Market access goods under the UK Internal Market

Market access (goods) under the UK Internal Market Act: a brief road map for someone complaining about a Welsh rule George Peretz QC (England & Wales) BL (Ireland) Monckton Chambers/Law Library of Ireland 18 February 2021 www. monckton. com +44 (0)20 7405 7211

Mutual recognition (goods) (MRP): the key provision • Section 2(3): Where the [MRP] applies in relation to a sale of goods in [Wales] because the conditions in subsection (1)(a) and (b) are met, any relevant requirements there do not apply in relation to the sale. www. monckton. com +44 (0)20 7405 7211

Result: - www. monckton. com +44 (0)20 7405 7211

What are the section 2(1)(a) and (b) conditions? • Section 2(1): The mutual recognition principle for goods is the principle that goods which— (a)have been produced in, or imported into, [England], and (b)can be sold there without contravening any relevant requirements that would apply to their sale, should be able to be sold in [Wales], free from any relevant requirements that would otherwise apply to the sale. www. monckton. com +44 (0)20 7405 7211

Where is a good produced? • Section 16(3): (3) Goods are to be regarded as “produced in” [England] (if not wholly produced there) if the most recent significant production step which is a regulated step has occurred there. (and go on to look at s. 16(4) – (7) and (11): eg sticking a label on or packing won’t count) • See also s. 16(8)-(10) on “imported” www. monckton. com +44 (0)20 7405 7211

What is a “relevant requirement” • Section 3(2): A statutory requirement in [Wales] which— (a)prohibits the sale of the goods or, in the case of an obligation or condition, results in their sale being prohibited if it is not complied with, and (b)is within the scope of the mutual recognition principle, is a relevant requirement in relation to the sale unless excluded from being a relevant requirement by any provision of this Part. www. monckton. com +44 (0)20 7405 7211

“Prohibits” • Includes imposing conditions, obligations, record-keeping requirements, mandatory terms in sale contracts (s. 3(7) and (8) www. monckton. com +44 (0)20 7405 7211

“Within scope of the MRP”: s. 3(3) • • (a) characteristics of the goods themselves (such as their nature, composition, age, quality or performance); (b)any matter connected with the presentation of the goods (such as the name or description applied to them or their packaging, labelling, lot-marking or date-stamping); (c)any matter connected with the production of the goods or anything from which they are made or is involved in their production, including the place at which, or the circumstances in which, production or any step in production took place; (d)any matter relating to the identification or tracing of an animal (such as marking, tagging or micro-chipping or the keeping of particular records); (e)the inspection, assessment, registration, certification, approval or, authorisation of the goods or any other similar dealing with them; (f)documentation or information that must be produced or recorded, kept, accompany the goods or be submitted to an authority; (g)anything not falling within paragraphs (a) to (f) which must (or must not) be done to, or in relation to, the goods before they are allowed to be sold. www. monckton. com +44 (0)20 7405 7211

Out of scope • “Manner of sale” requirements (“requirement that governs any aspect of the circumstances or manner in which the goods are sold (such as where, when, by whom, to whom, or the price or other terms on which they may be sold)”) (s. 3(4) and (5)). • Unless the requirement “appears to be designed artificially to avoid the operation of the mutual recognition principle in relation to what would otherwise be a requirement within the scope of that principle” (s. 3(6)) (“may only be sold by a QC under the age of 25 at the top of Cadair Idris to persons over 110 years old on a new moon on 29 February”) www. monckton. com +44 (0)20 7405 7211

Exclusion • … to be discussed www. monckton. com +44 (0)20 7405 7211

Non-discrimination • Key provision: section 5(3) A relevant requirement (see section 6) is of no effect in the destination part if, and to the extent that, it directly or indirectly discriminates against the incoming goods (see sections 7 and 8). www. monckton. com +44 (0)20 7405 7211

Result www. monckton. com +44 (0)20 7405 7211

Relevant requirement (section 6) (2) A relevant requirement, for the purposes of the principle as it has effect in relation to [Wales], is a statutory provision that— (a)applies in [Wales] to, or in relation to, goods sold in [Wales], and (b)is within the scope of the non-discrimination principle. … (4) A statutory provision is not a relevant requirement— (a)to the extent that it is a relevant requirement for the purposes of the mutual recognition principle for goods (see section 3), or (b)if section 9 (exclusion of certain existing provisions) so provides. www. monckton. com +44 (0)20 7405 7211

Scope of the NDP: s. 6(3) A statutory provision is within the scope of the nondiscrimination principle if it relates to any one or more of the following— (a)the circumstances or manner in which goods are sold (such as where, when, by whom, to whom, or the price or other terms on which they may be sold); (b)the transportation, storage, handling or display of goods; (c)the inspection, assessment, registration, certification, approval or authorisation of the goods or any similar dealing with them; (d)the conduct or regulation of businesses that engage in the sale of certain goods or types of goods. www. monckton. com +44 (0)20 7405 7211

“incoming goods” • See section 5(2)(b), (4) and (5): • “relevant connection with [England]” • “relevant connection” if: • produced in [England] • produced by business based in [England] (registered office/head office/principal place of business) • come from or pass through [England] before reaching [Wales] www. monckton. com +44 (0)20 7405 7211

“directly …discriminates” • Section 7(1) for the reason that the goods have the relevant connection with [England], the requirement applies to, or in relation to, the incoming goods in a way— (a)in which it does not or would not apply to local goods, and (b)that puts the incoming goods at a disadvantage compared to local goods. www. monckton. com +44 (0)20 7405 7211

“indirectly discriminates”: section 8 If the requirement • applies to, or in relation to, the incoming goods in a way that puts them at a disadvantage, • has an adverse market effect, and • cannot reasonably be considered a necessary means of achieving a legitimate aim. www. monckton. com +44 (0)20 7405 7211

Indirect discrimination (2) • Disadvantage: less attractive/harder to sell • Adverse market effect: • differential impact as between incoming goods/comparable goods and the same goods/comparable goods connected with [Wales] • Comparable goods “closely resembling” or “reasonably regarded by user as interchangeable” • Legitimate aim: • human/animal/plant health • Public safety/security • Anything else added by So. S (can do it without consent of devolved governments) www. monckton. com +44 (0)20 7405 7211

Exclusions • … to be discussed www. monckton. com +44 (0)20 7405 7211

Northern Ireland UKIMA: section 46 • public authorities must pay “special regard” to • the need to “maintain” NI’s “integral place in the UK internal market” • the need to “respect” NI’s “place as part of the customs territory of the United Kingdom” • the need to facilitate the free flow of goods from NI to GB www. monckton. com +44 (0)20 7405 7211

Northern Ireland UKIMA: section 47 • Public authorities must not exercise functions that result in new NI-GB checks, or extensions of existing checks • (Except where they have to/biosecurity/food safety) www. monckton. com +44 (0)20 7405 7211

Northern Ireland UKIMA: section 11 • Problem: what is produced in and on sale in NI is governed by EU law • Market access principles -> EU goods (via NI) get an entrée into GB (whatever GB regulation says) • Section 11: market access principles only apply to qualifying Northern Ireland goods www. monckton. com +44 (0)20 7405 7211

What is a QNIG? • Defined by Ministers • Current definition: regulation 3 of the Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020 (SI 2020/1454) • It’s (essentially)… www. monckton. com +44 (0)20 7405 7211

Thank You George Peretz QC gperetz@monckton. com