Jean Monnet Center at NYU School of Law

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Trade and Environment in the EU and WTO: Conclusions

In his recent book examining the free movement case law of the European Court from a perspective of economic constitutionalism, Miguel Poiares Maduro explores a fundamental dilemma. [122] On the one hand 'discrimination or protectionist effects tests are seen as inefficient in fighting protectionism because they allow too many protectionist measures to escape judicial consideration'. [123] On the other, 'a balance test', such as that represented by the European Court's proportionality based approach, implies, 'to a great extent, making it [the Court or other dispute settlement body] responsible for defining appropriate regulatory policy'. [124] Not only are courts structurally ill-equipped for this task, but this gives rise to profound issues of legitimacy which ultimately, 'have consequences for the acceptance of their decisions and their authority'. [125] While it is not possible here to do justice to the richness of Maduro's insights, nor the impressive clarity of his expression, Maduro argues convincingly that, in the context of balancing, the search for a 'meta-national' mechanism of substantive assessment is bound to fail. Ultimately, the task of balancing the costs and benefits associated with any given measure will reflect the values, and institutional context, of those endowed with authority.

Maduro's thesis in this respect is nowhere more convincing than in the area of environmental policy. In an area which encompasses, but transcends, physical impact what is reasonable (proportionate) or 'rational' in terms of policy response is necessarily contingent. [126] This reflects not merely the uncertainty which characterizes costs and benefits in a context of unknown (unknowable) risk, but also post-positivist conceptions of science, and economics, as capable of constructing merely a version of the 'truth' which, like any other, has its roots in the premises, methodologies and values of the system within which it is articulated. To take a single example, drawn from the first case study above. In Gourmetterie [127] Advocate General van Gerven (unlike the European Court) approached the Dutch ban on the marketing 'dead red grouse' from the perspective of proportionality. He notes in this respect that:

The restriction of intra-Community trade resulting from an absolute prohibition of out of proportion, in my view, to the small contribution which such a prohibition is capable of making in concreto -- by discouraging the killing of the bird species in question in the United Kingdom -- the achievement of the objective pursued, namely the improvement of stocks of bird species which is not endangered and whose protection is not a priority under Community law. That is so particularly since the measure under consideration and the obstacle to trade resulting therefrom are intended to protect a bird and thus, contrary to the principle of mutual confidence between States, to take effect on the territory of another Member State; moreover, the measure was adopted on the basis of a unilateral appraisal of the interests involved, that is so say without taking into account of interests which may warrant or justify the hunting of that species.

The Advocate General is clearly conscious here that application of the proportionality principle is a matter of judgment. In his view, having regard to the physical objective which he perceives as underlying the national measure, the import prohibition is not proportionate. [128] The objective of the measure at hand may, however, be viewed in terms which are not physical. The Dutch interest in the ban may lie not merely in its concern to promote a decline in the hunting of the bird species in question in the United Kingdom, but also in the value which that society attaches to knowing that it is not participating, through trade, in practices which it considers to be wrong. The ban may reflect ethical concerns and seek to protect the moral autonomy of this society. In this sense, it might be considered comparable to a ban on the importation of pornographic or racist literature introduced, not on the basis of evidence of a resulting rise in racism or abuse of women or children, but on the basis quite simply that it is wrong. As in a context of scientific uncertainty, concepts of proportionality or rationality emerge as striking in their subjectivity when they confront the moral, rather than physical, spillovers associated with international trade. It is no doubt for this reason that the European Court has accorded Member States such a broad margin of discretion when confronted with cases concerning the protection of public morality. [129]

This, however, is not the only reason for citing Advocate General van Gerven above. Among the reasons which he provides for his skepticism regarding the legitimacy of the Dutch ban is the fact that the measure was adopted without taking into account the interests of the United Kingdom in hunting red grouse. In this sense the Advocate General is concerned with what Maduro calls 'national bias' in policy-making in Member States. By this Maduro is referring to the 'over-representation of national interests' at the expense of 'out-of-state interests'; decisions of Member States that affect the free movement of goods can thus be seen as affecting interests not normally represented in the national political process'. [130] This leads Maduro in a particular direction. He proposes a procedural rather than a substantive role for the European Court in its assessment of the legitimacy of national regulatory measures under Articles 28-30 (formerly 30-36). '[T]he Court of Justice should not second-guess national regulatory choices, but should instead ensure that there is no under-representation of the interests of nationals of other Member States in the national political process'. [131] It is thus the quality of the political process, in terms of interest representation and participation, which is viewed as providing the basis for the evaluation of national measures, rather than the substantive merits of the decision from the perspective of the actor enjoying the power of review.

Maduro's recent contribution in this respect does not stand alone. It is indicative of a widespread procedural turn in European Community law; an approach which approaches legitimacy through the lens of process rather than outcome and insists not only upon an expanded participatory basis in (national and Community) decision-making, but also upon 'civic' deliberation as the hall-mark of the political. This is alluded to by Christian Joerges, in the context of the European Court's review of the hormones regime, when he notes:

...the disregard of scientific evidence that the Commission had been prepared to bring to bear can hardly be heralded as a triumph of legitimate political authority over the neglect of public anxieties by insulated technocrats. The institutional mechanism actually endorsed by the Court was the bargaining process within the Council. Intergovernmental bargaining should not be equated with deliberative political processes on the social acceptability of technological developments. [132]

It is interesting to observe that in both the shrimp and hormones 'cases', the relevant panels, in different ways, looked to process as a tool for assessing the legitimacy of national measures. In the former, the panel emphasized the failure of the United States to engage seriously in international negotiations prior to the introduction of the standards in question. Indeed, the conclusions of the panel are such to suggest that this may have been a crucial factor in leading it to condemn the regime in question. In the latter, Article 5.1, concerning risk assessment, was conceived as implying a minimum procedural (as well as a substantive) obligation. As noted above, the AB reversed the findings of the panels in this respect in the hormones case, [133] while clearly strengthening this procedural turn in its more recent shrimp decision. In the later, as noted above, emphasis was placed not merely upon the duty to negotiate, but also upon the procedural mechanisms underpinning the certification process. The right to be heard, to appeal or seek review of a certification decision, and to receive reasoned notification of outcome, were cited as factors condemning the United States measures in question, under the 'chapeau' to GATT, Article XX. Here perhaps we have, in the broadest terms, the seeds of a process based approach upon which both the Community, and the WTO, should be encouraged to build. [134] Were they to do so, they might, in the famous words of John Hart Ely, come to play a role which is 'representation-reinforcing'; [135] nourishing rather than thwarting the democratic process.

[122] Supra n. 56.

[123] Ibid, p. 53.

[124] Ibid, p. 59.

[125] Ibid.

[126] It is important to observe that the 'rationality' test of the AB in the hormones case is, as it was expressed there, less intrusive in terms of national policy than a fully fledged proportionality test as applied by the European Court, especially in its review of national measures. In practice, of course, the European Court's test ranges from the strict to a more hands-off 'not manifestly disproportionate standard'. The Danish Bottles (Case 302/86 Commission v. Denmark [1988] ECR 4607) case provides a good example of what I mean by a fully fledged proportionality test, as does the definition of Advocate General van Gerven in the dead red grouse case, supra n. 21). In the context of the SPS Agreement, once the minimum threshold (more than a merely theoretical risk) has been reached the AB said nothing to imply that it would go further in balancing the costs and benefits of the measure in question (subject of course to the least restrictive means test). Nonetheless recourse to the language of rationality or reasonable, upon which the AB report is predicated, clearly lends itself to the application of a proportionality style test. It remains to be seen whether, in the future, in the context of an established risk, the AB will develop the concept of a rational relationship in this way.

[127] Supra n. 21, para.

[128] The limited physical impact of the measure reflects its extra-territorial nature. The ban may have no impact whatsoever. Grouse may continue to be hunted in the United Kingdom on the same scale. It may be necessary for new markets to be found, whether at home or abroad, but the link between the measure and its physical objective is tenuous. In this, the Advocate General echoes the approach of the GATT panel in the second of the Tuna/Dolphin reports. Here the measures were condemned on the basis that they were contingent in their effect upon their occasioning a change of policy on the part of the exporting state.

[129] See, for example, Case 34/79 R v. Henn & Derby [1979] ECR 3795.

[130] Supra n. 56, pp. 169-175.

[131] Supra n. 116, p. 173

[132] Supra n. 115 p. 310. See also Everson, M., 'Administering Europe' 36 JCMS 195, pp.209-211; Cohen & Sabel, 'Directly-Deliberative Democracy' 3 (1997) ELJ 313; Joerges & Neyer, 'From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalization of Comitology' 3 (1997) ELJ 273; Scott, J., 'Law, Legitimacy and EC Governance: Prospects for Partnership' 36 JCMS 155. See also, in a US context, writings on 'civic republicanism', for example, the contributions of Sunstein, Michaelman etc. in 97 (1988) Yale LJ.

[133] It is interesting to note that the AB appears to adopt a different approach to the language of 'based on' in Article 3.1 (concerning international standards etc.) and Article 5.1. Whereas in the case of the former it is taken to mean 'build upon' rather than 'conform to', it is taken to imply a rather stricter standard of conformity in the latter. It should be observed that this paper is not arguing that scientific evidence is irrelevant in decision-making, merely that it is one perspective which should be required to feed into the policy process, but only one of many. According to the process based approach espoused here, it would be for courts to police the adequacy of representation of, and engagement with, the scientific viewpoint.

[134] The above discussion of the shrimp case did not allude to one further important difference in approach between the panel and the AB. Significantly, the AB reversed the panel's finding that accepting non-requested information from non-governmental sources is incompatible with the provisions of the Dispute Settlement Understanding. The AB held that panels established not only have a right to seek information from any individual or body or from any relevant source (under Articles 11 and 13 of the DSU) but also 'discretionary authority either to accept and consider or to reject information advice submitted to it, whether requested by a panel or not whether requested by a panel or not'. In this particular case the contested information concerned unrequested briefs submitted by three environmental non-governmental organizations. The AB held that the panel had acted within the scope of its authority in allowing the parties to the dispute to attach such briefs to their own submissions, should they see fit to do so. Nonetheless, the principle established is such as to have the potential to open up the WTO dispute settlement regime to interests which might otherwise not find representation or voice within the official submissions of Members.

[135] Democracy and Distrust: A Theory of Judicial Review (Harvard UP, 1980).

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