How the EU Defends its Non-Trade Objectives Before the WTO: An Analysis of SPS/TBT Disputes

Abstract:

The European Union is at the same time one of the staunchest defenders of a liberal and multilateral trading order and often the most radical regulator in protecting the health of citizens and the European and global environment. This might be problematic when ‘protective’ regulations at home are perceived as ‘protectionist’ measures abroad. This article looks at a particular arena where the EU has to confront this potential contradiction: the World Trade Organization’s dispute settlement system. How does the EU reconcile its free trade ambitions with its regulatory stringency there? It is found that the EU manages to act consistently before the WTO courts by refraining from pressing charges against other countries’ sanitary and phytosanitary and technical measures and, as a third party, speaking out for the defendant by advocating discretion in deciding on and maintaining the appropriate level of protection. That the EU is so much on the ‘protection’ side of the continuum before the WTO courts is explained by its own early losses in some high-profile, sensitive WTO disputes in combination with the more risk-averse stance of the European public.