Most Favoured Nation: Mirror Mirror On The Wall

Mirrors, Deforestation, Dutch Disease and Trade Stats

The French government won’t stop going on about so-called  “mirror clauses”. And it’s getting annoying … mainly because it’s never entirely clear how they expect them to be applied. Unilaterally? Or as part of a free trade agreement?

To rewind slightly, the general mirror clauses idea is that foreign food imported into the EU should not only have to meet EU food safety standards (which it already does), but should also be produced in a way consistent with EU animal welfare rules and the like.

As David Henig wrote in his weekly Borderlex column, none of this is particularly new. People have been calling for greater conditionality to be attached to market access (mainly in the agriculture space) for eons. But I do think it’s worth exploring further.

Because if the French ambition is to attach greater conditionality to EU free trade agreements … well fine. In practice this means saying “we will remove tariffs on product x so long as it is produced according to rules a, b and c.”

There’s no legal issue here, it’s just a question of whether the EU market access offer is attractive enough to entice the partner country, and its exporters, into accepting the strict conditions.

(As I have argued previously, the reason this approach probably would not end up working is not because it conceptually unsound, but instead because the EU will probably offer the equivalent of one extra tariff-free cow a year in return for, say, Australia signing up to the entire EU acquis. If no one ever signs up to an FTA because your demands are too great, then none of that conditionality matters because it’ll never be applied.)

But what if the EU were to require, unilaterally, that ALL food imports had to be produced according to EU production standards. This is where things get tricky. From a trade law perspective, restricting products on the basis of how they are produced, rather than whether the product itself conforms with required safety standards (which is fine), is problematic.

In fact, there are a whole litany of WTO cases that touch on the issue of whether restrictions based on process and production methods are okay or not (answer: it’s complicated).

But I do wonder if, applied narrowly, the EU could get away with unilaterally imposing some further conditions.

It’s not as if exporting meat to the EU is a free for all as it stands. The basic process is as follows:

• First a country that wants to sell meat to the EU has to be authorised by the Commission

• Once the country is authorised, producers of meat in that country have to apply to be listed as authorised establishments, and demonstrate they comply with a whole load of EU rules around issues such as slaughter hygiene and product labelling.

• Prior to exporting the meat to the EU, the authorised establishment will need to get a export health certificate signed off by a vet.

• On arrival in the EU, the meat will then be subject to document and identity checks, and potentially further physical inspections.

So, y’know, quite a lot.

Therefore my question to the trade lawyers is … don’t you think the EU probably could get away adding “the meat must have been produced according to EU restrictions on the use of antibiotics”? I get that it’s not clear cut, but surely in this instance the EU could – if it had to – rely on GATT Article XX general exception allowing for discrimination on the basis of protecting human and animal health and get away with. Antimicrobial resistance could eventually kill us all, after all. Which would be bad.

Trade lawyers, what do you think?