Posts Tagged Trade

The High Court on the lawfulness of the proposed ivory ban.

Hot on the heels of yesterday’s post on e-collars, a short note on yet another trade and animal welfare /biodiversity case. In [2019] EWHC 2951 (Admin) Friends of Antique Cultural Treasures v Secretary of State for the environment, food and rural affairs, Justice Jay (‘Jay J’ even though correct might sound a bit too intimate) upheld the UK’s planned ban on ivory trade, stricter than anything in place elsewhere. As a general rule, the Act interdicts the sale of antique worked ivory, that is to say pre-1947 artefacts, unless one of limited exemptions is applicable.

The discussion engages CITES, pre-emption /exhaustion by harmonised EU law, the environmental guarantee of Article 193 TFEU (albeit not, oddly, the issue of notification to the EC), Article 34 TFEU, and A1P1 ECHR.

On uncertainty, Justice Jay refers to the precautionary principle: at 155: ‘we are in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection. §3.1 of the Commission’s 2017 Guidance makes that explicit. Although the evidence bearing on the issues of indirect causation and demand in Far Eastern markets may be uncertain, statistically questionable, impressionistic and often anecdotal, I consider that these factors do not preclude the taking of bold and robust action in the light of the precautionary principle.’

Rosalind English has analysis here and refers even to Edmund de Waal’s novel The Hare with the Amber Eyes which has been on my reading list after my wife recommended it – this is a good reminder.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff., and Chapter 17 (p.308 ff).

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The UK ban on e-collars. High Court finds decision does not breach property rights (ECHR) or internal market (TFEU).

I tweeted the judgment the day it was issued, apologies for late succinct review. I wrote a few years back on the legality of use restrictions on goods lawfully marketed in other Member States, and see also my brief review of Amsterdam’s booze bikes here. In [2019] EWHC 2813 (Admin) The Electronic Collar Manufacturers Association v Secretary of State for Environment, Food and Rural Affairs, Morris J upheld the UK Government’s ban on e-collars (a hand-held remote-controlled (not automated: a distinction that matters as Rosalind English points out) e-collar device for cats and dogs, used particularly in dogs for training purposes).

His analysis engages all the right issues in discussing the lawfulness of a ban at 204 ff under Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), less focused than I would have expected perhaps on the fact that these items are lawfully marketed elsewhere in the EU, and indeed A1P1 (Article 1, first Protocol) ECHR. The remainder of the judgment discusses internal UK judicial review. An excellent primer on trade and animal welfare under EU and ECHR law.

Geert.

 

 

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Seatrade: Ships as waste.

Update 3 December 2019 for a good overview of compliance and banking issues surrounding the case, see here.

Rechtbank Rotterdam held on 15 March last that 4 ships owned and operated by the Sea Trade concern had to be regarded as waste when they left the port at Rotterdam cq Hamburg (they were eventually beached in a variety of destinations). Not having been notified as waste, their shipment was considered illegal and the concern as well as some of its employees consequently convicted. (Illegal waste shipments being a criminal offense).

The court decided not to refer to the CJEU on the application of the waste definition to ships, as it considered the issue to be acte clair. The court’s review of the legal framework is included in Heading 4.3.4. As such, the analysis does not teach us much about the difficulty of applying the waste definition to international maritime logistics, in particular ship disposal. The court found at a factual level that the owners’ intention to dispose of the ships was clearly established when the ships left the EU, with, it suggested, the facts proving that the intention to dispose was at that moment of such an intensity as to trigger the waste definition.

The court does flag its appreciation for the difficulties. Not only is eventual disposal of hardware such as ships a possibility from the moment of their purchase. Such intention may also be withdrawn, reinstated, modified, at various moments of the ships’ life, fluctuating with market circumstances. Particularly given the criminal nature of the legal discipline here, I find that a very important driver to tread very cautiously and to look for firmer objective factors to establish intent.

Most probably to be continued on appeal.

Geert.

(Handbook of ) EU Waste law, 2nd ed. 2017, para 1.20 ff. Disclosure: I acted as court expert.

 

 

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Is it me, or is it getting chilly? The EC and endocrine disruptors.

Do the newly negotiated EU rules on endocrine disruptors illustrate regulatory chill /the ‘freezing effect’ of international trade law?

The new European Commission proposals on endoctrine disruptors are, of course’ ‘science based’. It has been reported (EurActiv, 12 December 2016 and last consulted by me on 13 December) that publication of the proposals was followed by a closed door meeting (minutes of which were released only after a freedom of information request) between the EC and a select number of countries (US, Canada, Argentina, Brazil and Uruguay on 13 July this year). Discussion centered around the potential WTO incompatibility of parts of the EC proposal, particularly those surrounding the tolerance levels for endocrine disruptors present in imported substances (food and feed in particularly). The EC reportedly are prepared to replace “negligible exposure” with “negligible risk from exposure”. The EC defend the latter, arguing it might even ban more, rather than less imported substances: for even if there is only negligible exposure, that exposure may still be a risk. Opponents suggest that the insertion of a risk approach has sacrified precaution on the altar of science.

A few comments.

Firstly, the report (and potentially even the EC itself) repeats the misleading assertion that the debate concerns either science or precaution. Precaution is NOT unscientific. The very trigger of the precautionary approach is science.

Next, the case is reported at a time a lot of people are getting jittery about the regulatory co-operation mechanisms in free trade agreements such as CETA and TTIP. The meeting and the subsequent EC reaction to our trading partners’ comments, would then represent an example of the ‘freezing effect’ in international trade: with our trading partners flying the flag of WTO incompatibility, the EU would then have caved in to threats of litigation in Geneva. Yet in reality WTO input by fellow WTO Members is at least as old as the WTO itself, indeed it predates it. The 1978 Tokyo Standards Code already obliged the then GATT Contracting Parties to notify their draft standards to the GATT Secretariat. The very point of notification and transparency is that the issues raised are being discussed and may indeed lead to the draft standard being adopted. Changes made to REACH, to name but one example, reflected concerns of fellow WTO Members and REACH can hardly be said to pander to industry’s demands.

However there needs to be one core appreciation in this process: just as notification serves transparency (anyone can consult the TBT notification gateway to review draft measures that have been notified), so too should the process of review after reception of the comments, be conducted in a transparent manner. This clearly has not happened here. By conducting these meetings in private, and by refusing to release the minutes until prompted to do so, EC services have given the impression that there is more than meets the eye. In times where even CETA has not yet been ratified, that is most definitely the wrong approach.

Geert.

 

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Cheers to that! The CJEU on excise duties, alcohol, packaging and regulatory autonomy in Valev Visnapuu.

Postscript 10 December 2015 For a similar exercise, see Sharpston AG in C-472/14 Canadian Oil.

Less is sometimes more so I shall not attempt to summarise all issues in Case C-198/14 Valev Visnapuu. The case makes for sometimes condensed reading however it perfectly illustrates the way to go about dealing with obstacles to trade put in place for environmental, public health or, as in this case, both reasons.

Mr Visnapuu essentially forum shops Estonia’s lower prices on alcohol by offering Finnish clients home delivery of alcoholic beverages purchased there. No declaration of import is made to Finish customs and excise, thereby circumventing (accusation of course is that this is illegal) a variety of excise duties imposed for public health and environmental reasons, as well as a number of requirements relating to retail licenses and container requirements (essentially a deposit-return system) for beverages.

Confronted with a demand to settle various tax debts, as well as with a suspended prison sentence, Mr Visnapuu turns to EU law as his defence in a criminal proceeding. The CJEU then had to settle a variety of classic trade and environment /public health questions: whether the packaging and packaging waste Directive is exhaustive on the issue of deposit-return system (answer: no and hence the system additionally needs to be assessed vis-a-vis EU primary law: Article 34 ff TFEU or Article 110 TFEU); whether in the context of that Directive excise duties on packaging may be imposed (yes) and packaging integrated into a functioning return system exempt (yes; in the absence of indications that imported systems are less likely to enjoy the exemption); whether the relevant excise duties fall under Article 34 ff TFEU or Article 110 TFEU (answer: it is part of an internal system of taxation hence needs to be judged vis-a-vis Article 110 TFEU); and finally whether the retail licence requirement needs to be judged viz Article 34 or Article 37 TFEU (answer: mixed, given the various requirements at stake). Final judgment on proportionality is down to the Finnish courts.

Readers in need of a tipple would be advised to postpone until after reading the judgment. Again though the case shows that if one keeps a clear head, classic structures of applying EU law go a long way in untangling even complex matters of law and fact.

Geert.

 

 

 

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Not on my soil! The Council of the EU compromise on national vetoes to GMO cultivation.

The Council has published its first-reading position on a draft directive granting member states more flexibility to decide whether or not they wish to cultivate genetically modified organisms(GMOs) on their territory – I had flagged it here before I had an opportunity chance to look at the text. My initial reaction is confirmed however.

Under the text, the possibility would be provided for a Member State to request the Commission to present to the notifier/applicant its demand to adjust the geographical scope of its notification/application to the effect that all or part of the territory of that Member State be excluded from cultivation. The Commission shall facilitate the procedure by presenting the request of the Member State to the notifier/applicant without delay and the notifier/applicant should respond to that request within an established time-limit. In the event of refusal, the Member State may block cultivation on its territory for reasons other than the scientific assessment which will have been carried out by the relevant authorities. (And note that the EC may after refusal also proceed to adjusting geographically the request for authorisation for scientific reasons).

The list of ‘compelling reasons’ which may lead a Member State to refuse cultivation, is non-exhaustively listed as

(a) environmental policy objectives distinct from the elements assessed according to the Directive and to Regulation 1829/2003;  (since those environmental objectives will have been considered in the scientific assessment);

(b) town and country planning;

(c) land use;

(d) socio-economic impacts;

(e) cross-contamination with other products;

(f) agricultural policy objectives; and

(g) public policy.

Those grounds may be invoked individually or in combination, with the exception of the public policy exception (which awkwardly needs to be coupled with one of the other grounds). An authorisation procedure will apply (with no need to apply the transparency Directive, 98/34, concurrently).

An important point to note is that the Directive only applies to growing (‘cultivation’) of GMOs in situ: not to the import, marketing etc. of GMO containing products, food, feed etc. I would not be surprised that in practice this will mean a continuation of industry practice to leave the EU altogether for growing GMOs, focusing its efforts instead on securing authorisation to market. (This regime does not feature the much wider leeway for non-science driven objections).

Today is the Saint’s Day of Saint Ignatius Loyola, founder of the Jesuits. A suitable day to ponder a proposal heavy with risk analysis, regulatory theory,  and trade law implications.

Geert.

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The EU’s ‘Bio economy’. Utopian?, realistic?, protectionist? Or all of these?

I have just recently stumbled across the EU’s Bioeconomy strategy, classified in the administrative organogram at least under ‘Research and innovation’. It could also be DG Industry. Or DG Trade. Or DG  Env. Or indeed DG Agri. Tucking it away under Research and innovation was a good idea, I believe: best to keep it safely away from daily policy concerns and ditto lobbying. The Bioeconomy – which is defined as encompassing the sustainable production of renewable resources from land, fisheries and aquaculture environments and their conversion into food, feed, fiber bio-based products and bio-energy as well as the related public goods – is seen by the EC as a successor to the EU’s Biosociety program, which however was more scientific in outlook (lots of talk of new technologies).

A big gap in its approach, to me at least, is its lack of discussion on reduced consumption and ‘need‘ (the Club of Rome has some powerful insight into this) which is a pitty. It talks mostly about increasing and diversifying ‘output’, rather than on reducing it or matching it to true need. For in its current outlook, the Bioeconomy feels more like a postersite for EU ‘innovative’ technologies than one for foresight in development priorities. And no, that is not properly done elsewhere in the EC.

Geert.

 

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