Posts Tagged TBT
The Belgian Council of State (the highest administrative court) has annulled the Flemish waste agency’s export permit in the so-called ‘Slufter’ case, involving large quantities of toxic dredging spoil (for the aficionados: classified as EURAL 17 05 05*; ia with heavy doses of tributyltin – TBT) dredged from the port of Antwerp. The case made by applicants was that the waste would be disposed of in the port of Rotterdam’s ‘slufter’ by way of mere dumping, as opposed to processing ‘at home’ in the Flemish region.
At issue was Article 11 of the Waste shipments Regulation 1013/2006, which allows Member States of export to object to planned shipments of waste destined for disposal. Applicants’ case was that the Flemish waste agency – OVAM should have disallowed the shipment on the basis of the proximity and the self-sufficiency principles. OVAM however pointed out that even if in optimal circumstances, processing in Flanders could lead to higher rates of recovery of the waste, much of it would still simply have to be landfilled. Importantly, it preferred disposal in the Slufter on the basis that the logistics chain was much shorter: load up, transport, dump. As opposed to load up, transport to processing facility for partial recovery (involving three separate processes); load-up of the solid waste left; transport and dump.
The Council of State ruled at the end of May that this decision by OVAM, in particular the reliance of the extent of the logistics chain, lacks proper assessment of the Best Available Technologies for dredging spoil, hence leading to insufficient assessment of the proximity and self-sufficiency principles. The ruling is relevant also with a view to the remainder of the spoil that will continue to be dredged.
For easy of reference (for those wishing to locate copy of the ruling): case numbers are 238220 -238224 included).
Denmark has adopted its regime for notification preparations and products containing nanomaterials. (Belgium ‘s regime as far as I am aware has still not been finally adopted – it is not the kind of measure which its care-taker government (coalition negotiations are underway) can justifiably adopt). The final text (Danish only) does differ from the text notified under the EU’s transparency regime, following comments by the EC and by other Member States.
The Danish text (which entered into force last Wednesday, 18 June) differs from the proposed Belgian regime: it targets consumer goods, not professional goods; it does not mutually recognise notification done in other Member States…The Belgian regime in turn differs from the French, and Norwegian (not an EU Member State but EFTA) scheme etc. Harmonisation at the European level is becoming ever more urgent: impact assessment at that level is underway and a proposal expected for the autumn. This will then presumably gazump any pre-existing national regimes.
I reported earlier on the delay incurred by the Belgian nano register. Following objections under the EU’s transparency Directive, the Belgian register stood still. The Belgian Government is now tinkering with the proposal, having reportedly adopted a new draft which is being sent to various consultative bodies.
The new draft, a little bird tells me, adds additinal requirements in the light of occupation health and safety requirements; introduces 1 January 2016 as the deadline for registration of nanomaterials already on the market and 1 January 2017 for relevant mixtures; postpones until later the cut-off date for objects and complex preparations containing nanomaterials; and cancels the exemption for cosmetics containing nanomaterials.
Strangely, for a move designed to increase transparency, the new draft itself is kept under wraps for the time being.
After leaks, the Panel’s ruling in EU Seals is finally out. As it was only released this afternoon, I have not as yet had time to read it thoroughly. However diagonal reading reveals that by and large the regime was found to qualify for the public morals exception under the GATT Agreement (and not to be more trade restrictive than necessary to protect same under the TBT Agreement) however the pro Inuit exceptions have proven to be the Regulation’s Achiless heel. As I have suggested in the past in other areas, this may well mean that the EU has no choice but to resort to stricter rules, leaving out the exceptions.
Further analysis and post later in the week hopefully.
EC, UK et al comments on Belgian nano-register delay its roll-out. No disguise of general unease vis-a-vis EC dithering.
The European Commission, the United Kingdom, The Czech Republic, Italy and Ireland have all issued detailed comments on the ‘nano register’ notified by Belgium.
Belgium itself had summarised the draft as follows:
The draft legislation implements a register of substances manufactured at the nanoscale based on declarations of products containing such substances by the parties placing these products on the market.
To this end, the draft legislation mandates that substances manufactured at the nanoscale, and preparations containing them, be declared if more than 100 grams of these substances are placed on the market per year (the declaration covers the characteristics of the substances, the quantity of substances manufactured at the nanoscale placed on the market, the use of the preparation or substance concerned and the identity of professional purchasers and users).
The draft legislation also lays down an obligation to make a simplified declaration for articles incorporating a substance or substances manufactured at the nanoscale, as long as more than 100 grams are placed on the market per year and the article emits more than 0.1% of substances manufactured at the nanoscale when in use (only a reduced list is required of the characteristics of the substances manufactured at the nanoscale).
Provisions are laid down concerning data protection and confidentiality, as well as concerning research and development activities.
The draft additionally covers the mutual recognition of the numbers of any declarations made by non-Member States, thus reducing the impact of the draft legislation on the free movement of the products concerned.
Under the notification procedure of Directive 98/34, Member States have to notify draft ‘technical regulations’ which may impede the Internal Market. This is followed by a standstill period and by an opportunity for other Member States, and the European Commission, to issue comments. Detailed comments extend the standstill period – in the case of Belgium’s nano register, now until early January 2014.
I am not in fact entirely convinced that the nano register is a ‘technical regulation’ under the Directive – Belgium would seem to have opted for the cautious approach, apparently in contrast with its approach vis-a-vis the mirror provisions under WTO law: the WTO has a similar regime under the Agreement on Technical Barriers to Trade (see also Agapi Patsa and Anna Gergely on same) – albeit with less strict consequences if a Member fails to notify. I was not able to locate Belgium’s notification in the TBT’s IMS This database can be a bit moody, whence Belgium may have notified but I cannot find it. Alternatively, Belgium may have decided that the register does not qualify as a technical regulation under WTO law..
I have not been able (nor have I chased – perhaps some readers have) to get my hands on the comments issued by a handful of Member States and by the EC. . They are likely of course to relate to the impact on nano roll-out of a registration duty in a core Member State.
It is not unlikely that the Belgian initiative is meant in part to put pressure on the EC to beef up its own notification requirements. However the EC is dragging its feet on reporting on the public consultation re REACH and nano, and other Member States, notably Germany, which is pondering a separate notification proposal, are getting impatient, too.
The Court of Justice of the EU has further completed its views on the use of criteria linked to sustainable development. These are criteria which do not simply refer to environmental characteristics of the product itself. Rather, they convey a message as to the overall ‘process and production methods’, known in jargon as ‘PPMs’, of a particular product or service.
In Max Havelaar, Case C-368/10, the Court had to decide on the use of specific labels in decisions awarding government purchases (‘procurement’) to a particular supplier.The province of North Holland had
– inserted in the technical specifications a condition requiring the Max Havelaar and EKO labels or in any event labels based on similar or the same criteria;
– included, for appraising the ability of operators, criteria and evidence concerning sustainable purchasing and socially responsible business, and
– included, when formulating award criteria, a reference to the Max Havelaar and/or EKO labels, or in any event labels based on the same criteria.
The judgment is quite complex for those unfamiliar with (EU) procurement law In particular, the Court distinguishes in the exact room for manoeuvre between various stages of a procurement decision. Leaving detailed breakdown aside (reference is made to the judgment), the Court’s finding is basically that authorities must make use of descriptive conditions for such criteria, rather than solely referring to specific labels. However they may identify certain labels as leading to a presumption of these criteria having been met, provided of course they allow other proof to be submitted.
For WTO lawyers, judgments like these are not irrelevant. Arguably, adoption of private labels in procurement decisions, may well bring these labels within WTO, in particular, TBT (Agreement on Technical Barriers to Trade), discipline.
Postscript 8 January 2016: the Advocate General of the WTO referred to the WTO case, in a challenge to the EU’s ban on menthol cigarettes, suggesting the EU wouldbe in WTO trouble had it not banned their sale.
The WTO Appellate Body’s Report in ‘Clove cigarettes’ was issued on 4 April. It is a dream ‘Trade and public health’ case and therefore generally a superb ‘trade and regulatory autonomy’ case. Under appeal were a number of the findings of the Panel in first instance. The WTO summarises the dispute as follows:
‘(the case) concerns Section 907(a)(1)(A) of the Federal Food, Drug and Cosmetic Act (“FFDCA”), which was added to the FFDCA by Section 101(b) of the Family Smoking Prevention and Tobacco Control Act. This measure bans the production and sale of clove cigarettes, as well as most other flavoured cigarettes, in the United States. However, the measure excludes menthol-flavoured cigarettes from the ban. Indonesia is the world’s main producer of clove cigarettes, and the vast majority of clove cigarettes consumed in the United States prior to the ban were imported from Indonesia.’
Discrimination, necessity, the link between the Agreement on Technical Barriers to Trade (TBT – new under the WTO) and the General Agreement on Tariffs and Trade (applied since 1947 and with a richer case-law history), the possibility of employing regulatory objectives to decide upon ‘likeness’ between products: these and other issues are all dealt with by both Panel and AB. Per usual and not surprisingly (the same holds for many courts, nationally and internationally), the jury is out on many of the topics addressed. This leaves uncertainty of a similar ilk as after the Brasil Tyres case, the consequences of which I have analysed for JEL here.