EC-Asbestos: European Communities—Measures Affecting Asbestos and Asbestos-Containing Products
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Description
Some cases attain “landmark” status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, “canonical,” ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC-Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non controversial result. It is a rare, indeed unique, instance that embedded in the decision itself a Member of the Appellate Body Division which decided the case expresses “substantial doubt” as to the core reasoning of the decision. And although the AB rejected the reasoning, not the final outcome, of the Panel’s decision, the doctrinal implications of the rejection are not clear and continue to be contested. The importance of Asbestos must initially be found in its factual matrix, a French Government Decree of 1966 providing, inter alia, in its first article as follows: “I.—For the purpose of protecting workers, . . . the manufacture, processing, sale, import, placing on the domestic market and transfer under any title whatsoever of all varieties of asbestos fibres shall be prohibited, regardless of whether these substances have been incorporated into materials, products or devices. II.—For the purpose of protecting consumers, . . . the manufacture, import, domestic marketing, exportation, possession for sale, offer, sale and transfer under any title whatsoever of all varieties of asbestos fibres or product containing asbestos fibres shall be prohibited . . .” This is a most typical (arguably the most typical) kind of government measure in the field of consumer and workplace protection taken in Member Countries of rich or poor, North or South, West or East. EC-Asbestos thus affects the physiognomy, not the pathology, of government regulation and its entanglement with General Agreement on Tariffs and Trade (GATT) trade rules. It is also a case that implicates what is arguably the most central of GATT disciplines: National Treatment in the field of Regulation (and, by implication, taxation). There was never a serious doubt as to the material outcome of this case: validation of the legality of the French measure (many suspect that the Canadian government could not have seriously believed the WTO would overturn a ban on asbestos, but that it needed the result as a matter of domestic politics.) Thus, this is not a case about outcomes but about reasoning: the proper way for regulators and adjudicators to think of the application of the most central of GATT disciplines to the most central of government regulatory activity. It is our belief that the case does not settle this question definitively but is extremely important in putting the methodological question squarely back on the table. It is veritably a watershed case—the full significance of which will emerge in the light of subsequent jurisprudence. Our own methodology will be as follows. The outcome of EC-Asbestos is hardly in doubt here. It is, as noted, the framework of methodologies that should become the central discussion point regarding EC-Asbestos, for it will provide a normative yardstick with which both to evaluate the specific decision in this case and to prescribe future evolution. We shall therefore first expound three possible approaches that EC-Asbestos exemplifies for interpreting the ambit of the National Treatment provision in GATT as it applies to regulation. Although, following the case, our focus will be on regulation, one cannot fully grasp the issues in the case without extensive reference to the law and case law on taxation. The principal governing norm, Article III. GATT is part of a whole (Article III GATT) which situates taxation and regulation side by side under a common chapeau. We will then discuss, critically, the main findings by the Panel and the AB in the light of these approaches.
Source Publication
The WTO Case Law of 2001
Source Editors/Authors
Henrik Horn, Petros C. Mavroidis
Publication Date
2003
Recommended Citation
Horn, Henrik and Weiler, Joseph H. H., "EC-Asbestos: European Communities—Measures Affecting Asbestos and Asbestos-Containing Products" (2003). Faculty Chapters. 1522.
https://gretchen.law.nyu.edu/fac-chapt/1522
