Do different treaty purposes matter for treaty interpretation?: The elimination of discriminatory internal taxes in EC and WTO law

Journal of International Economic Law

Volumn 4, Issue 3, 2001, Pages 557-579

  Slotboom, Marco M ^a  

^a NONE   (Belgium)

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EID: 0345878185     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/4.3.557     Document Type: Article

References (136)

1. See for an earlier comparison between panel reports in respect of Article III:2 GATT under the old GATT and case law of the ECJ in respect of Article 90 EC, P. J. Kuijper, 'Booze and Fast Cars: Tax Discrimination under GATT and the EC', LIEI (1996/1), 129-44. It appears from, inter alia, that article, that the case law of neither the GATT panels nor the ECJ on fiscal discrimination has always been an example of consistency. Notwithstanding inconsistencies, general tendencies in respect of fiscal discrimination in the case law of GATT panels, and respectively the ECJ, can be and have been identified.
2. See 'Document Ministres des Affaires Etrangeres' 728/56 of the 'Traveaux Preparatoires' of the EC Treaty. This document expressly states that on 6 December 1956 the so-called 'Groupe d'experts des problemes douanieres', which discussed and prepared the customs rules of the EC Treaty, considered it necessary to include in the Treaty a provision on internal taxes inspired by Article III:1 and 2 of the GATT (see S. Neri and H. Sperl, Traite instituant la Communaute Economique Europeenne: Travaux Preparatoires; Declarations interpretatives des six Gouvernements; Documents parlementaires, 1960, at 236).
3. See for a discussion of reports of GATT and WTO panels and the WTO Appellate Body on Article III:2 GATT 1994, E. McGovern, International Trade Regulation, at § 8.22.
4. See for a discussion of Article 90 EC, P. G. G. Kapteyn-VerLoren van Themaat, Introduction to the Law of the European Communities., 1998, 600-10.
5. See, inter alia, cases C-228/90 to C-234/90, C-339/90 and C-353/90, Simba [1992] ECR I-3713, at § 14.
6. The ECJ came to the same conclusion in respect of provisions prohibiting tax discrimination in free trade agreements between the EC and non-EC Member States (see case 104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, at §§ 29 and 30, case C-312/91, Metalsa [1993] ECR I-3751, at § 15, and cases C-114 and 115/95, Texaco [1997] I-4263, at § 28). In case 17/81, Pabst & Richarz [1982] ECR 1331, at § 26, the ECJ decided, however, that Article 53, first paragraph, of the association agreement between the EC and Greece had the same content as Article 90 EC, since the object and purpose of that agreement were to prepare Greece for EC Membership.
7. The ECJ came to the same conclusion in respect of provisions prohibiting tax discrimination in free trade agreements between the EC and non-EC Member States (see case 104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, at §§ 29 and 30, case C-312/91, Metalsa [1993] ECR I-3751, at § 15, and cases C-114 and 115/95, Texaco [1997] I-4263, at § 28). In case 17/81, Pabst & Richarz [1982] ECR 1331, at § 26, the ECJ decided, however, that Article 53, first paragraph, of the association agreement between the EC and Greece had the same content as Article 90 EC, since the object and purpose of that agreement were to prepare Greece for EC Membership.
8. The ECJ came to the same conclusion in respect of provisions prohibiting tax discrimination in free trade agreements between the EC and non-EC Member States (see case 104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, at §§ 29 and 30, case C-312/91, Metalsa [1993] ECR I-3751, at § 15, and cases C-114 and 115/95, Texaco [1997] I-4263, at § 28). In case 17/81, Pabst & Richarz [1982] ECR 1331, at § 26, the ECJ decided, however, that Article 53, first paragraph, of the association agreement between the EC and Greece had the same content as Article 90 EC, since the object and purpose of that agreement were to prepare Greece for EC Membership.
9. See the opinion of Advocate General Van Gerven in case 70/87, Fediol v Commission [1989] ECR 1781, at § 23. In his opinion in case C-469/93, Chiquita [1995] ECR I-4533, § 12, Advocate General Lenz observed that (the second sentence of Article III:2 GATT in combination with) Article III:1 GATT could be relevant in a case where a tax of an EC Member State was applied to trade with non-EC Member States, because the ECJ had already decided in an earlier case that the tax at issue was caught by the second paragraph of Article 90 EC as far as trade between EC Member States was concerned.
10. See the report of the WTO panel on Korea - Taxes on Alcoholic Beverages, WT/DS75, WT/DS84, 1999 (Korean Beverages), at § 10.81.
11. See cases 2 and 3/69, Sociaal Fonds Diamantarbeiders [1969] ECR 211, at § 7.
12. See, inter alia, case 47/88, Commission v Denmark [1990] ECR I-4509, at § 9, cases C-367-377/93, Roders [1995] ECR I-2229, at § 15 and case C-312/91, Metalsa, above n 6, at § 15.
13. See, inter alia, case 47/88, Commission v Denmark [1990] ECR I-4509, at § 9, cases C-367-377/93, Roders [1995] ECR I-2229, at § 15 and case C-312/91, Metalsa, above n 6, at § 15.
14. See, inter alia, Japan - Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, BISD 34S/83, 1987 (Japanese Beverages I), at § 5.5.
15. See the third recital of the GATT.
16. See the WTO panel report on Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WTO/DS10/ AB/R, WT/DS11/AB/R, 1996 (Japanese Beverages II), at § 6.13.
17. See the report of the WTO Appellate Body on Japanese Beverages II, at Section F. See also the report of the WTO Appellate Body on Korean Beverages, at § 125.
18. See the report of the WTO Appellate Body on Japanese Beverages II, at Section F. See also the report of the WTO Appellate Body on Korean Beverages, at § 125.
19. See, inter alia, case 193/85, Co-Frutta [1987] ECR 2085, at § 29.
20. See also J. H. Jackson, The World Trading System (Cambridge, MA: MIT Press 1997) (2nd edition), at 167, explaining that a WTO Member cannot claim the benefits from GATT for shipment of goods to another WTO Member, when the goods have been imported to the former country but originate in a country that is not a WTO Member.
21. See in respect of Article III:2 GATT, inter alia, the adopted GATT panel report on Belgium - Family Allowances, BISD 1S/59 (1953), at § 2 and the unadopted GATT panel report on Canada - Measures Affecting the Sale of Gold Coins, L/5863 (1985), at § 50. See in respect of Article 90 EC, inter alia, case 57/65, Lütticke v Hauptzollamt Saarlouis [1966] ECR 205, at 211 and case 77/76, Fratelli Gucchi v Avez SpA [1977] ECR 987, at § 14.
22. See in respect of Article III:2 GATT, inter alia, the adopted GATT panel report on Belgium - Family Allowances, BISD 1S/59 (1953), at § 2 and the unadopted GATT panel report on Canada - Measures Affecting the Sale of Gold Coins, L/5863 (1985), at § 50. See in respect of Article 90 EC, inter alia, case 57/65, Lütticke v Hauptzollamt Saarlouis [1966] ECR 205, at 211 and case 77/76, Fratelli Gucchi v Avez SpA [1977] ECR 987, at § 14.
23. See in respect of Article III:2 GATT, inter alia, the adopted GATT panel report on Belgium - Family Allowances, BISD 1S/59 (1953), at § 2 and the unadopted GATT panel report on Canada - Measures Affecting the Sale of Gold Coins, L/5863 (1985), at § 50. See in respect of Article 90 EC, inter alia, case 57/65, Lütticke v Hauptzollamt Saarlouis [1966] ECR 205, at 211 and case 77/76, Fratelli Gucchi v Avez SpA [1977] ECR 987, at § 14.
24. See C-72/92, Scharbatke [1993] ECR I-5509, at § 10. See also case 77/76, Fratelli Gucchi v Avez SpA, above n 17, at 1005-06, case C-17/91, Lornoy [1992] ECR 1-6523, case C-266/91 Cellulose Beira Industrial [1993] ECR I-4337, case C-28/96, Fricarnes [1997] ECR I-4939, case C-347/95, UCAL [1997] ECR I-4911.
25. See C-72/92, Scharbatke [1993] ECR I-5509, at § 10. See also case 77/76, Fratelli Gucchi v Avez SpA, above n 17, at 1005-06, case C-17/91, Lornoy [1992] ECR 1-6523, case C-266/91 Cellulose Beira Industrial [1993] ECR I-4337, case C-28/96, Fricarnes [1997] ECR I-4939, case C-347/95, UCAL [1997] ECR I-4911.
26. See C-72/92, Scharbatke [1993] ECR I-5509, at § 10. See also case 77/76, Fratelli Gucchi v Avez SpA, above n 17, at 1005-06, case C-17/91, Lornoy [1992] ECR 1-6523, case C-266/91 Cellulose Beira Industrial [1993] ECR I-4337, case C-28/96, Fricarnes [1997] ECR I-4939, case C-347/95, UCAL [1997] ECR I-4911.
27. See C-72/92, Scharbatke [1993] ECR I-5509, at § 10. See also case 77/76, Fratelli Gucchi v Avez SpA, above n 17, at 1005-06, case C-17/91, Lornoy [1992] ECR 1-6523, case C-266/91 Cellulose Beira Industrial [1993] ECR I-4337, case C-28/96, Fricarnes [1997] ECR I-4939, case C-347/95, UCAL [1997] ECR I-4911.
28. See, inter alia, C-17/91, Lornoy, n 18, at § 28.
29. See for the application of Article III:8(b) GATT, inter alia, the GATT panel report on EEC -Payment and Subsidies paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, L/6627, 1990, 378/86, 124, the GATT panel report on United States - Alcoholic and Malt Beverages, DS 23/R, 39S/206, 1992 (Malt Beverages), the GATT panel report on United States Measures Affecting the Importation; Internal Sale and Use of Tobacco, DS 44/R, 1994 (American Tobacco), DS 44/R, 1994, and the WTO panel report on Indonesia - Certain Measures affecting the Automobile Industry, WT/DS 54/R, WT/DS 55/R, WT/DS 59/R, WT/DS 64/R, 1998 (Indonesian Automobiles).
30. See for the application of Article III:8(b) GATT, inter alia, the GATT panel report on EEC - Payment and Subsidies paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, L/6627, 1990, 378/86, 124, the GATT panel report on United States - Alcoholic and Malt Beverages, DS 23/R, 39S/206, 1992 (Malt Beverages), the GATT panel report on United States Measures Affecting the Importation; Internal Sale and Use of Tobacco, DS 44/R, 1994 (American Tobacco), DS 44/R, 1994, and the WTO panel report on Indonesia - Certain Measures affecting the Automobile Industry, WT/DS 54/R, WT/DS 55/R, WT/DS 59/R, WT/DS 64/R, 1998 (Indonesian Automobiles).
31. See for the application of Article III:8(b) GATT, inter alia, the GATT panel report on EEC - Payment and Subsidies paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, L/6627, 1990, 378/86, 124, the GATT panel report on United States - Alcoholic and Malt Beverages, DS 23/R, 39S/206, 1992 (Malt Beverages), the GATT panel report on United States Measures Affecting the Importation; Internal Sale and Use of Tobacco, DS 44/R, 1994 (American Tobacco), DS 44/R, 1994, and the WTO panel report on Indonesia - Certain Measures affecting the Automobile Industry, WT/DS 54/R, WT/DS 55/R, WT/DS 59/R, WT/DS 64/R, 1998 (Indonesian Automobiles).
32. See for the application of Article III:8(b) GATT, inter alia, the GATT panel report on EEC - Payment and Subsidies paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, L/6627, 1990, 378/86, 124, the GATT panel report on United States - Alcoholic and Malt Beverages, DS 23/R, 39S/206, 1992 (Malt Beverages), the GATT panel report on United States Measures Affecting the Importation; Internal Sale and Use of Tobacco, DS 44/R, 1994 (American Tobacco), DS 44/R, 1994, and the WTO panel report on Indonesia - Certain Measures affecting the Automobile Industry, WT/DS 54/R, WT/DS 55/R, WT/DS 59/R, WT/DS 64/R, 1998 (Indonesian Automobiles).
33. See for the purpose of Article III:8(b) GATT, WTO panel report on Indonesian Automobiles, at § 14.43.
34. It is not always easy to say whether a particular subsidy is granted exclusively to domestic producers (see E. McGovern, above n 3, at § 8.25). A GATT panel found in 1958 that an Italian subsidy to farmers buying Italian-made agricultural machinery was for the benefit of the purchasers and not the producers of the machinery. It was therefore not protected by Article III:8(b) GATT (see report of GATT panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 75/60 (1959)). In Indonesian Automobiles, at § 14.119, a WTO panel said that it can be reasonably assumed that a payment which is not made directly to producers is not made exclusively to them.
35. It is not always easy to say whether a particular subsidy is granted exclusively to domestic producers (see E. McGovern, above n 3, at § 8.25). A GATT panel found in 1958 that an Italian subsidy to farmers buying Italian-made agricultural machinery was for the benefit of the purchasers and not the producers of the machinery. It was therefore not protected by Article III:8(b) GATT (see report of GATT panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 75/60 (1959)). In Indonesian Automobiles, at § 14.119, a WTO panel said that it can be reasonably assumed that a payment which is not made directly to producers is not made exclusively to them.
36. It is not always easy to say whether a particular subsidy is granted exclusively to domestic producers (see E. McGovern, above n 3, at § 8.25). A GATT panel found in 1958 that an Italian subsidy to farmers buying Italian-made agricultural machinery was for the benefit of the purchasers and not the producers of the machinery. It was therefore not protected by Article III:8(b) GATT (see report of GATT panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 75/60 (1959)). In Indonesian Automobiles, at § 14.119, a WTO panel said that it can be reasonably assumed that a payment which is not made directly to producers is not made exclusively to them.
37. Article VIII: 1(a) GATT provides: 'All fees and charges of whatever character (other than imports and export duties and other taxes within the purview of Article III) imposed by contracting parties on or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and shall not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes'.
38. See also E. McGovern, above n 3, at § 8.25.
39. This ordinary meaning of Article III:2 GATT is confirmed by the discussions in Sub-Committee A of the Third Committee at the Havana Conference, E/CONF.2/C.3/A/W/32, at 1-2, statement repeated in the Havana Reports, 63, at § 44.
40. See, inter alia, case 252/86, Bergandi [1988] ECR 1343.
41. See P. G. G. Kapteyn-VerLoren van Themaat, above n 4, at 603.
42. See, inter alia, the GATT panel report on US - Taxes on Petroleum and Certain Imported Substances, BISD 34S/136, 154, 1987, (Superfund) at § 5.1.1.
43. See, inter alia, the GATT panel report on US - Taxes on Petroleum and Certain Imported Substances, BISD 34S/136, 154, 1987, (Superfund) at § 5.1.1.
44. See cases 127/75, Bobie [1976] ECR 1079, at § 10 and 42/83, Denkavit [1984] ECR 2649, at §§ 29 and 30. In case 299/86, Drexl [1998] ECR 1213, at § 24, the ECJ found that the imposition of manifestly disproportionate penalties on offences committed on importations compared to penalties on similar offences committed on domestic transactions could infringe Article 90 EC.
45. See cases 127/75, Bobie [1976] ECR 1079, at § 10 and 42/83, Denkavit [1984] ECR 2649, at §§ 29 and 30. In case 299/86, Drexl [1998] ECR 1213, at § 24, the ECJ found that the imposition of manifestly disproportionate penalties on offences committed on importations compared to penalties on similar offences committed on domestic transactions could infringe Article 90 EC.
46. See cases 127/75, Bobie [1976] ECR 1079, at § 10 and 42/83, Denkavit [1984] ECR 2649, at §§ 29 and 30. In case 299/86, Drexl [1998] ECR 1213, at § 24, the ECJ found that the imposition of manifestly disproportionate penalties on offences committed on importations compared to penalties on similar offences committed on domestic transactions could infringe Article 90 EC.
47. See case 28/67, Mölkereizentrale [1968] ECR 143.
48. See EPCT/A/PV/9, at 19 and EPCT/W/181, at 3. These discussions, constituting a preparatory work of the GATT 1947, can be seen as a supplementary means of interpretation within the meaning of Article 32 of the Vienna Convention.
49. See the GATT panel report Japanese Beverages I, at § 5.8. Since penalties are a part of tax collections, the discriminatory imposition of penalties on offences (see, above n 29) will - in the light of the cited text - most likely be prohibited by Article III:2 GATT. Note, however, that in C-312/91, Metalsa, above note 6,. the ECJ found that Article 18 of the free trade agreement between the EC and Austria, prohibiting discriminatory internal taxes, did not prohibit the discriminatory imposition of penalties on offences. The ECJ found that in view of the different purpose and objective of that free trade agreement, its judgement in the Drexl case (see above n 29) in respect of Article 90 EC could not be transposed to the interpretation of Article 18 of the free trade agreement.
50. See the GATT panel report Japanese Beverages I, at § 5.8. Since penalties are a part of tax collections, the discriminatory imposition of penalties on offences (see, above n 29) will - in the light of the cited text - most likely be prohibited by Article III:2 GATT. Note, however, that in C-312/91, Metalsa, above note 6,. the ECJ found that Article 18 of the free trade agreement between the EC and Austria, prohibiting discriminatory internal taxes, did not prohibit the discriminatory imposition of penalties on offences. The ECJ found that in view of the different purpose and objective of that free trade agreement, its judgement in the Drexl case (see above n 29) in respect of Article 90 EC could not be transposed to the interpretation of Article 18 of the free trade agreement.
51. See below D.
52. See the report of the GATT panel on Japanese Beverages I, at § 5.5.
53. See for the texts of these provisions, above, the text below n 8.
54. See the report of the GATT panel on Malt Beverages at §§ 5.23-5.26.
55. See for the notion of the 'so far as to afford protection' criterion, below E3.
56. See P. J. Kuijper, above n 1, at 133-34.
57. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.1(a).
58. Note, however, that - when it applied the second sentence of Article III:2 GATT - the panel in Japanese Beverages I subsumed its discussion of the 'not similarly taxed' criterion with its examination of the 'so as to afford protection' criterion, while the WTO Appellate Body in Japanese Beverages II explicitly dealt with the two criteria separately (see for a discussion of the different criteria of the test applicable to competitive products, below section E).
59. See for this traditional order, inter alia, GATT panel report on American Tobacco, at § 101: 'On this point, the Panel noted that the second sentence of Article III:2 GATT is subsidiary to the first sentence thereof.
60. See for the text of the note, below, the text below footnote 8.
61. See WTO panel report on Korean Beverages, at § 10.36. The WTO Appellate Body did not discuss this reversal in its own report on Korean Beverages.
62. See case 27/67, Fink Frucht v Hauptzollamt München [1968] ECR 223.
63. See P. G. G. Kapteyn-VerLoren van Themaat, above n 4, at 606.
64. See, inter alia, case 168/78, Commission v France [1980] ECR 347, case 169/78, Commission v Italy [1980] ECR 385, case 17/78, Commission v Denmark [1980] ECR 447, case 319/81, Commission v Italy [1983] ECR 601 and C-230/89, Commission v Greece [1991] ECR I-1909. For more recent cases, see case C-113/94 Casarin [1995] ECR 1-4203, at § 22 and case C-421/97, Tarantik [1999], I-ECR 3633, at § 32.
65. See, inter alia, case 168/78, Commission v France [1980] ECR 347, case 169/78, Commission v Italy [1980] ECR 385, case 17/78, Commission v Denmark [1980] ECR 447, case 319/81, Commission v Italy [1983] ECR 601 and C-230/89, Commission v Greece [1991] ECR I-1909. For more recent cases, see case C-113/94 Casarin [1995] ECR 1-4203, at § 22 and case C-421/97, Tarantik [1999], I-ECR 3633, at § 32.
66. In Casarin and Tarantik, above n 46, the ECJ surprisingly seems to have applied both the test applicable to like products and the test applicable to competitive products within the framework of the first paragraph of Article 90 EC. The ECJ did not examine the tax in question under the second paragraph of Article 90 EC, although the preliminary question of the national court pursuant to Article 234 EC (ex Article 177) referred to Article 90 EC as a whole.
67. See P. G. G. Kapteyn-VerLoren van Themaat, above n 4, at 606.
68. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.1(a).
69. The notion of 'like' products in Article III:2 GATT differs from the note of 'like' products in Article III:4 GATT. In its report on European Communities - Measures Affecting Asbestos and Asbestos-containing Products, WT/DS 135/AB/R, at § 99 (Asbestos), the Appellate Body found that the scope of 'like' in Article III:4 GATT is broader than the scope of 'like' in Article III:2 GATT, although it is certainly not broader than the combined scope of the two sentences of Article III:2 GATT.
70. See the report of the Working Party on Border Tax Adjustments, L/3464, 1970, 18S/97, 102, at § 18, cited in the report of the WTO Appellate Body on Japanese Beverages II, at Section H.1 (a). See the GATT panel report on Japanese Beverages I, at § 5.5 and the WTO panel report on Canada - Certai n Measures Concerning Periodicals, WT/DS31/R, 1997 (Canadian Periodicals), at § 5.22.
71. See the report of the Working Party on Border Tax Adjustments, L/3464, 1970, 18S/97, 102, at § 18, cited in the report of the WTO Appellate Body on Japanese Beverages II, at Section H.1 (a). See the GATT panel report on Japanese Beverages I, at § 5.5 and the WTO panel report on Canada - Certai n Measures Concerning Periodicals, WT/DS31/R, 1997 (Canadian Periodicals), at § 5.22.
72. See the report of the Working Party on Border Tax Adjustments, L/3464, 1970, 18S/97, 102, at § 18, cited in the report of the WTO Appellate Body on Japanese Beverages II, at Section H.1 (a). See the GATT panel report on Japanese Beverages I, at § 5.5 and the WTO panel report on Canada - Certai n Measures Concerning Periodicals, WT/DS31/R, 1997 (Canadian Periodicals), at § 5.22.
73. See the report of the Working Party on Border Tax Adjustments, L/3464, 1970, 18S/97, 102, at § 18, cited in the report of the WTO Appellate Body on Japanese Beverages II, at Section H.1 (a). See the GATT panel report on Japanese Beverages I, at § 5.5 and the WTO panel report on Canada - Certai n Measures Concerning Periodicals, WT/DS31/R, 1997 (Canadian Periodicals), at § 5.22.
74. See for instance the report of the WTO Appellate Body on Japanese Beverages I, at § 5.3.
75. The WTO Appellate Body on Japanese Beverages II, at section H.1(a), indeed expressed concern that national tariff schedules may sometimes not be a reliable criterion (admittedly it not expressly referred to possible protective motifs behind national tariff schedules).
76. See, inter alia, case 106/84, Commission v Denmark [1986] ECR 833, at § 11.
77. In case 106/84, Commission v Denmark, above n 54, at § 11, the ECJ stated as regards the question whether fruit wines are similar to grape wines that 'it is necessary to consider objective characteristics of both categories of beverages, such as their origin, their method of manufacture and their organoleptic properties, in particular taste and alcohol content, and secondly, to consider whether or not both categories of beverage are capable of meeting the same needs from the point of view of consumers'.
78. See, inter alia, case 178/84, Commission v Germany [1987] ECR 1277, at § 33.
79. See GATT panel report on Japanese Beverages I, at § 5.7, endorsed by the WTO panel in Japanese Beverages II, at § 6.28.
80. See case C-230/89, Commission v Greece, above n 46.
81. See the report of WTO Appellate Body on Japanese Beverages II, at section H.1(b). See also, for example, the GATT panel on Superfund, at §§ 5.1.7-5.1.12: a demonstration that a measure inconsistent with the first sentence of Article III:2, GATT has no insignificant effects, is not a sufficient demonstration that the benefits occurring under that provision had not been nullified or impaired.
82. See the report of WTO Appellate Body on Japanese Beverages II, at section H.1(b). See also, for example, the GATT panel on Superfund, at §§ 5.1.7-5.1.12: a demonstration that a measure inconsistent with the first sentence of Article III:2, GATT has no insignificant effects, is not a sufficient demonstration that the benefits occurring under that provision had not been nullified or impaired.
83. See case 45/75, Rewe [1976] ECR 181, at § 17 and, more recently, case C-213/96, Outokumpu [1998] ECR I-1777, at § 34. The ECJ found in those cases that Article 90 EC applies, even if the disparity in question only occurs in a minority of cases and that it is inappropriate to take into consideration the effects of the taxation in questions on the price levels of the domestic and imported products.
84. See case 45/75, Rewe [1976] ECR 181, at § 17 and, more recently, case C-213/96, Outokumpu [1998] ECR I-1777, at § 34. The ECJ found in those cases that Article 90 EC applies, even if the disparity in question only occurs in a minority of cases and that it is inappropriate to take into consideration the effects of the taxation in questions on the price levels of the domestic and imported products.
85. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2, the report of the WTO Appellate Body on Canadian Periodicals, at section VI.B, and the report of the WTO Appellate Body on Korean Beverages, at § 107.
86. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2, the report of the WTO Appellate Body on Canadian Periodicals, at section VI.B, and the report of the WTO Appellate Body on Korean Beverages, at § 107.
87. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2, the report of the WTO Appellate Body on Canadian Periodicals, at section VI.B, and the report of the WTO Appellate Body on Korean Beverages, at § 107.
88. See for the text of the note, above, the text below note 8.
89. See the report of the WTO Appellate Body on Korean Beverages, at § 114 et seq. See also the report of the WTO panel on Chile - Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, 1999 (Chilean Beverages'), at § 7.21 et seq.
90. See the report of the WTO Appellate Body on Korean Beverages, at § 114 et seq. See also the report of the WTO panel on Chile - Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, 1999 (Chilean Beverages'), at § 7.21 et seq.
91. See the report of the WTO Appellate Body on Korean Beverages, at § 114 et seq. See also the report of the WTO panel on Chile - Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, 1999 (Chilean Beverages'), at § 7.21 et seq.
92. See § 10.81 of the report of the WTO panel on Korean Beverages; see also the report of the WTO panel on Chilean Beverages, at § 7.87.
93. See case 27/67, Finke-Frucht [1968] ECR 223. See also case 184/85, Commission v Italy, case 168/78, Commission v France, case 169/78, Commission v Italy, case 170/78, Commission v UK, case 171/78, Commission v Denmark and case 356/85, Commission v Belgium, above n 46.
94. See cases 184/85, Commission v France [1987] ECR 2013, at 2026 and 193/85, Co-Frutta [1987] ECR 2085, at 2110.
95. See case 27/76, UBC v Commission [1978] ECR 207.
96. See the case law of the ECJ cited, above in n 46.
97. See decision 85/562/EEC, Sole Distribution Agreements for Whiskey and Gin, OJ 1985, L 369/19, at § 24 and decision IV/M.938, Guinness/Grand Metropolitan, (1997), at § 10.
98. See decision 85/562/EEC, Sole Distribution Agreements for Whiskey and Gin, OJ 1985, L 369/19, at § 24 and decision IV/M.938, Guinness/Grand Metropolitan, (1997), at § 10.
99. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2.(c).
100. See the report of the WTO Appellate Body on Canadian Periodicals, at section VI.B.2. See also the report of the WTO Appellate Body on Chilean Beverages, at § 50.
101. See the report of the WTO Appellate Body on Canadian Periodicals, at section VI.B.2. See also the report of the WTO Appellate Body on Chilean Beverages, at § 50.
102. Compare E. McGovern, above n 3, at § 8.223.
103. See the GATT panel report on US - Taxes on Automobile Vehicles, DS31/R, 1994, at § 5.13. See also P. J. Kuijper, above n 2, at 134.
104. See the GATT panel report on US - Taxes on Automobile Vehicles, DS31/R, 1994, at § 5.13. See also P. J. Kuijper, above n 2, at 134.
105. See for instance GATT panel report on Malt Beverages, at § 5.74.
106. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2 (c).
107. See the report of the WTO Appellate Body on Chilean Beverages, at § 62.
108. See the report of the WTO Appellate Body on Japanese Beverages II, at section H.2(c).
109. See case 356/85, Commission v Belgium [1987] ECR 3299, at § 15.
110. See for instance cases 140/79, Chemical Farmaceutici [1981] ECR 1, at § 18 and C-132/88, Commission v Greece [1990] ECR I-1567, at § 18. In Casarin and Tarantik, the ECJ applies this test under the first paragraph of Article 90 EC, and not - as one would expect - under the second paragraph of that provision (see also, above n 46 and 47).
111. See the GATT panel on Malt Beverages and the unadopted GATT panel report on Car Taxes. In both panel reports, the aim of the tax measure involved is considered to be relevant.
112. See, above, text at notes 76-77. See also E. McGovern, above n 3, at § 8.223.
113. See § 65 of the report of the WTO Appellate Body on Chilean Beverages.
114. See § 70 of the report of the WTO Appellate Body on Chilean Beverages.
115. See §§ 69 and 70 of the report of the WTO Appellate Body on Chilean Beverages. The reasoning of the WTO Appellate Body in Chilean Beverages is similar to that followed by the ECJ in case 112/84, Hublot [1985] ECR 1367.
116. See §§ 115-16 of the report of the WTO Appellate Body on Asbestos.
117. See for a different position P. J. Kuijper, above n 1, at 144.
118. See text accompanying n 79.
119. See Oppenheim, International Law, (London: Longmans 1992) Vol. I, at 1272. See South West Africa, 1962, ICR Reports, at 335-33 (International Court of Justice).
120. See Oppenheim, International Law, (London: Longmans 1992) Vol. I, at 1272. See South West Africa, 1962, ICR Reports, at 335-33 (International Court of Justice).
121. See for instance Oppenheim, International Law, above, note 88, at 1271-75 and D. Carreau, Droit International (Paris: Pedone 1991) at 140. See Territorial Dispute Case (Libyan Arab Jamahiriya v Chad), 1994, ICJ Reports, at 6 (International Court of Justice) and Golder v United Kingdom, ECHR, Series A, 1995, no 18 (European Court of Human Rights).
122. See for instance Oppenheim, International Law, above, note 88, at 1271-75 and D. Carreau, Droit International (Paris: Pedone 1991) at 140. See Territorial Dispute Case (Libyan Arab Jamahiriya v Chad), 1994, ICJ Reports, at 6 (International Court of Justice) and Golder v United Kingdom, ECHR, Series A, 1995, no 18 (European Court of Human Rights).
123. See for instance Oppenheim, International Law, above, note 88, at 1271-75 and D. Carreau, Droit International (Paris: Pedone 1991) at 140. See Territorial Dispute Case (Libyan Arab Jamahiriya v Chad), 1994, ICJ Reports, at 6 (International Court of Justice) and Golder v United Kingdom, ECHR, Series A, 1995, no 18 (European Court of Human Rights).
124. See, for instance, the report of the WTO Appellate Body on US - Standards for Reformulated and Conventional Gasoline, 1996, at III.B, the report of the WTO Appellate Body on Japanese Beverages II, at section F, and the report of the WTO panel on Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, 2000 (Canadian Automotive Industry), at § 10.12.
125. See, for instance, the report of the WTO Appellate Body on US - Standards for Reformulated and Conventional Gasoline, 1996, at III.B, the report of the WTO Appellate Body on Japanese Beverages II, at section F, and the report of the WTO panel on Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, 2000 (Canadian Automotive Industry), at § 10.12.
126. See WTO panel report on Canadian Automotive Industry, at § 10.12.
127. See P. J. Kuijper, 'The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969', LIEI (1998/1), at 2-30. Kuijper considers (at 4) the approach chosen by the ECJ as an incorrect application of Article 31 of the Vienna Convention which becomes a Von Munchhausen trick: the ECJ lifts itself from the restrictions of ordinary treaty interpretation by its own case law with respect to the object and purpose of the EC Treaty. It justifies different interpretations of similar provisions by referring to the new legal order of the EC Treaty, the transfer of sovereign rights by EC Member States, and the creation of a single market and an economic and monetary union. Kuijper does not seem to criticize the wish of the ECJ to arrive at different interpretations of similarly drafted provisions, but he acknowledges that justifying this approach by means of Article 31 of the Vienna Convention is incorrect. The ECJ also examines first the object and purpose of an international agreement and only at a second stage the wording of a specific provision when assessing the 'internal' effects of international obligations of the EC ( see S. Griller, 'Judicial Enforceability of WTO Law in the European Union', 3(3) J Int'l Econ L (2000), at 444).
128. See P. J. Kuijper, 'The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969', LIEI (1998/1), at 2-30. Kuijper considers (at 4) the approach chosen by the ECJ as an incorrect application of Article 31 of the Vienna Convention which becomes a Von Munchhausen trick: the ECJ lifts itself from the restrictions of ordinary treaty interpretation by its own case law with respect to the object and purpose of the EC Treaty. It justifies different interpretations of similar provisions by referring to the new legal order of the EC Treaty, the transfer of sovereign rights by EC Member States, and the creation of a single market and an economic and monetary union. Kuijper does not seem to criticize the wish of the ECJ to arrive at different interpretations of similarly drafted provisions, but he acknowledges that justifying this approach by means of Article 31 of the Vienna Convention is incorrect. The ECJ also examines first the object and purpose of an international agreement and only at a second stage the wording of a specific provision when assessing the 'internal' effects of international obligations of the EC ( see S. Griller, 'Judicial Enforceability of WTO Law in the European Union', 3(3) J Int'l Econ L (2000), at 444).
129. See, for instance, Opinion 1/91 [1991] ECR I-6079 at § 14, C-312/91, Metalsa, above, note 7, at § 12, case C-432/92, Pissouri [1994] ECR I-3087, at § 43 and case C-416/96, El Yassini [1999] ECR I-1209, at § 47.
130. See, for instance, Opinion 1/91 [1991] ECR I-6079 at § 14, C-312/91, Metalsa, above, note 7, at § 12, case C-432/92, Pissouri [1994] ECR I-3087, at § 43 and case C-416/96, El Yassini [1999] ECR I-1209, at § 47.
131. See, for instance, Opinion 1/91 [1991] ECR I-6079 at § 14, C-312/91, Metalsa, above, note 7, at § 12, case C-432/92, Pissouri [1994] ECR I-3087, at § 43 and case C-416/96, El Yassini [1999] ECR I-1209, at § 47.
132. See, for instance, Opinion 1/91 [1991] ECR I-6079 at § 14, C-312/91, Metalsa, above, note 7, at § 12, case C-432/92, Pissouri [1994] ECR I-3087, at § 43 and case C-416/96, El Yassini [1999] ECR I-1209, at § 47.
133. This expectation is not irreconcilable with the fact that the authors of the EC Treaty have taken Article III:1 and 2 GATT as a source of inspiration for Article 90 EC (see above n 2). Indeed, the ECJ has consistently refused to have recourse to the 'Traveaux Preparatoires' as a supplementary means of interpretation of provisions of the EC Treaty (see P. J. Kuijper, above n 92, at 10 and J. Schwarze, Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen (Europarecht 1983), at 33.
134. From this point of view it is remarkable that the position taken by the EC in respect of Article III:2 GATT in Japanese Beverages II before the WTO panel and the WTO Appellate Body seems to be at odds with the interpretation given by the ECJ to Article 90 EC. See J. H. H. Weiler, 'Convergence and Divergence' in Weiler (ed.), The EU, the WTO and the NAFTA - Towards a Common Law of International Trade (Oxford: Oxford University Press 2000), at 2.
135. See M. M. Slotboom, 'The Hormones Case: an Increased Risk of Illegality of Sanitary of Phytosanitary Measures', 36 CMLR (1999) 471-91, at 489.
136. If this is accepted, then, parenthetically, it may be time to revisit the ECJ's interpretations of bilateral agreements concluded by the European Community with tax discrimination provisions comparable to the EC Treaty. The ECJ found that, in view of the different objectives and purposes of the free trade agreement and the EC Treaty, the interpretation of Article 90 EC laid down by the case law of the ECJ could not be extended to similarly worded tax discrimination provisions in the free trade agreements (see §§ 16-19 of cases C-312/91, Metalsa, above n 6 and §§ 29-30 of 104/81, Kupferberg, above n 6).