LeaveHQ,
06/11/2017
A report published yesterday
by Legatum Institute has made a fundamental error in saying conformity
with EU rules will allow the UK to trade freely with the EU.
The
Single Market is a regulatory union. For this to work effectively, there
have to be two fundamentals: common regulation and common (coordinated)
surveillance and enforcement – including record-keeping.
Subscribing
to common (or equivalent) regulation is not sufficient. The crucial
additional element is that members commit to the same level and style of
market surveillance and enforcement, harmonised under the jurisdiction
of Union institutions.
Because of this, it can be assumed that
goods produced by enterprises subject to the Single Market regime will
automatically conform with union regulation. There is, therefore, no
need for conformity assessment at the internal borders. Goods can be
traded without border checks or other formalities.
When goods
are produced outside the regulatory union, different provisions apply.
Although they might (either by agreement or via WTO agreements) be
produced to common (or equivalent) regulatory standards – which can be
verified – the enforcement regimes are not necessarily the same and EU
institutions have no jurisdiction over them.
Therefore, in the
absence of common or uniformly-applied surveillance and enforcement, the
Union cannot assume that regulatory conformity is necessarily
equivalent to the EU's provisions. Therefore, at the external border of
the Union, goods entering from third countries are subject to varying
levels of border checks.
For stable, mass produced goods (i.e.,
were items are identical and are not likely to change during
distribution and transport), the checks can be minimal, amounting
sometimes to no more than documentation checks – especially where there
are agreements on the mutual recognition of conformity assessment.
This
is not the case though with perishable goods, and particularly those
of animal or vegetable origin. There are highly variable goods and can
deteriorate through the production and distribution chain, which means
the quality (and safety) of even similar products may vary
substantially.
Such goods are produced extensively by third
countries and exported to the EU. Many are subject to the WTO Sanitary
and Phytosanitary (SPS) Agreement, where regulatory equivalence may be
claimed. There may even be harmonised standards.
However, in the absence of common surveillance and
enforcement measures and the fact that any measures applies lie outside
the jurisdiction of the EU, full conformity of inherently variable
products cannot be assumed. Therefore, the EU insists on carrying out
its own conformity assessment at its external border. To do so is
entirely compatible with the SBS Agreement, and therefore the EU
procedures are considered to be WTO compliant.
On that basis, the
UK – when it leaves the EU – might be able to claim that it has full
regulatory harmonisation at the time that it leaves. It may even retain
similar enforcement standards. But it cannot implement common
enforcement and systems as these have to be fully integrated and
coordinated with Union institutions and other members of the Single
Market. This is not possible outside the Single Market.
Therefore,
while the EU may continue to recognise UK product and SPS regulation
and conformity assessment, that does not prevent it carrying out
detailed border checks of UK products, once the UK has assumed third
party status.
To suggest that conformity alone is any solution is to completely misunderstand how the system works.
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