WTO LAW, EU LAW AND ENVIRONMENTAL PROTECTION

1. WTO LAW, EU LAW AND ENVIRONMENTAL PROTECTION

2. OVERVIEW • EU’S EXTERNAL COMPETENCES AND WTO LAW • WTO LAW AND ENVIRONMENTAL PROTECTION • EU LAW VERSUS WTO LAW: THE CASE OF GMOs • EU’s LEGAL FRAMEWORK FOR GMOs • CONFLICTS WITH WTO LAW

3. I. EU’S EXTERNAL COMPETENCES AND WTO LAW

4. WHY DO COMPETENCES MATTER? THE PRINCIPLE OF CONFERRED POWERS: • Art 13 TEU: ‘Each institution shall act within the limits of the powers conferred by the Treaty’

5. EXTERNAL COMPETENCES • Art 191 (4) TFEU • Cooperate with 3rd countries/international organisations • NB: Art 191(4) ‘without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements’ • Mixed agreements • EU has exclusive competence in common commercial policy • IMPLICIT: case law

6. EU’S COMPETENCE IN RELATION TO THE WTO • EU is a member of the WTO (EC 1947) • Binding based on EU law • Exclusive and shared competence • Implications: • Consistent interpretation of WTO law • No direct effect (state-focused) (Eeckhout) • Precludes judicial review of EU Law – except ‘implementing measures’ • Regional trade unions allowed

7. II. WTO AND ENVIRONMENTAL PROTECTION

8. WTO: GENESIS • Post WWII • Creation of GATT (General Agreement on Tariffs and Trade) • Uruguay Round 1994 – WTO creation • ‘The most important global agreement since the UN Charter’

9. WTO – A BRIEF OVERVIEW • Three Key Features: • Binding body of law (annexes) • WTO Agreement has legal primacy • Dispute Settlement System • Institutional Structure • Ministerial Conferences • Dispute Settlement Body (DSB)

10. WHO IS WHO IN WTO?

11. IN LAMY’S WORDS ‘I believe that trade opening and reducing trade barriers, has been, is and will remain, essential to promote growth and development, to improve standards of living and to tackle poverty reduction. The World Trade Organization remains the most efficient and most legitimate forum to open and regulate world trade. The most efficient because it works at the service of all the participants and because of its modern system to solve trade disputes. The most legitimate, because it is the fairest system of all, as all the decisions are taken by all the members, large or small, strong or weak.’

12. Geneva

13. WTO – A BRIEF OVERVIEW • Scope: • WTO shall provide ‘the common institutional framework for the conduct of trade in relations among its Members’ on matters relating to the agreements and associated legal instruments as set out in the Annexes to this agreement.’

14. WTO – A BRIEF OVERVIEW • Aims (Preamble) • Relations of WTO Members ‘should be conducted with a view to raising standards of living, ensuring full employment, and a large and steadily growing volume of real income and effective demand…expanding the production of and trade in goods and services’

15. DISPUTE SETTLEMENT UNDERSTANDING • Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations, as provided in the annexed Agreements • Informal procedures • conciliation and mediation • Formal procedures • Panels, the Appellate Body, and arbitration

16. IMPLICATIONS OF WTO LAW • Normally within 15 months • If not; • Mutually acceptable compensation • Counter measures

17. TRADE AND ENVIRONMENT? • Equal or conflicting interests? • Post-Kyoto trend • Agenda 21 • WTO • Exception

18. WTO LAW • Three ground pillars: • ‘most favoured nation’ • national treatment • Prohibition of quantitative restrictions

19. EXCEPTIONS • Article XX GATT • (b) measures protecting human, animal pr plant life or health • (g) measures relating to the ‘conservation of exhaustible natural resources’ • Chapeau • No arbitrary discrimination

20. TUNA-DOLPHIN CASE

21. HORMONES CASE

22. TRADE BIAS? • Criticism (Perez): ‘merchantilist ethos’ • Market access • Ecological benefits in terms of trade liberty

23. SHRIMPS CASES

24. WTO COMMITTEE ON TRADE AND ENVIRONMENT • WTO is not an environmental protection agency • WTO provides for environmental measures • Supports non-discriminatory policy coordination • Works toward market access to reach sustainable development in developing countries

25. III. EU LAW VERSUS WTO LAW: THE CASE OF GMOs

26. EU AND WTO: COMPARE AND CONTRAST (I) • Similar historical backgrounds: • Born during the WWII period • Both promote trade + raising the standard of living • Different in relation to their development: • EU • Closely integrated regional entity • Based on a legal and constitutional framework • WTO • Lack institutions and ambitions to become a global governance structure

27. GMOs

28. GMOs: A RAINBOW OF INTERESTS

29. GM REGULATION IN THE EU • Process as opposed to product based • 1998-2004 (no authorisation period) • Directive 2001/18 on the deliberate release into the environment of GMOs • Directive 2008/27 (amending) • Free movement of goods

30. GMOs IN THE EU AND THE WTO • Values • Hormones case • ‘responsible and representative governments may act in good faith on the basis of what, at a given time, may be divergent opinion from qualified and respected sources’ • EC-Biotech case • ‘the obligation to complete approval procedures without undue delay would impose no real discipline as the Commission could then suspend approval procedures every time it anticipates significant member State opposition and regardless of whether there are valid reasons for such oppositions’