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In Scotch Whisky Association the Court of Justice held that a minimum unit pricing mechanism on alcoholic drinks constituted a measure equivalent to a quantitative restriction under art. 34 TFEU, because it prevents the lower cost price of imported products being reflected in the selling price to the consumer, and therefore hinders market access. Both the Advocate General and the Court used this judgment to introduce some remarkable insights particularly on the future of the market access formula, the relationship of the Common Agricultural Policy to the freedom of goods, and how national courts need to make recourse to scientific evidence when applying the proportionality test. [ABSTRACT FROM AUTHOR]

In Teekanne, the Court of Justice held that the labelling of food stuffs may not give the impression that an ingredient is present in a product where it is in fact not present, and this is apparent solely from the list of ingredients on the packaging. The judgment marks a significant realignment of previous cases that had considered the behaviour of consumers regarding the list of ingredients. In prior case law the Court had found consumers to be adequately protected if they had the possibility to gather the relevant information from the list of ingredients. In Teekanne, the Court stipulated that such information on the ingredients list is not able to "correct" a "consumers erroneous or misleading impression" created by the "overall labelling" taken as a whole. The ruling is potentially the first case in a series of judgments that understands the "average consumer" in a less normative way, and is open to arguments about the real-world vulnerability levels of consumers. [ABSTRACT FROM AUTHOR]

EU law establishes an internal market. To achieve that goal, it acts to a large extent as a regulator, setting standards. These standards are often legally binding inside of the jurisdiction of the European Union, but increasingly travel beyond the borders of the European Union on the back of the traded goods. In some areas, this leads to a "Brussels Effect," where EU standards factually harmonize legislation at transnational level, creating a "race to the top" in international standards. This generates a level playing field for transnational trade, directed by the European Union as a de facto transnational regulator. Professor Anu Bradford brought forward the argument that a de facto or de jure transnational harmonization by EU standards might be facilitated or constrained by the World Trade Organization ("WTO"). The WTO could strike down such regulations as purely domestic ones without taking into account the fact that these EU standards have factually already achieved what the WTO aspires: removing barriers to trade between its member countries by establishing equal treatment of all trading partners as the norm. We will call this phenomenon of the Brussels Effect the "Reversed Harmonization Effect." The WTO could also facilitate the Brussels Effect by providing a specific forum for negotiations, which favors the European Union as a dominant regulator, leading to a horizontalization of standards across the WTO. One may hence claim normatively that the WTO should take into account a broader view on the economic effect of these measures beyond their formal domestic jurisdiction by differing between domestic and horizontalized standards. This piece examines whether this normative claim is wellfounded in the law of the WTO using the example of food trade. We will investigate whether current WTO law as applied "in action" has the potential to facilitate or constrain the Brussels Effect. Three famous trade disputes are analyzed to investigate this hypothesis. We conclude that, in the areas investigated, WTO law has very limited potential to jeopardize the Brussels Effect. From our study, we hence find no evidence that would support such a normative claim. [ABSTRACT FROM AUTHOR]

According to Articles 2.2, 5.1 and 5.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"), Members need to base sanitary and phytosanitary measures ("SPS measures") on scientific principles and risk assessment. These provisions have sparked analysis on issues such as how this 'risk' needs to be addressed, which 'science' Members need to take into account, and what the relationship is between values and science. It is commonly observed that the SPS Agreement leans towards a technical approach to the determination of risk. If socio-economic concerns were to be taken into account in the SPS Agreement, a leeway for Members to introduce protectionist policies would open up. We illustrate with the example of the ongoing citrus dispute between the European Union (EU) and South Africa that the technical approach can likewise be used to shield protectionist policies with an extraterritorial effect. The reason for this is the uncertainty with regards to how science needs to be interpreted in relation to the probability that a disease will be introduced. We conclude that the choice for technical risk does not remedy the 'protectionist policy with extraterritorial effect' problem. Rather than debating the options of 'socio-economic' risk and 'technical' risk only, the WTO Dispute Settlement Body should use disputes such as the one on citrus to develop a more normative approach to 'risk' in the SPS Agreement, indicating which kind of 'probability' is normatively required to justify SPS measures. [ABSTRACT FROM AUTHOR]

In order to better understand the effects of risk communication on regulatory preferences, and vice versa, it is necessary to think beyond the objective/perceived distinction that is often made in risk studies, policies and practices. As an alternative we introduce the concept of risk hybrid, which can be the result of communications of objectified risks and perceived risks. Risk communication, we argue, is not just a representation of the calculated or perceived risks in risk assessment, which subsequently informs risk regulation processes. Instead, it often contributes to the construction of risk conceptualizations and objects in risk assessment and risk management, which in turn are part of larger discourses that enable and constrain regulatory action. We propose the concept of performativity as an explanatory mechanism to analyse the relation between risk communication and risk regulation. We show how performativity can explain the entanglements between risk communication and risk regulation, and close by pointing out implications for understanding and coordinating risk regulation practices. [ABSTRACT FROM AUTHOR]

The article discusses the impact of Better Regulation Strategy (BRS) of the European Commission. Topics discussed include BRS being Commission's guideline for assessing legislation, working of BRS on regulatory impact assessment (RIA) through cost-benefit analysis (CBA), initiative of the World Bank to include into policy's behavioral insights in responsive regulation form, need of 2015's New Better Regulation Strategy (NBRS) to acknowledge its work under law of European Union (EU).

Private forms are gaining importance in the regulation of supply chains. Drawing on insights on the diminishing effectiveness of classical top-down regulation in inter-, supra-, and transnational supply chains, methods from self- and co-regulation increasingly take central stage. This new field comprises of standard-setting, auditing, accreditation and enforcement. This chapter devotes an introduction and analysis of this emerging field of regulation and its relationship to law. It identifies the main regulatory character as market access and market closure challenge. It will show how law has responded to this challenge so far and will close with a summary and anticipation of some legal questions that remain open. [ABSTRACT FROM AUTHOR]

The precautionary principle contributes to 'the social' of internal market regulation as it counterbalances the loss aversion and availability bias of regulators who may too hastily endorse measures based to further the fundamental freedoms instead of fundamental rights and environmental protection. The precautionary principle also enhances the regulatory power of the European Union. By way of regulating via the precautionary principle, EU institutions pretend to have answers to citizen's fears. These fears result from a crisis of causality, as society is trying to find a meaning to what sometimes appears as a series of patternless events. The EU legal order takes advantage of these effects. It creates an image of being able to cope with these fears, although it is rather questionable whether they really can live up to these expectations. [ABSTRACT FROM AUTHOR]

In Berger v Freistaat Bayern, the Court of Justice approved warnings from a competent public authority about foodstuffs that are unfit for human consumption. Although this conclusion is clearly backed up by the wording of the Foodcode, the judgment is remarkable for three reasons. First, as the Court comes to the conclusion by referring solely to the consumers' interest in safety, disregarding a balancing test against the producers' right to the free marketing of food in art. 5 (2) Foodcode, this case carries the dangerous potential of being interpreted as if consumer interests generally trump the producer's right to the free marketing of food. Secondly, the case has to be aligned with the Court's ruling on disclosure in AGM-COS.MET, where it favoured the producer's right to the free movement of products over consumers' interest in safety. Thirdly, by connecting the scope of the term "unfit for human consumption" to consumer interests in food only, the decision worryingly opens up this term to consideration of other legislative decisions in EU law on the protection of the consumers' interest. [ABSTRACT FROM AUTHOR]