Anyone who’s ever taught in a law school will be able to attest to how taxing it is upon your imagination to come up with problem scenarios for your seminars. It’s difficult, sometimes, coming up with scenarios that are so obviously in breach of the European Community treaties that even freshman undergraduate students can spot it.
Thanks, therefore, to Mary Creagh for providing me with just such a scenario for my classes this year! Yesterday, Labour’s Shadow Environment Secretary proposed (and I shall ignore the fairly obvious devolution issues here) that British Schools and hospitals should be encouraged by Government to ‘Buy British':
‘kitchens in schools and hospitals could be encouraged to buy British – something the RSPCA and other animal welfare groups have been calling for. [...] she said what could be done was to insist on food produced to British welfare standards.’
Obviously, such a campaign would be illegal. In Case 249/81 Commission v Ireland ] the Government of Ireland orchestrated a ‘Buy Irish’ campaign. It did so using similar methods to that which Creagh is proposing (‘encouragement’ rather than compulsion) and through a body that, though the court found to be largely backed by the Government, was far more removed from Government than a Health Board or a local authority. The court held that
‘it is not possible to overlook the fact that [those activities] form part of a government programme which is designed to achieve the substitution of domestic products for imported products and is liable to affect the volume of trade between Member States.’
Creagh does, at least, appear to be aware that the Commission might have a bit of a problem with such a policy, and therefore proposes that insisting upon higher animal welfare standards might be the trick Britain could use to get around it. Alas, however, Creagh has neglected again neglected a fairly obvious principle of Community law – the principle of mutual recognition. Case 120/78 Cassis de Dijon , essential reading for any undergraduate law student, held that imposing higher standards that had the effect of restricting the availability of imported goods – whether actually discriminatory or not – was a breach of Community law. In effect, the only effective standard within the EU is the lowest one. This is ultimately why the UK has higher standards for the storage and treatment of animals within the United Kingdom, but cannot prohibit the sale of products from Member States with lower standards.
Creagh complains, with some justification, that other Member States are better at ensuring that their own products are served in their schools canteens. Aside from the fairly obvious answer to that complaint – that those states’ lower welfare standards make their products the cheaper option – the French, in particular, have been very good at enacting measures that surreptitiously favour domestic products over imports. Often times they’re caught out [see Case 216/84 (powdered milk) or Case 168/78 (grain spirits)], but on every occasion in which they are – they’re never so stupid as to openly admit that the true intention of their policy is to favour French products.
So if Creagh really wants to make British products as attractive to schools and hospitals as imported ones, she really only has two options: that a Labour Government would propose in the European Council to raise animal welfare standards across the European Union; or else to lower Britain’s standards to that of our Common Market competitors. Or if she does want to go down the French route, she’s going to have to learn to be more subtle about it – because if it’s the sort of dinger of a breach of Community Law that undergraduate students could spot it, you can guarantee the Commission would as well.