Interesting question: is "minimum price" a product requirement subject to mutual recognition; or a selling arrangement subject to non-discrimination?

The Bill is not entirely explicit on this. But for me: price controls are naturally characterised as product requirements. Why?
Cl 3 on MR concerns rules compliance with which is an essential condition for placing that particular good on the market eg composition, packaging, labelling, accompanying documentation or anything else that must be done to / in relation to a good before it is allowed to be sold
Cl 6 on ND concerns rules that do not prescribe the characteristics of the particular good itself, but instead regulate its place or manner of sale eg licensed premises, age requirements, permitted advertising; as well as other indirect requirements like transportation or storage
Trade lawyers have different theories about why and how we divide rules regulating the sale / marketing of goods into product requirements (on the one hand) or selling arrangements (on the other hand). Minimum price controls are indeed often used to illustrate that borderline
For me: regulating the price of a good is best classified as regulating one of its inherent characteristics, compliance with which is necessary for that particular good to be placed on the market - no different from prescribing rules about its ingredients, packaging or labelling
And that reflects the "double regulatory burden" / "home state control" theory that underpins the entire concept of mutual recognition: if a good is lawfully sold at a given price in Territory A, then it must be capable of being sold at the same price in Territory B...
... for Territory B to insist upon a change in the price of the good = the imposition of an additional regulatory burden - equivalent to changing its ingredients / packaging / labelling; it also represents a suppression of home state regulation in favour of host state competence
Other trade lawyers are free to argue otherwise, of course, since the Bill has chosen not to explicitly categorise minimum price controls under Cl 3 or Cl 6 - but in that case, they would also need to make explicit the trade theory / concept that underpins their choice.

• • •

Missing some Tweet in this thread? You can try to force a refresh
 

Keep Current with Michael Dougan

Michael Dougan Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!

PDF

Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @mdouganlpool

11 Sep
I hope my previous hypothetical examples prove useful, in terms of getting a flavour of the UK Internal Market Bill's intended principles and effects.

Now: some key overall lessons to draw from those examples, in a final short thread...
1) Bill’s principles are largely prospective: they generally don’t apply to existing rules. But Bill does kick in when existing provisions are amended in any significant way. That already creates a significant disincentive to engage in legal reform / innovation
2) where Bill does apply, its rules are based on a very strong market dynamic: wide scope of application, extensive guarantees of market access capable of overriding / bypassing local regulatory choices, only limited exclusions / scope for justification
Read 7 tweets
11 Sep
Working on UK Internal Market Bill? I'll post a few threads containing (hypothetical) examples to help illustrate how it might operate in practice

1st: “Scotland has rules on minimum alcohol pricing but now wants to introduce a higher minimum price/ change basis for calculation”
a) the UKIM rules are largely prospective, ie do not apply to existing rules regulating sale of goods unless those rules are substantially amended. So need to decide whether change in price would be significant amendment; though change in basis of calculation surely would be?
b) assuming amendments are substantial, will be governed by UKIM principles. Price control would be classified as a product requirement and therefore subject to principle of mutual recognition, i.e. imported English alcohol does not have to comply with new Scottish requirements
Read 6 tweets
10 Sep
I've spent my adult life in a state of contented coexistence between the very different & potentially conflictual parts of my background and identity - almost a model child of the peace process & the historical reconciliation achieved between Ireland and the UK within the EU. So:
... while I was never going to be anything but repulsed by Brexit's vulgar nationalism or Johnson's gross dishonesty, I now find myself fundamentally troubled by the way this Hard Right Tory Regime is plotting a deliberate course to destabilise my beloved Northern Ireland...
... devotes such spite and energy in seeking to undermine the alliance of liberal social market democracies that make up the European Union, and is actively assaulting the basic values and institutions that reflect the best of what the UK represented both to itself & in the world
Read 4 tweets
9 Sep
As promised, a second thread on the UKGov's Bill on the UK Internal Market - this time, focusing on the provisions relevant to the Protocol on Ireland / Northern Ireland. Voila:
For the avoidance of any doubt: the Bill is utterly shameless in explicitly empowering the UKGov directly, deliberately and consciously to breach the UK’s legally binding international obligations under its very own Withdrawal Agreement & Protocol on Ireland / Northern Ireland
First point: UKGov’s unionist bias is absolutely overt, eg explicit duties for all public bodies to approach every question about Protocol based on overriding goal of protecting NI’s status in the UK. Nothing, eg about need to protect peace & stability or to avoid hard border?!?!
Read 7 tweets
9 Sep
Some initial thoughts on UK Internal Market Bill covering: A) underpinning assumptions of UKIM; B) important details about Bill’s proposed scheme; C) what it means in real-world UK context. See separate thread on particular provisions relating to Northern Ireland. Voila:
A.1) I fully agree with UKGov's proposition that Brexit now requires UK to establish some overall scheme to govern internal trade - including a way to manage potential barriers to trade / distortions of competition arising from future exercise of autonomous regulatory powers
A.2) But I do not share UKGov’s apparent assumption that regulatory divergence is inherently problematic and must be strictly controlled, by imposing extensive limits (in effect) on the ability of devolved institutions to make different choices from Westminster
Read 23 tweets
7 Sep
The only surprising thing about the latest manifestation of Johnson's dishonest and untrustworthy character, is that anyone even pretends to be surprised by his dishonest and untrustworthy behaviour. Let's recall what many of us despised-experts have been saying for many months:
Johnson only signed WA because Parliament forced his preferred "total no deal" off the table; but it was clear he would seek to undermine his very own Irish border provisions at earliest opportunity; & that he had no serious intention of reaching a deal on future EU-UK relations
At time, Brexit loons reacted with their usual fury: how dare you question the UK's good faith, insult the integrity of our Gentlemen's Government, query Global Britain's moral superiority... And yet, if today's reports are accurate, that's exactly the derision HMG fully deserves
Read 5 tweets

Did Thread Reader help you today?

Support us! We are indie developers!


This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!