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Russia and the World Communitys Respond to a Challenge of Instability of Economic and Legal Systems Materials of the International Scientific-practical Conference ...

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See e.g. Case 16/83, Prantl [1984] ECR 1299, para. 20; Joined Cases 177-178/82, van der Haar [1984] ECR 1797; and Case C-9/02, Salliant [2004] ECR I-2409, para. 43.

position of market actors are reviewed. 131 The Court has dismissed to use this approach so far. There have been cases where the Court has accepted that the effect on trade is too remote or indirect to impede free movement. 132 However these cases do not give any clear criteria for when an effect is too remote or indirect, so the case law needs to be refined if it is to have the function of effectively defining what non-discriminatory restrictions are subject to review.

In the WTO the concept of impact on trade has played a quite different role, as it is only one of several conditions which national measures have to fulfil in order to be subject to review. The SPS Agreement only applies to sanitary and phytosanitary measures which directly or indirectly affect trade; see Article 1.1.

There is no similar requirement in the TBT Agreement. However it has been suggested that a contextual reading of the Agreement could indicate that only technical regulations that affect trade are covered by the TBT Agreement. It seems that a criterion focusing on impact on trade has the potential to cover too broad a range of national measures and therefore it seems necessary to qualify it to ensure that not all rules that potentially affect trade have to be reviewed. So far the EU has not succeeded in finding a formula which allows the broad criterion to be focused on those measures which have a more substantial effect on trade. It may be simpler to combine the criterion with other types of criteria. This has been the approach taken in the WTO and, as will be illustrated below, also the approach taken in recent years in the EU.

3.2. Mutual recognition Mutual recognition means that goods and services lawfully sold in one jurisdiction can be sold lawfully in another jurisdiction. This principle has often been used as a way of liberalising trade. 134 It was used in the Cassis de Dijon case to ensure that goods lawfully produced according to the technical regulations in one Member State can be marketed in other Member States. In the EU mutual recognition has been expanded to apply to other areas, such as the mutual recognition of authorisations for services providers, professional qualifications, drivers licences etc. 135 It also plays a role in company law where a Member State has to recognise companies formed in other Member States, even if a See G. Davies, Understanding Market Access: Exploring the Economic Rational of Different Conceptions of Free Movement Law, German Law Journal, 11 (2010), 671-703.

See e.g. Joined Cases C-418/93 and others, Semeraro Casa Uno [1996] ECR I-2975, para. 32; Case CViacom [2005] ECR I-1167, para. 38; Case C-134/94, Esso Espaola [1995] ECR I-4223, para. 34; Case C-379/92, Peralta [1994] ECR I-3453, para. 24; Case C-266/96, Corsica Ferries [1998] ECR I-3949, para. 31;

and Joined Cases C-140-142/94, DIP SpA [1995] ECR I-3257.

See Ortino, Basic Legal Instruments, pp. 440-441. On the other hand there is no indication that market access according to GATS Article XVI requires it to be shown that trade is affected.

See Nicolaidis and Shaffer, Transnational mutual recognition regimes, 263-317; and Trachtmann, Embedding mutual recognition, 780-799.

For authorisation for services providers, see Joined Cases 110-111/78, Van Wesemael [1979] ECR 35 and Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the Services Directive); on professional qualifications, see Case C-340/89, Vlassopoulou [1991] ECR I-2357 and Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications; and on drivers licences, see Council Directive 91/439/EEC of 29 July 1991 on driving licences.

company has all or part of its business activities in the first Member State. However the principle has its limits, as it can only operate in areas where the fact that the good, service etc. complies with the regulation in the State of origin can be recognised as a substitute for the regulation in the State of destination. The best example of mutual recognition in the WTO is probably Article 4. of the SPS Agreement, which requires Members to accept the SPS measures of other Members as equivalent, if it is demonstrated that they achieve the importing Members appropriate level of protection. Above in section 3.2 it is mentioned that panel reports on PPMs can also be said to be based on the principle of mutual recognition, if this principle is very broadly understood, since the consequence of the reports is that Members have to accept the PPMs of the exporting Member and should not try to impose their own PPMs in addition to these. 137 Mutual recognition is also pointed to as a possible remedy for overcoming other trade barriers in several WTO Agreements. For instance, in the TBT Agreement Article 2.7, Members are encouraged to give positive consideration to accepting as equivalent the technical regulations of other Members, provided that their regulation adequately fulfils the objectives of their own regulation.

There is similar encouragement to enter mutual recognition agreements on conformity assessment procedures in the TBT Agreement Article 6 and GATS Article VII, which encourage mutual recognition agreements covering the criteria for the authorisation, licensing or certification of service suppliers.

The difficult question is, of course, the conditions upon which the mutual recognition takes place. The Cassis de Dijon case created a presumption of mutual recognition, but the Member States were allowed to enforce their own rules if necessary in order to satisfy mandatory requirements. If the regulations applicable in the exporting Member State fulfil the same function or aim, then the importing Member State may have to recognise them as equivalent. 138 The principles of mutual recognition in the SPS Agreement Article 4.1 and the TBT Agreement Article 2.7 are also based on a principle of equivalence. To the extent that mutual recognition is conditional on equivalence, it can be argued that it may not move beyond discrimination. 139 If, on the other hand, mutual recognition is unconditional or is conditional on other criteria, it may very well lead to the removal of non-discriminatory restrictions to trade. While mutual recognition is normally conditional in the WTO, it will often be unconditional in the EU. This is often due to the fact that minimum requirements have been harmonised, thus paving the way for unconditional mutual recognition.

Different examples of areas where the method has been used are given by Nicolaidis and Shaffer, Transnational mutual recognition regimes, 280-281.

Nicolaidis and Shaffer, Transnational mutual recognition regimes, 269 and 271-272.

This last aspect has been termed functional equivalence; see J. H. H. Weiler, Mutual recognition, functional equivalence and harmonization in evolution of the European common market and the WTO in F. K. P. Schioppa (ed.), The Principle of Mutual Recognition in the European Integration Process (Palgrave Macmillan, 2005), pp.

25-84, at p. 45.

See the references in note 13 and Nicolaidis and Shaffer, Transnational mutual recognition regimes, 271.

3.3. Selecting certain types of national measures for review An alternative approach is to try to find a way to categorise national measures and only subject selected measures to review. This approach has been used in the WTO from the beginning, probably because it has the advantage of making it possible to approach trade liberalisation in a step-by-step approach. As outlined above, the TBT and SPS agreements are examples of how review of non-discriminatory rules was introduced for selected national measures. This step-by-step approach has also been used in GATS. Thus only those kinds of services where the Members accept commitments are subjected to a regime that goes beyond discrimination. Also, GATS Article XVI prohibits an explicit list of non-discriminatory restrictions to market access, such as certain types of national measures (limitation of numbers, volume etc.). Finally the disciplines provided for in Article VI:4 will also approach sectors one at the time.

The reports on PPMs mentioned in section 3.2.1 above also indicate that PPMs that do not affect the products as such could infringe Article XI even though they are not discriminatory.

In the EU, a broader approach was used initially, which did not distinguish between different kinds of rules. However, with Keck the intention was to limit the review of non-discriminatory restrictions to product requirements. This would cover technical regulations as well as other rules forcing importers to change parts of the products, for instance the packaging. Thus the approach taken by the Court in Keck brings EU law much closer to WTO law. Many product requirements will be covered by the TBT Agreement and partly the SPS Agreement. In the EU there have been surprisingly few cases involving PPMs, but it seems that these are regarded as product requirements, since banning a product from a market because of the way it has been produced effectively requires the product to be changed. 140 Thus, PPMs are subject to review in the EU, even if they are non-discriminatory, just as may be the case in the WTO.

The approach taken by the Court in Keck has been criticised. It has been pointed out that putting national measures into these categories will not necessary ensure that the most severe barriers to trade are removed. These barriers can often be found outside the product requirements category and the judgment in Keck therefore makes it difficult for the Court to handle these restrictions. Any categorisation of rules is likely to attract this form of criticism, as it will always be possible to point to certain measures not in the category reviewed that will have just as adverse effects on trade as those within the category. 142 This will tempt an expansive interpretation of the measures belonging to the categoSee Joined Cases C-158/04 and C-159/04, Alfa Vita Vassilopoulos [2006] ECR I-8135.

This criticism was first raise by Advocate General Tesauro in his Opinion in Case C-292/92, Hnermund [1993] ECR I-6787; and by Advocate General Jacobs in his Opinion in Case C-412/93, Leclerc-Siplec [1995] ECR I-179.

E.g. the logic of treating imports and exports differently (Article 34 v 35), and treating internal tax measures differently from non-tax measures (Article 110 v 34) can also be questioned; see Weiler, The EU, The WTO and the NAFTA, p. 216.

ries of rules reviewed. This has happened in the EU. 143 In the WTO it seems that there is a greater reluctance to use such expansive interpretation. Another point of criticism has been that the two categories invented by the Court in Keck hardly cover all the different kinds of national measures. Therefore much time has been spent deliberating how to fit other rules into the categories. This problem would not exist if, like the WTO, the EU focused on defining the non-discriminatory restrictions that are subjected to review. The Court could have done this if it had ruled that the review of non-discriminatory measures only applies to product requirements and not mentioned selling arrangements at all.

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