external trade relations

Common Commercial Policy

Governed by part 5 TFEU

Aims in Art 206 TFEU

Measure falls within the scope if it affects; Daiichi Sankyo & Opinion 2/15: promotes, facilitates, governs; or has direct and immediate effect on third country trade, provided it’s intended to regulate trade Opinion 2/15

necessary to avoid trade deflections

EU has exclusive competence Art 3(1)(e) TFEU

European Parliament as full co-legislator: define implementation framework, consent required, promote transparency, human rights

Covers unilateral EU measures and conventional measures negotiated with 3rd countries

Principle of assimilation

Donckerwolcke

principle of external trade, feature of CCP

Once goods enter EU circulation, they’re treated as domestic products

reflected in non-discrimination principles

Principle of Uniformity

principle of external trade, feature of CCP

Art 207(1) TFEU

trade policy must be single and uniform and applied consistently across all MSs

Opinion 1/78: EU should respond to global trade developments as a unified entity

Principle of exclusivity

principle of external trade, feature of CCP

EU has exclusive competence in rules Art 3(1)(e) TFEU

Opinion 1/75

scope of CCP

covers trade in goods and aspects of trade reflected in internal market regulation

extended in Nice and Lisbon Treaties to include trade of goods, services, commercial aspects of intellectual property, foreign direct investment Art 207 TFEU

facilitates trade but not complete market integration

implementation of CCP

via international agreements (FTA etc)

European Parliament defines implementation network

Trade and Cooperation Agreement

regulates EU-UK trade post-Brexit

influenced by WTO agreement, similar to EU-Canada FTA

stronger than typical FTAs

no direct effect Art 4 and not enforceable in domestic courts Art 5

customs duties abolished Art 21

only UK/EU originating goods qualify

QRs (but not MEEs) prohibited Art 26

no mutual recognition (even on professional qualifications): UK goods must comply with EU standard Art 19

states may impose non-discriminative/unnecessarily obstacles in product standards

host country control model for EU and UK, no tariffs

no freedom of establishment

Level Playing Field TCA

provisions for TCA aiming to ensure fair competition between EU-UK post-Brexit

apply to state aid & subsidiary control, labour & social standards, climate policy, aka, areas affecting competition

UK gains flexibility, EU retains protection against unfair competition BUT legal uncertainty and risk of ongoing trade disputes

obligations under TCA for fair competition

non-regression clauses: existing standards musn’t reduce

rebalancing: either party can proportionally do so where significant diversion occurs, provided there was a material impact on trade

subsidiary control: each side operates on their own regime but must follow shared principles (proportionality, necessity etc)

enforcement of TCA

general dispute settlement based on arbitration with no direct effect or supremacy

NI Protocol (Withdrawal Agreement)

avoiding hard border relationship of NI and UK

NI in UK customs territory Art 4 but aligned with EU goods rules Art 5(3)

Art 5(5) and 7(2): Art 30, 110, 34-36 TFEU also applicable to EU-NI trade

Art 5(4) partial dynamic alignment, internal legislation on goods applicable in NI

NI → EU/GB no border checks

UK → NI: no tariffs, compliance with EU/NI internal market rules, less custom checks under Windsor Framework (eg. data sharing, labelling & monitoring)

Windsor Framework

• green lane introduced: goods stay in NI

• red lane introduced: goods enter EU market

• exceptions that specific GB goods (agriculture, medicine) can comply with UK standards if meant to be consumed in NI

• Stormont brake: NI Assembly can suspend new EU rules