By Professor David Collins

Maintaining a smooth trading relationship with the European Union (EU) is rightly a top priority for the new Labour government. While there is strong growth in the UK’s trade with other countries around the world, especially in the Asia-Pacific, the EU is still one of the UK’s most important trading partners. Non-tariff barriers in the form of product safety regulations are among the most significant modern impediments to trade, particularly since the EU tends to employ dense and constantly evolving regulations on a wide range of goods and services.

The Product Regulation and Metrology (PRM) Bill reflects the UK government’s concern that it does not currently have sufficient powers to respond to EU regulatory initiatives fast enough that there will not be adverse trade consequences. The EU’s new General Product Safety (GPS) Regulation, which will come into force in mid-December of this year, should entail significant product standard regulatory changes. The GPS will introduce specific safety obligations for economic operators and online marketplaces, reinforced product traceability requirements, as well as specific rules on handling product recalls, including a mandatory recall notice template.

The PRM Bill is intended to allow UK domestic law to be updated to reflect new or revised EU product requirements with a view to minimizing trade frictions. Under clause 2(7) of the PRM, future UK product regulations can provide that a product requirement is to be treated as fulfilled if it meets specified provisions in relevant EU law. This captures the government’s view that any EU regulation is presumptively valid from the standpoint of safety – a reasonable perspective given the EU’s devotion to the precautionary principle of mitigating even the most miniscule of risks. It is odd, though, that only the EU’s standards are granted this status – the Bill does not make reference to any other international standard setting bodies. It says nothing about the costs of these measures as borne by businesses.

It is not quite right, moreover, to term this clause in the PRM Bill as indicative of ‘mutual recognition’ since there is no indication that the deference will work in the opposite direction (e.g. UK standards being presumptively accepted for products entering the EU). The EU remains concerned that the UK will apply product standards in such a way that it will make it more competitive, drawing economic activity away from the continent.

Continue reading

By Dr Jed Odermatt

Article 3(5) of the Treaty on European Union (TEU) sets out the Union’s obligation to “contribute […] to the strict observance and the development of international law”. The Court of Justice of the European Union (CJEU) has interpreted this to mean that “when [the Union] adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.” Until now, however, the CJEU had not gone so far as to annul a Union legal act on the basis that it violates international law. On 4 October 2024 the Grand Chamber of the Court of Justice upheld the General Court’s decision to annul two economic agreements concluded between the European Union and the Kingdom of Morocco. The landmark judgment is the first time the CJEU has annulled an EU agreement for violating international law binding on the Union.

The legal and factual background to these cases has been discussed elsewhere on this blog. The cases relate to the former Spanish colony of Western Sahara, which is considered by the United Nations to be a non-self-governing territory. In a 1975 Advisory Opinion, the International Court of Justice (ICJ) recognised the people of Western Sahara have the right to self-determination. The status of the territory continues to be subject to a long-stalled United Nations mediated peace process. France, the only EU Member State with a permanent seat on the UN Security Council, recently backed Morocco’s autonomy plan that would recognise Morocco’s sovereignty over the territory.

The economic agreements between the European Union and the Kingdom of Morocco have been the subject to ongoing litigation before the CJEU and domestic courts in the EU Member States over the last decade. In December 2015, the General Court annulled the Council Decision approving the Euro-Mediterranean Agreement concluded between the EU and Morocco in so far that it applies to the territory of Western Sahara. That decision was reversed on appeal in 2016. In these judgments, the Court highlighted two important factors. First, the territory of Western Sahara is separate and distinct from Morocco. Second, as Western Sahara is considered a ‘third party’ to these agreements, they can only apply with respect to Western Sahara with the consent of the people of Western Sahara.

Continue reading