Transcript Titel des Vortrages (Arial 26, blau)

WTO disputes between the EU and Russia
International Annual WTO Forum
Kaliningrad State Technical University
26 March 2015
Rainer M. Bierwagen
Rechtsanwalt Brussels and Berlin
Dr. jur. Universität Konstanz
Honorarprofessor Universität des Saarlandes
Seite 2
Introduction
Overview of WTO dispute settlement proceedings
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DS 462 Recycling fee on motor vehicles (EU)
DS 474 Cost Adjustment Methodologies and Anti-Dumping Measures
DS 475 Measures on Importation of Live Pigs, Pork etc. (EU)
DS 476 Measures Relating to the Energy Sector
DS 479 Anti-Dumping Measures on Light-Commercial Vehicles (EU)
DS 485 Tariff Treatment of Agricultural products (EU)
 For the WTO references see
 https://www.wto.org/english/thewto_e/countries_e/russia_e.htm
Seite 3
Issue
Principal questions
 What do you want to achieve?
 Which options are available?
Seite 4
DS 462 Recycling fee on motor vehicles
Overview of facts
 Recycling fee on imported vehicles
 Domestic vehicles are excepted under certain conditions
 Vehicles from Belarus and Kazakhstan are also excepted under certain
conditions
 No exception for vehicles from the EU possible
 Structure of the fees is progressive
 Distinction between “new” produced vehicles and vehicles produced
“three years ago”
Seite 5
DS 462 Recycling fee on motor vehicles
Overview of legal arguments
 The European Union claims that the measures appear to be inconsistent
with:
 Articles I:1, II:1(a), II:1(b), III:2 and III:4 of the GATT 1994; and
 Article 2.1 and 2.2 of the TRIMs Agreement.
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds462_e.htm
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DS 462 Recycling fee on motor vehicles
Text of articles (1)
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Articles I:1, II:1(a), II:1(b), III:2 and III:4 of the GATT 1994
Article I: General Most-Favoured-Nation Treatment
Article I:1 reads
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1.
With respect to customs duties and charges of any kind imposed on or in connection with importation or
exportation or imposed on the international transfer of payments for imports or exports, and with respect to the
method of levying such duties and charges, and with respect to all rules and formalities in connection with
importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III,* any
advantage, favour, privilege or immunity granted by any contracting party to any product originating in or
destined for any other country shall be accorded immediately and unconditionally to the like product originating
in or destined for the territories of all other contracting parties.
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DS 462 Recycling fee on motor vehicles
Text of articles (2)
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Article II: Schedules of Concessions
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Article II:1(a) reads
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1.
(a)
Each contracting party shall accord to the commerce of the other contracting parties treatment no
less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this
Agreement.
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Article II:1(b) reads
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(b)
The products described in Part I of the Schedule relating to any contracting party, which are the
products of territories of other contracting parties, shall, on their importation into the territory to which the
Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt
from ordinary customs duties in excess of those set forth and provided therein. Such products shall also be
exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess
of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed
thereafter by legislation in force in the importing territory on that date.
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DS 462 Recycling fee on motor vehicles
Text of articles (3)
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Article III: National Treatment on Internal Taxation and Regulation
Article III:2 reads
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2.
The products of the territory of any contracting party imported into the territory of any other contracting
party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess
of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise
apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the
principles set forth in paragraph 1.*
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Article III:4 reads
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4.
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favourable than that accorded to like products of national origin in
respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase,
transportation, distribution or use. The provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product.
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DS 462 Recycling fee on motor vehicles
Text of articles (4)
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Article 2.1 and 2.2 of the TRIMs Agreement
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They read
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Article 2: National Treatment and Quantitative Restrictions
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1.
Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM
that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
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2.
An illustrative list of TRIMs that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 and the obligation of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 is contained in the Annex to this Agreement.
 https://www.wto.org/english/docs_e/legal_e/18-trims_e.htm#top
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DS 463 Recycling fee on motor vehicles
Legal texts (5)
 In the parallel case, DS 463, Japan claims moreover that the measures
are inconsistent with :
 Article 2.1 and 2.2 of the TBT Agreement
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds463_e.htm
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DS 462 Recycling fee on motor vehicles
Text of articles
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Article 2.1 and 2.2 of the TBT Agreement
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Technical Regulations and Standards
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Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies
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With respect to their central government bodies:
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2.1
Members shall ensure that in respect of technical regulations, products imported from the territory of
any Member shall be accorded treatment no less favourable than that accorded to like products of national
origin and to like products originating in any other country.
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2.2
Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or
with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations
shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks
non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the
prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the
environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific
and technical information, related processing technology or intended end-uses of products.
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https://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm
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DS 462 Recycling fee on motor vehicles
Overview of timetable
 On 9 July 2013, the European Union requested consultations with the
Russian Federation
 At its meeting on 25 November 2013, the DSB established a panel
Seite 13
DS 462 Recycling fee on motor vehicles
Principal questions
 What do you want to achieve?
 Which options are available?
Seite 14
DS 475, Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the EU
Overview of facts
 27 Jan. 2014: 2 cases of African Swine Fever (ASF) on wild boar in
Lithuania; 17 & 19 Feb. 2014: 2 cases of ASF wild boar in eastern Poland
 25 Jan. 2014: Russia imposed emergency measures against Lithuania
 Importing of wild boar, horned-hoof , leather and all materials used for
transport or slaughter was rejected (same to Poland on 27 Feb. 2014)
 Russia tried to stop all imports of pig and pig products from the EU
 The EU, Poland and Lithuania took all steps on OIE standards to prevent
a wide spread of ASF, Russia was informed about the measures
 In an ASF case in the Ukraine Russia only restricted but did not stop
imports
 For ASF cases in Belarus Russia was lifting their importing restrictions
Seite 15
DS 475, Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the EU
Overview of legal arguments
 The European Union claims that the measures at issue are inconsistent
with:
 Articles 2.2, 2.3, 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.1, 6.2, 6.3,
7, 8, Annex B, and Annex C of the SPS Agreement; and
 Articles I:1, III:4 and XI:1 of the GATT 1994.
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm
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DS 475, Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the EU
Headlines of articles (SPS Agreement)
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Article 2: Basic Rights and Obligations
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Article 3: Harmonization
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Article 5: Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary
Protection
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Article 6: Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or
Disease Prevalence
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Article 7: Transparency
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Article 8: Control, Inspection and Approval Procedures
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Annex B: Transparency Of Sanitary And Phytosanitary Regulations
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Annex C: Control, Inspection And Approval Procedures
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https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm
Seite 17
DS 475, Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the EU
Headlines of articles (GATT 1994)
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Article I: General Most-Favoured-Nation Treatment
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Article III: National Treatment on Internal Taxation and Regulation
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Article XI: General Elimination of Quantitative Restrictions
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https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm
Seite 18
DS 475, Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the EU
Overview of timetable
 On 8 April 2014, the European Union requested consultations with
Russia
 At its meeting on 22 July 2014, the DSB established a panel
Seite 19
DS 479, Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy
Overview of facts
 14 May 2013: Eurasian Economic Commission puts anti dumping duties
on Italian and German LCV’s
 Only Russia is member of the WTO from the Eurasian Economic
Commission, due to that Russia is respondent in this case
 light commercial vehicles weight from 2.8 t to 3.5 t, van-type bodies and
diesel engines with a cylinder capacity not exceeding 3.000cm3 are
covered
 The anti-dumping duties are 29.6% for imports from Germany, 23% for
imports from Italy and 11.1% for imports from Turkey.
Seite 20
DS 479, Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy
Overview of legal arguments
 The European Union claims that the measures are inconsistent with:
 Articles 1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.4, 3.5, 4.1, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9,
6.10, 9.2, 9.3, 12.2, 12.2.2, 18.4 and Annex II of the Anti-Dumping
Agreement; and
 Article VI of the GATT 1994.
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm
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DS 479, Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy
Headlines of articles (Anti-Dumping Agreement)
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Article 1: Principles
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Article 2: Determination of Dumping
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Article 3: Determination of Injury
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Article 4: Definition of Domestic Industry
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Article 6: Evidence
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Article 9: Imposition and Collection of Anti-Dumping Duties
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Article 12: Public Notice and Explanation of Determinations
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Article 18: Final Provisions
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Annex II: Best Information Available in Terms of Paragraph 8 of Article 6
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https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm
Seite 22
DS 479, Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy
Headlines of articles (GATT 1994)
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Article VI: Anti-dumping and Countervailing Duties
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https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm
Seite 23
DS 479, Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy
Overview of timetable
 On 21 May 2014, the European Union requested consultations with
Russia
 On 18 December 2014, the Director-General composed the panel
Seite 24
DS 485, Tariff Treatment of Certain Agricultural and
Manufacturing Products
Overview of facts
 Russia did not observe bound rates for certain products
 Duty rates on paper and paperboard products (10-15 % instead of 5 %)
 Duty on palm-oil and its fractions, refrigerators and combined
refrigerators-freezers
 For some good the valuation for customs purposes is not based on the
actual value of the imported merchandise
Seite 25
DS 485, Tariff Treatment of Certain Agricultural and
Manufacturing Products
Overview of facts
 Russia did not observe bound rates for certain products
 Duty rates on paper and paperboard products (10-15 % instead of 5 %)
 Duty on palm-oil and its fractions, refrigerators and combined
refrigerators-freezers
 For some good the valuation for customs purposes is not based on the
actual value of the imported merchandise
Seite 26
DS 485, Tariff Treatment of Certain Agricultural and
Manufacturing Products
Overview of arguments
 The European Union claims that the measures appear to be inconsistent
with:
 Articles II:1(a), II:1(b) and VII of the GATT 1994; and
 Articles 1 through 7, and Annex I, of the Customs Valuation Agreement.
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds485_e.htm
Seite 27
DS 485, Tariff Treatment of Certain Agricultural and
Manufacturing Products
Text of articles (GATT 1994)
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
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Article II:1(a) reads
Each contracting party shall accord to the commerce of the other contracting parties treatment no
less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to
this Agreement.
Article II:1(b) reads
The products described in Part I of the Schedule relating to any contracting party, which are the
products of territories of other contracting parties, shall, on their importation into the territory to which
the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule,
be exempt from ordinary customs duties in excess of those set forth and provided therein. Such
products shall also be exempt from all other duties or charges of any kind imposed on or in
connection with the importation in excess of those imposed on the date of this Agreement or those
directly and mandatorily required to be imposed thereafter by legislation in force in the importing
territory on that date
Article VII: Valuation for Customs Purposes (Headline)
 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds485_e.htm
Seite 28
DS 485, Tariff Treatment of Certain Agricultural and
Manufacturing Products
Overview of timetable
 On 31 October 2014, the European Union requested consultations with
Russia
 On 26 February 2015, the EU requested the establishment of a panel
 http://trade.ec.europa.eu/doclib/press/index.cfm?id=1265
Seite 29
More cases coming?
Grain export tax
 Russia introduced a new tax on grain exports earlier in February 2015, as
part of a broader response to rising domestic food prices.
 This is the third time Russia has imposed grain export restrictions since
2008, having banned exports altogether in August 2010.

http://www.ictsd.org/bridges-news/bridges/news/russia-introduces-grain-export-tax
Page 30
Contact
Seite 31
Contact
Dr. Rainer M. Bierwagen
BEITEN BURKHARDT
Avenue Louise 489
B-1050 Brussels
Tel.: +32 2 639 00 00
Mobile: +32 475 83 86 89
Email: [email protected]
www.bblaw.com