20 October 2023
Erika Szyszczak is a Professor Emerita and a Fellow of the UKTPO. She was the Special Adviser to the House of Lords Internal Market Sub-Committee in respect of its inquiry into Brexit: competition and state aid, and has previously acted as a consultant to the European Commission. She specialises in EU economic law. She is currently working with the European Judicial Training Network on developing training courses for national judges in EU competition law.
On 3 October 2023 the Council and the European Parliament reached provisional political agreement on an Anti-Coercion Instrument (ACI).[1] It is the latest legal trade measure contributing to the developing economic statecraft of the EU as part of the Open Strategic Autonomy. The tipping point for the EU to consider an extra method to address trade distortion occurred when China imposed trade restrictions on Lithuania after Lithuania improved trade relations with Taiwan. Lithuanian companies found that they could not renew or conclude contracts with Chinese firms, shipments were not being cleared and customs paperwork was held up. The ACI is portrayed as a deterrent device, discouraging third states from targeting the EU and its Member States with economic coercion through measures affecting trade or investment. It is another example of how the EU is forging a leadership role in developing new economic trade rules in a fragmented global trading world, by stealing a lead in the narrative on what is, and what is not, acceptable trade policy.
The European Commission proposed the ACI in the form of a Regulation on 8 December 2021 at the request of the Council and the European Parliament. The European Parliament Committee on International Trade adopted amendments to the proposal on 10 October 2022, and in the plenary session confirmed the Parliament’s negotiating mandate on 19 October 2022. The Council agreed its negotiating position on 16 November 2022.
The tipping point for the EU to consider an extra method to address trade distortion occurred when China imposed trade restrictions on Lithuania after Lithuania improved trade relations with Taiwan. Lithuanian companies found that they could not renew or conclude contracts with Chinese firms, shipments were not being cleared and customs paperwork was held up.
The Legal Base for the ACI is Article 207(2) TFEU:
“The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.”
This is trade legal base for a measure designed to enhance EU economic and political resilience. The European Parliament Committee on International Trade adopted amendments to the proposal on 10 October 2022, and in the plenary session confirmed the Parliament’s negotiating mandate on 19 October 2022. The Council agreed its negotiating position on 16 November 2022.
The ACI defines economic coercion as when a non-EU country attempts to pressure the EU or a Member State into making a specific choice by applying, or threatening to apply, trade or investment measures. In the European Parliament Briefing ‘Proposed anti-coercion instrument’ different types of economic coercion are identified:
Once notified of an alleged act of economic coercion the European Commission must investigate within 4 months. The European Commission report will be sent to the Council which then has between 8 to 10 weeks to decide, by a qualified majority vote, whether the complaint of economic coercion exists. The first response will be to engage in dialogue to persuade the authorities of the non-EU country to stop the acts of economic coercion. If diplomacy fails, the EU has a range of countermeasures it can apply with the consent of its Member States. These include restrictions in trade of goods and services, intellectual property rights and foreign direct investment, imposing constraints on access to the EU public procurement market, capital market, and authorisation of products under chemical and sanitary rules. The European Commission has 6 months to set out the appropriate responses, whilst keeping the European Parliament and the Council informed at all stages.
The ACI is a new legal development in international trade law. It has been developed in response to activities deployed by China and the US which threaten EU security. The ACI is another example of how the UK, post-Brexit, may be the target of EU trade defence instruments.
Why does the EU need the ACI? The European Commission justifies the measure by arguing that new forms of economic coercion are not addressed by the existing conventional trade defence measures of the EU (for e.g. anti-dumping).
The concept of economic coercion set out in the ACI is not caught by current WTO rules. Even if the threatening behaviour could be brought within the existing WTO agreement, the stymied appellate process makes enforcement difficult.
However, the ACI is not a rapid defence trade mechanism. In fact, an EU firm or sector could suffer irreparable damage in the time it takes to activate and use the ACI. It may also encourage third countries to develop their own trade defence tools which are more effective than the ACI in responding to escalating situations.
[1] The European Commission proposed the ACI in the form of a Regulation on 8 December 2021 at the request of the Council and the European Parliament. EUR-Lex – 52021PC0775 – EN – EUR-Lex (europa.eu). The European Parliament Committee on International Trade adopted amendments to the proposal on 10 October 2022, and in the plenary session confirmed the Parliament’s negotiating mandate on 19 October 2022. Procedure File: 2021/0406(COD) | Legislative Observatory | European Parliament (europa.eu). The Council agreed its negotiating position on 16 November 2022. pdf (europa.eu). The Legal Base for the ACI is Article 207(2) TFEU: The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
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Jessie Madrigal-Fletcher October 20th, 2023
Posted In: Uncategorised
The threat from China and the US: A stymied global trade order
EU Common Foreign and Security Policy (CFSP)
Preserving EU values and the OSA
Translating policy into a legal concept
Significant legal developments
Defending against economic coercion
Jessie Madrigal-Fletcher September 22nd, 2023
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24 February 2023
Erika Szyszczak is a Fellow of the UK Trade Policy Observatory and Professor Emerita of Law at the University of Sussex.
24 February 2022: a date that shook the world as Russian aggression in Ukraine escalated.
The fragility of a strategic democratic state was challenged, alongside exposing the vulnerability of interdependent global supply chains. Thus, it was not surprising that the early response to Russian aggression was in the form of economic sanctions led by the US, the UK and the EU. [1] (more…)
Cosmo Rana-Iozzi February 24th, 2023
Posted In: Uncategorised
Tags: Emissions, EU, European Court of Justice, European Union, Financial Services, international economic law, law, Legal Issues, Russia, Sanctions, trade, UK economy, UK Government, Ukraine, USA
Subsidies granted by third states
The Foreign Subsidies Regulation (FSR)
The definition of a concentration
Ex ante mandatory notification: qualifying thresholds
An actual or potential distortive effect on the EU internal market
The definition of economic coercion
Compatibility with international law
Cosmo Rana-Iozzi October 12th, 2022
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16 September 2022
Erika Szyszczak is a Fellow of the UK Trade Policy Observatory and Professor Emerita of Law at the University of Sussex.
On 23 February 2022, in a Communication on decent work worldwide, the EU announced a new legislative initiative tackling issues of sustainability and working conditions in global trade. [1] On the same day, the European Commission published a proposal for a Directive on corporate sustainability due diligence. (more…)
Cosmo Rana-Iozzi September 16th, 2022
Posted In: Uncategorised
Tags: China, digital trade, Enforcement, ethical trade, European Commission, European Union, international economic law, international trade, labour rules, labour standards, Protectionism, supply chains, trade, Trade agreements, trade data, trade policy, Treaty on the Functioning of the European Union, USA
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31 March 2021
Erika Szyszczak is Professor Emerita and a Fellow of the UKTPO.
Trade has become a new tool of political and economic warfare. Recent years have seen a rise in threats and the disruptive use of use tariffs, export and import bans to further political aims by the two economic superpowers, the US and China. Other countries wishing to assert greater political influence, such as Russia or Turkey, have joined the fray. Although the disputes are characterized as being between States, the real impact of trade wars is felt by businesses, workers, consumers and ordinary citizens. The impact is felt in the COVID-19 pandemic, where critical supplies of medical products or Personal Protective Equipment are essential in a health emergency. (more…)
Charlotte Humma March 31st, 2021
Posted In: UK - Non EU, UK- EU
Tags: dispute settlement mechanisms, Free Trade Agreement, FTAs, international economic law, trade remedies
Review and Enhancement of International Trade Dispute Mechanisms
George Meredith March 25th, 2021
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18 February 2021
Erika Szyszczak is Professor Emerita and a Fellow of the UKTPO.
Traditionally, the legal enforcement of obligations was the Achilles heel of bilateral and multilateral international agreements. The EU has signalled that it wants to conduct international trade based upon the rule of law. The demise of the WTO Appellate body since 11 December 2019 has focused the EU into using and bolstering its own Dispute Resolution mechanisms in international trade agreements. The significance of this approach is seen in the Trade and Co-operation Agreement between the EU and the UK 2020, containing innovative procedures for rebalancing the trade elements of the TCA (and ultimately cancelling them) if one side changes its standards in ways that materially affect trade. Such rebalancing can be triggered in several circumstances, including via periodic reviews of the whole trade relationship. (more…)
George Meredith February 18th, 2021
Posted In: UK- EU
Tags: Enforcement, Legal Issues, trade dispute
The Constitutional Structure of the TCA
Labour and Environmental Standards
Rebalancing: Dynamic Alignment in Disguise?
What does this imply for the long run?
George Meredith January 15th, 2021
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4 December 2020
Professor Erika Szyszczak is Fellow of the UKTPO.
The preoccupation in the final stages of the Brexit talks with an industry that contributes 0.12% to GDP and employs less than 0.1% of the UK workforce baffles commentators. Control over “our” fishing waters owes more to maintaining the British psyche rather than economic arguments. Amidst fears that the traditional UK fish and chip supper could be at risk without a fisheries deal with the EU, the UK has put in place a series of Memoranda of Understanding (MoU) with four Northern fishing nations; Greenland, Norway, Iceland and the Faroe Islands. (more…)
George Meredith December 4th, 2020
Posted In: UK - Non EU, UK- EU
