Looking for a PhD or paper topic? Public interest litigation and access to industry standards.

Perhaps it has been studied already. Perhaps it is more of a PhD chapter, short paper or indeed a case for public interest litigation. Stephanie Bijlmakers and I had a good moan about the lack of access to ISO standards when we wrote on ISO 26000. I now have encountered again how extraordinary it is that the public do not have free access to industry standards with such high societal relevance. The trigger this time round is one of our PhD students enquiring with me about recyclable content in packaging. This has sent me on a goose chase to gain access to a copy without having to fork out £170 each for 5 relevant CEN standards.

So here’s my research starter for ten: could and if so under what circumstances can privately developed yet publicly approved standards be considered environmental information under relevant EU and international rules, access to which needs to be granted without charge?



‘Performance based’ and ‘Well to wheel’ renewable (bio)fuel standards.

Thank you Jonathan Cocker for flagging Ontario’s stakeholder consultation on renewable fuel standards, aka biofuels. Current thinking, outlined in the discussion paper, is to make the standards ‘performance based’: ie without pushing one or rather additive and exclusively focus on achieved (documented) reduction of greenhouse gas emissions.

Biofuels are known to create international trade tension. Argentina and the EU are still formally in consultation over the EU’s approach. Various WTO dispute settlement concerns anti-dumping duties on biofuels. Finally one or two elements of WTO dispute settlement on support for renewable energy touch upon fuel standards.

With all that in mind one particular element of the Ontario regime caught my attention: the intention to regulate GHG emissions ‘well to wheel’: ie ‘to assess emissions performance across the fuel’s full well-to-wheel lifecycle, from extraction to processing, distribution and end-use combustion.’(p.6). Canada does that already for  diesel, with its 2014 greener diesel Regulation, employing what is known as the ‘GHGenius’ model.

What I have not been able to gauge from my admittedly limited research into that model: does it at all and if so how, apply to particularly extraction outside of Canada indeed outside Ontario? For the EU, much of the biofuel production (let alone biofuel imports) at some point or another involves extra-EU elements. How does a well to wheel method in such case work under WTO rules?


On a road to somewhere. The EJC on CEN standards in James Elliott Construction v Irish Asphalt

Case C-613/14 James Elliott illustrates that the EU’s ‘New Approach’ to harmonisation is alive and well more than 30 years after its launch. The judgment is best read in its entirety and against the background of the New Approach, following the Court’s judgment in Cassis de Dijon and the introduction of qualified majority voting in the European Single Act.

The Court confirms the important place which CEN-standards occupy in EU law, despite them being private standards, and clarifies the exact impact which these standards have in private relations.

One for harmonisation anoraks.



International standards, Codex and a new SPS dispute in the making: EU US (Ractopamine)

Alberto Alemanno reports on some crucial developments in the development of international SPS standards. Prof Alemanno links to recent EU Agriculture Council conclusions which are a treasure trove of issues linked to the WTO’s room for domestic regulatory autonomy.

In brief, the FAO/WHO’s Codex Alimentarius Committee adopted limits for the use of ractopamine (a veterinary drug used to pimp pigs) which are more lenient than the EU’s (albeit stricter than those of the US). While the WTO Agreement on Sanitary and Phytosanitary Standards – SPS, encourages WTO Members to apply standards which conform with international standards, it also allows for recourse to the precautionary principle in the case of scientific uncertainty (Article 5.7).

The EU Ministers have decided to continue employing its own, stricter standard, and have instructed the European Commission to ensure that exporters to the EU that employ a weaker standard, set in place a parallel system for export to the EU (one which guarantees that the EU’s stricter standard is being abided by in export to the EU).

The EU’s resolve on this issue is firm. The likelihood of a challenge under the WTO Dispute Settlement very high. As Alberto points out, even in Beef Hormones, Article 5.7 was not employed. Before a WTO Panel would come to that, it would also have to assess the qualities of the relevant Codex decision as an international standard, given the slim majority with which it was adopted (which brings back memories of EC Sardines).

Risk management never fails to pop up on time for first term exam questions.


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