Posts Tagged Domestic regulatory autnomy
Fairphone posted a blog piece on their recent trip to Ghana – thanks to Raluca Radu, a former student of mine, for keeping me updated. The piece and accompanying photos make very sober reading, highlighting the realities of WEEE export to this part of the world. Not that one is not aware of it. However it is very worthwhile to keep being reminded! Fairphone’s project in Ghana, though, is also novel in highlighting the challenge of toxic waste produced in Africa, not just imported there. Finally, the posting (and comments) underline the challenges of all three pillars of sustainable development. Plenty of challenges therefore however it is great to see people trying!
Is something fishy in the State of Denmark? Faroe Islands WTO and UNCLOS litigation provides a honey pot to trade and EU lawyers
Yummie. That’s how Trade lawyers and EU lawyers receive news of the Danish request for consultations with the EU, over at the WTO, on behalf of the Faroe Islands. A separate action is underway with UNCLOS (although the docket there shows no sign as yet of the case). Disagreement over herring stock lies at the root of the offending EU Regulation, with sanctions imposed by the EU disallowing Faroese fishermen to land mackerel or herring in EU harbours or export such fish to the EU.
The EU justify their action on stock conservation grounds, thus bringing GATT Article XX into play. Action at the WTO is exciting both because it joins a growing list of actions related to domestic regulatory authority, and because it is unheard of for one EU Member to take another to the WTO (Faroe’s specific status under EU law explains this, however even in EU law this terrain is quite uncharted).
As sources at the WTO say: ‘it’s a really interesting case’: that quote must be in the running for understatement of the year. Sources at the EU suggest no one had expected Denmark’s WTO filing to actually materialise.
ICAO puts a spanner in the EU’s ETS works – Resolution calls for bilateral deals in the event of non-EU flights
After considerable debate, ICAO have adopted a Resolution on 4 October, holding inter alia that the EU must not extend its emissions trading scheme to flights covering non-EU territory, unless and until bilateral deals are concluded with the States concerned (see in particular point 16 of Resolution 17.2). This eventual position is considerably stricter for the EU than previous drafts.
ICAO did forecast work to start on an international scheme by 2016, with a view to resulting in a regime that will kick of in 2020. This delay is, one assumes, unlikely to be palatable by the European Parliament, especially in light of the European Court of Justice’s support for the extension. The EU therefore now needs to decide whether to up the stakes and lift its freezing of the ETS extension; leave the freeze in place and engage fully with ICAO’s search for multilateral action (not that the EU have not been trying so far…); pursue bilateral agreements with third States (not that mad an idea and not one which the EU have totally dismissed in the past); or amend its ETS.
It is being reported (this link in Dutch only however I suspect the international media will pick up on this soon) this morning that the city of Rotterdam has ‘banned’ the use of Roundup (Monsanto’s flagship herbicide). I was not able at this stage to get confirmation of what has actually been decided. My intuition however tells me what was had happened is not so much a ‘ban’ on the use of Round-up on Rotterdam territory. Rather, I imagine, a decision of the local council no longer to use Roundup in keeping pavements weed-free. A procurement or garden management decision, in other words.
The news caught my eye for I have an interest in the legality of local (or other) bans on the use of products which have otherwise been approved by EU (such as in this case: EU approval of glyphosate) or national authorities. See e.g. here (but with a need to update with the Mickelsson judgment). A true ban on Roundup would certainly raise the prospect of WTO and EU litigation…
Update 10 June 2020 a lot has happened of course since this post – for the latest on the WTO front see the AB report confirming the legality of the measures under World Trade Organisation (TBT) rules.
Postscript January 2016 Reportedly the Permanent Court of Arbitration under UNCITRAL rules, has declined jurisdiction. The award is to be made public here once it has been cleared of confidential data.
Postscript June 2015: I have many other posts on the issue however I thought I”d here that in June 2015, Ukraine suspended its complaint against Australia. Simon Lester collates why. And end of May 2015, Norway Norway TBT plain packaing notification its plain packaging plans to the WTO TBT Committee, with extensive pre-emption of legal arguments against it.
Postscript 22 10 2013: on the BIT front, see the interesting defence by the European Commission of BITs in October 2013 here. Reference is made ia to the ongoing Philip Morris and Vatenfall (Nuclear energy) issues.
Faculty everywhere have been handed a treasure trove of exam questions, courtesy of ‘plain packaging’ (students please look away now). A variety of States are in the process of introducing ‘plain packaging’ requirements on tobacco products. Although they of course vary in detail, they generally require tobacco manufacturers to strip packaging of all tailored corporate content, resorting instead to prescribed generic packaging. The ‘plain’ packaging required is generally limited to brand name in standardised fashion (font size and lettering, colour…), joined by a number of health warnings (including, sometimes, images), excise duties requirements and ingredients listings.
Plain packaging ticks all the boxes of a classic ‘domestic regulatory autonomy’ dispute. It pitches the freedom of a sovereign State to pursue ‘regulatory’ interests (environment, public health, consumer protection, stability of the economy etc.) against the free trade commitments which the same State has voluntarily committed to. These trade commitments take the form of multilateral (such as the WTO, the EU’s Internal Market, or NAFTA) or bilateral (such as bilateral free trade agreements and customs unions) agreements. They most often do not, but sometimes do include procedural rights for private parties (as opposed to simply the States which have concluded the agreement) to launch legal proceedings should free trade (arguably) have been infringed. Such standing for private parties is the case in many BITs, i.e. Bilateral Investment Treaties, as well as for instance (subject to a number of whistles and bells), NAFTA.
Free trade agreements are not generally oblivious to the continuing desire of participating States to regulate the interests referred to above. Consequently they include room for ‘domestic regulatory autonomy’ to continue after the conclusion of the agreement, subject of course to checks and balances.
This fragile balance between free trade and regulatory autonomy is exactly what the current debate on plain packaging is all about. The issue is being fought on many fronts: At the World Trade Organisation, Ukraine have filed a complaint in March 2012 against Australia’s plain packaging laws on the basis of the TRIPS (intellectual property) and TBT (technical barriers to trade; product regulations) Agreements. Ukraine’s complaint is supported by a number of WTO Members with tobacco manufacturing interests.
At a constitutional level, issues include free (commercial) speech (see here for the related issue of graphic warnings), expropriation (of the trademark), non-discrimination (why no plain packaging on alcohol, for instance).
At a level of BITs, the issue has rejuvinated the ‘regulatory takings’ debate (do new regulatory requriements of host States amount to a ‘regulatory taking’ (as compared to a straightforward expropriation) that may be incompatible with investment protection requirements. The Uruguay-Switserland (see here and enter search term ‘ICSID Case No. ARB/10/7’) and Australia-Hong Kong BITs are among those affected. One imagines that the necessity of the measure will be hotly contested, as the actual health impact of the measure is not entirely certain. See the (controversial) ruling of the European Free Trade Association’s Court on the related issue of display bans here and the excellent analysis of prof Alemanno.
One will have gathered: all of this is excellent material for those of us teaching Trade and regulatory law. Geert.