Unpacking the Concept of Discrimination in EC and International Trade Law
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Description
The notion of discrimination has always been fundamental to international trade law, constituting one of the principal conceptual tools for identifying impermissible trade restrictions. It continues to be a key, albeit increasingly complex and widening concept in world trade law, where its centrality amongst the norms of the WTO system is unquestioned. It will be argued in this chapter that whereas the origins of international trade law indicate that its primary goal was to eliminate national protectionism, and not to promote international regulatory convergence or harmonization, even this basic notion of protectionism is a potentially slippery one capable of expansion and indeterminacy in practice. The principle of non-discrimination was developed in order to further this primary goal, as a means of helping to identify protectionist measures, but the discrimination concept is also a complex and expansive one. While the EU is now clearly a far more closely integrated regional system in which the goal of anti-protectionism was from the outset accompanied by a strong programme of market integration and harmonisation, buttressed in recent years by an ambitious project of political and constitutional integration, a look at the WTO system indicates that many of the same legal developments––albeit that they happened much more quickly, explicitly and intensively within the European system––are becoming apparent in that context. The expansion and blurring of the notions of protectionism and discrimination on the one hand, and the move towards norms of indirect discrimination and ‘unnecessary’ barriers, as well as the increasing complexity of the notion of direct discrimination (through the subtleties of determining ‘like’ products) are all to be seen occurring in the context of the provisions of the WTO agreements. The balance between a strong market culture and the regulatory space to pursue other policy goals is clearly shaped in important part by these foundational concepts––in other words, by the breadth of the basic prohibition on trade barriers––and in part by the nature and scope of the possibility for justifying such barriers. A common misapprehension is to assume that these concepts––protectionism, discrimination, market access etc––have relatively fixed or stable meanings, and that the pattern or strength of trade liberalisation depends on which of them is the animating principle underlying the legal norms. On the contrary, consideration of the development of the EC internal market and of the GATT/WTO system over time suggests that the concepts themselves are eminently fluid and that their construction is capable of changing as the economic and political context in which they are being interpreted alters. The EU and the WTO, in their different ways, are highly dynamic entities and their norms are in a process of ongoing articulation and development. This is partly through a process of contestation before the courts and dispute settlement bodies of the two entities, and partly through the relationship between law and politics––or more narrowly, the balance between negative and positive integration––within the respective systems. Further, the deeper policy questions concerning the relationship between market and society, which are mediated by the balancing of trade liberalisation norms and ‘domestic’ (which in the WTO context includes also ‘EU’) regulatory autonomy, cannot be avoided by the choice of concept to underpin the system. That balance is implicit in and will emerge in the construction of whatever fundamental concept is chosen––whether protectionism, discrimination, market access or some other––although the balancing process used is likely to vary depending on these. Many factors including the types of values and non- economic norms which can be brought into the balance, the degree of importance to be given to the trade liberalisation aim and where the weight of presumption will lie, will vary in accordance with the nature and structure of the basic concept chosen to constitute the trade liberalisation norm. Ultimately, however, the underlying and fundamental policy questions can never be entirely avoided, but can only be structured differently, because the very act of elevating free trade norms—whether by ‘constitutionalising’ them as in the European context, or by vastly strengthening and privileging them as under the reformed WTO system—necessarily forces some version of that choice onto all communities which participate in the system.
Source Publication
The Law of the Single European Market: Unpacking the Premises
Source Editors/Authors
Catherine Barnard, Joanne Scott
Publication Date
2002
Recommended Citation
de Búrca, Gráinne, "Unpacking the Concept of Discrimination in EC and International Trade Law" (2002). Faculty Chapters. 334.
https://gretchen.law.nyu.edu/fac-chapt/334
