Food for thought: The Commission’s UK-EU SPS Agreement negotiating mandate

In this post, John Bell, LLM (Queen Mary University of London), former Schuman Trainee at the European Parliament, discusses the European Commission’s negotiating mandate for a UK-EU common sanitary and phytosanitary (“SPS”) area published on 16 July 2025 (“UK-EU SPS Agreement negotiating mandate”) and its significance for UK-EU relations law.

Following political agreement in the UK-EU Common Understanding to “work towards” negotiations for a UK-EU SPS Agreement at the landmark UK-EU Summit on 19 May 2025, publication by the Commission of the UK-EU SPS Agreement negotiating mandate is the first major concrete legal proposal under the aegis of the UK-EU “reset”. The main elements of the UK-EU SPS Agreement negotiating mandate to be discussed are dynamic alignment and the role of the CJEU.

On 13 June 2025, the Commission proposed the signature and conclusion of a new EU-Switzerland Agreement package of agreements agreed on 20 December 2024 including a Protocol establishing a Common Food Safety Area (“CFSA Protocol”). This is timely and useful because the EU-Switzerland Protocol is likely to mirror the legal text of the UK-EU SPS Agreement in due course. The CFSA Protocol will therefore also be discussed as it offers an insight into how the UK-EU SPS Agreement negotiating mandate will evolve into treaty commitments.

Dynamic alignment and democratic accountability

In establishing a common SPS area between the UK and EU for Great Britain (the SPS Agreement would not apply to Northern Ireland), paragraphs 3 and 12 of the UK-EU SPS Agreement negotiating mandate envisage an obligation for the UK to dynamically align to the relevant EU legislation. Paragraph 3 states that the principle of dynamic alignment “should ensure that identical rules within the scope of the agreement are simultaneously applied.”

The scope of the SPS Agreement would cover “sanitary, phytosanitary, food safety and general consumer protection rules applicable to the production, distribution and consumption of agrifood products, the regulation of live animals and pesticides, the rules on organic production and labelling of organic products as well as marketing standards applicable to certain sectors or products” (paragraph 11). Further, provisions of EU law on emergency measures and the entry of animals, plants, food/feed products of animal or plant origin and related products, into the EU from the rest of the world would be “immediately applicable” (paragraph 13).

Whilst the negotiating mandate makes clear that the SPS Agreement would not give the UK the right to participate in EU decision making, paragraph 2 states that the UK should be involved “at an early stage” and “contribute appropriately” for a third country in respect of EU decision making for legal acts to which the UK (in respect of Great Britain) would dynamically align and simultaneously apply. The Commission “should consult” the UK “at an early stage” of decision making.

This would appear to be an appropriate trade-off for a non-EU member state, but raises questions about the extent of democratic accountability. Speaking at the despatch box the day after the UK-EU summit, the Prime Minister stated that there would be a “parliamentary process” in respect of dynamic alignment.

The role of the CJEU

Another key element of the negotiating mandate is the role of the CJEU. The SPS Agreement would provide for “uniform interpretation and application of EU law” on the basis of CJEU case law, and the CJEU would be the “ultimate authority for all questions of EU law” (paragraphs 4 and 5).

The role of the CJEU in relation to dispute settlement is more nuanced than may appear at first glance. According to the negotiating mandate, the dispute mechanism applicable to the SPS Agreement would be based on the the arbitral process set out in Part Six of the UK-EU Trade and Cooperation Agreement (“TCA”) (for the first TCA arbitral tribunal ruling, see PCA Case No. 2024-45 and, for discussion, see here).

However, drawing inspiration from Article 174 of the UK-EU Withdrawal Agreement, the arbitral tribunal would be under an obligation to refer to the CJEU all questions of EU law “including a concept or a provision of” EU law (Annex to the negotiating mandate, paragraph 9) and the CJEU’s interpretation would be binding on the arbitral tribunal. Notably, there is no such role for the CJEU in the TCA dispute settlement mechanism.

EU-Switzerland Common Food Safety Area Protocol

Article 12 and Article 13 of the CFSA Protocol set out how the UK-EU SPS Agreement provisions on dynamic alignment might look. Article 13(2) states that EU legal acts integrated into the CFSA Protocol “shall be, by their integration into this Protocol, part of the legal order of Switzerland […].”

Article 12 creates a “decision shaping” process whereby at the point of drafting a proposal for an EU legal act, the Commission informs Switzerland and informally consults Switzerland’s experts “in the same way that it asks for the views of experts from the Member States”. The EU and Switzerland then embark on a “continuous process of information and consultation” in advance of the legal act’s adoption. This is likely to be the process by which the UK would “contribute appropriately” to EU decision making (see paragraph 2 of the UK-EU SPS Agreement negotiating mandate).

Annex 1 to the CFSA Protocol lists the EU legal acts within scope and to which Switzerland must dynamically align. Running to over 40 pages, Annex 1 is instructive when considering the elements of the EU acquis to which the UK (in respect of Great Britain) would be obliged to dynamically align in order to create a UK-EU SPS area. The EU-Switzerland CFSA Protocol and UK-EU SPA Agreement negotiating mandate mirror the Windsor Framework approach of a Joint Committee updating the relevant annex (see, e.g. Decision No. 3/2025 of the UK-EU Withdrawal Agreement Joint Committee adding an EU legal act to Annex 2 to the Windsor Framework).

Reflecting the peculiar Swiss constitutional requirements on referenda, Switzerland has a time limit of three years to hold a referendum on an EU legal act in scope before it becomes binding (Article 14). Whilst of course there is no equivalent in the UK-EU negotiating mandate, the Windsor Framework demonstrates the salience of constitutional law on questions of dynamic alignment through the somewhat Byzantine provisions of the Stormont Brake. Whether the UK-EU SPS Agreement heralds a “Westminster Brake” remains to be seen.

Article 20(3) of the CFSA Protocol provides that where a dispute raises a question concerning the interpretation or application of an EU legal act to which the CFSA Protocol refers (subject to the uniform interpretation principle in Article 17(2)), and if the interpretation of that provision is relevant to the settlement of the dispute and necessary to enable it to decide, the arbitral tribunal shall refer that question to the CJEU. Article 20(4) states that a CJEU ruling shall be binding on the arbitral tribunal (cf. Annex to the UK-EU negotiating mandate, paragraph 9). The CFSA Protocol provides that Switzerland shall enjoy the same rights and be subject to the same procedures as EU member states and institutions before the CJEU. There is currently no corresponding provision in the UK-EU negotiating mandate.

A new era for UK-EU relations law

UK and EU negotiators will in due course continue their work to achieve the legal text of a UK-EU SPS Agreement. Five years since agreement of the TCA and nearly a decade since the referendum, legal proposals on a UK-EU SPS area premised on dynamic alignment and a role for the CJEU (albeit nuanced) represent a trade-off between fewer barriers with the UK’s largest trading partner and bespoke decision shaping provisions. Red lines have turned pink, enabling an SPS Agreement which goes further than the TCA (although maintaining its governance structure). Fundamentally, dynamic alignment with EU law marks the beginning of a new era for UK-EU relations law.

Share this post on social media: