The World Trade Organisation panel report on Brazil Tyres - Advanced waste management theory entering the organisation?

European Environmental Law Review

Volumn 16, Issue 11, 2007, Pages 304-308

  van Calster, Geert ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; EUROPEAN UNION; TIRE; WASTE MANAGEMENT; WORLD TRADE ORGANIZATION;

BRAZIL; EURASIA; EUROPE; SOUTH AMERICA;

EID: 36448929136     PISSN: 09661646     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (22)

1. See the author's "Health protection and international trade: Back on the right track after Appelate Body intertervention in Asbestos, European Environmental Law Review, 2001, 163-164.
2. Brazil - Measures affecting imports of retreaded tyres, WT/DS332/R, 12 June 2007.
3. Article XX(b)'s room for protection of human, animal or life plant or health includes a wide variety of so called "environmental" protection measures, but not all. Article XX(g)'s room for protection of "natural resources" entails a wider remit for environmental protection measures which do not strictly relate to life and health.
4. The Mercosur link raises an entirely different debate, of less immediate impact for the room for regulatory autonomy, and will not be reviewed here.
5. Brazil Tyres, Panel, para. 7.49. For example, the type of risks found to exist within the meaning of Article XX(b) in US - Gasoline was health risks that did not, strictly speaking, directly relate to gasoline itself (i.e. the product targeted by the measure) but rather to air pollution caused by the consumption of gasoline.
6. Ibid. We also note that, in its Report on EC - Approval and Marketing of Biotech Products, the Panel states that "there is nothing in the text of Annex A(1) [to the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)] to suggest that the product subject to an SPS measure - in this case, a GM plant to be released into the environment - need itself be the pest which gives rise to the risks from which the measure seeks to protect."
7. WT/DS161/AB/R, Korea - Measures affecting imports of fresh, chilled and frozen beef (Korea-Beef).
8. See Wiers, J., Trade and Environment in the EC and WTO (Europa Law: Groningen, 2002) 182 ff.
9. Korea-Beef, para. 161 ff.
10. Korea-Beef, para. 164.
11. Ibid., para. 166.
12. AB Asbestos, para. 172.
13. AB US Gambling, para 308.
14. See also e.g. Harris, P., "Common but differentiated responsibility: The Kyoto Protocol and United States policy", N.Y.U. Environmental Law Journal, 1999, 27-48.
15. AB Hormones, para. 187.
16. Brazil Tyres, Panel, para. 7.80.
17. Ibid., para. 7.64.
18. Contrast with the judgment of the European Court of Justice in PreussenElektra, where the Court did not pursue a proportionality test, effectively because the regulatory interest at stake (climate change) was judged to be of unbiased, overriding importance. See the author's Note sub Case C-379/98, PreussenElektra AG v Schleswag AG, Review of European Community and International Environmental Law - RECIEL, 2001, 335-337.
19. Convention of Basel of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal, 28 I.L.M. 649 (1989).
20. http://www.basel.int/meetings/sbc/workdoc/old%20-docs/tech-usedtyres.pdf .
21. See e.g. Para. 4.108, the admission by Brazil that it aims to address the disposal problem of Brazil, and should not be lumbered with the disposal problem of other countries.
22. The European Communities seeks review by the Appellate Body of the following aspects of the Report of the Panel: (a) The Panel's finding that the import ban on retreaded tyres was necessary within the meaning of Article XX(b) of the GATT. The Panel's finding and corresponding reasoning are contained in paragraphs 7.103 to 7.216 of the Panel Report. The EC appeals this finding notably because: - in assessing the contribution of the measure to the protection of human, animal and plant life and health, the Panel merely assesses whether the ban is capable of making a potential contribution to its stated objectives. This reasoning is inconsistent with Article XX(b) of the GATT. Moreover, in reaching its conclusion regarding the potential contribution of the ban, the Panel also fails to make an objective assessment of the matter before it, including of the facts of the case, as required by Article 11 of the DSU, and effectively shifts the burden of proof to the EC; - in assessing the reasonably available alternative measures, the Panel wrongly excludes some of the alternatives proposed by the European Communities, on the basis that those alternatives are related to the manner in which the import ban is implemented in practice, that they are not necessarily readily available, that they do not avoid the waste tyres arising specifically from imported retreaded tyres, that they already exist in Brazil, or that they are individually capable of disposing only of a small number of waste tyres. Moreover, the Panel has ignored important facts and arguments presented by the European Communities, has referred to the evidence submitted by the parties in a selective and distorted manner, and has effectively shifted the burden of proof to the EC. These findings are inconsistent with Article XX(b) of the GATT and with the Panel's duty to make an objective assessment of the matter before it, including of the facts of the case, as required by Article 11 of the DSU; - contrary to Article XX (b) of the GATT, the Panel has erred by not carrying out a process of weighing and balancing the relevant factors and elements (objective pursued, trade-restrictiveness of the measure, contribution and alternatives); (b) the Panel's finding that the exemption, from the import ban and other challenged measures, of imports of retreaded tyres from other Mercosur countries does not constitute arbitrary or unjustifiable discrimination (paragraphs 7.270 to 7.289 of the Panel Report). This finding is inconsistent with the chapeau of Article XX of the GATT; (c) the Panel's finding that the imports of used tyres do not constitute arbitrary discrimination and that they constitute unjustified discrimination only to the extent that they significantly undermine the objectives of the ban (paragraphs 7.292 to 7.294, 7.296 and 7.306 of the Panel Report). This finding is inconsistent with the chapeau of Article XX of the GATT; (d) the Panel's finding that the Mercosur exemption does not constitute a disguised restriction on international trade, and that imports of used tyres would constitute a disguised restriction only to the extent that they significantly undermine the objectives of the ban (paragraphs 7.347 to 7.355 of the Panel Report). This finding is inconsistent with the chapeau of Article XX of the GATT; the Panel's decision to exercise judicial economy with respect to the European Communities' claims under Articles XIII:1 and I:1 of the GATT (paragraphs 7.453 to 7.456 and 8.2 of the Panel Report). Since the Panel found that the Mercosur exemption is not incompatible with the chapeau of Article XX GATT, a separate finding on the compatibility of this exemption with Articles XIII:1 and I:1 GATT would have been necessary to secure a positive resolution of the dispute, as required by Articles 3.3, 3.4, 3.7 and 11 of the DSU. The European Communities therefore asks the Appellate Body to find that the Mercosur exemption is incompatible with Articles XIII:1 and I:1 of the GATT, and is not justified either by Article XXIV or by Article XX(d) of the GATT.