Positive Integration - EU and WTO Approaches Towards the "Trade and" Debate

Table of Contents

1. Frontmatter

2. Introduction—Positive Integration: EU and WTO Approaches Towards the ‘Trade and’ Debate

   Rike Krämer-Hoppe

   Abstract

   The ‘trade and’ debate is concerned with the relationship between trade liberalisation and other non-economic values or concerns like the protection of the environment or human health. Both the EU as well as the WTO struggle in finding the right balance between different values. In the twenty-first century, especially in times like these, when free trade and economic integration are more and more called into question, finding convincing normative answers or ways to address this very complex relationship between trade and other policies is even more pressing. This special issue uses the framework of positive, negative and non-integration to describe and assess solutions and problem-solving capacities for the ‘trade and’ interlinkage. Comparing the WTO and the EU through this framework not only allows for a comprehensive assessment of all the solutions or mechanisms already in place, it also enables new visions and answers for the ‘trade and’ debate.

3. Bilateral Positive Integration: Different Strategies for Regulatory Cooperation in the TTIP

   Christine Wieck, Bettina Rudloff

   Abstract

   This article discusses regulatory cooperation in the area of food safety in trade agreements with a special attention to the EU-US negotiations about the Transatlantic Trade and Investment Partnership. We show how food safety is regulated in trade agreements and what regulatory cooperation approaches between countries and internationally regarding food safety exist. There were several high-profile disputes at the WTO dealing with food safety issues. These cases show how solutions for heterogeneous food safety regulation can be found and constitute viable alternatives to regulatory cooperation and harmonization of standards. A “race to the bottom” of food safety standards is not necessarily the case when countries cooperate on food safety matters.

4. The Role of Non-tariff Measures in the Agri-Food Sector: Positive or Negative Instruments for Trade?

   Fabio G. Santeramo, Emilia Lamonaca

   Abstract

   The contribution shows the state of the art of “trade and non-tariff measures” debate in the agri-food sector. It provides an overview on trends in trade and in the level of policy interventions over the last decades, in order to shed lights on potential cause-effect relations. Comparing the evolution of trade and of non-tariff measures (NTMs) in agri-food sector, it appears that the pervasiveness of NTMs is likely to be strictly related to changes in trade patterns. Although the main scope of NTMs is to correct market inefficiencies, they may have a twofold role: trade catalysts or trade barriers. The potential relationships between trade and NTMs, however, differ across involved countries, products under regulation, and types of measure. Indeed, evidence from the empirical literature support either the “standards as catalysts” and the “standards as barriers” points of view. Our contribution aims at outlining how NTMs and trade influence each other.

5. EU and WTO Regulatory Approaches to Renewable Energy Subsidies: Negative and Positive Integration

   Ilaria Espa, Gracia Marín Durán

   Abstract

   This paper compares how the EU and the WTO have grappled with balancing the negative (trade-distortive) and positive (climate change-mitigation) effects of renewable energy (RE) subsidies. It first shows that, although both subsidy control regimes share some basic tenets of negative integration (i.e. prohibiting trade-distortive RE subsidies), EU State aid law is comparatively more constraining on governments’ space to support green energy in both substantive and procedural/institutional terms. It then argues that the more negative integration is strictly framed and implemented, the greater the need for positive integration (i.e., sheltering trade-distortive but climate-friendly RE subsidies under certain conditions). This, in turn, goes a long way in explaining why the EU’s regulatory model is also distinct for having progressively established a set of common rules on permissible “good” RE subsidies. With this in mind, the paper assesses the extent to which the absence of a comparable positive integration dimension in the WTO legal framework exposes RE subsidies to the risk of WTO-illegality. It finally argues that while comparing the two regimes may be useful from a theoretical standpoint, a transposition of the EU’s positive integration approach to the WTO is not desirable for a variety of legal, political and institutional reasons.

6. Trade and Environment in the EU and WTO: Legitimacy, Proportionality and Institutional Power Play

   Emily Reid

   Abstract

   The relationship between trade and environment is complex. Notwithstanding that these interests are fundamentally interdependent, the Court of Justice (Court) and WTO Appellate Body (AB) have both had to balance trade liberalisation and environmental protection, typically in cases involving a challenge to trade-restrictive national environmental regulation, where setting aside such regulation would contribute to negative integration. Such judicial balancing raises legitimacy questions relating to three areas of tension: first, substantively, between trade liberalisation and environmental protection; secondly concerning the relationship between supra/international rules and national regulation; and thirdly, relating to a supra/international judicial body (potentially) setting aside a national regulator’s act. The ongoing credibility of the EU and WTO is dependent upon mitigating these questions, an imperative intensified by the emergence of ‘popular globalisation scepticism’ in contemporary politics. Building upon recent scholarship on conceptualisations of legitimacy in international law, this paper first critically scrutinises the legitimacy questions arising from such judicial balancing, contextualising the problem in contemporary political events. Secondly, the respective roles of the Court and AB are examined, and the significance of the scope of their authority evaluated. Thirdly, the reasoning of the Court and AB is analysed. In conclusion, the political importance of the Court and AB’s language on proportionality and ‘weighing and balancing’, indicating sensitivity to national values, is highlighted. It is however recognised that consistent with administrative due process, key to input legitimacy, the objective judicial analysis which underpins the Courts’ tests is crucial, and it is this which will contribute to output legitimacy.

7. Adjudication and Positive Integration: The Role of the European Court of Justice and the Dispute Settlement Body in the “Trade and Environment” Debate

   Rike Krämer-Hoppe

   Abstract

   The relationship between the two goals trade and environment is complex and has been analysed by the so called “trade and environment” debate. This debate has mainly focused on the WTO with the inclusion of some comparison with the EU. Especially with regard to the quasi-judicial organs of the WTO, the Dispute Settlement Body (DSB) and the European Court of Justice (ECJ), the comparison has concentrated on negative integration, the removal of trade barriers between countries by striking down Member State measures via adjudication. This has led to a narrow comparison of judicial reasoning to the trade and environment interdependence, leaving aside the other side of the same coin, positive integration, in the sense of the establishment of common rules. Even so courts can not enact common rules, the paper argues, the ECJ and to some extent also the DSB can play pivotal roles by changing the status quo and providing an opportunity structure for environmental change and foster positive integration in this way. In order to allow for a broader comparison, the paper will first analyse the different standing rights before the ECJ and the DSB. In a second step, the different possible roles the ECJ or the panels and the Appellate Body can play in promoting positive integration will be outlined: rule enforcement, clarification of the room to manoeuvre and facilitator of positive integration. In a third step, these possible roles are exemplified by different settings and cases from the EU and the WTO. These cases show that positive integration can also be fostered through adjudication. For comprehensive comparisons this perspective has to be included in our “trade and environment” debate.

8. Myths and Virtues of Positive and Negative Integration: Some Concluding Remarks

   Piet Eeckhout

   Abstract

   I applaud and recommend this collection of papers, which re-considers the positive/negative integration paradigm in the EU and the WTO, through the lens of the laws and institutions which govern the interaction between trade liberalisation and environmental and food regulation. This is technical stuff, but its technicality belies deep questions posed of our contemporary polities: about the nature and governance of globalisation, and about our economic, welfare and environmental protection concepts. The authors are to be commended for drilling down where the technicality of the subject requires this, yet without losing sight of the broader questions.