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WTO disputes between the EU and Russia International Annual WTO Forum Kaliningrad State Technical University 26 March 2015 Rainer M. Bierwagen Rechtsanwalt.

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Presentation on theme: "WTO disputes between the EU and Russia International Annual WTO Forum Kaliningrad State Technical University 26 March 2015 Rainer M. Bierwagen Rechtsanwalt."— Presentation transcript:

1 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

2 Seite 2 Introduction Overview of WTO dispute settlement proceedings  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 https://www.wto.org/english/thewto_e/countries_e/russia_e.htm

3 Seite 3 Issue Principal questions  What do you want to achieve?  Which options are available?

4 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”

5 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 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds462_e.htm

6 Seite 6 DS 462 Recycling fee on motor vehicles Text of articles (1)  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  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.

7 Seite 7 DS 462 Recycling fee on motor vehicles Text of articles (2)  Article II: Schedules of Concessions  Article II:1(a) reads  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.  Article II:1(b) reads  (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.

8 Seite 8 DS 462 Recycling fee on motor vehicles Text of articles (3)  Article III: National Treatment on Internal Taxation and Regulation  Article III:2 reads  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.*  Article III:4 reads  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.

9 Seite 9 DS 462 Recycling fee on motor vehicles Text of articles (4)  Article 2.1 and 2.2 of the TRIMs Agreement  They read  Article 2: National Treatment and Quantitative Restrictions  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  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 https://www.wto.org/english/docs_e/legal_e/18-trims_e.htm#top

10 Seite 10 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 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds463_e.htm

11 Seite 11 DS 462 Recycling fee on motor vehicles Text of articles  Article 2.1 and 2.2 of the TBT Agreement  Technical Regulations and Standards  Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies  With respect to their central government bodies:  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.  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.  https://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm https://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm

12 Seite 12 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

13 Seite 13 DS 462 Recycling fee on motor vehicles Principal questions  What do you want to achieve?  Which options are available?

14 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

15 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  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm

16 Seite 16 DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU Headlines of articles (SPS Agreement)  Article 2: Basic Rights and Obligations  Article 3: Harmonization  Article 5: Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection  Article 6: Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence  Article 7: Transparency  Article 8: Control, Inspection and Approval Procedures  Annex B: Transparency Of Sanitary And Phytosanitary Regulations  Annex C: Control, Inspection And Approval Procedures  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm

17 Seite 17 DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU Headlines of articles (GATT 1994)  Article I: General Most-Favoured-Nation Treatment  Article III: National Treatment on Internal Taxation and Regulation  Article XI: General Elimination of Quantitative Restrictions  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm

18 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

19 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.

20 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, , 18.4 and Annex II of the Anti ‑ Dumping Agreement; and  Article VI of the GATT  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm

21 Seite 21 DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy Headlines of articles (Anti-Dumping Agreement)  Article 1: Principles  Article 2: Determination of Dumping  Article 3: Determination of Injury  Article 4: Definition of Domestic Industry  Article 6: Evidence  Article 9: Imposition and Collection of Anti-Dumping Duties  Article 12: Public Notice and Explanation of Determinations  Article 18: Final Provisions  Annex II: Best Information Available in Terms of Paragraph 8 of Article 6  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm

22 Seite 22 DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy Headlines of articles (GATT 1994)  Article VI: Anti-dumping and Countervailing Duties  https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds479_e.htm

23 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

24 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

25 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

26 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 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds485_e.htm

27 Seite 27 DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products Text of articles (GATT 1994)  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 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds485_e.htm

28 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 

29 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 

30 Page 30 Contact

31 Seite 31 Contact Dr. Rainer M. Bierwagen BEITEN BURKHARDT Avenue Louise 489 B-1050 Brussels Tel.: Mobile:

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