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Climate Labelling and the WTO: The 2010 EU Ecolabelling Programme as a Test Case Under WTO Law

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European Yearbook of International Economic Law 2011

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 2))

Abstract

Environmental labelling is increasingly used as an instrument of climate protection. This is underlined, for example, by the EU climate change programme, in which various labelling schemes are employed. Cases in point are the EU’s oft-discussed voluntary ecolabelling scheme, which takes a life-cycle approach, and its mandatory labelling scheme for cars.

This contribution draws on several chapters in Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, in particular pp. 172 et seq., 191 et seq., 223 et seq., 256 et seq., 302 et seq., 319 et seq., 342 et seq., 379 et seq.; updated in February 2010, it takes into account the new 2010 EU ecolabelling programme, which entered into force in February 2010, and which is described in the following (see pp. 209 et seq.).

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Notes

  1. 1.

    For an overview of measures employed in various countries see the pertinent database of the International Energy Agency, http://iea.org/textbase/pm/grindex.aspx (accessed 19 February 2010); see also Green, Climate Change, Regulatory Policy and the WTO. How Constraining are Trade Rules?, JIEL 8 (2005), pp. 143 et seq. (150 et seq.); Charnovitz, Trade and Climate: Potential Conflicts and Synergies, Pew Center Working Paper, 2003, pp. 4 et seq., available at http://www.noconference.pewclimate.org/docUploads/Beyond_Kyoto_Trade.pdf (accessed 19 February 2010); see also the study by the Swedish Kommerskollegium/National Board of Trade, Climate and Trade Rules – Harmony or Conflict?, 2004, pp. 39 et seq., available at http://www.kommers.se/upload/.../Climate%20and%20trade%20rules.pdf (accessed 19 February 2010).

  2. 2.

    As a main pillar of its regulatory strategy for the car sector, the EU has adopted a directive providing for labels that inform consumers of the fuel economy and CO2 emissions of new passenger cars (Directive 1999/94/EC of the European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars OJ 2000 L 12/16); further climate-related labelling mechanisms are included in various other EU instruments, see, e.g., Article 7 of Regulation (EC) No 842/2006 of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases, OJ 2006 L 161/1, p. 1, which introduces a mandatory labelling scheme for fluorinated gases; the member states have instituted a series of different voluntary and mandatory labelling schemes, see, e.g., the preamble of Council Directive 92/75/EEC.

  3. 3.

    On this see the information provided by the Austrian Ministry for the Environment, Der “CO2-Rucksack” von Lebensmitteln, 2008, available at http://lebensmittel.lebensministerium.at/article/articleview/55395/1/1471 (accessed 19 February 2010); on CO2 backpacks see also Schmidt, Carbon accounting and carbon footprint – more than just diced results?, International Journal of Climate Change Strategies and Management 1 (2009) 1, pp. 19–30, available at http://www.emeraldinsight.com/1756-8692.htm (accessed 19 February 2010).

  4. 4.

    For a first analysis of this conference see International Institute for Sustainable Development, Earth Negotiation Bulletin 12 (2009) 459, pp. 1 et seq., available at http://www.iisd.ca/climate/cop15/ (accessed 22 February 2010).

  5. 5.

    For a taxonomy of labelling schemes see pp. 211 et seq.

  6. 6.

    For details on this notion see pp. 207 et seq.

  7. 7.

    Regulation (EC) No 1980/2000 of the European Parliament and the Council of 17 July 2000 on a revised Community eco-label award scheme, OJ 2000 L 237/1.

  8. 8.

    See Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1 (in the following, EU Ecolabel Regulation).

  9. 9.

    Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award scheme, OJ 1992 L 99/1; on this see, e.g., Forgó, Europäisches Umweltzeichen und Welthandel, 1999; Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, p. 123 with further references.

  10. 10.

    Article 6(3) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1 (EU Ecolabel Regulation).

  11. 11.

    On the notions of NPR PPMs and product-related PPMs see, e.g., Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (73–74), who defines NPR PPMs as “measures that relate to processes that do not impart any distinguishing characteristics to the final product”. See also the definition provided by Canada in a communication to the WTO Committee on Trade and the Environment (“Non-product-related (NPR) PPMs describe a process or production method which does not affect or change the nature, properties, or qualities of (nor discernible traits in or on) a product.”; see Canada, Labelling and Requirements of the Agreement on Technical Barriers to Trade (TBT): Framework for informal, structured discussions. Communication from Canada, WTO Doc. WT/CTE/W/229, 23 June 2003).

  12. 12.

    See, e.g., Charnovitz, The law of environmental “PPMs” in the WTO: debunking the myth of illegality, Yale Journal of International Law 27 (2002) 1, pp. 59 et seq. (65).

  13. 13.

    See OECD, Processes and Production Methods (PPMs): Conceptual Framework and Considerations on Use of PPM-Based Trade Measures, OECD Doc OCDE/GD(97)137, 1997, pp. 10 et seq.

  14. 14.

    See the brief discussion of views expressed in the literature in Pauwelyn, Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO, EJIL 25 (2004), pp. 575 et seq. (585–586), who does not share this view himself. The view described seems to be taken also by Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (75 et seq., 79); Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, pp. 123 et seq. (139 et passim); and Okubo, Environmental Labeling Programs and the GATT/WTO Regime, Georgetown International Environmental Law Review 11 (1999) 3, pp. 599 et seq. (621 et passim).

  15. 15.

    See Puth, WTO und Umwelt. Die Produkt-Prozess-Doktrin, 2003, pp. 251 et seq.

  16. 16.

    On this see also Charnovitz, The law of environmental “PPMs” in the WTO: debunking the myth of illegality, Yale Journal of International Law 27 (2002) 1, pp. 59 et seq. (pp. 75 et seq. with extensive further references); Howse/Regan, The Product/Process Distinction – An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy, EJIL 11 (2000) 2, pp. 249 et seq.; Hudec, The Product-Process Doctrine in GATT/WTO Jurisprudence, in: Bronckers/Quick (eds.), New Directions in International Economic Law. Essays in Honour of John H. Jackson, 2000, pp. 187 et seq.; Pauwelyn, Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO, EJIL 15 (2004), pp. 575, 585 et seq.

  17. 17.

    See Puth, WTO und Umwelt. Die Produkt-Prozess-Doktrin, 2003, p. 30 et passim; Pauwelyn, Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO, EJIL 15 (2004), 575 et seq., 585 et seq.

  18. 18.

    See OECD, Processes and Production Methods (PPMs): Conceptual Framework and Considerations on Use of PPM-Based Trade Measures, OCDE/GD(97)137, pp. 15 et seq.

  19. 19.

    Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award scheme, OJ 1992 L 99/1.

  20. 20.

    See, e.g., Forgó, Europäisches Umweltzeichen und Welthandel, 1999; Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, pp. 123 et seq. with further references.

  21. 21.

    Regulation (EC) No 1980/2000 of the European Parliament and the Council of 17 July 2000 on a revised Community eco-label award scheme, OJ 2000 L 237/1.

  22. 22.

    An impact assessment of the scheme revealed that it did not achieve its objectives as it suffered from low awareness of the label and slow uptake by industry; only 26 product groups were covered by this scheme, and merely around 500 companies were using this label. On this, see EU Commission, Proposal for a Regulation of the European Parliament and of the Council on a Community Ecolabel scheme, COM(2008) 401 final.

  23. 23.

    See Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1, replacing Regulation (EC) 1980/2000.

  24. 24.

    On the distinction between voluntary and mandatory labelling schemes as well as other classification criteria for such schemes, see pp. 211 et seq.

  25. 25.

    See Recital 5 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1 (EU Ecolabel Regulation).

  26. 26.

    Competent bodies are defined as “the body or bodies, within government ministries or outside, [which are] responsible for carrying out the tasks provided for” in the EU ecolabelling regulation, see Article 4(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  27. 27.

    See the following text.

  28. 28.

    See, e.g., Recital 5 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  29. 29.

    See Article 2(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  30. 30.

    Article 3(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  31. 31.

    Recital 5 of the preamble of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  32. 32.

    Article 6(3) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  33. 33.

    Article 6 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  34. 34.

    Article 4(2) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  35. 35.

    Article 4–8 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  36. 36.

    Article 9(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  37. 37.

    Article 9 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  38. 38.

    For an overview of the great number of legal acts see http://ec.europa.eu/environment/ecolabel (accessed 19 February 2010).

  39. 39.

    See Article 2(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1, and the preceding section of the text.

  40. 40.

    See Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 95 et seq., 172 et seq., 319 et seq.

  41. 41.

    See Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 343 et seq., where the issues raised under these types of labelling schemes are discussed; see also Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq.; and Trüeb, Umweltrecht in der WTO, 2001, pp. 448–449, who adopts essentially the same categorization, but refers also to other possible classifications in fn. 268; see also Okubo, Environmental Labeling Programs and the GATT/WTO Regime, Georgetown International Environmental Law Review 11 (1999) 3, pp. 599 et seq. for a slightly different categorization; Green, Climate Change, Regulatory Policy and the WTO. How Constraining are Trade Rules?, JIEL 8 (2005), pp. 143 et seq. (150); Buck/Verheyen, International Trade Law and Climate Change – a Positive Way Forward, 2001, pp. 15 et seq., available at library.fes.de/pdf-files/stabsabteilung/01052.pdf (accessed 19 February 2010); Dröge et al, National Climate Change Policy – Are the New German Energy Policy Initiatives in Conflict WTO Law?, German Institute for Economic Research discussion paper 374, 2003, pp. 13 et seq., available at http://econpapers.repec.org/paper/diwdiwwpp/dp242.htm (accessed 19 February 2010).

  42. 42.

    See, e.g., Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, p. 123; Okubo, Environmental Labeling Programs and the GATT/WTO Regime, Georgetown International Environmental Law Review 11 (1999) 3, pp. 599 et seq. (605); Dröge et al, National Climate Change Policy – Are the New German Energy Policy Initiatives in Conflict WTO Law?, German Institute for Economic Research discussion paper 374 2003, pp. 13 et seq., available at http://econpapers.repec.org/paper/diwdiwwpp/dp242.htm (accessed 19 February 2010).

  43. 43.

    See the OECD definition of voluntary labelling schemes in OECD, Environmental Labelling in OECD Countries, OECD Report 12, 1991.

  44. 44.

    See Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 343 et seq. with further references.

  45. 45.

    Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (80).

  46. 46.

    The present section and the following section draw on Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 319 et seq. and 342 et seq.

  47. 47.

    See EC, Labelling for Environmental Purposes. Submission by the European Communities under Paragraph 32(iii), WTO Doc WT/CTE/W/225, 6 March 2003, para. 28 (c), available at http://www.wto.org (accessed 19 February 2010); regarding Switzerland and Canada see Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (pp. 80 et seq.).

  48. 48.

    Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (80 et seq.).

  49. 49.

    See, e.g., Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (80 et seq.); see also Puth, WTO und Umwelt. Die Produkt-Prozess-Doktrin, 2003, pp. 217-218; Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, pp. 123 et seq. (134).

  50. 50.

    See Trüeb, Umweltrecht in der WTO, 2001, p. 453, who does not share this point of view however.

  51. 51.

    Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 319 et seq. and 342 et seq.

  52. 52.

    See the next subsection.

  53. 53.

    See Committee on Technical Barriers to Trade, First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, WTO Doc G/TBT/5, 19 November 1997, para. 12.

  54. 54.

    The decision has been taken “without prejudice to the views of Members concerning the coverage and application of the Agreement”, see Committee on Technical Barriers to Trade, First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, WTO Doc G/TBT/5, 19 November 1997.

  55. 55.

    Moreover, concerning the issue of justification of NPR PPM-based labelling schemes that may incur trade effects, the interpretative guidance ensuing from the 2002 World Summit on Sustainable Development (WSSD) conclusions should be taken into account, which explicitly call for voluntary “consumer information tools to provide information relating to sustainable production and consumption” (see para. 15(e) of the Implementation Plan of the 2002 World Summit on Sustainable Development (WSSD), available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm). Expressed in the words of the EU, “it is logical that WTO Members should continue to support in the WTO what they have called for at the WSSD (see EC, Labelling for Environmental Purposes. Submission by the European Communities under Paragraph 32(iii), WTO Doc WT/CTE/W/225, 6 March 2003, para. 13).

  56. 56.

    See also Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, pp. 123 et seq.; Okubo, Environmental Labeling Programs and the GATT/WTO Regime, Georgetown International Environmental Law Review 11 (1999) 3, pp. 599 et seq.

  57. 57.

    Article 9.1 of Regulation 1980/2000.

  58. 58.

    See Article 4(1) (“body or bodies, within government ministries or outside”).

  59. 59.

    Article 4(2) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  60. 60.

    See Vranes, The Single Euro Payments Area (SEPA) and its Compatibility with the GATS Disciplines on Financial Services, JWT 42 (2008) 3, pp. 508 et seq. (523 et seq.); Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 383 et seq. with further references.

  61. 61.

    Panel Report, Canada – Administration of the Foreign Investment Act, L/5504, BISD 30S/140, adopted on 7 February 1984 (Canada – FIRA), para. 5.4; Panel Report, Japan – Restrictions on Imports of Certain Agricultural Products, L/6253, adopted on 22 March 1988, para. 5.4.1.4.; Panel Report, Japan – Trade in Semi-Conductors, BISD 35S/116, adopted on 4 May 1988, paras. 106 et seq.; Panel Report, EEC – Regulation on Imports of Parts and Components, L/6657 – BISD 37S/132, adopted on 16 May 1990 (EEC – Parts and Components), para. 5.21; confirmed by the Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R, adopted on 25 September 1997 (EC – Bananas III), paras. 7.179–7.180; Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, para. 10.49.

  62. 62.

    See also Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, para. 10.49.

  63. 63.

    Vranes, The Single Euro Payments Area (SEPA) and its Compatibility with the GATS Disciplines on Financial Services, JWT 42 (2008) 3, pp. 508 et seq. (523).

  64. 64.

    See the analogy in the GATT Panel Report, EEC – Restrictions on Imports of Apples from Chile, L/5047, adopted 10 November 1980, BISD 27S/98, in which the panel held that detrimental effects could be attributed to a state if the pertinent regulatory system as a whole has been established by the state and its operation depended on the fine-tuning through administrative decisions and public financing (at para. 12.8).

  65. 65.

    See pp. 211 et seq.

  66. 66.

    See, e.g., Buck/Verheyen, International Trade Law and Climate Change – a Positive Way Forward, 2001, available at library.fes.de/pdf-files/stabsabteilung/01052.pdf (accessed 19 February 2010), p. 16 et passim (“eco-labelling schemes which take into consideration the non-product related environmental impacts of products might per se be prohibited under the TBT Agreement, although the legal analysis remains inconclusive”) and Charnovitz, Trade and Climate: Potential Conflicts and Synergies, Pew Center Working Paper, 2003, p. 9, available at http://www.noconference.pewclimate.org/docUploads/Beyond_Kyoto_Trade.pdf (accessed 19 February 2010) with further references. Charnovitz himself does not share this view.

  67. 67.

    This section is based on Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 191 et seq. and 323 et seq.

  68. 68.

    See p. 208.

  69. 69.

    See the TBT Agreement, Annex 1, Article 2.

  70. 70.

    See Article 31 VCLT.

  71. 71.

    A different approach was taken by the GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S/206, which, after having found the products at issue to be unlike, continued its examination of the measure at issue, asking whether this measure was applied to imported or domestic products “so as to afford protection to domestic production” (paras. 5.76–5.77). This move can only be explained if one considers Article III:1 as a lex generalis which is to be applied subsidiarily when no violation under Article III:2 or III:4 can be found. This approach could only be based on the view, just rejected, that Article III:1 is regarded as a norm which is in itself applicable to concrete cases. The view presented in the text above is also confirmed by WTO dispute settlement practice: see Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS9/AB/R, WT/DS10/AB/R, adopted on 1 November 1996 (Japan – Alcohol II), section H.2, in which the Appellate Body held that Article III:1 informs the rest of Article III, albeit in different form, depending on the individual provisions (“Article III:1 articulates a general principle that internal measures should not be applied so as to afford protection to domestic production. This general principle informs the rest of Article III. The purpose of Article III:1 is to establish this general principle as a guide to understanding and interpreting the specific obligations contained in Article III:2 and in the other paragraphs of Article III …”).

  72. 72.

    See the text of Article III:1, pursuant to which “internal taxes and other internal charges, and laws, regulations and requirements … should not be applied … so as to afford protection”; see also Berrisch, Das Allgemeine Zoll- und Handelsabkommen, in: Prieß/Berrisch (eds.), WTO-Handbuch, 2003, p. 71, para. 32.

  73. 73.

    See also Hudec, “Like Product”: The Differences in Meaning in GATT Articles I and III, in: Cottier/Mavroidis (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, 2000, pp. 101 et seq (104–105); the fundamental purpose of avoiding protectionism and guaranteeing competition is also confirmed by the drafters of the GATT, see, e.g., the GATT Panel Report, Italian Discrimination Against Imported Agricultural Machinery, L/833, adopted 23 October 1958, BISD 7S/60, para. 13.

  74. 74.

    See also Hudec, “Like Product”: The Differences in Meaning in GATT Articles I and III, in: Cottier/Mavroidis (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, 2000, pp. 101 et seq. (103 et seq.); Appellate Body, European Communities – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R, adopted on 5 April 2001 (EC – Asbestos), para. 117; Horn/Mavroidis, Still Hazy after all these Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination, EJIL 15 (2004) 1, pp. 61 et seq. have similarly argued with regard to tax discrimination that if consumers treat two products as unlike, then dissimilar taxation is unlikely to have considerable impact.

  75. 75.

    “ Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principle set forth in paragraph 1.” This clause has to be read in conjunction with the Note Ad Article III; otherwise it would appear to be inapplicable for lack of precision. See also Berrisch, Das Allgemeine Zoll- und Handelsabkommen, in: Prieß/Berrisch (eds.), WTO-Handbuch, 2003, p. 71, para. 57 with further references to jurisprudence.

  76. 76.

    Thus, the Appellate Body regards like products as a “subset” of DCS products. Whereas DCS products are in direct competitive relationship, like products are “perfectly substitutable” according to the Appellate Body, see Appellate Body, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, adopted on 17 February 1999, para. 118.

  77. 77.

    In a comparative law perspective, this consideration is also reflected in the jurisprudence of the European Court of Justice (ECJ) regarding Article 90 ECT, which contains an analogous two-tier structure that was precisely modelled after Article III:2 of the GATT: in its decisions, the ECJ appears to regard the standards of “likeness” and “directly competitive or substitutable” as different degrees on a common scale of decreasing competitive intensity. For a discussion of relevant ECJ case law see Demaret, The Non-Discrimination Principle and the Removal of Fiscal Barriers to Intra-Community Trade, in: Cottier/Mavroidis (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, 2000, pp. 171 et seq. (175 et seq); see also Stumpf, Commentary on Article 90 EC-Treaty, in: Schwarze (ed.), EU-Kommentar, 2000, p. 1144, para. 26; for an overview of relevant case law see, e.g., Waldhoff, Commentary on Article 90 EC Treaty, in: Calliess/Ruffert (eds.), Kommentar zu EU-Vertrag und EG-Vertrag, (2nd ed.) 2002, p. 1233, para. 18.

  78. 78.

    Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 200–215.

  79. 79.

    This is submitted, e.g., by Fauchald, Flexibility and Predictability under the World Trade Organization’s Non-Discrimination Clauses, JWT 37 (2003), pp. 443 et seq. (461).

  80. 80.

    To avoid misunderstandings it must be stressed, however, that international agreements which subject trade in certain goods to specific disciplines may be regarded as establishing with particular evidence that underlying state interests are prima facie legitimate in the context of Article XX, and can be seen as well-established reasons for judicial deference in that respect. Moreover, if there is a conflict between such agreements and Articles III and XX of the GATT, these GATT norms may even become inapplicable. On this see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 39 et seq., 69 et seq. and 358 et seq.

  81. 81.

    See Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 323–324 for a detailed discussion of, and further references on, this particular issue.

  82. 82.

    Report of the Working Party on Border Tax Adjustments, BISD 18S/97, para. 18. On the approach of GATT panels and the WTO Appellate Body see also Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS9/AB/R, WT/DS10/AB/R, adopted on 1 November 1996 (Japan – Alcohol II), p. 22 with further references on jurisprudence; and Appellate Body, European Communities – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R, adopted on 5 April 2001 (EC – Asbestos), paras. 88 et seq. with further references on jurisprudence in fn. 58.

  83. 83.

    See also Fauchald, Flexibility and Predictability under the World Trade Organization’s Non-Discrimination Clauses, JWT 37 (2003), pp. 443 et seq. (453); Trachtman, Lessons for the GATS from Existing WTO Rules on Domestic Regulation, in: Mattoo/Sauvé (eds.), Domestic Regulation and Service Trade Liberalization, 2003, pp. 57 et seq. (63–64). The criterion of physical characteristics of products can be considered as quite reliable indicators of substitutability (see also Hudec, “Like Product”: The Differences in Meaning in GATT Articles I and III, in: Cottier/Mavroidis (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law, 2000, pp. 101 et seq. (103). Moreover, the BTA criteria may constitute important proxies for consumer perception if there are no relevant data available; similarly, end uses can be regarded as indicators of competition (see Horn/Mavroidis, Still Hazy After all These Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination, EJIL 15 (2004) 1, pp. 61 et seq. (63). More problematic, however, is judicial recourse to evidence from other markets, where consumer preferences may differ, as is emphasized by the Border Tax report itself (ibidem: “consumers’ tastes and habits, which change from country to country”). Furthermore, the correlation between the criteria of tariff classification and tariff bindings, on the one hand, and the degree of competitive relation and consumer perspective, on the other, appears less direct.

  84. 84.

    Appellate Body, European Communities – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R, adopted on 5 April 2001 (EC – Asbestos), paras. 101 et seq. This approach has arguably been implicitly underlying most GATT/WTO decisions that have relied on the Border Tax report’s set of criteria. This is also true of the decisions preceding the disputed “aim and effects” rulings in US – Malt (GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S/206) and in US – Taxes on Automobiles (GATT Panel Report, United States - Taxes on Automobiles (“Gas Guzzler”), DS31/R, 11 October 1994 (unadopted)): thus, the relevance of the perspective of consumers is emphasized in particular in the 1987 Japan – Alcohol I Panel Report, at para. 5.6 (Panel Report, Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, L/6216 - 34S/83, BISD 34S/83, adopted on 10 November 1987 (Japan – Alcohol I)); according to Horn/Mavroidis, Still Hazy after all these Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination, EJIL 15 (2004) 1, p. 61 as well, the perspective of consumers was central in panel decisions before this case.

  85. 85.

    Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS9/AB/R, WT/DS10/AB/R, adopted on 1 November 1996 (Japan – Alcohol II), chapter H.1.

  86. 86.

    See Article 2.2. and the preamble of the TBT Agreement.

  87. 87.

    Hudec, The Product-Process Doctrine in GATT/WTO Jurisprudence, in: Bronckers/Quick (eds.), New Directions in International Economic Law. Essays in Honour of John H. Jackson, 2000, pp. 187 et seq. (198–200).

  88. 88.

    Hudec, The Product-Process Doctrine in GATT/WTO Jurisprudence, in: Bronckers/Quick (eds.), New Directions in International Economic Law. Essays in Honour of John H. Jackson, 2000, pp. 187 et seq. (199).

  89. 89.

    Hudec, The Product-Process Doctrine in GATT/WTO Jurisprudence, in: Bronckers/Quick (eds.), New Directions in International Economic Law. Essays in Honour of John H. Jackson, 2000, pp. 187 et seq. (199).

  90. 90.

    See, e.g., GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S/206, para. 5.19; see also Panel Report, United States — Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted on 20 May 1996 (US – Gasoline), para. 6.12; Joshi, Are Eco-Labels Consistent with World Trade Organization Agreements?, JWT 38 (2004) 1, pp. 69 et seq. (75 et seq., 79); Tietje, Voluntary Eco-Labelling programmes and Questions of State Responsibility in the WTO/GATT Legal System, JWT 29 (1995) 5, pp. 123 et seq. (139 et passim); and Okubo, Environmental Labeling Programs and the GATT/WTO Regime, Georgetown International Environmental Law Review 11 (1999) 3, pp. 599 et seq. (621 et passim).

  91. 91.

    See, e.g., the definition provided by Canada in a communication to the CTE (“Non-product-related (npr) PPMs describe a process or production method which does not affect or change the nature, properties, or qualities of (nor discernible traits in or on) a product”; see Canada, Labelling and Requirements of the Agreement on Technical Barriers to Trade (TBT): Framework for informal, structured discussions, Communication from Canada, WTO Doc WT/CTE/W/229, 23 June 2003).

  92. 92.

    See pp. 217 et seq.

  93. 93.

    Green, Climate Change, Regulatory Policy and the WTO. How Constraining Are Trade Rules?, JIEL 8 (2005), pp. 143 et seq. (160).

  94. 94.

    See also Marceau/Trachtman, GATT, TBT and SPS: A Map of Domestic Regulation of Goods, in: Ortino/Petersmann (eds.), The WTO Dispute Settlement System 1995-2003, 2004, pp. 275 et seq. (322 et seq.); Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation, AJIL 91 (1997), pp. 268 et seq. (p. 290); Quick/Lau, Environmentally Motivated Tax Distinctions and WTO Law – The European Commission’s Green Paper on Integrated Product Policy in Light of “Like Product” and “PPM”-Debates, JIEL 6 (2003), p. 419.

  95. 95.

    Article 3(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  96. 96.

    See Article 9(1) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  97. 97.

    On this and the following see Ehring, De Facto Discrimination in World Trade Law. National and Most-Favoured-Nation Treatment – or Equal Treatment?, JWT 36 (2002), p. 921; and Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 223 et seq, 231 et passim.

  98. 98.

    See Ehring, De Facto Discrimination in World Trade Law. National and Most-Favoured-Nation Treatment – or Equal Treatment?, JWT 36 (2002), p. 921, where a similar diagram is used.

  99. 99.

    See, e.g., Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, para. 10.85, which defined de facto discrimination as “measures which have a disparate impact on imports” and clarified that “the complaining party is called upon to make a detailed showing of any claimed disproportionate impact on imports resulting from the origin-neutral measure”); incidentally, the USA as complainant also relied on this concept, see ibid; on this notion see also Hudec, GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test, in: Hudec (ed.), Essays on the Nature of International Trade Law, 1999, pp. 359 et seq. (360); Ortino, WTO Jurisprudence on De Jure and De Facto Discrimination, in: Ortino/Petersmann (eds.), The WTO Dispute Settlement System 1995-2003, 2004, pp. 217 et seq. (241 et seq.); see also the approach taken in EU law in the following text.

  100. 100.

    On this see, e.g., Epiney, Umgekehrte Diskriminierungen. Zulässigkeit und Grenzen der discrimination à rebours nach europäischem Gemeinschaftsrecht und nationalem Verfassungsrecht, 1995, pp. 55 et seq.

  101. 101.

    See, e.g., ECJ Case 112/84, Humblot, [1985] ECR 1367, para. 14; ECJ, Case 168/78, Commission v. France, [1980] ECR 347, para. 25; ECJ, Case 243/84, John Walker, [1986] ECR 875, para. 23; for references to recent ECJ case law see also Ehring, De Facto Discrimination in World Trade Law. National and Most-Favoured-Nation Treatment – or Equal Treatment?, JWT 36 (2002), pp. 921 et seq. (949).

  102. 102.

    See Ehring, De Facto Discrimination in World Trade Law. National and Most-Favoured-Nation Treatment – or Equal Treatment?, JWT 36 (2002), pp. 921 et seq. (964 et seq.), referring also to the ECJ decision in Case C-167/97, Seymour-Smith and Perez, [1999] ECR I-623, paras. 63-64. In this case, the ECJ regarded ratios of 77.4:22.6 among men versus 68.9:31.1 among women as not constituting an inequivalence sufficient to be considered as discrimination.

  103. 103.

    Appellate Body, European Communities – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R, adopted on 5 April 2001 (EC – Asbestos), para. 100; for a detailed discussion see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 238 et seq.

  104. 104.

    The relevant finding reads: “The Panel further noted that the parties disagreed as to whether or not the tax credits in Minnesota were available in the case of imported beer from small foreign breweries. The Panel considered that beer produced by large breweries is not unlike beer produced by small breweries. Indeed, the United States did not assert that the size of the breweries affected the nature of the beer produced or otherwise affected beer as a product. Therefore, in the view of the Panel, even if Minnesota were to grant the tax credits on a non-discriminatory basis to small breweries inside and outside the United States, imported beer from large breweries would be “subject … to internal taxes … in excess of those applied … to like domestic products” from small breweries and there would still be an inconsistency with Article III:2, first sentence.” See the GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S/206, para. 5.19 (emphasis added).

  105. 105.

    An exception is Charnovitz, The law of environmental “PPMs” in the WTO: debunking the myth of illegality, Yale Journal of International Law 27 (2002) 1, pp. 59 et seq. (85).

  106. 106.

    Panel Report, Canada — Certain Measures Affecting the Automotive Industry, WT/DS/142/R, adopted on 19 June 2000, para. 10.30 (emphasis added).

  107. 107.

    See Panel Report, Belgian Family Allowances (Allocations familiales) (BISD 1S/59), para. 3, and the Panel Report, Indonesia — Certain Measures Affecting the Automobile Industry, WTO Doc WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, paras. 14.143 et seq.

  108. 108.

    See Panel Report, Indonesia — Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, adopted on 23 July 1998, para. 14.143.

  109. 109.

    Panel Report, Canada — Certain Measures Affecting the Automotive Industry, WT/DS/142/R, adopted on 19 June 2000, para. 10.25 et seq.

  110. 110.

    It ensues from the panel’s considerations that it also draws this conclusion itself. See, in particular, para. 10.40, where it states: “… we do not contest the validity of the proposition that Article I:1 does not prohibit the imposition of origin-neutral terms and conditions on importation that apply to importers …”.

  111. 111.

    See Charnovitz, The law of environmental “PPMs” in the WTO: debunking the myth of illegality, Yale Journal of International Law 27 (2002) 1, pp. 59 (61, 67 et seq.); see also Howse/Regan, The Product/Process Distinction – An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy, EJIL 11 (2000) 2, pp. 249 et seq. (252), who address this issue under Article III of the GATT. On this see also Petersmann, International Trade Law and International Environmental Law. Prevention and Settlement of International Environmental Disputes in GATT, JWT (1993), pp. 43 et seq. (68).

  112. 112.

    Article 12 of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  113. 113.

    This is arguably overlooked by Puth, WTO und Umwelt. Die Produkt-Prozess-Doktrin, 2003, pp. 251 et seq.

  114. 114.

    This is also underlined by Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, Columbia Journal of Environmental Law 27 (2002), pp. 491 et seq. (516), who argues that the Tuna/Dolphin reports, “although unadopted, … embody a perspective almost universally held by the trade-insider network”. See also Palmeter, Environment and Trade: Much Ado About Little?, JWT 27 (1993) 3, pp. 55 et seq. (66), and Mavroidis, Trade and Environment after the Shrimps – Turtles Litigation, JWT 34 (2000), pp. 73 et seq. (74), who speaks of a “long-standing erroneous interpretation”. For a more elaborate analysis of the issues discussed in this and the following subsection see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 256 et seq., 3277 and 342 et seq.

  115. 115.

    The term “extrajurisdictional” is used in the GATT Panel Report, United States – Restrictions on Imports of Tuna (Tuna I), DS21/R, DS21/R, 3 September 1991, unadopted, BISD 39S/155, paras. 5.28 and 5.30 et seq.

  116. 116.

    See GATT Panel Report, United States – Restrictions on Imports of Tuna (Tuna I), DS21/R, DS21/R, 3 September 1991, unadopted, BISD 39S/155, para. 5.27.

  117. 117.

    See GATT Panel Report, United States – Restrictions on Imports of Tuna (Tuna II), DS29/R, 16 June 1994, unadopted, para. 5.25.

  118. 118.

    This unadopted ruling has been reported to have received the unanimous support of all 39 GATT contracting parties that expressed an opinion, see Hudec, The Product-Process Doctrine in GATT/WTO Jurisprudence, in: Bronckers/Quick, (eds.), New Directions in International Economic Law. Essays in Honour of John H. Jackson, 2000, pp. 187 et seq. (189).

  119. 119.

    See Panel Report, United States – Taxes on Automobiles (“Gas Guzzler”), DS31/R, 11 October 1994 (unadopted); see also Charnovitz, The law of environmental “PPMs” in the WTO: debunking the myth of illegality, Yale Journal of International Law 27 (2002) 1, pp. 59 et seq. (94).

  120. 120.

    See Sands, “Unilateralism”, Values and International Law, EJIL 11 (2000), pp. 291 et seq. (294).

  121. 121.

    See the following text.

  122. 122.

    See Birnie/Boyle, International Law and the Environment, (2nd ed.) 2002, pp. 82–84.

  123. 123.

    See also Puth, WTO und Umwelt. Die Produkt-Prozess-Doktrin, 2003, p. 125.

  124. 124.

    See Petersmann, International Trade Law and International Environmental Law. Prevention and Settlement of International Environmental Disputes in GATT, JWT (1993), pp. 43 et seq. (49–50).

  125. 125.

    See Birnie/Boyle, International Law and the Environment, (2nd ed.), 2002, pp. 82–84; for further arguments regarding the relevance of these principles for the interpretation of WTO law, see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 329 et seq. with further references.

  126. 126.

    Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted on 6 November 1998, para. 121.

  127. 127.

    Appellate Body, United States – Import Prohibition on Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted on 21 November 2001 (US – Shrimp II), para. 138; this is also pointed out by Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, Columbia Journal of Environmental Law 27 (2002), pp. 491 et seq. (500–501).

  128. 128.

    Regarding the relationship between the GATT and the TBT Agreement, there are two clear interpretative starting points. First, technical regulations are measures that are prone to affect trade in goods. To the extent this is the case, a technical regulation has to be regarded as a measure that falls under the scope of the GATT, in principle. Second, the existence of the general conflict clause in the General Interpretative Note to Annex 1A and the failure to address the question of the relationship between the GATT and the TBT Agreement more specifically in either agreement clearly points to the conclusion that both are meant to apply in parallel to the extent possible. To the extent of conflict, however, the provisions of the TBT Agreement do prevail (see the General Interpretative Note to Annex 1A). It follows that the respective scopes of application of the TBT Agreement and the GATT are not mutually exclusive, but overlap. This also corresponds to WTO jurisprudence, which has concluded more generally that the GATT is not entirely superseded by other Annex 1A agreements, but only to the extent these agreements are inconsistent with the GATT (see Appellate Body, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted on 20 March 1997, p. 14 (“The general interpretative note to Annex 1A was added to reflect that the other goods agreements in Annex 1A, in many ways, represent a substantial elaboration of the provisions of the GATT 1994, and to the extent that the provisions of the other goods agreements conflict with the provisions of the GATT 1994, the provisions of the other goods agreements prevail. This does not mean, however, that the other goods agreements in Annex 1A, such as the SCM Agreement, supersede the GATT 1994 …”)). For further details see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 299 et seq.

  129. 129.

    Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 327 et seq. with further references.

  130. 130.

    United Nations Framework Convention on Climate Change (1992) 31 ILM 848.

  131. 131.

    This test, which was originally developed in WTO case law under Article XX(d) of the GATT, has been transposed also to Article XX(b), See Panel Report, Thailand – Cigarettes, paras. 74 et seq., and Panel Report, United States — Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted on 20 May 1996 (US – Gasoline), paras. 6.24 et seq.; for a detailed analysis of this test see, e.g., Neumann/Türk, Necessity revisited: Proportionality in World Trade Organisation law after Korea – Beef, EC – Asbestos and EC – Sardines, JWT 37 (2003), pp. 199 et seq. (207 et seq.); Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 268 et seq.

  132. 132.

    See Appellate Body, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, adopted on 17 February 1999, para. 162: “The more vital or important those common interests or values are, the easier it would be to accept as “necessary” a measure designed as an enforcement instrument”.

  133. 133.

    See, e.g., Notaro, The New Generation Case Law on Trade and Environment, European Law Review 25 (2000), pp. 467 et seq. (486 with further references).

  134. 134.

    EU Commission, Proposal for a Regulation of the European Parliament and of the Council on a Community Ecolabel scheme, COM(2008) 401 final, p. 4.

  135. 135.

    Trüeb, Umweltrecht in der WTO, 2001, pp. 457, 459, 460.

  136. 136.

    See Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 148–149 with further references.

  137. 137.

    Appellate Body, United States — Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted on 20 May 1996 (US – Gasoline), p 21.

  138. 138.

    ADAC, Study on the effectiveness of Directive 1999/94 relating to the availability of consumer information on fuel economy and CO 2 emissions in respect of the marketing of new passenger cars. Final report, 2005, pp. 61, 99 and 99 et seq.

  139. 139.

    EC Commission, Proposal for a Council Directive on passenger car related taxes, 5 July 2005, COM(2005) 261 final, at 6; see also ADAC, Study on the effectiveness of Directive 1999/94 relating to the availability of consumer information on fuel economy and CO 2 emissions in respect of the marketing of new passenger cars. Final report, 2005, pp. 99 et seq.

  140. 140.

    See the study by ADAC, Study on the effectiveness of Directive 1999/94 relating to the availability of consumer information on fuel economy and CO 2 emissions in respect of the marketing of new passenger cars. Final report, 2005, pp. 54 and 104, which concludes that “[t]he fact that fiscal measures which are directly linked to the fuel consumption or CO2 emissions of passenger cars may have a great impact on consumers vehicle purchase decisions is clearly proven by the example of the Dutch BPM (registration tax) refund in 2002. From 01 January 2002, a fiscal incentive was introduced for environmental-friendly passenger cars of class A and B as a reduction from the registration tax (BPM). Buyers of passenger cars labelled “A” received an incentive of € 1,000, buyers of passenger cars labelled “B” € 500. In this year, the percentage of class A increased disproportionately from 0.3 % in 2001 to 3.2 %, class B from 9.5 % in 2001 to 16.1 %.”

  141. 141.

    Directive 92/75/EC (on this scheme see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 375 et seq.); see also ADAC, Study on the effectiveness of Directive 1999/94 relating to the availability of consumer information on fuel economy and CO 2 emissions in respect of the marketing of new passenger cars. Final report, 2005, pp. 56 et seq. for a comparative assessment.

  142. 142.

    See pp. 213 et seq.

  143. 143.

    On this see Vranes, Trade and the Environment. Fundamental Issues in International Law, WTO Law and Legal Theory, 2009, pp. 305 et seq. with further references.

  144. 144.

    Schick, Das Abkommen über technische Handelshemmnisse im Recht der WTO, 2004, pp. 44 et seq.; Marceau/Trachtman, GATT, TBT and SPS: A Map of Domestic Regulation of Goods, in: Ortino/Petersmann (eds.), The WTO Dispute Settlement System 1995-2003, 2004, pp. 275 et seq. (285, 336–337); Tietje, Das Übereinkommen über technische Handelshemmnisse, in: Prieß/Berrisch (eds.), WTO-Handbuch, 2003, p. 273, paras. 63–65. These writers focus on the structurally analogous architecture in Articles 2.1 and 2.2 of the TBT Agreement.

  145. 145.

    See Marceau/Trachtman, GATT, TBT and SPS: A Map of Domestic Regulation of Goods, in: Ortino/Petersmann (eds.), The WTO Dispute Settlement System 1995-2003, 2004, pp. 275 et seq. (336–337).

  146. 146.

    On the possibility of such terminology see also Kewenig, Der Grundsatz der Nicht-Diskriminierung im Völkerrecht der internationalen Handelsbeziehungen. Band 1: Der Begriff der Diskriminierung, 1972; Epiney, Umgekehrte Diskriminierungen. Zulässigkeit und Grenzen der discrimination à rebours nach europäischem Gemeinschaftsrecht und nationalem Verfassungsrecht, 1995, pp. 19–20; see also Schick, Das Abkommen über technische Handelshemmnisse im Recht der WTO, 2004, pp. 52–53 for a similar consideration under Article 2.1; however, Schick does not advocate the applicability of the principles of justification under Article 2.1, but concludes that Article 2.1 only applies to measures that pursue protectionist intentions. If the scope of application of Article 2.1 is reduced in this way, de facto discriminatory measures are rendered permissible under this permission, which shows that this restriction is inadequate.

  147. 147.

    Article F of the Code of Good Practice.

  148. 148.

    Articles H and J of the Code of Good Practice.

  149. 149.

    See subsection a.

  150. 150.

    See, e.g., Green, Climate Change, Regulatory Policy and the WTO. How Constraining are Trade Rules?, JIEL 8 (2005), pp. 143 et seq. (186 with further references); Buck/Verheyen, International Trade Law and Climate Change – a Positive Way Forward, 2001, available at library.fes.de/pdf-files/stabsabteilung/01052.pdf (accessed 19 February 2010), p. 15.

  151. 151.

    See Article 4(4) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  152. 152.

    See Article 4(2) and Annex V(4)(b) of Regulation (EC) 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel, OJ 2010 L 27/1.

  153. 153.

    See Canada, Labelling and Requirements of the TBT Agreement, WTO Doc WT/CTE/W/229, 23 June 2003, para. 9.

  154. 154.

    On consumer confusion effects of multiple labels see WTO Secretariat, Information Relevant to the Consideration of the Market Access Effects of Eco-Labelling Schemes, WTO Doc WT/CTE/W/150, 29 June 2000, 2-3 with further references; the avoidance of confusion of consumers was also a reason for the EU introducing a mandatory EU-wide labelling scheme providing information on the consumption of energy by household appliances, see the preamble of Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances, OJ 1992 L 297, p 16.

  155. 155.

    See pp. 229 et seq.

  156. 156.

    See, e.g., paras. 4.21, 4.22, 9.12, 14.75, 19.4, 19.24, 19.26, 19.27, 19.28, 19.29, 19.44 and 19.49 of Agenda 21.

  157. 157.

    See para. 15(e) of the Implementation Plan of the 2002 World Summit on Sustainable Development (WSSD), available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm (accessed 26 July 2006).

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    Erich Vranes

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    Christoph Herrmann

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    Jörg Philipp Terhechte

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Vranes, E. (2011). Climate Labelling and the WTO: The 2010 EU Ecolabelling Programme as a Test Case Under WTO Law. In: Herrmann, C., Terhechte, J. (eds) European Yearbook of International Economic Law 2011. European Yearbook of International Economic Law(), vol 2. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-14432-5_9

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