue that we should ignore preferential FTAs and instead unilaterally lower tariffs - favouring UK consumer interests (including  manufacturers sourcing inputs) over producer interests. Preferential RoO is removed as a consideration for all imports and exports. Attention can then be focused on removing regulatory / technical barriers to trade.
- Unilateral Free Trade offers a way to eliminate preferential RoO, without requiring EU agreement. If as IoD and others argue, tariffs are sufficiently low to not be an issue, why chase preferential trade deals - even with the EU ?

Partial Customs Union & Irish border 

IoD claim that a partial Customs Union like Turkey's would help alleviate issues with the Irish land border. But Turkish experience does not support this argument, with long lorry queues at the Turkey-Bulgaria border. A number of issues arise:
- Basic agricultural goods are excluded from the Turkish Customs Union and require full customs clearance is still required for these goods. Meat / dairy constitutes a significant portion of UK / RoI trade.
- An A.TR movement form must be presented at the Turkey-EU border, declaring all customs formalities have already been completed.
- Turkey is outside the EU's VAT union, so import VAT is also payable at the border. Does the IOD intend for UK to remain in the EU's VAT union as well ? (meaning UK could not cancel the "tampon tax" or eliminate VAT on household energy bills for example).

    The IoD's proposed "partial" Customs Union would not remove the need for a customs border.

    The IoD's argument for "partial" Customs Union rests entirely on RoO. RoO does not provide an insurmountable barrier. RoO administrative costs are subject to debate, appear low and may be negligible beyond an initial cost.

    A "partial" Customs Union would only avoid RoO for trade with the EU - any preferential trade with third countries (including other European countries such as EFTA  members) would still require preferential RoO.

    A "partial" Customs Union would not allow an independent UK trade policy, and will keep the UK tied into an EU-centric trade policy. This is counter to UK's strategic interests. The UK runs a huge trade deficit with the EU, whereas UK trade with the Rest of the World is broadly in balance. UK exports to the Rest of the World have grown and overtaken UK exports to the EU, mirroring the EU's diminishing share of global GDP.

    There are other ways to mitigate the impact of RoO. The worst case is that some supply chains may be repatriated to the UK - given the huge trade deficit the UK has with the EU, this may be no bad thing.

    Ironically,  Unilateral Free Trade offers a way to eliminate preferential RoO, without requiring EU agreement. If as IoD and others argue, tariffs are sufficiently low to not to be an issue, why chase preferential trade deals - even with the EU ? Perhaps a hybrid solution could be adopted - eliminate tariffs where UK has no domestic industry to protect (e.g. tropical fruits !) and also for inputs to manufacturing (e.g. car parts would be zero-rated), but retain higher-rated EU tariffs for key sectors / finished products to use as leverage in trade agreements (e.g. retain 10% tariff on finished cars, ~40% tariffs for meat etc.). The UK could then seek to negotiate FTA's to eliminate these high rated tariffs using non-preferential / MFN RoO.

    In short, we should reject  the IoD's proposal to keep the UK locked into a 19th century Zollverein Customs Union, designed primarily to promote European political integration. As Brexit solutions go, the IoD's proposal is a real turkey.


    Posts in this series:

    Sunday, 25 February 2018

    A Brexit Turkey (part 2) - Are Rules of Origin insurmountable ?

    Some bad ideas seem reluctant to die. The Institute of Directors (IoD) have published a Customs Union proposal (based on Turkey's Customs Union agreement with the EU), which as discussed in my last post, would result in the UK having no control over tariffs or Free Trade agreements (FTAs).

    Rules of Origin (RoO)

    So what is IoD's argument for a Customs Union ? Essentially it comes down to preferential RoO (Rules of Origin). Outside the Customs Union, assuming an FTA is agreed with the EU, UK exporters will be required to prove goods are substantially sourced or manufactured locally in order to qualify for preferential tariffs (so importing a product from a third country like China and sticking a UK badge on it does not qualify for preferential tariffs !).

    The IOD suggest that many exporters fail to take advantage of preferential rates in FTAs, deterred by the cost/complexity of preferential RoO. To avoid the complexity, they simply pay the tariff. The inference is that a UK-EU FTA would see companies failing to utilise the FTA and incurring tariffs - a problem avoided by a customs union with the EU.

    However there are plenty of grounds for questioning this rather simplistic narrative:
    • IOD cite a literature review of RoO and utilisation of FTAs. However the review itself contains statements such as “Research on RoO, however, is in its infancy “ ... “studies on FTA usage are very limited in scope" etc.  
    • IOD cite a survey of their own members suggesting low use of preferential rates in third country FTAs. But a recent report on utilisation of EU FTAs published by UNCTAD found utilisation at 66% by EU member states and 90% by third countries exporting to the EU market. 
    • Commenting on the UNCTAD report, Lucian Cernat (Chief Economist, DG Trade European Commission) suggested information / assistance to SMEs would help EU exporters better utilise FTAs. This echoes UK research by Peter Holmes & Nick Jacob (Sussex University) finding "a substantial minority of firms are unsure of how RoOs work and the options available to firms for compliance."
    • IOD cite an EU assessment of Turkeys CU stating the following RE costs of RoO:  "Based on empirical evidence that third country exports still use preferences even when EU duties are low (in the range of 2% to 3%), it has been decided to retain a conservative cost of 2%". 
    • The research by Holmes & Jacob also suggests that cost of compliance with preferential RoO was not as costly as previously thought, with much of the cost being an up-front investment to upgrade/set up systems.
    RoO & Car Industry

    IOD raises concerns for the car industry, quoting Japan's message to the UK & EU"the introduction of inconvenient rules of origin could delay and increase the costs of logistics operations, which would have a significant impact on business operations".

    Even from this snippet, it is plain to see that Japan's concern is with logistics and speed through customs clearance, rather than the cost of RoO compliance. This is even clearer when the full context is examined, where Japan requests that the UK & EU "maintain the simplified customs clearance procedures between the UK and EU, especially the framework for the mutual recognition of AEOs ... Changes in customs clearance procedures for exports to the UK and the application of complicated procedures due to the introduction of inconvenient rules of origin could delay and increase the costs of logistics operations".

    Japan also raise the issue of achieving RoO content thresholds when supply chains are distributed across the EU. They request that cumulative RoO apply in future UK-EU27 trade, which means components/processing sourced from either the UK or EU-27 count as "local" in the RoO determination - such "bi-lateral cumulation" is standard practice in FTAs. The fact that Japan raises cumulation indicates they are not requesting or expecting a future UK-EU customs union.

    RoO & Chemicals Industry

    IOD also raise concerns over the impact of RoO on the UK chemicals industry. Steve Elliott, Chief Executive Officer, Chemical Industries Association, in evidence to a House of Lords Committee described RoO as : “a substantial level of bureaucracy ...  in our case there could be several stages of synthesis involved … would clearly outweigh the benefit of duty-free sales”. (Tariffs for chemicals are typically around 6%).

    The EU, EFTA and various other Balkan, African and Middle-Eastern states are signed up to Pan-Euro-Mediterranean (PEM) preferential rules of origin, which state that :
    • Chemical products (Harmonised System chapters 28-38) are "sufficiently processed" to qualify as local origin if non-local content is below a given threshold (varies by material but typically 40% or lower of product value). 
    • Products incorporating non-local content that have been "sufficiently processed" count as 100% local when subsequently used as input to manufacturing another product. 
    • PEM rules also allow for "Accounting Segregation" to cater for use of interchangeable stocks of local and non-local material as input in manufacturing a product.
    75% of UK chemical imports are from the EU, suggesting that most inputs to UK chemical manufacturing will be of UK or EU origin, hence qualifying as local origin under bi-lateral cumulation as part of an EU-UK FTA. UK chemical products will likely meet the RoO threshold to qualify for preferential rates.

    So determining whether a product qualifies as local origin depends on knowing the source and cost of inputs to the manufacturing process - i.e. the core business processes of supply chain management and accounting. Where non-originating materials are used in the chemical industry, they would have to be tracked through several stages of processing - but tracking & auditing use of materials in the manufacturing process is surely standard practice ?

    60% of UK chemical exports are to the EU. Hence 40% are to the rest of the world - is none of this via preferential RoO ? Switzerland has an FTA with the EU and is a non-EU destination for UK chemical exports - is no advantage taken at all of preferential rates ? It is also worth noting that Switzerland has a successful chemical / pharmaceutical industry (larger than the UK's) integrated into European supply chains - despite the fact that Switzerland is outside the EU Customs Union and so faces preferential RoO barriers.

    It is hard to believe that the UK chemical industry makes no use of preferential RoO or is incapable of doing so. If third countries like Switzerland make use of preferential RoO for chemicals, then the UK chemical industry should take a leaf out of their book, make a one-off investment to upgrade systems to cater for RoO in order to utilise current third country FTAs as well as a future UK-EU FTA.


    The argument that low FTA utilisation proves RoO is too burdensome is contradicted by the high utilisation reported by UNCTAD, and observations by Holmes/Jacob and Cernat that advice / information on RoO would boost exporters use of FTAs.

    Indeed, IOD themselves state: "Rules of origin are not insurmountable for business – indeed they currently apply to trade with a number of existing countries outside the EU." If companies invest in systems to provide RoO compliance for third country FTAs (an increasing proportion of UK exports), then RoO compliance for EU trade is a relatively small additional step.

    A customs union with the EU cannot be justified by RoO. I will examine alternative arguments and alternative options to a Customs Union in my next post.

    Friday, 23 February 2018

    A Brexit Turkey (part 1) - No UK Trade Policy

    Some bad ideas seem reluctant to die. Leaving the EU Customs Union has been stated government policy since Theresa May's Lancaster House speech, confirmed by the 2017 General Election manifestos and several parliamentary votes. Earlier this month, Theresa May again confirmed that the UK would not be part of any Customs Union with the EU after Brexit. Yet now we have the Institute of Directors (IoD) putting out a report with yet another Customs Union proposal.

    The Turkey model

    The IoD proposal is essentially the "Turkey" model, "a" customs union bi-lateral agreement with the EU. This has been dismissed as a Brexit option on many previous occasions because of the glaring problems of the Turkey model:
    • Described as a "partial" Customs Union, in reality this covers all industrial and processed food goods, i.e. substantially all goods except basic agriculture products (meat, dairy etc.).
    • The tariff rates for these goods are set by Brussels. Turkey has to sit out discussions at WTO/GATT on tariff reductions.
    • Turkey does not benefit from any EU Free Trade agreements (FTA), but third countries who have an FTA with the EU gain tariff free access to Turkey, without offering any reciprocal access to Turkey. Turkey considered ending its Customs Union agreement at the prospect of the EU sealing an FTA with the USA (the now defunct TTIP).
    • Turkey is obliged to harmonise with EU trade policy and negotiate FTA's with third countries to match EU FTA's. Unfortunately, a number of third countries have refused to negotiate with Turkey, as they already have tariff-free access to Turkey by virtue of their FTA with the EU.
    So much for an independent trade policy. The Turkey model would leave control of trade policy in the EU's hands. The EU will effectively be able to sell tariff-free access to the UK without any involvement or reciprocal benefit for the UK. Why would any third country bother negotiating with the UK when tariff-free access would be obtained by negotiating an FTA with the EU ? For that matter, why would countries like South Korea agree to grand-father their existing EU FTA into a UK bi-lateral FTA when it can get tariff-free access to UK for nothing ?

    This issue of FTA asymmetry prompted the EU and Turkey to start negotiating with 3rd countries in parallel. In one case, (Malaysia), Turkey has sealed an FTA ahead of the EU (EU-Malaysia talks stalled over a dispute) - meaning Malaysian goods have tariff-free access to the EU by trans-shipping via Turkey.  The EU is aiming to address FTA asymmetry via an upgrade to the Turkey Customs Union agreement which will provide Turkey with observer status at EU FTA negotiations.  But the relationship is still clearly based on Turkey following the EU's lead on FTA's.

    So it is difficult to see how the EU would grant the UK freedom to negotiate its own FTAs while in a customs union. Would the EU tolerate an UK-USA FTA that meant USA had tariff-free access to the EU market without the EU getting tariff-free access to the USA ? Of course not.  

    Trade in Services

    The IOD sugarcoat their "partial" customs union proposal by pointing out areas where the UK would be free to negotiate - tariffs for basic agricultural goods and more interestingly services.  However, the freedom to negotiate on services is hardly an argument for a customs union, as such freedom also comes with an FTA or the WTO option. It is in fact an argument against the Single Market - which would tie our hands on services regulation. Is this a tacit admission of defeat in the argument for retaining single market membership ?


    The proposed Customs Union with the EU would be far worse for trade policy than EU membership, where at least the UK benefits from EU FTA's and has a vote. A Customs Union does not confer freedom to negotiate on services, that only comes by leaving the single market (which the IOD have opposed).

    So what is the argument for a Customs Union ? IOD rest their case on Rules of Origin (RoO), which I will examine in my next post.

    Monday, 19 February 2018

    End of Project Fear ?

    Will we ever see an end to Project Fear ?

    At the height of the EU Referendum campaign, George Osborne's Treasury produced a report predicting that even the act of voting to Leave the EU would cause immediate economic disaster. Even arch-Remainer Kenneth Clarke has poured scorn on these Treasury figures.

    Even EU officials in Brussels believe Project Fear is overdone, as Nick Gutteridge (Brussels reporter) observed: "I’m yet to speak to a single EU diplomat or official who thinks the economic fallout for the UK from Brexit will be anywhere near as bad as many British commentators predict." Even in Brussels, the expectation is a CETA plus outcome and no Brexit recession.

    There is a problem at the root of Project Fear - it is an attempt to argue that a marginal increase in cost of trade with the EU trumps all other concerns (political & economic), even when exports to the EU account for just 10% of UK economy. This is exactly the same argument made for the euro - "10% of our economy depends on EU, 3m jobs at risk" . Allegedly, the UK retaining the £ would result in the City & UK car industry decamping en-masse to the EU to escape the cost of currency exchange in UK-EU.  Some 15-plus years on, it is clear that these economic forecasts were pure bunkum.

    Of course, any forecast over a timescale of 15-years will almost certainly be proved wrong. Yet, in recent weeks we have seen leaked Treasury forecasts, suggesting UK GDP could be 8% lower over a 15 year timescale due to Brexit, paraded as "facts" by Remain supporters.

    It should also be noted that this forecast of 8% does not imply a recession, rather it is a forecast of slower growth, i.e. 1.5% per annum rather than 2% per annum in coming decade or so, so an economy worth ~£2tn at start of a year will only increase by ~£30bn instead of ~£40bn over that year, so that each year economic activity is ~0.5% GDP or £10bn lower than the counter-factual scenario.  Interestingly, UK membership of the EU also costs ~0.5% net per annum, i.e. ~£10bn economic activity taken out of ~£2tn UK economy and diverted to activity in Brussels or other EU member states. 

    It's not clear whether the Treasury forecasts have allowed for the gain from ending UK's net EU contributions in their forecasts. But it is interesting to compare the Remain campaign description of these 0.5% per annum contributions as a small price to pay for the economic benefits we get in return (as in a £70bn per annum trade deficit with the EU).

    Given UK exports to the EU account for just 10% of UK GDP, the forecast 8% loss of GDP is equivalent to losing 80% of our exports to the EU. While there will be a marginal increase in cost of trade with the EU, but this does not mean that UK exports to the EU will effectively cease - just as marginal costs arising from rejecting the euro did not mean the loss of 3 million jobs.  By contrast, a 2017 paper by World Bank & UNCTAD economists suggested UK exports are "price inelastic" and that in the event of a No Deal scenario, UK exports to the EU would drop by no more than 2% - a negligible impact.

    The Treasury also forecast that a Free Trade Agreement (FTA) with the USA would provide only 0.2% GDP gain over the same timescale. The USA economy is larger than the EU27 and with all the trade benefits of EU membership, UK exports to EU27 are about 3 times larger than UK exports to the USA. Yet the Treasury forecast suggests a GDP impact from Brexit and reduced EU trade would be some 40 times larger (not 3) than GDP impact of an FTA with USA. The Treasury forecast seems to assume that trade with the EU is uniquely beneficial to UK growth.

    Historical data does not support this assumption that EU membership has been uniquely beneficial:
    - In 2012, to commemorate 20 years of the Single Market and removal of internal customs borders, the EU Commission published a report claiming a 2% GDP gain (averaged across the member states). Even that figure is inflated, as the economic downturn from 2008 onwards was ignored.
    A similar study by European (and generally pro-EU) think tank Bertelsman concluded that the UK had only gained 1% GDP (with Germany the winner with a gain of 2.3% GDP).
    - In the same period 1992-2012, the UK economy grew by 67%. The introduction of the Single Market & removal of Customs Borders within the EU barely registers.

    Economies and markets will always adjust to shocks such as Brexit. Trade and commercial activity will divert to the domestic economy and markets with the Rest of the World. In fact, there is a strong case that the UK needs to pivot away from an EU-centric economy:
    - The EU's share of the global economy is in decline (having halved from a high of 30%, less once UK leaves).
    - As even the EU Commission concedes, 90% of global growth will be outside the EU in coming decades.
    - The share of UK exports to the EU (as opposed to the rest of the world) has steadily declined from a high of 55% at the turn of the century to 43% today, less if the Rotterdam/Antwerp effects are taken into account.
    - UK trade with the EU has shown a persistent and widening trade deficit, whereas UK trade with the Rest of the World is broadly in balance.

    All of which is a long way round to saying overblown economic scare stories, which have no foundation, take no account of other gains, ignore the 90% of economy that does not export to the EU - are pure distraction.  As we well know, the decision to leave the EU was to restore national self-Government & reject a future as a mere province in the Brussels bureaucratic empire. The whole sorry story of our entanglement with the EU has been attempts to deny the true aims of the EU coupled with Project Fear (right back to 1975 Referendum). June 23rd 2016 was the end of that.

    Wednesday, 13 December 2017

    Brexit Briefing - Customs

    As part of a continuing series of posts examining the Single Market and Norway/Flexcit option (as expressed in a "Brexit Briefing" blog post by Pete North) this post will examine claims made regarding the Customs Union.

    Customs Agreement

    North refers to requiring a customs agreement in addition to Single Market membership. Which is a tacit admission that EFTA EEA does not address issues arising from leaving the EU’s Customs Union, as I covered in an EU Question blog post.
    • The EEA agreement does include 2 protocols on customs matters (Protocols 10 & 11), but these are just basic framework & mutual assistance agreements common to many EU customs co-operation agreements with 3rd countries.
    • As EFTA's web page on Customs Matters states: “The EEA is not a customs union, thus most of the activities in the customs field are not relevant to the EEA Agreement …. Norway and Switzerland were able to find simplified solutions through bilateral negotiations”.
    • Norway and non-EEA Switzerland have concluded Mutual Recognition Agreements under the EU’s Authorised Economic Operator (AEO) scheme, whereby authorised operators can benefit from simplified customs procedures and “fast-track” through customs controls. The EU AEO scheme is based on the WCO SAFE framework, which encourages all WCO members to enter into such mutual recognition agreements. The EU has number of AEO agreements with third countries.
    • Norway and non-EEA Switzerland have also concluded bi-lateral customs security agreements, relieving traders of the obligation to lodge an ENS declaration at the customs office of first entry
    • The Common Transit Convention is a key pan-european treaty which allows goods to move though territories with customs formalities suspended until the goods either reach their destination or are exported outside the territories of the signatories. Signatories include non-EEA Switzerland, Turkey and non-EU Balkan states..

    EEA membership neither provides these arrangements, nor is EEA a pre-requisite for a customs agreement. Participation in the Single Market is only marginally more relevant to customs co-operation than participation in the Eurovision song contest.

    Rules of Origin (RoO)

    North suggests we need a customs agreement that deals with Rules of Origin (RoO). Rules of Origin (RoO) paperwork proves where a product originates from, based on where raw materials are sourced from or where substantive processing took place, in order to determine whether goods:
    • Qualify for a preferential tariff under a Free Trade Agreement (FTA).
    • Fall subject to Trade Defence Measures, e.g. products containing Chinese steel are subject to anti-dumping measures and hence a high tariff.
    • Count towards a Tariff Rate Quota, e.g. meat from New Zealand is subject to a lower tariff until a certain quantity has been imported, when a higher tariff applies.
    North suggests we can avoid RoO by harmonising our tariff regime with the EU's Common External Tariff (CET). Clearly that is insufficient, we will also need to harmonise Trade Defence Measures and continue to share TRQ's with the EU.

    Moreover, North has got very confused with regard to third country agreements, suggesting (wrongly) that the UK signing new FTA's with third countries risks higher rates of inspections to check compliance with single market product rules. As per the EU Blue Guide, importers will ensure manufacturers have fulfilled their obligations regarding conformity assessment – there is no constraint on where materials are sourced from. Manufacturers / importers with established track record of compliance will continue to be considered low-risk unless market surveillance feedback or other intelligence suggests standards have been breached.

    The real issue is that goods from third countries might circumvent EU tariffs if shipped via the UK – which is precisely the point of RoO. It is also why to escape RoO, UK trade policy would have to be subordinate to the EU's trade policy. The UK would only be able to agree preferential trade with a third country in so far as it mirrors the EU's agreement. Moreover, the EU could sign new FTA's with third countries meaning that goods from said third country would have preferential access to the UK without reciprocal access for UK to the said third country market.

    To avoid RoO, the EU would be trusting the UK to maintain its customs border in line with EU policy, preventing third country goods circumventing EU tariffs. The EU will likely demand continued oversight via OLAF (EU's anti-fraud body) and European Court of Auditors (ECA) and that the UK continues to send the bulk of import duty collected to Brussels.

    Frictionless Border ?

    Outside the Customs Union, import VAT also applies at the border (although importers can usually reclaim this). This could be avoided by staying in the EU's VAT union, which would mean the UK remaining fully subject to the EU’s VAT rules and a proportion of UK VAT being paid to the EU. Customs Declarations will also be required. Trade facilitation measures can reduce these administrative burdens (e.g. AEO scheme and Union Customs Code provides for monthly self assessment), but they are not eliminated.

    It seems to me the only way to maintain the current “frictionless border” with the EU is to remain in the EU Customs Union, which in turn requires membership of the EU. Turkey, which has a partial Customs Union “with” the EU, still has a customs border where Customs Declarations, RoO, Import VAT all apply.

    So a transition period that maintains the current border arrangements will require the UK to remain "effectively" in the EU by adopting the EU acquis in the areas of the Customs Union and Common Commercial Policy (not covered by EFTA EEA). The vital difference would be that the UK will regain competence to negotiate future trade agreements (both with the EU and third countries) while continuing to benefit from current trade arrangements with the EU and third countries. Which is why an Article 50 extension is not suitable for transition, as the UK would still be an EU member and would still not have competence to negotiate UK trade agreements.

    A longer term arrangement shadowing the EU Customs Union seems infeasible. The EU has no such arrangements with any third country (including the EFTA EEA states). Continuing to forward a proportion of VAT and Import Duty to the EU, remaining subordinate to the EU's VAT and Trade policy would be in conflict with the Government's stated aims. The UK Government must make preparations in terms of customs infrastructure and trade facilitation to mitigate the impact of our inevitable departure from the EU Customs Union.

    Thursday, 16 November 2017

    Brexit Briefing - SPS Regulations

    As part of a continuing series of posts examining the Single Market and Norway/Flexcit option (as expressed in a "Brexit Briefing" blog post by Pete North). this post will examine the claims made for EEA Sanitary & Phyto-Sanitary (SPS) regulations (i.e. regulations covering animal and plant health) and their relation to global standards.

    WTP SPS Agreement

    The WTO SPS agreement encourages the use of international SPS standards. Article 3.1 states "Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations". Article 3.4 identifies three organisations as having particular relevance:
    UNECE also provide agricultural quality standards and is party to an agreement with Codex (the "Geneva Understanding") in order to avoid duplication of work. 

    However, Article 3.3 of the WTO SPS Agreement provides a get-out: "Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations".  

    EU SPS Regulations

    EEA SPS regulations make up 1,507 of the 5,584 EEA regulations in force, i.e. approximately 27% (as of 16th November 2017). It is true that the great majority of these SPS regulations are based on international standards (primarily from Codex and UNECE). However, as explained in Derrick Wilkinson's blog, the EU imposes severe restrictions or bans on a wide range of plant protection products (PPPs), veterinary pharmaceuticals (VPs) and biotechnologies.

    This point has attracted media coverage recently: an EU Commission decision on Basmati rice, slashed allowable levels of the pesticide Tricyclazole (used for 30 years) to a hundredth of the current legal level; US Trade Secretary Wilbur Ross described EU regulations as "unscientific", referring to the ban on chlorine-washed chicken and also Genetically Modified Organisms (GMO).

    Commenting on the speech by US Trade Secretary Ross,  Alan Beattie in the FT notes that the EU has lost several cases on food regulation at the WTO to the US, and also comments: "Brussels’ cautious interpretation of the “precautionary principle” retards growth and innovation and is exploited by protectionist lobbies. Its food regulations, which frequently disadvantage farmers in developing countries, often bear the marks of public prejudice and domestic lobbying rather than science."  

    EU SPS Enforcement

    The  WTO SPS agreement also covers Control, Inspection and Approval Procedures (Article 8 & Annex C). Unsurprisingly, the EU has erected a highly regulated system of food safety measures for imports from third countries (i.e. outside the single Market).

    Products of animal origin (POAO), i.e. live animals and animal products including meat and dairy, imported from third countries require EU approval of the third country and establishments. Products must be accompanied by relevant veterinary certificates and imported via a nominated Border Inspection Post (BIP) where they are subject to:
    (i) documentary check - health certificates and any accompanying laboratory test results;
    (ii) identity check - container seals, packaging of the goods, labelling and health marking;
    (iii) physical check - packaging will be opened, sight, smell, taste assessment (where appropriate), samples may also be taken for laboratory assessment. The frequency of POAO physical checks (governed by Commission Decision 94/360/EC) is:
    ▪ 20 per cent for meat and fish;
    ▪ 50 per cent for poultry meat, honey and dairy products;
    ▪ 1-10 per cent for inedible POAO, such as hay.

    Non-animal products (i.e. plants and plant products) from third countries may be subject to import checks, determined on the basis of risk analysis. In addition, specific controls are applied to certain non-animal products originating from certain countries 
    (i) Some products must have a phytosanitary certificate under Directive 2000/29/EC, guaranteeing they have been  properly inspected; are free from harmful organisms; and conform with relevant plant health regulations. 
    (ii) Some products are classified as 'High-risk' products of non-animal origin under Regulation EC/669/2009. These products must be imported via a Designated Port of Entry (DPE) to undergo checks similar to those required for products of animal origin (i.e. documentary, identity and physical checks at a set percentage rate).

    The  WTO SPS agreement encourages members to enter into equivalence agreements (Article 4), which can reduce non-tariff barriers for third countries. Switzerland copies all EU SPS regulations and has an equivalence agreement with the EU allowing all agricultural products to be traded under the same conditions as intra-EU trade. The EU recognises other third country regimes such as Canada and New Zealand as essentially equivalent and lower inspection rates apply.

    By contrast, trade within the EU/Single Market is mostly exempt from these checks. EU SPS regulations are enforced via national agencies (Food Safety Agency (FSA) in the UK) who directly monitor establishments. Live animals must travel with a veterinary health certificate (although there are specific exemptions for horses). A limited number of plant products originating within the EU are also subject to health controls under Directive 2000/29/EC, requiring a "plant passport" once they have passed all EU checks.

    Future UK-EU trade

    Outside the Single Market, UK exporters will face third country barriers. Meat and dairy exports will be heavily impacted. However, given UK convergence with EU SPS regulations and the established track record of the FSA in monitoring UK establishments, an EU refusal to approve UK establishments and recognise equivalence in line with agreements enjoyed by other third countries (e.g. Canada) would constitute discrimination under WTO law.

    Non-animal products should see little impact - while all third country imports may be subject to inspections based on risk analysis, there seems little reason to believe that EU member states customs authorities will suddenly deem UK products as high risk and divert resources away from inspecting known sources of risk.

    An acrimonious "No Deal" impasse could see the EU could drag its heels on approvals and equivalence agreement.  But it should be borne in mind that since the UK is mirroring EU law, trade barriers will apply in both directions. The UK currently imports 3 times more than it exports to the EU in the agrifood sector. In any case, high tariffs in this sector would severely diminish UK-EU agrifood trade. UK response should be a mix of import substitution and pivot to global agricultural trade.

    Executing such a pivot on agricultural trade (primarily meat & dairy) is not at all straightforward given the complex and interwoven nature of food supply chains. The UK would need (i) a carefully designed subsidy scheme to support farmers and facilitate switching of activity; (ii) lowering of agricultural tariff barriers (via TRQs and FTAs) and non-tariff barriers (liberalised SPS regime and equivalence agreements) with the rest of the world.


    Contrary to claims made by supporters of Norway/Flexcit option, adopting EU SPS regulations is not just adopting global standards and we cannot influence EU SPS non-tariff barriers at a "global" level. As Alan Beattie put it in his FT article "product regulation is not global; international laws to constrain national rules are weak". US Trade Secretary Ross also made clear that Brexit presents us with a distinct choice in this sector.

    We could stay inside the protectionist EU SPS regime which provides barriers to trade with the rest of the world, but avoids barriers in trade with the EU (primarily for live animal, meat & dairy products). This avoids adding another issue to the Irish border, but at present no solution seems to satisfy the EU/Ireland short of separating Northern Ireland from the UK.

    Alternatively we can break out of the EU regime and trade freely with the rest of the world, while facing similar barriers to agricultural trade with the EU as other third countries. Many EU FTA's founder on EU protectionism in agriculture. Developing economies are locked out of the EU's market. A Swiss-USA FTA was abandoned because the Swiss are tied to the EU SPS regime and could not offer liberalisation on agriculture.

    For me, breaking free from EU SPS regulations is the obvious choice. While a creative solution is needed for the Irish border, creative thinking is already needed to address many Irish border concerns beyond SPS regulations. The positive opportunities are simply too good to turn down.

    Monday, 6 November 2017

    Brexit Briefing - Technical Regulations

    As part of a continuing series of posts examining the Single Market and Norway/Flexcit option (as expressed in a "Brexit Briefing" blog post by Pete North). this post will examine the claims made for EEA technical regulations and their relation to global standards.

    EEA Technical Regulations versus Global standards

    A central argument for the Norway/Flexcit option is the claim that EU/EEA regulations are increasingly based on global standards and since an independent UK would base domestic regulations on the same global standards, there is no point in leaving the Single Market. While this means the UK remains a "rule-taker" with respect to the EU, it is also claimed that the UK can use its new freedom in international organisations to shape global standards and so influence the EU/EEA regulations it is still subject to. A seductive argument, but is it true ?

    EEA technical regulations make up 1,972 of the 5,591 regulations in the EEA acquis, i.e. approximately 35% (as of 6th November 2017). The EU's 2016 standards bodies report provides a measure of how aligned EEA regulations are with global standards: 58% of CENELEC standards cited in EEA technical regulations are identical to IEC standards; 24% of CEN standards cited in EEA technical regulations are identical to ISO.

    The US Trade Department Report for 2016 provides insight to the EU's attitude to international technical standards. While in theory the EU allows producers to use international (non-EU) standards to demonstrate product safety, in practice it is prohibitively difficult and expensive. US exporters feel compelled to use harmonised European (EN) standards "...even if the U.S. products are produced according to relevant international standards providing similar or even higher safety levels."

    The same report also illustrates that even the US has little influence over harmonised European (EN) standards  "..when a U.S. producer uses an EN it is likely using a standard that has been developed through a process in which it had no meaningful opportunity to participate. This is particularly the case for SMEs and other companies that do not have a European presence."

    This reality is is in stark contrast to the claims of "global regulations" used to support the Norway/Flexcit option. EEA technical regulations are EU-centric rather than global and are not open to outside influence or directed by global bodies (if anything, the EU looks to upload its standards to ISO rather than the reverse). The EU erects barriers against use of recognised non-EU international standards. WTO TBT Agreement Article 2.4 (encouraging use of international standards) does not appear to be the redundancy notice for the EU's Single Market that Norway/Flexcit advocates suggest.

    Continued UK participation in European standards organisations

    BSI (British Standards Institute) aims to retain membership of CEN and CENELEC post-Brexit, even after leaving the Single Market (EFTA states including non-EEA Switzerland, EU accession states and recently Turkey are also members with voting rights). membership would provide the UK with a continuing voice and vote on European (EN) standards, but requires EN standards are adopted as national standards and any conflicting standards are withdrawn.

    Similarly, UKAS (UK Accreditation Service) are aiming for continued membership of EA (European Accreditation) in addition to membership of global accreditation bodies ILAC and IAF. This would maintain recognition of UKAS as the UK National Accreditation Body and recognition of certificates issued by UKAS and and UKAS accredited organisations (i.e. UK Notified Bodies) throughout the EU.

    However, both CEN/CENELEC membership criteria and EA membership criteria requires EU/EFTA membership, or candidate for EFTA/EU membership with established target date for accession. The UK has rejected EFTA membership and the Single Market, so continued UK membership of CEN/CENELEC and EA must be open to question.

    Future UK-EU trade relationship

    EEA membership or even just membership of CEN/CENELEC requires continued harmonisation with EU standards, without divergence.  However, being locked into EN standards prevents the UK from using or recognising alternative international standards - which in turn raises technical barriers with non-EU countries, notably the US. Nor are EN standards superior to other standards. For example, Andrew Chapman's blog post on Technical Barriers to Trade looked closely at anti-slip footwear regulation (EN ISO 13287:2012) and found evidence that the test is not a reliable indicator of the safety of footwear, so much so that the British Health and Safety Laboratory uses an alternative human-based ramp test.

    Some argue that because the EU is our largest market (outside the domestic UK market), we must inevitably remain yoked to the EU's technical standards and regulations. But why not allow or recognise other international standards provided they meet the essential safety objectives ? Businesses focussed on the EU market will continue to use EN standards and demand the same from their supply chain, but other businesses may develop with a different focus. In some instances or sectors, the UK domestic market and/or overseas markets may exceed the value and demand of the EU market. It seems to me we should let the market decide which standards to use. While some commentators worry about  a lack of "regulatory coherence" countries such as South Korea (who have FTA's with both the EU and the USA) seem to be managing quite nicely.

    Conformity Assessment is the main anxiety of Norway/Flexcit advocates. But as I explored in an EU Question blog post, this is easily navigable by using EN standards and an EU-based "importer". Some sectors have "pre-approval" requirements (e.g. pharmaceuticals, chemicals etc), but the solution is similar, with registrations to be held by a recognised EU based representative.  For the small number of manufactured products that required third party assessment, UK notified bodies can be used provided they have a subsidiary or sub-contract relationship with an EU-based body. Consignment checking is based on risk analysis and it is unlikely that products/manufacturers/importers with a good track record of compliance will suddenly face a higher inspection rate - even without a UK-EU agreement.

    A Mutual Recognition Agreement on Conformity Assessment will allow UK-based Notified Bodies to continue to be recognised in the EU (and vice versa), without needing a sub-contract or subsidiary relationship (note that WTO TBT Agreement Article 6.3 encourages members to enter into MRA's on conformity assessment).  A regulatory co-operation agreement covering market surveillance would continue existing co-operation and assist targeting of consignment checking by customs authorities. Such agreements are common to FTAs and are found in CETA (Canada's FTA with the EU).

    A Canada style FTA with the EU would seem to offer the best solution for technical regulations. Regulatory freedom from EU-centric technical regulations combined with agreements that minimise trade friction.