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The EC and WTO Trade and Environment Case Law: Procedural Aspects, Legal Principles and Institutional Matters
Published online by Cambridge University Press: 27 October 2017
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Hundreds of studies have been conducted by lawyers, economists and political scientists on international trade and environment, yet very few attempts have been made to compare judicial decisions adopted in this area by the European Court of Justice, its Court of First Instance, and GATT/WTO rulings on trade and environment. Most of the existing publications are either limited in scope, because they only focus on a comparison of two cases at any one time, or are outdated, especially in the light of innovative European and Appellate Body jurisprudence of the last few years. Here, a comparison of the main trade and environment themes traversing the two bodies of case-law, including procedural issues, will be undertaken. This will cast light on the means by which the current tension between trade and environment might be resolved. Account will be taken of the different “constitutional” positions of judicial bodies in the two legal orders, the role played by the presence (or absence) of the legislator, and its influence on reasoning in judicial decisions.
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References
1 When these institutions are referred to collectively, they will be termed “the Community judicature”.
2 See Cameron, J. “The GATT and the Environment”, in Sands, P. (ed.), Greening International Law (London, Earthscan, 1993) 100 Google Scholar; Walker, S.L. Environmental Protection Versus Trade Liberalisation: Finding the Balance (Paris, PFU Saint-Louis, 1993)Google Scholar; Petersmann, E.U. “Trade and Environmental Protection: The Practice of GATT and the European Community Compared”, in Cameron, J., Geradin, D., and Demaret, P. (eds.), Trade and Environment: The Search for Balance, (London, Cameron/May, 1994), 147 Google Scholar and, by the same author, International and European Trade and Environmental Law after the Uruguay Round, (The Hague, Kluwer, 1995) and The GATT/WTO Dispute Settlement System: International Law, International Organisations, and Dispute Settlement, (The Hague, Kluwer, 1997). See also Scott J. “On Kith and Kine (and crustaceans): Trade and Environment in the EU and WTO”, Harvard Jean Monnet Working Papers 3/1999, http://www.jeanmonnetprogram.org/papers/99/990301.html; and Wiers, J. “Regional and Global Approaches to Trade and Environment: The EC and the WTO”, Legal Issues of European Integration, 1 (1998)Google Scholar. On EC and US trade and environment case law, see the remarkable work of Geradin, D. Trade and Environment: A Comparative Study of EC and US Law, (Cambridge, CUP, 1997)CrossRefGoogle Scholar.
3 See, for example, Wheeler, M. “Greening the EC Treaty”, in Sands, P. (ed.), Greening International Law, (London, Earthscan, 1993), 85 Google Scholar; and Sands, P. “Danish Bottles and Mexican Tuna” 1 (1992) Review of European Community and International Environmental Law, 28 CrossRefGoogle Scholar.
4 See, e.g. Esty, D. Greening the GATT, (Washington, 1994)Google Scholar; Cameron, J. “The GATT and the Environment” in Sands, P. (ed.) Greening International Law (London, Earthscan, 1993) 100 Google Scholar; London, C. and Llamas, M. Protection of the Environment and the Free Movement of Goods, (London, Butterworths, 1995 Google Scholar). See also the many interesting contributions in Cameron, Demaret, and Geradin above n 2.
5 See General Agreement on Tariffs and Trade (GATT), 30 October 1947, 55 UNTS 194, which never entered into force, and GATT Protocol of provisional application, 30 October 1947, in force since 1 January 1948. The latter, after the the US had decided not to ratify the Havana Charter (UN Doc. E/CONF/2/78 (1948)) which provided for the constitution of the International Trade Organisation (ITO), has regulated international trade for almost 50 years, until the creation of the World Trade Organisation in 1995 (WTO Agreement, 33 I.L.M. (1994) 13).
6 See Treaty establishing the European Economic Community, 298 UNTS 11, as amended later, and the Treaty on European Union, OJ 1992 C 191, 1, as amended later.
7 This is all the more true if one considers that of the three elements that typically define a federal state—common currency, common foreign policy and common army—the first one is already a reality for 12 out of the 15 EU Member States and much progress is being made for the other two, especially after the entering into force of the Amsterdam Treaty in May 1999, OJ 1997 C 340,1.
8 On the origins of the EC see, e.g., Kapteyn, P and VerLoren van Themaat, P. Introduction to the Law of the European Communities: From Maastricht to Amsterdam, edited by Gormley, L.W., 3rd edn. (The Hague, Kluwer, 1998 Google Scholar). On GATT origins see, e.g., Stewart, B.T.P. Introduction and Overview: The GATT Uruguay Round, (Deventer, Kluwer, 1993)Google Scholar.
9 I refer to Arts. 25, 28, 29, 30 and 90 of the EC Treaty when compared to Arts. II, III, XI and XX of GATT. These provisions have remained unchanged since the inception of the EC (1957) and of the GATT (1947).
10 Nevertheless, some important differences between these provisions do exist, but they go beyond the scope of this article.
11 On the key players in the making of EC environmental law see, e.g., Chalmers, D. “Inhabitants in the Field of EC Environmental Law”, in Craig, P. and De Burea, G. The Evolution of EC Law (Oxford, OUP, 1999), 653 Google Scholar. NGOs also play an important role in inter national negotiations where they often work closely with delegates of the EU Institutions/Member States and certainly influence the position of the EU.
12 See, inter alia, Decision 97/872 of 16 December 1997, OJ 1997 L 354/25, establishing a Community action programme promoting non-governmental organisations primarily active in the field of environment.
13 See, on this issue, Case T-585/93 Greenpeace International v. EC Commission ECR [1995] 11-2209 and Case C-321/95 Greenpeace and others v. Commission [1998] ECR 1-1651.
14 See EC Statute, Protocol on the Statute of the Court of Justice, signed in Brussels on 17 April 1957, as last amended by Article 19 of the Act of Accession 1994 (OJ 1994 C 241, 25) and by the Council Decisions of 22 December 1994 (OJ 1994 L 379, 1) and 6 June 1995 (OJ 1995 L 131, 33). It has to be noted, however, that under Art. 37 an intervention of inter ested parties is not possible in cases between Member States, between institutions of the Community or between Member States and institutions of the Community.
15 ILM (1994) 136, Annex 2. For a similar suggestion, see Cameron, J. and Campbell, K. “Challenging the Boundaries of the DSU through Trade and Environment Disputes”, in J., Cameron and K., Campbell (eds.), Dispute Resolution in the ‘World Trade Organisation (London, Cameron/May, 1998) 204, 226Google Scholar.
16 European Communities-Measures Affecting the Prohibition of Asbestos and Asbestos Products (French Asbestos) WTO docs. WT/DS135/R (18 September 2000). An appeal has been lodged by both Canada and the EC and the case is pending before the Appellate Body at the time of writing.
17 See Communication from the Appellate Body, WTO docs. WT/DS135/9 (8 November 2000), and the Additional Procedure attached thereto (AB-2000-11).
18 The Appellate Body specified that the procedure at stake is not a new working procedure drawn up by the Appellate Body pursuant to paragraph 9 of Article 17 of the DSU (above n 15).
19 Ultimately, 17 organisations used the procedure to request leave to file written briefs and they were all turned down without a motivation. See further Bridges 9 (2000) 1 and 4, published by the International Centre for Trade and Sustainable Development (ICTSD), where it is also pointed out that, at the WTO General Council session of 22 November 200O, many Members, both developed and developing, stated that the Appellate Body’s rulings on the admissibility of non-governmental briefs amount to illegal rule-making rather than legitimate interpretation of the DSU.
20 Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991, OJ 1991 L 176, 7; and OJ 1992 L 383 (corrigenda); as amended later. Rules of Procedure of the Court of First Instance of the European Communities of 2 May 1991, OJ 1991 L 136; and OJ 1991 L 317, 34 (corrigendum); as amended later.
21 See EC Statute, Protocol on the Statute of the Court of Justice, above n 14.
22 In the Hormones case (European Communities-Measures Affecting Meat and Meat Products, adopted on 13 February 1998, Report of the Panel, WTO docs. WT/DS26/R (18 August 1997), paras. 8.5 to 8.7; Report of the Appellate Body, WTO docs. WT/DS26/AB/R (5 January 1998) and in the Asbestos case, above n 16 para. 8.10, the panels refused to form an experts group. The Appellate Body validated this decision in the Hormones case (para. 147) by stating that the panel has a discretionary choice to form or not an experts group.
23 Above n 14.
24 Cf. Art. 17.6 of the DSU, and, e.g., the Appellate Body decision in United States-Import Prohibition of Certain Shrimps and Shrimp Products, adopted on 6 November 1998, Report of the Panel, WTO docs WT/DS58/R (15 May 1998); Report of the Appellate Body, WTO docs. WT/DS58/AB/R (12 October 1998), paras. VI В and C.
25 Case C–180/96R UK v. Commission [1996] ECR I-3993.
26 Case C–6/99 Greenpeace France and others [2000] ECR I–1651, para. 46.
27 Sanitary and Phytosanitary Agreement, reproduced in The Results of the Uruguay Round of Multilateral Trade Negotiations—The Legal Texts (Geneva, GATT Secretariat, 1994), 69.
28 See, e.g., Sands, P. Principles of International Environmental Law (Manchester, MUP, 1995), 208–213 Google Scholar. In the Hormones case (above n 22 paras. 123 to 125), the Appellate Body sim ply recognised that the precautionary principle is reflected in Art. 5.7 of the SPS Agreement but not exhausted by the latter. It also refused to take a position on the legal status of the precau tionary principle under International law and stated that, in any case, such a principle could not override the provisions in Arts. 5.1 and 5.2 of the Agreement. In the Japan Varietals case (japan-Measures Affecting Agricultural Products, adopted on 19 March 1999, Report of the Panel, WTO docs. WT/DS76/R (27 October 1998); Report of the Appellate Body, WTO docs. WT/DS76/AB/R (22 February 1999), para. 81), the Appellate Body confirmed the very strict interpretation of Art. 5.7 of the SPS Agreement given by the Panel which put much emphasis on the second sentence of Art. 5.7 (the duty to seek additional information) and on the tem porary character of precautionary measures (paras. 8.54 to 8.60).
29 The literature in this area is endless but the reference books remain: Gormley, L. Prohibiting Restrictions on Trade within the EEC (Amsterdam, Elsevier Science, 1988)Google Scholar; Mattera, A. Le Marche Unique Européen (Jupiter, 1988)Google Scholar; Oliver, P. Free Movement of Goods in the European Community 3rd edn. (London, Sweet and Maxwell, 1996 Google Scholar) and Micklitz, H. and Weatherill, S. (eds.), European Economic Law (Aldershot, Dartmouth, 1997 Google Scholar). For a “law in context approach” see the recent We, The Court, by Poiares Maduro M. (Oxford, Hart Publishing, 1998).
30 It has to be noted that some other provisions in the EC Treaty, such as Arts. 23 and 25 (pro hibition of customs duties and charges having equivalent effect) and 90-92 (prohibition of dis criminatory taxation), serve the purpose of ensuring the free movement of goods. Although some interesting ECJ judgments on environmental taxes exist, they will not be dealt with here as the almost total absence of decisions in this area in the GATT framework would render vain any attempt to compare judicial decisions. On EC environmental taxes see, in particular, Case 47/88 Commission v. Denmark [1990] ECR 4509; Case 140/79 Chemical Farmaceutici v. DAF [1981] ECR 1; and, most recently, Case C-213/96 Outukumpu [1998] ECR 1-1777. See also the Com mission Communication on Environmental Taxes and Charges in the Single Market (COM (97) 9 final); Jans, J. European Environmental Law (Deventer, Kluwer, 1995) 198–205 Google Scholar; Demaret, P. and Stewardson, R. “Border Tax Adjustment under GATT and EC Law and General Implications for Environmental Taxes”, 29 (1994) journal of World Trade 5 Google Scholar; Borgsmidt, K. “Eco-taxes in the Framework of Community Law”, 8 (1999) European Environmental Law Review, 270 Google Scholar.
31 They can concern private persons or groups only to the extent that Member States have not acted to prevent a behaviour which is in violation of Arts. 28 and 30. For a recent exam ple see Case C-265/95 Commission v. France (Strawberries) [1997] ECR I-6959.
32 See Case 2/73 Geddo v. Ente Nazionale Risi [1973] ECR 881. See also Kapteyn and VerLoren van Themaat, above n 8 at 623.
33 On the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty, OJ 1970 (En. Spec. Ed.) (1) 17.
34 Case 8/74 [1974] ECR 837, 852.
35 Sometimes called prima facie or formally discriminatory.
36 Since Art. 28 also includes non-discriminatory measures, it appears to have a wider scope than Art. Ill of the GATT which is based upon the “national treatment” obligation. However, the doctrine is not unanimous in this sense: see Marenco, G. “Pour une Interprétation Traditionelle de la Notion de Mesure d’Effet Equivalent à une Restriction Quantitative” 20 (1984) Cahiers de Droit Européen 291 Google Scholar, who believes that discrimination is the basis of the ECJ approach to Art. 28. Marenco’s idea, defined as “isolated” and “unconvincing” by Geradin, D. Trade and Environment (Cambridge, CUP, 1997), 11 CrossRefGoogle Scholar, and by Weatherill, S. and Beaumont, P. EC Law (London, Penguin, 1995), 504 Google Scholar, probably needs more credence after the ECJ decision in Keck & Mithouard (Cases C-267 and 268/91 [1993] ECR 1-6097). For a similar point see Scott, J. EC Environmental Law (Harlow, Longman, 1998), 66 Google Scholar.
37 See, in particular, White, D. “In Search of the Limits to Article 30 of the EEC Treaty” 26 (1989) Common Market Law Review 235 Google Scholar; Mortelmans, K. “Article 30 of the EEC Treaty and Legislation Relating to Market Circumstances: Time to Consider a New Definition” 28 (1991) Common Market Law Review 115 Google Scholar and Steiner, J. “Drawing Lines: Uses and Abuses of Article 30 EEC” 29 (1992) Common Market Law Review 749 Google Scholar. For the inconsistent appli cation of Dassonville in the Sunday-trading cases see, e.g., Case C-332/89 Marchandise [1991] ECR 1-1027; Case C-312/89 Conforama [1991] ECR I-997; Case 145/88 Torfaen [1989] ECR 3581.
38 Above n 36, paras. 14 to 17. This case has provoked a huge amount of comment, see, e.g., Chalmers, D. “Repackaging the Internal Market-The Ramifications of the Keck Judgment” 19 (1994) European Law Review 585 Google Scholar; Gormley, L. “Reasoning Renounced? The Remarkable Judgment in Keck & Mithouarď ’, 5 (1994) European Business Law Review 63 Google Scholar; Matterà, A. “De l’ Arrêt ‘Dassonville’ à l’Arrêt ‘Keck’: L’Obscure Clarté d’une Jurisprudence Riche en Principes Novateurs et en Contradictions” 1 (1994) Revue du Marché Unique Européen 117 Google Scholar; Weatherill, S. “After Keck: Some Thoughts on How to Clarify the Clarification” 33 (1996) Common Market Law Review 885 Google Scholar. Recently, the Court has ruled (see Case C—254/98 Schutzverband gegen unlauteren Wettbewerb v. TK-Heimdienst Sass GmbH [2000] ECR 1-151, paras. 24 to 29) that formally non-discriminatory selling arrangements continue to fall within the field of application of Art. 28 of the EC Treaty when they constitute material discrimination because they affect the marketing of national and imported products in a different way.
39 See Geradin, above n 2, at 10.
40 But see Chalmers, D. “Repackaging the Internal Market—Ramifications of the Keck Judgment” 19 (1994) European Law Review 385 Google Scholar; who argues that environmental restrictions based on planning or licensing of activities are just the sort of measures the Keck case appears to exempt.
41 Cf. Art. XX b) and g) of the GATT Agreement, above n 5.
42 See, e.g., Case 7/61 Commission v. Italy [1961] ECR 317, 329. The situation might be dif ferent if there were a legitimate justification (one listed in Art. 30 or a mandatory requirement) to which the economic considerations were merely ancillary. See Case 72/83 Campus Oil [1984] ECR 2727, para. 35.
43 See Krämer, L. “Environmental Protection and Article 30 EEC Treaty” 30 (1993) Common Market Law Review 111, 118 Google Scholar, who suggests that only environmental measures which have a “direct effect” on life and health will fall within Art. 30. On environmental meas ures concerning human health, see, e.g., Case 54/85 Mirepoix (Pesticides on Fruit) [1986] ECR 1067; concerning animals and plants life and health, see, e.g., Case C-131/93 Commission v. Germany (German Crayfish) [1994] ECR 1-3303.
44 Case 120/78 Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649, at 662.
45 Subsequent case-law confirmed that mandatory requirements apply only to indistinctly applicable measures, see, e.g., Case 788/79 Gilli and Andres [1980] ECR 2071, para. 6.
46 This is in sharp contrast with the strict interpretation given by the ECJ for the exceptions under Art. 30. It is usually maintained in the doctrine that the “rule of reason” is not a new exception to Art. 28 but a restriction of its scope. See, e.g., Wyatt, D and Dashwood, A. European Community Law 3rd edn. (London, Sweet and Maxwell, 1993) 230 Google Scholar. See also Wyatt, D. and Dashwood, A. European Union Law 4th edn. by Arnull, A. et al. (London, Sweet and Maxwell, 2000)Google Scholar and Weatherill, S. and Beaumont, P. EC Law (London, Penguin, 1993) 439 Google Scholar.
47 Case 302/86 Commission v. Denmark [1988] ECR 4607; confirmed by Case C-2/90 Commission v. Belgium (Walloon Waste) [1992] ECR 1—4431, and by subsequent decisions. In Case 240/83 ADBHU [1984] ECR 531, at 549, the Court had already recognised that environ mental protection is one of the Community’s essential objectives and, therefore, implicitly admitted that it could also constitute a mandatory requirement under Art. 30.
48 See Kapteyn, P. and Verloren van Themaat, P. Introduction to the Law of the European Communities (Deventer, Kluwer, 1989) 402 Google Scholar.
49 See, e.g., Case 788/79 Gilli and Andres, above n 45, 2078.
50 See, e.g., Case 261/81 Rau [1982] ECR 3961, 3973.
51 While it is well established that racial (explicit or de jure) discrimination infringes GATT Art. Ill (See, e.g., Charnovitz, S. “Environment and Health Under WTO Dispute Settlement”, The International Lawyer 32 (1998) 901, 903Google Scholar, and the authorities cited therein), it is not clear when an implicit (origin neutral or de facto) discrimination violates that provision. On this issue see Färber, D.A. and Hudec, R.E. “GATT Legal Restraints on Domestic Environmental Regulations”, in Bhagwati, J.N. and Hudec, R.E. (eds.), Fair Trade and Harmonisation: Prerequisites for Free Trade? Vol. 2 (Cambridge, Mass, MIT Press, 1996)Google Scholar. Another important uncertainty concerns the concept of “like product” itself which, in the framework of the GATT/WTO, is not clearly defined. However, under GATT practice, two products are con sidered “like” when they are physically similar and/or they fulfil the same function for the end- user and/or the same tariff classification applies to both. Accordingly, while it is possible to discriminate among products which are physically different and fulfil different functions, it is not possible to distinguish between products which look alike, or have the same end-use, but are the result of different production process methodologies (PPMs), one of which, for instance, is environmentally sound while the other is not. See, e.g., Esty D. above n 4, 49-51; and Charnovitz, S. “Environmental Harmonization and Trade Policy”, in Zaelke, D. et al. (eds.), Trade and Environment, Law, Economics and Policy (Island Press, 1993) 280.Google Scholar
52 A few differences between the EC provisions on free movement of goods and the corres ponding provisions in the GATT/WTO merit emphasis. While the EC Treaty is endowed with three sets of provisions addressing the prohibition of customs duties and charges having equivalent effect (Arts. 23 and 25); the prohibition of discriminatory taxation (Arts. 90-92) and the prohibition of quotas and measures of equivalent effect (Arts. 28-30), such a clear distinc tion is not to be found in the GATT/WTO. Firstly, since the GATT/WTO is not, like the EC, a custom union and not even a free trade area but “just” a trade agreement, customs duties are not to be abolished but only progressively reduced through the subsequent negotiation rounds in a way which is asymmetrical because it varies according to the tariff concessions between the different countries. Secondly, the GATT/WTO focuses more on the general principles of MFN and NT rather than on the nature of the measures at issue. Therefore, GATT Art. I, which embodies the MFN principle, refers to custom duties and charges of any kind but also to all rules and formalities in connection with imports or exports. Similarly, GATT Art. Ill, in which the NT principle is enshrined, refers, already in its title, to both internal taxation and regula tion applicable to imported or domestic products. It appears therefore that quantitative restric tions are already prohibited under GATT Arts. 1 and III together with, respectively, discriminatory custom duties and internal taxation. However, the GATT does have specific provisions which prohibit quantitative restrictions in Art. XI. Moreover, Art. XIII also con tains a general requirement that quantitative restrictions be applied in a non-discriminatory way. The distinction between Art. XI and Art. Ill is not always an easy one. So far, the first one has been used mostly for measures applied specifically to imports at the frontier while the latter has focused on internal regulations. See Wiers, J. “Regional and Global Approaches to Trade and Environment: The EC and the WTO” 1 (1998) Legal Issues of European Integration 93, 100 Google Scholar.
53 See Charnovitz, S. “Exploring the Environmental Exceptions in GATT Article XX” 5 (1991) Journal of World Trade 37 Google Scholar. Also GATT Art. XX (a) (public morality exception) can be relevant in order to justify environmental measures, especially those concerned with animal welfare issues. See, e.g., in the Tuna/Dolphin I case, (United States-Restrictions on Imports of Tuna, not adopted, DS21/R (3 September 1991), 30 ILM (1991); and BISD/39S/155, para. 4.4) the submissions by Australia on this issue. It is interesting to note here that Art. XXI of GATT provides for another important exception to the free movement of goods on the basis of essen tial security interests. This exception could become relevant in the environmental area, e.g. in relation to problems of water scarcity or climate change which could be considered as “envir onmental security” issues. See Westin, R.A. Environmental Tax Initiatives and Multilateral Trade Agreements: Dangerous Collisions (The Hague, Kluwer, 1997) 181 Google Scholar.
54 Thus, a multilateral or unilateral environmental measure which entails a quantitative restriction is likely to infringe GATT Arts. I and/or HI and/or XI but stands a chance of being justified under Art. XX (b) or (g). A multilateral or unilateral environmental measure entail ing some form of discriminatory taxation is likely to be in violation of GATT Art. Ill but could also be justified under Art. XX (b) or (g). It needs to be underlined that, in the GATT/WTO context, there is no equivalent to the judge-made justification of “mandatory requirements” created by the ECJ in order to enlarge the number of possible justifications under Art. 30 of the EC Treaty.
55 After the Uruguay Round, the WTO, similarly to the EC, disposes of a legal framework for product and process standards: this is constituted by the SPS agreement (above n 27) and by the TBT agreement (Technical Barriers to Trade Agreement, reproduced in The Results of the Uruguay Round of Multilateral Trade Negotiations —The Legal Texts (GATT Secretariat, 1994), 138. However, these agreements do not harmonise international standards but rather refer to the existing and generally accepted ones as parameters against which to evaluate the legitimacy of national standards. Moreover, the WTO does not contain a legal basis for harmonisation of national environmental legislation which falls outside its competencies. See further in the following paragraph.
56 Several examples can be found in the case-law of the ECJ. One of the most famous is probably the Danish Bottles case (Case 302/86 [1988] ECR 4607), where the Court ques tioned the level of environmental protection chosen by Denmark in its waste policy (paras. 20 and ff.) More recent examples include Compassion in the World Farming (Case C-l/96 [1988] ECR 1-1251), where, in relation to animal welfare issues, the Court tried to limit the discretionality of the national legislator to autonomously determine its public policy (para. 67); and Dusseldorp (Case C-203/96 [1998] ECR 1-4075) in which the ECJ, although implic itly, questioned again the legitimacy of the national environmental objective related to waste protection (paras. 46 to 48). For a complete treatment of these issues see Notaro, N. “The New Generation Case-law on Trade and Environment” 5 (2000) European Law Review 467.Google Scholar
57 See, respectively, the Appellate Body in United States-Standards for Reformulated and Conventional Gasoline, Report of the Panel, WTO docs. WT/DS2/R (17 January 1996); Report of the Appellate Body, WTO docs. WT/DS2/AB/R (29 April 1996), para III B; and in United States-Import Prohibition of Certain Shrimps and Shrimp Products, adopted on 6 November 1998, Report of the Panel, WTO docs. WT/DS58/R (15 May 1998); Report of the Appellate Body, WTO docs. WT/DS58/AB/R (12 October 1998), para. VI B 2.1-2.8.
58 See the Appellate Body in the Gasoline case, ibid, para. IV.
59 See the Appellate Body in the Shrimp/Turtle case, above n 57, para. VI C 2.24-2.40; and the Panel in the Asbestos case, above n 16, paras. 8.226 to 8.239.
60 See Thailand-Restrictions on the Importation of and Internal Taxes on Cigarettes, adopted on 7 November 1990, BISD/37/S/200, paras. 74 to 81; United States-Restrictions on Imports of Tuna (Tuna/Dolphin I), not adopted, BISD 39S/155, para. 5.28; and United States- Restrictions of the Imports of Tuna (Tuna/Dolphin I), not adopted, GATT doc. DS29/R (16 June 1994), para. 5.35.
61 For a more extensive analysis of this issue see Notaro, above n 56, 484-487. Contra see Cameron and Campbell, above n 15,223; who argue instead in favour of a proportionality test as adopted by the ECJ.
62 See Notaro, above n 56, at 489-91.
63 Ibid.
64 See, e.g., Tuna/Dolphin I, above n 53, paras. 5.13 to 5.15; and Tuna/Dolphin 11, United States-Restrictions of the Imports of Tuna, not adopted, DS29/R of 16 June 1994; and ILM (1994) 842, paras. 5.8 and 5.9.
65 See the Asbestos decision, above n 16, paras. 8.129 to 8.132. For a different, but isolated, interpretation of the concept of likeness see United States-Taxes on Automobiles (CAFE), not adopted, GATT doc. DS31/R, paras. 5.7 to 5.10, where the so-called “aim and effect test” was applied.
66 See the panel in the Shrimp/Turtle case, above n 24, paras. 7.11 to 7.17, and the Asbestos case, above n 16, paras. 8.88 to 8.100.
67 See Notaro, above n 56 at 487; and the relevant cases analysed therein such as Case C-5/94 Hedley Lomas [1996] ECR 1-2553; Case C-1/96 Compassion in World Farming [1998] ECR 1-1251; Case C-203/96 Dusseldorp [1998] ECR 1-4075; and Case C-209/98 Copenhagen Waste [2000] ECR 1-3743.
68 See the Tuna Dolphin U case, above n 64, paras. 5.15 to 5.17, where the extra-territorial application of Art. XX (g) of the GATT was admitted; and the Appellate Body in Shrimp/Turtle case, above n 24, para. VI B 1.8, where the presence of a link with national ter ritorial jurisdiction was stressed.
69 See Notaro, above n 56, 487-488. See also Charnovitz, S. “GATT and the Environment: Examining the Issues”, 4 (1992) International Environmental Affairs 203, at 208-209Google Scholar; who was among the first authors who highlighted the difference between “extra-territoriality” and “extra-jurisdictionality” in the GATT context.
70 Above n 27.
71 Cf., e.g., the Hormones case, above n 22, paras. 193 to 198, where the Appellate Body ruled that national measures must be “reasonably supported” by a risk assessment under Art. 5.1 of the SPS Agreement when they are not based on international standards. This was con firmed by the Appellate Body’s decision in Japan-Measures Affecting Agricultural Products (Japan Varietals), adopted on 19 March 1999; Report of the Appellate Body WTO docs. WT/DS76/AB/R (22 February 1999), paras. 82 to 84. The definitions of risk assessment given in Annex A, para. 4, to the SPS Agreement are very strict and not easily fulfilled. See on this the Appellate Body’s decision in Australia-Measures Affecting Importation of Salmon (Australia Salmon), adopted on 6 November 1998, Report of the Appellate Body WTO docs. WT/DS18/AB/R (20 October 1998), paras. 126 to 138.
72 See, e.g., the GATT Ministerial Decision on Trade and Environment, adopted in April 1994 (MTN.TNC/45, MIN, 6 May 1994) which called for the establishment of the Committee on Trade and Environment (CTE) whose mandate includes the relationship between the WTO and MEAs.
73 Respectively Art. 2 of the EC Treaty and Art. 2 of the EU Treaty, above n 6.
74 Cf. Arts. 174-176 of the EC Treaty, above n 6.
75 Pardo Quintillán, S. “Free Trade, Public Health Protection and Consumer Information in the European and WTO Context—Hormone-treated Beef and Genetically Modified Organisms” 33 (1999) Journal of World Trade (1999) 147, 188Google Scholar; has pointed out that accord ing to Art. 3.2 of the WTO Dispute Settlement Understanding (above n 15)
“the dispute settlement system of the WTO . . . serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements .... Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”
This very cautious language can be contrasted with Art. 220 of the EC Treaty which gives more leeway to the ECJ by entrusting it with the task to “ensure that in the interpretation and application of this Treaty the law is observed”.
76 Above n 5.
77 See, inter alia, Petersmann, E.U. The GATT/WTO Dispute Settlement System (The Hague, Kluwer, 1997)Google Scholar, in particular ch. 5, 176.
78 Cf. Art. 8.4 of the DSU, containing the possibility for Members to periodically suggest names to be added to the roster kept by the WTO Secretariat.
79 See Art. 8.1 of the DSU.
80 Cf. Art. 12 of the DSU.
81 The most flagrant examples are probably the panels decisions in the Hormones and in the Shrimp/Turtle cases, above, respectively nn 22 and 24.
82 See Art. 16 of the DSU.
83 See Art. 22 of the DSU. See, on this issue, J. Jackson H. “The WTO Dispute Settlement Understanding—Misunderstandings on the Nature of Legal Obligation”, in Cameron and Campbell, above n 15 at 70; who rightly argues that the “compensation” approach is only a fallback in the event of non-compliance and not a choice for the State which has been found to be in violation of WTO rules.
84 Mann, S.S. “The WTO Appellate Body-Walking a Tightrope through the Trade and Environment Debate”, (College of Europe Bruges Library, Master Paper, 1999)Google Scholar.
85 Mancini, F. “The Making of a Constitution for Europe” 26 (1989) Common Market Law Review 539, 595 Google Scholar.
86 Mann, above n 84 at 52.
87 Above n 15 at 227-228.
88 Ibid at 228.
89 Ibid at 229. Along the same line, the EC in its “Discussion Paper from the EC. Subject: Review of the DSU” (Brussels, 21 October 1998), on file with the author; proposed to estab lish a permanent pool of panellists composed of part-time diplomats or economic or legal experts, assisted by the Legal Service of the WTO Secretariat.
90 See Sands, P. Principles of International Environmental Law (Manchester, MUP, 1995) 171 Google Scholar.
91 Recently, the International Court of Justice has taken an important decision on a trans- boundary environmental dispute in the Case Concerning the Gabcikovo-Nagymoros Project (Hungary-Slovakia), 25 September 1997; related to the construction of some dams on the Danube river. Trade and environment issues were not directly involved in the case. See further on http://www.icj-cij.org/
92 See Arden Clarke C. et al., “Dispute Settlement in the WTO-A Crisis for Sustainable Development”, available on the WWF website http://www.panda.org/resources/publications/sustainability/wto-98/refer.htm/
93 See Esty, D. Greening the GATT: Trade, Environment and the Future, (Institute for International Economics, 1994) 88–98 Google Scholar; who argued strongly in favour of the creation of a GEO. See also Jones, K. “Trade Policy and the Environment: The Search for an Institutional Framework”, Außenwirtschaft 3 (1998) 409 Google Scholar. Recently, the European Council took a clear position in favour of a GEO. See conclusions of the Nice Summit, 11 December 2000, avail able on http://www.europa.eu.int
94 For a similar proposal see Weiler J. “The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement”, Harvard Jean Monnet Working Papers 9/2000, http://www.jeanmonnetprogram.org/papers/00/000901.html, 11.
95 See Arts. 4 and 5 of the DSU, above n 15. On the value of mediation for trade and envi ronment dispute resolution see Cameron J. and White T. “Dispute Mediation in APEC: Bridging the Legal and Cultural Gaps”, available on http://www.gets.org/gets/library/
96 See Nogueira, G. “The First WTO Appellate Body Review” 5 (1996) Journal of World Trade 18 Google Scholar. But see also Bronckers, M.C.E.J. “Better Rules for a New Millennium: A Warning Against Undemocratic Developments in the WTO” 4 (1999) Journal of International Economic Law 547 CrossRefGoogle Scholar, who warned against the temptation of entrusting the judiciary in the WTO with tasks that are the competence of political negotiators.
97 See Cappelletti, M. and Golay, D. “The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration”, in Cappelletti, M., Seccombe, M. and J., Weiler (eds.), Integration Through Law, Vol. 1, Book 2 (Berlin, Walter de Gruyter, 1986) 261, 350CrossRefGoogle Scholar.
98 On the influence of the ECJ in the development of Community law see, e.g., Rasmussen, H. On Law and Policy in the European Court of justice (Dordrecht, Kluwer, 1986)Google Scholar; Cappelletti, M. “Is the European Court of Justice ‘Running Wild’?” 12 (1987) European Law Review 3 Google Scholar; Weiler, J. “Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of European Political Integration, 31 (1993) Journal of Common Market Studies 417 CrossRefGoogle Scholar.
99 Post scriptum: while this article was under press, the Appellate Body of the WTO issued its decision in the French Asbestos case (European Communities-Measures Affecting Asbestos and Asbestos-Contaning Products, WTO docs. WT/DS135/AB/R (12 March 2001)). This innovative decision, goes somewhat in the direction suggested in this paper, in particular in relation to the interpretation of the notion of likeness/discrimination.