For some readers, I would like to first apologize here. Due to my limited time, it is impossible to transalte or rewrite some of my interesting articles in English at this moment. But, I will try to do my best in the future. You may be interested in some issues like the relation Between Taiwan-China FTA and Taiwan's oncoming election of President, the potentially monitoring regimes of FTA under Taiwan's Constitution (do we need to learn from Article 218.11 of the TFEU?), the potential relation between Taiwan and China: the WTO or EU Model? or Do we need to recognize the right to development under the Consitution?
I promise that I would try to rewrite or translate some of them into the English version in the future. If you are interested in the future developoment of China, it would be a big loss for you to miss the interesting development of interactions between China and Taiwan.
2011年5月31日 星期二
2011年5月30日 星期一
A Study of Precautionary Prinple
HOW TO RECONCILE MARKET AND NON-MARKET VALUES IN EU MARKET INTERGATION
—A Study of Precautionary Principle—
Abstract
Recognizing the limits of science and the possibility of facing unpredicted risks in modern society, this contribution aims to deal with the situation where there is scientific uncertainty, how the public authority could respond by relying upon the precautionary principle. The author starts to study the relevant WTO and EU cases and their academic comments, in order to answer the questions presented. The author finds that, first the demerits of the precautionary principle can be mitigated by requiring the authority to severely fulfill the procedural requirements in the process of decision-making. Second, the application of the precautionary principle did change the criteria of the proportionality principle in the EU cases. Finally, given the limits of the text of the SPS Agreement, it is hard to find a compromise between the precautionary principle and the SPS Agreement.
1. Introduction
This paper aims to explore how the EU institutions and the Member States shall apply precautionary principle in terms of the EU case law and how the EU courts have reviewed the preventative measure of the EU institutions and the protective acts of the Member States. In the former cases, the General Court (GC) needs to make a balance between private rights (the right to property, the freedom to pursue a business) and an EU public interest (a high level of protection of human health), in the latter case, the Court of Justice of the European Union (ECJ) has to weigh an EU public interest (free movement of goods, Article 34 of the TFEU) against a national public interest (the right to depart from the EU’s harmonized measures on the ground of human health protection)[1]. In both cases, the EU courts need to make a balance between trade interests and non-trade interests[2], when the institutions adopt the preventative measure under the precautionary principle.
In particular, the author would like to observe the relation between the proportionality principle and the precautionary principle and to see whether the application of the precautionary principle has changed the criteria of the proportionality principle in the relevant cases.
Apart from the internal interaction between the EU institutions, the Member States and the EU courts, it is also meaningful to observe the external relation between the precautionary principle under the EU law and the SPS Agreement under the WTO law, in order to examine whether there exists a compromise between both legal instruments.
In this contribution, the author mainly relies on the relevant EC and WTO case law to study and answer the question presented.
In the following sections, we would first describe what the precautionary principle is, its legal basis in EU law, and how the EU courts extend the scope of the precautionary principle into the area of the protection of human health. After explaining the precautionary principle, we would like to further illustrate how to apply the precautionary principle and to see how the EU courts would review the precautionary measures adopted by the EU institutions and the Member States. After that, we would turn to observe the relation between the precautionary principle and the SPS Agreement.
2. What is the Precautionary Principle
Article 191 of the Treaty on the Functioning of the European Union states that, Union policy on the environment shall be based on the precautionary principle. Thus, the precautionary principle is first to be used in the area of environmental policy.
Subsequently, in the landmark case, the Court of Justice ruled that, “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait the reality and seriousness of those risks becomes fully apparent[3]. Later, the General Court (GC) recalled the BSE judgment and explicitly referred to the precautionary principle[4]. Therefore, the European courts extended the precautionary principle to the area of human health. This view has also been shared by the Commission[5].
According to the case law, the precautionary principle allows the authority to adopt a preventative measure in a provisional manner, pending the availability of additional scientific evidence, provided that there is scientific uncertainty[6].
3. How to Apply the Precautionary Principle
3.1 The General Framework
A common regime of risk regulation often comprises two parts: risk assessment and risk management. First, using the procedure of risk assessment determines the probability of the occurrence of harm. The risk assessment procedure includes four steps: hazard identification, dose response assessment, exposure assessment, and risk characterization[7].
Once the procedure of risk assessment has been completed, the second step is for the politicians to make a political decision to determine whether the products concerned is safe to distribute or shall be restricted, taking into account the reports of the risk assessment as well as other societal, economic, ethical factors. Here, the precautionary principle requires that, on the one hand, the decision shall be based on the scientific evidence as rigorous as possible, and on the other hand, the politicians retain the autonomy when making such a decision[8].
3.2 The Risks Addressed
According to the wording of international treaty, here the risks addressed shall be serious, significant, and the harm shall be irreversible when the risks become reality[9]. Here, I agree with Cass Sunstein’s view that there has to exist a threshold of scientific plausibility, in order to prevent ‘palpable absurdity’[10].
In addition, a hypothetical risk cannot be seen as a risk under the precautionary principle[11]. According to WTO case law, the risk must be ascertainable’ and not ‘theoretical’, because science can never provide absolute certainty when assessing whether a given substance will never have an adverse impact on human health[12].
3.3 Risk Assessment
First, before taking a protective measure, it is necessary to conduct a risk assessment. The EC court expressly recognizes the need to perform risk assessments when facing uncertainties[13]. The General Court (GC) further indicated that, performing a risk assessment is a prerequisite for taking a protective measure[14].
Second, In Monsanto, the ECJ found that, when conducting the risk assessment, the national authorities shall provide specific evidence to demonstrate that the implementation of the preventative measures is ‘necessary’, in order to avoid the products posing potential risks to human health, by offering ‘the specific evidence’ to conclude the assessment on the basis of ‘the most reliable scientific evidence available and the most recent results of international research’[15].
Third, when conducting a risk assessment, it is not necessary to set up a ‘minimum magnitude of degree of risk’, according to the WTO case law[16].
Fourth, science itself does not have a majority rule[17]. The mainstream scientific opinions do not guarantee the correctness of the scientific opinion. The scientific history has demonstrated that the divergent opinion might be not commonly acceptable among the scientific community at the time when it first published, but its finding might be recognized later. The precautionary principle thus requires the authorities to search the divergent opinions.
Fifth, since the key issue here is the scientific uncertainty. The whole range of the uncertainty shall contain lack of full evidence, lack of causal mechanisms, incorrect assumptions, extrapolation uncertainty, indeterminacy, ambiguity, and ignorance[18]. In particular, the experts shall indicate the unknown unknowns, and the systematic searching for blind spots shall be encouraged[19].
Sixth, although a risk assessment shall be required to conduct, in order to reduce the uncertainty, it may be out of the question to conduct a full risk assessment at that time, due to the limits of the state of science. In fact, scientists are unable to offer the answer to every question. In contrary, their research results would often demonstrate that there is a high degree of scientific uncertainty[20].
Finally, the GC confirmed that, the scientific advice shall be based on principles of excellence, independence, and transparency, in order to maintain a high level of protection of human health[21].
3.4 Risk Management
From the outset, it is well-settled that it is for the institution to determine the level of protection, which it deems appropriate for the society, depending on the circumstances of the particular case. This has also been confirmed by the WTO case law[22].
Although science is the core stone when adopting the precautionary measure in the field of food safety, since scientists have neither democratic legitimacy nor political duty[23], thus, the opinions of the scientific committees or the relevant agencies are not binding[24]. Here, it is the duty of the politicians to determine the appropriate level of protection. Since to determine the appropriate level of protection is a political decision, the authorities are empowered to have a large degree of discretion regarding the means of achieving the objectives of safety, when facing uncertainty[25], provided that the authority has carefully and impartially examined all the relevant aspects of the case concerned[26].
With regard to the zero-risk approach, although the GC previously stated that the institutions may not base their decisions on zero risk[27], in practice, the GC upheld this approach by doubting that the plaintiff failed to conclude there was no link between the use of virginamycin and the development of streptogramin resistance. The GC further noted that, it was insufficient to merely demonstrate that the existence of such a link was ‘very unlikely[28]’. However, it also vital to note that, precluding a zero-risk approach does not seem to preclude the adoption of a preventative measure aiming to eliminate entirely a risk, which is more than a hypothetical risk and which has been scientific confirmed[29].
Due to the scientific evidence or results are insufficient, inconclusive, or imprecision, a Member may adopt a preventative measure. Also, when there are conflicts of scientific opinions regarding the safety of the products, a Member may also adopt a preventative measure.
It is vital to note that the authority’s decision shall be based on a sufficiently reliable and respect information[30], taking into account the scientific data available at the time when taking a precautionary measure[31], as well as the latest results of international research[32].
4. Judicial Review
The EU courts make a distinction between the EU institutions and the Member States when reviewing their precautionary measures. With regard to the protective measures adopted by the Member States, the ECJ tends to apply the strict test of the precautionary principle, when the measures at issue have impaired the functioning of the internal market[33]. While, where the EU institutions possess wide discretionary powers, the GC virtually tends to apply a slight test of the precautionary principle, and solely examines whether the Union measures concerned is invalid on the ground of manifest error, misuse of power, or ultra vires[34]. Being aware of the difficulties of regulating the controversial cases or determining where action is urgent, the EU courts tend to respect the decisions adopted by the EU institutions and only conduct the limited reviews. Here, the EU judicial organs choose not to substitute its assessment of the facts for that of the Union institutions[35].
4.1 Examining the Precautionary Measures by the Proportionality Principle
The ECJ previously admitted that, the precautionary principle is part of the proportionality principle[36]. In contrary, the GC treated the precautionary principle and the proportionality principle as two separate principles in its judgments[37]. The authors indicated that, the principles of proportionality and precaution are intertwined together in their application[38]. Here, my personal view is that the courts have virtually changed the criteria of the proportionality principle when applying the precautionary principle in the case[39]. Compared with the proportionality principle, the precautionary principle is used to cope with the uncertain situations and tends to enact a more restrictive measure to address the unknown risks. When the factual contexts are uncertain, it is very hard to establish the proportionality[40].
When applying the proportionality principle, the ECJ normally requires that, Union measures shall not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the acts in question and, where there is a choice between several proper measures, recourse must be to the least restrictive, and the demerits caused must not be disproportionate to the objectives pursued[41]. Below we would like to separately examine each criterion.
4.1.1 The Necessity Test
This test first compares the various measures having the capacity of achieving the objectives pursued and picks the least restrictive one. However, in Pfizer case, the plaintiff party argued that, the Union authority shall wait until the scientific studies have shown ‘a sufficient likelihood of risk, instead of immediately taking the preventative measures. The GC replied that, the institutions cannot be criticized for having chosen to provisionally withdraw the authorization of virginiamycin, in order to prevent the risk from becoming reality, and at the same time, to continue the research. Here, we can observe that this approach is in line with the precautionary principle. Thus, the criterion of the necessity test has been loosened by the courts.
4.1.2 The Test of Weighing Interests
At this stage, the proportionality principle requires the courts to compare the importance of the objective pursued by the measure at issue and the interests that would be sacrificed by the measure[42]. However, both the ECJ and the GC have expressed that, the requirements of the protection of human health should take precedence over the economic interests[43]. Furthermore, in Artegodan, the GC even embraced a new general principle of Union law, by stating that the protection of human health ‘must undoubtedly’ take precedence over the economic considerations[44]. Here, again, the application of the precautionary principle has effectively changed the criterion of the proportionality principle, by placing the value of human health being prior to the economic interests.
Nonetheless, in Artegodan, the GC also equally emphasized the importance of applying the principles of proportionality and non-discrimination[45]. Likewise, in Bellio F.lli Srl, the ECJ stressed that, even the need to protect public health has been recognized as a primary concern, the proportionality principle still needs to be respected[46].
4.1.3 The Duty of Re-examination
In line with the WTO and the EU law[47], the proportionality principle also requires the EU institutions and the Member States to re-examine their preventative measures, when there has been new scientific information. It would be proportionate to loosen the requirements of the preventative measure when the new research shows that the suspected risk does not seem as serious as the previous evaluation. Here, since the application of the precautionary principle can be seen as the exception of the proportionality principle, the preventative measures adopted shall be provisional and the institutions shall continue its research and re-examine its preventative measures in time, in order to make a balance between the two principles.
4.2 Examining the Precautionary Measures by the Precautionary Principle
In 2000, the European Commission (hereafter referred to as ‘Commission’) produced a Communication seeking to inform all interested parties how the Commission would apply or intent to apply the precautionary principle when taking the preventative measures to confront with the risk, whose nature is scientific uncertainty. Although the communication is not binding, the EU judicial organs can examine whether an EU measure complies with the guidelines the Commission have presented. In other words, in accordance with the equal principle[48], the Commission shall adopt a communication-consistent measure[49].
It is quite observed that the EU courts are reluctant to conduct the substantive review of the precautionary measures adopted by the EU institutions. As mentioned before, the courts also admitted that it is the duty and competence of the institutions to make a political decision whether it is necessary to adopt a preventative measure under the precautionary principle. Thus, the institutions enjoy wide discretionary powers when enacting a precautionary measure[50]. However, also mentioned above, in order to avoid the abuse of the precautionary principle resulting from the view of the populist[51], several steps need to be fulfilled before adopting a preventive measure:
l The necessity of conducting a risk assessment;
l The risk assessment shall be based on the all scientific evidence available at the time when adopting preventative measures;
l The risk assessment shall contain the latest results of the international research;
l The risk assessment shall be conducted in an excellent, independent ,and transparent manner, in order to ensure the quality of the risk assessment;
l When the decision-makers want to disregard a scientific opinions issued by an EU relevant scientific committee or an agency, they shall provide the equal scientific opinion as the one they do not concern.
Whereas the institutions already have the wide discretionary powers to determine a preventative measure under the precautionary principle, it shall severely observe the procedural steps it enacted. While, the GC widely recognized the criteria presented by the Communication, it missed the chance to use those criteria to examine the institution’s decisions. Here, we do not see the court had examined whether the institutions have conducted an as thorough risk assessment as possible and required adequate guarantees of scientific objectivity[52]. A risk management decision without fulfilling the all procedural steps above-mentioned would not solve the controversial dispute, while bringing more problems.
On the other hand, despite its avoidance of entering to the substantively scientific detail, it did conduct several substantive examinations in the cases[53]. Therefore, we may wonder, first whether the courts themselves have the capacity to judge so, and second, whether the courts conducted those factual examinations based on the firmly scientific ground. The author thus suggested in case involving highly technical or controversial scientific evidence, the courts shall submit the evidence to the independent experts to assess the validity of the scientific arguments involved[54].
With regard to the precautionary measures adopted by the Member States, in cases of scientific uncertainty, Member States also enjoy wide discretion in deciding the adoption of the preventative measures. They shall also deliver some evidence of scientific uncertainty. The evidence presented shall be related to a specific, concrete risk and not a potential risk on the basis of a general preventative approach, and this special risk shall be assessed in terms of the specific eating habits of a nation[55].
5. The Precautionary Principle and the SPS Agreement
From the outset, the negotiators of the SPS Agreement did not intend to include the precautionary principle into the SPS Agreement[56].
Article 2, paragraph 2 of the SPS Agreement provides that, a SPS measure cannot be maintained without ‘sufficient scientific evidence’. The exception is to enact a provisional measure, in accordance with Article 5, paragraph 7 of the SPS Agreement[57], and this provision can be seen as the expression of the precautionary principle under the WTO law[58].
In Japan-Varietals, the Appellate Body ruled that, the ordinary meaning of 'sufficient' is 'of a quantity, extent, or scope adequate to certain purpose or object'. 'Sufficiency' requires the existence of a sufficient or adequate relationship between the SPS measure and the scientific evidence. Whether there is a rational relationship between an SPS measure and the scientific evidence is to be determined on a case-by-case basis and will depend upon the particular circumstances of the case, including the characteristics of the measure at issue and the quality and quantity of the scientific evidence[59].
Here, the Appellate Body clearly stated that, the requirement of sufficient scientific evidence is both determined by the quality and quantity of the scientific evidence.
According to Article 5, paragraph 7 of the SPS Agreement, A Member can enact a provisional measure provided that:
l in a situation where 'relevant scientific information is insufficient;
l the measure adopted is 'on the basis of available pertinent information'.
In addition, a provisional measure may not be maintained unless:
l the Member seeks to obtain the additional information necessary for a more objective assessment of risk;
l the Member reviews the provisional measure accordingly within a reasonable period of time.
The four criteria are cumulative[60]. With respect to the reasonable time limits of review, the Appellate Body noted that, in our view, what constitutes a 'reasonable period of time' has to be established on a case-by-case basis and depends on the specific circumstances of each case, including the difficulty of obtaining the additional information necessary for the review and the characteristics of the provisional SPS measure[61]. Thus, here the Appellate Body has taken into account the difficulty of obtaining the necessary scientific information, in order to complete the full risk assessment. The requirement of the reasonable time limits of review is not so strict and in line with the precautionary principle[62].
However, the core concept used in the text of Article 5, paragraph 7 of the SPS Agreement is ‘insufficient’, instead of ‘uncertainty’. At first glance, one may wonder the scope of precautionary principle under the WTO law has been significantly narrowed[63]. Nonetheless, recalling the ruling of the Appellate Body in Japan-Varietals, the ordinary meaning of 'sufficient' is 'of a quantity, extent, or scope adequate to certain purpose or object. If all available information is insufficient for the scientists to make a conclusion, or even the current state of scientific knowledge is insufficient to assess the suspected risk, Member shall be allowed to adopt a provisional measure to address the unknown risks or the urgent problems under the WTO law.
Therefore, Article 5, paragraph 7 of the SPS Agreement aims to deal with the situation where there is a lack of sufficient scientific evidence concerning the suspected risk, including the accumulated evidence is inconclusive or unreliable[64]. The standard for permitting to adopt a provisional measure under Article 5, paragraph 7 of the SPS Agreement is to test whether there is sufficient scientific evidence for completing a full risk assessment under Article 5, paragraph 1 of the SPS Agreement[65].
Furthermore, here I would like to emphasize that, science, per se, is an evolving process. It is not a stable concept, and every day, scientists would have new findings about the new potential risks. Thus, it is rationale for Members to enact a provisional measure to address a new risk found in the substances that had been used in the manufacture of specific products for many years. In other words, recognizing the limits of science and the dynamic nature of the science, today the food is safe, tomorrow it would be deemed as unsafe, and thus a rational measure shall be figured out.
Also, in EC-Hormones, with respect to the legal status of the precautionary principle under the international law, the Appellate Body stated that, whether the precautionary principle has been widely accepted by Members as a principle of general or customary international law appears less than clear. We note that the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation[66].
Although, the Appellate refuse to recognize the legal status of the precautionary principle as the customary international law, and thus can be invoked to interpret Article 5, paragraph 1 of the SPS Agreement, considering that to become a principle of customary international law is also an evolving process, the precautionary principle may be recognized as a principle of customary international law in the future.
Nevertheless, in EC-Hormones, the Appellate Body explicitly stated that, the precautionary principle cannot override the requirements of Article 5, paragraph 1 and 2 of the SPS Agreement[67].
Finally, it is noteworthy that, despite the fact that the ECJ has denied the direct effect of the WTO Agreement[68], where the Union acts aimed to implement a specific WTO obligation, the European courts has expressed its willingness to review the legality of the Union measures under the WTO law[69].
6. Conclusion
In the end, we would like to review our findings in the previous sections. First, in line with the WTO case law, also considering the requirements of the Communication, the EU institutions shall severely obey the procedural requirements it enacted before adopting a preventative measure.
Second, after reviewing the relevant cases, the application of the precautionary principle did change the criteria of the proportionality principle. Therefore, it is vital to strike a balance between the two principles by requiring the institutions to completely fulfill all the relevant requirements when making decisions. In particular, the economic interests shall not be entirely sacrificed without goods reasons, and the measures adopted shall be provisional. Whereas science plays an important role in the decision-making of risk regulation, the advice shall be offered in an independent, excellence, and transparent manner, in order to well solve the disputes.
Third, it is pity to see that the General Court missed the opportunities to use those procedural requirements to review the institution’s decisions. The GC failed to examine whether the institutions had an as through risk assessment as possible and whether the adequate requirements of scientific objectivity had been guaranteed. Without a strict test performed by the judicial review, it would inevitably offer the incentive for the institutions to abuse the wide discretion they have. Furthermore, if the courts have conducted reviews in the area of scientific issues, it is rational for the courts to submit the evidence to the experts to assess the scientific arguments in question.
Finally, is there any possible to seek a compromise between the precautionary principle and the SPS Agreement? Limited by the texts of the current provisions of the SPS Agreement, also given the negative outcomes of the relevant WTO cases, the room of applying the precautionary principle under the WTO law is narrow and only can be sought by invoking Article 5, paragraph 7 of the SPS Agreement. Nonetheless, there is still room to include the precautionary principle by well interpretation.
[1] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 165.
[2] It is interesting to note that, it is also possible to invoke the precautionary principle as a sword to challenge the legality of acts of Member States, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 257.
[3] Case C-180/96 R United Kingdom v. Commission [1996] ECR I-3903, para. 93.
[4] Case T-13/99 Pfizer, [2002] ECR II-03305, para. 139.
[5] See COMMUNICATION FROM THE COMMISSION on the precautionary principle, Brussels 02.02.2000 COM (2000) 1 at p. 10. The legal basis can also be found in Article 114, paragraph 3 of the TFEU, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 256, J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at pp. 52-53.
[6] Case T-13/99 Pfizer, [2002] ECR II-03305, para 387.
[7] Ellen Vos, Antibiotics, the Precautionary Principle and the Cout in First Instance. Maastricht Journal of European and Comparative Law,2004, at p. 193.
[8] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at pp. 146-147.
[9] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 148.
[10] Cass R. Sunstein, Beyond the Precautionary Principle, Public Law and Legal Theory Working Paper No. 38: the Law School, The University of Chicago, at: http://www.law.uchicago.edu/publications/papers/publiclaw/1-99 , p. 13.
[11] Case T-13/99 Pfizer [2002] ECR II-03305, para. 143. See also, J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 60.
[12] Appellate Body Report, EC-Hormones, para. 186.
[13] Case C-236/01, Monsanto Agricoltura Italia, para. 113.
[14] Case T-13/99 Pfizer [2002] ECR II-03305, paras. 155-156.
[15] Case C-236/01, Monsanto, para. 113.
[16] Appellate Body Report, EC-Hormones, para. 186.
[17] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 153.
[18] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 154.
[19] See Article 10.1 of the Directive 2001/42/EC.
[20] Case C-192/01, Commission v. Denmark, para. 51.
[21] Case T-13/99 Pfizer [2002] ECR II-03305, para. 162.
[22] Appellate Body Report, Australia-Salmon, para. 199.
[23] Case T-13/99 Pfizer [2002] ECR II-03305, para. 201.
[24] Case C-405/92, Armand Mondiet, paras. 31-32.
[25] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 162.
[26] Case T-13/99 Pfizer [2002] ECR II-03305, para. 171.
[27] Case T-13/99 Pfizer [2002] ECR II-03305, para. 152.
[28] Case T-13/99 Pfizer [2002] ECR II-03305, para. 391.
[29] J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 60.
[30] Case T-13/99 Pfizer [2002] ECR II-03305, para. 62.
[31] Case T-13/99 Pfizer [2002] ECR II-03305, para. 145.
[32] Case C-42.02, Commission v. Netherlands, para. 49.
[33] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 166.
[34] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance, Maastricht Journal of European and Comparative Law, 2004, at p. 196.
[35] Case T-13/99 Pfizer [2002] ECR II-03305 para. 169.
[36] Case C-157/96 The Queen v. Ministery of Agriculture, Fisheries, and Food [1998] ECR I-2211, para. 63.
[37] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 195.
[38] Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 257.
[39] In contrary, the author indicated that, the proportionality principle would serve to temper precaution in a European Union setting, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 62.
[40] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law,2004, at p. 196, Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 260.
[41] Case T-13/99, Pfizer [2002] ECR II-03305, para. 411.
[42] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 168.
[43] Case C-180/96 P UK v Commission [1996] ECR I-3903, para. 93.
[44] Case T-74/00 Artegodan, para. 173. However, this sentence shall not be merely construed as a slogan. Instead, here the policy-makers are truly faced with hard choices and required to strike a balance between trade and non-trade interests, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 66.
[45] Case T-74/00 Artegodan, para. 186.
[46] Case C-286/02 Bellio F. lli Srl. Para. 60.
[47] With regard to the WTO law, Article 5.7 of the SPS Agreement; with regard to the EU law, see paragraph 6.3.5 of COMMUNICATION FROM THE COMMISSION on the precautionary principle, Brussels 02.02.2000 COM (2000) 1.
[48] It is the administrative self-restraints principle in German administrative law.
[49] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at pp. 141-142.
[50] To note, in the absence of harmonization, Member States are also allowed considerable discretion, while, they must have regard to the requirement of free movement, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 261.
[51] With regard to the discussion between technocratic and populist, see Cass R. Sunstein, The Laws of Fear, JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 128, p. 3, at: http://www.law.uchicago.edu/Lawecon/wp101-150
[52] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 200.
[53] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at pp. 198-199. A similar opinion, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 62.
[54] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 200.
[55] Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 261.
[56] Appellate Body Report, EC-Hormones, para. 124. Denise Prévost, What Role for the Precautionary Principle in WTO Law After Japan-Apples, Ecolomic Policy and Law: Journal of Trade and Environmental Studies, Vol. 2 (4), June 2005, at pp. 2-3.
[57] Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Dipsutes EC - Hormones, Australia - Salmon and Japan – Varietals, Journal of International Economic Law (1999), at p. 645, also see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 273.
[58] Denise Prévost, What Role for the Precautionary Principle in WTO Law After Japan-Apples, Ecolomic Policy and Law: Journal of Trade and Environmental Studies, Vol. 2 (4), June 2005, at p. 13.
[59] Appellate Body Report, Japan-Varietals, paras. 73 and 84.
[60] Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 863.
[61] Appellate Body Report, Japan-Varietals, para. 93.
[62] Similarly, the author states that the requirement of reasonable time limit is flexible and allows a Member to maintain a measure as long as necessary for completing a full risk assessment, see Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 867.
[63] However, In Japan-Apples, the Appellate Body indicated that, Article 5, paragraph 7 of the SPS Agreement is not triggered by the existence of scientific uncertainty, but rather by the insufficiency of scientific evidence, see Appellate Body Report, Japan-Apples, para. 8.215.
[64] Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 865.
[65] Panel Report, EC-Approval and Marketing of Biotech Products, para. 7.3239.
[66] Panel Report, EC-Hormones, para. 8.610.
[67] Appellate Body Report, EC-Hormones, para. 124.
[68] Case C-149/96 Portugal v. Council [1999] ECR I-8395.
[69] J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 69.
—A Study of Precautionary Principle—
Abstract
Recognizing the limits of science and the possibility of facing unpredicted risks in modern society, this contribution aims to deal with the situation where there is scientific uncertainty, how the public authority could respond by relying upon the precautionary principle. The author starts to study the relevant WTO and EU cases and their academic comments, in order to answer the questions presented. The author finds that, first the demerits of the precautionary principle can be mitigated by requiring the authority to severely fulfill the procedural requirements in the process of decision-making. Second, the application of the precautionary principle did change the criteria of the proportionality principle in the EU cases. Finally, given the limits of the text of the SPS Agreement, it is hard to find a compromise between the precautionary principle and the SPS Agreement.
1. Introduction
This paper aims to explore how the EU institutions and the Member States shall apply precautionary principle in terms of the EU case law and how the EU courts have reviewed the preventative measure of the EU institutions and the protective acts of the Member States. In the former cases, the General Court (GC) needs to make a balance between private rights (the right to property, the freedom to pursue a business) and an EU public interest (a high level of protection of human health), in the latter case, the Court of Justice of the European Union (ECJ) has to weigh an EU public interest (free movement of goods, Article 34 of the TFEU) against a national public interest (the right to depart from the EU’s harmonized measures on the ground of human health protection)[1]. In both cases, the EU courts need to make a balance between trade interests and non-trade interests[2], when the institutions adopt the preventative measure under the precautionary principle.
In particular, the author would like to observe the relation between the proportionality principle and the precautionary principle and to see whether the application of the precautionary principle has changed the criteria of the proportionality principle in the relevant cases.
Apart from the internal interaction between the EU institutions, the Member States and the EU courts, it is also meaningful to observe the external relation between the precautionary principle under the EU law and the SPS Agreement under the WTO law, in order to examine whether there exists a compromise between both legal instruments.
In this contribution, the author mainly relies on the relevant EC and WTO case law to study and answer the question presented.
In the following sections, we would first describe what the precautionary principle is, its legal basis in EU law, and how the EU courts extend the scope of the precautionary principle into the area of the protection of human health. After explaining the precautionary principle, we would like to further illustrate how to apply the precautionary principle and to see how the EU courts would review the precautionary measures adopted by the EU institutions and the Member States. After that, we would turn to observe the relation between the precautionary principle and the SPS Agreement.
2. What is the Precautionary Principle
Article 191 of the Treaty on the Functioning of the European Union states that, Union policy on the environment shall be based on the precautionary principle. Thus, the precautionary principle is first to be used in the area of environmental policy.
Subsequently, in the landmark case, the Court of Justice ruled that, “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait the reality and seriousness of those risks becomes fully apparent[3]. Later, the General Court (GC) recalled the BSE judgment and explicitly referred to the precautionary principle[4]. Therefore, the European courts extended the precautionary principle to the area of human health. This view has also been shared by the Commission[5].
According to the case law, the precautionary principle allows the authority to adopt a preventative measure in a provisional manner, pending the availability of additional scientific evidence, provided that there is scientific uncertainty[6].
3. How to Apply the Precautionary Principle
3.1 The General Framework
A common regime of risk regulation often comprises two parts: risk assessment and risk management. First, using the procedure of risk assessment determines the probability of the occurrence of harm. The risk assessment procedure includes four steps: hazard identification, dose response assessment, exposure assessment, and risk characterization[7].
Once the procedure of risk assessment has been completed, the second step is for the politicians to make a political decision to determine whether the products concerned is safe to distribute or shall be restricted, taking into account the reports of the risk assessment as well as other societal, economic, ethical factors. Here, the precautionary principle requires that, on the one hand, the decision shall be based on the scientific evidence as rigorous as possible, and on the other hand, the politicians retain the autonomy when making such a decision[8].
3.2 The Risks Addressed
According to the wording of international treaty, here the risks addressed shall be serious, significant, and the harm shall be irreversible when the risks become reality[9]. Here, I agree with Cass Sunstein’s view that there has to exist a threshold of scientific plausibility, in order to prevent ‘palpable absurdity’[10].
In addition, a hypothetical risk cannot be seen as a risk under the precautionary principle[11]. According to WTO case law, the risk must be ascertainable’ and not ‘theoretical’, because science can never provide absolute certainty when assessing whether a given substance will never have an adverse impact on human health[12].
3.3 Risk Assessment
First, before taking a protective measure, it is necessary to conduct a risk assessment. The EC court expressly recognizes the need to perform risk assessments when facing uncertainties[13]. The General Court (GC) further indicated that, performing a risk assessment is a prerequisite for taking a protective measure[14].
Second, In Monsanto, the ECJ found that, when conducting the risk assessment, the national authorities shall provide specific evidence to demonstrate that the implementation of the preventative measures is ‘necessary’, in order to avoid the products posing potential risks to human health, by offering ‘the specific evidence’ to conclude the assessment on the basis of ‘the most reliable scientific evidence available and the most recent results of international research’[15].
Third, when conducting a risk assessment, it is not necessary to set up a ‘minimum magnitude of degree of risk’, according to the WTO case law[16].
Fourth, science itself does not have a majority rule[17]. The mainstream scientific opinions do not guarantee the correctness of the scientific opinion. The scientific history has demonstrated that the divergent opinion might be not commonly acceptable among the scientific community at the time when it first published, but its finding might be recognized later. The precautionary principle thus requires the authorities to search the divergent opinions.
Fifth, since the key issue here is the scientific uncertainty. The whole range of the uncertainty shall contain lack of full evidence, lack of causal mechanisms, incorrect assumptions, extrapolation uncertainty, indeterminacy, ambiguity, and ignorance[18]. In particular, the experts shall indicate the unknown unknowns, and the systematic searching for blind spots shall be encouraged[19].
Sixth, although a risk assessment shall be required to conduct, in order to reduce the uncertainty, it may be out of the question to conduct a full risk assessment at that time, due to the limits of the state of science. In fact, scientists are unable to offer the answer to every question. In contrary, their research results would often demonstrate that there is a high degree of scientific uncertainty[20].
Finally, the GC confirmed that, the scientific advice shall be based on principles of excellence, independence, and transparency, in order to maintain a high level of protection of human health[21].
3.4 Risk Management
From the outset, it is well-settled that it is for the institution to determine the level of protection, which it deems appropriate for the society, depending on the circumstances of the particular case. This has also been confirmed by the WTO case law[22].
Although science is the core stone when adopting the precautionary measure in the field of food safety, since scientists have neither democratic legitimacy nor political duty[23], thus, the opinions of the scientific committees or the relevant agencies are not binding[24]. Here, it is the duty of the politicians to determine the appropriate level of protection. Since to determine the appropriate level of protection is a political decision, the authorities are empowered to have a large degree of discretion regarding the means of achieving the objectives of safety, when facing uncertainty[25], provided that the authority has carefully and impartially examined all the relevant aspects of the case concerned[26].
With regard to the zero-risk approach, although the GC previously stated that the institutions may not base their decisions on zero risk[27], in practice, the GC upheld this approach by doubting that the plaintiff failed to conclude there was no link between the use of virginamycin and the development of streptogramin resistance. The GC further noted that, it was insufficient to merely demonstrate that the existence of such a link was ‘very unlikely[28]’. However, it also vital to note that, precluding a zero-risk approach does not seem to preclude the adoption of a preventative measure aiming to eliminate entirely a risk, which is more than a hypothetical risk and which has been scientific confirmed[29].
Due to the scientific evidence or results are insufficient, inconclusive, or imprecision, a Member may adopt a preventative measure. Also, when there are conflicts of scientific opinions regarding the safety of the products, a Member may also adopt a preventative measure.
It is vital to note that the authority’s decision shall be based on a sufficiently reliable and respect information[30], taking into account the scientific data available at the time when taking a precautionary measure[31], as well as the latest results of international research[32].
4. Judicial Review
The EU courts make a distinction between the EU institutions and the Member States when reviewing their precautionary measures. With regard to the protective measures adopted by the Member States, the ECJ tends to apply the strict test of the precautionary principle, when the measures at issue have impaired the functioning of the internal market[33]. While, where the EU institutions possess wide discretionary powers, the GC virtually tends to apply a slight test of the precautionary principle, and solely examines whether the Union measures concerned is invalid on the ground of manifest error, misuse of power, or ultra vires[34]. Being aware of the difficulties of regulating the controversial cases or determining where action is urgent, the EU courts tend to respect the decisions adopted by the EU institutions and only conduct the limited reviews. Here, the EU judicial organs choose not to substitute its assessment of the facts for that of the Union institutions[35].
4.1 Examining the Precautionary Measures by the Proportionality Principle
The ECJ previously admitted that, the precautionary principle is part of the proportionality principle[36]. In contrary, the GC treated the precautionary principle and the proportionality principle as two separate principles in its judgments[37]. The authors indicated that, the principles of proportionality and precaution are intertwined together in their application[38]. Here, my personal view is that the courts have virtually changed the criteria of the proportionality principle when applying the precautionary principle in the case[39]. Compared with the proportionality principle, the precautionary principle is used to cope with the uncertain situations and tends to enact a more restrictive measure to address the unknown risks. When the factual contexts are uncertain, it is very hard to establish the proportionality[40].
When applying the proportionality principle, the ECJ normally requires that, Union measures shall not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the acts in question and, where there is a choice between several proper measures, recourse must be to the least restrictive, and the demerits caused must not be disproportionate to the objectives pursued[41]. Below we would like to separately examine each criterion.
4.1.1 The Necessity Test
This test first compares the various measures having the capacity of achieving the objectives pursued and picks the least restrictive one. However, in Pfizer case, the plaintiff party argued that, the Union authority shall wait until the scientific studies have shown ‘a sufficient likelihood of risk, instead of immediately taking the preventative measures. The GC replied that, the institutions cannot be criticized for having chosen to provisionally withdraw the authorization of virginiamycin, in order to prevent the risk from becoming reality, and at the same time, to continue the research. Here, we can observe that this approach is in line with the precautionary principle. Thus, the criterion of the necessity test has been loosened by the courts.
4.1.2 The Test of Weighing Interests
At this stage, the proportionality principle requires the courts to compare the importance of the objective pursued by the measure at issue and the interests that would be sacrificed by the measure[42]. However, both the ECJ and the GC have expressed that, the requirements of the protection of human health should take precedence over the economic interests[43]. Furthermore, in Artegodan, the GC even embraced a new general principle of Union law, by stating that the protection of human health ‘must undoubtedly’ take precedence over the economic considerations[44]. Here, again, the application of the precautionary principle has effectively changed the criterion of the proportionality principle, by placing the value of human health being prior to the economic interests.
Nonetheless, in Artegodan, the GC also equally emphasized the importance of applying the principles of proportionality and non-discrimination[45]. Likewise, in Bellio F.lli Srl, the ECJ stressed that, even the need to protect public health has been recognized as a primary concern, the proportionality principle still needs to be respected[46].
4.1.3 The Duty of Re-examination
In line with the WTO and the EU law[47], the proportionality principle also requires the EU institutions and the Member States to re-examine their preventative measures, when there has been new scientific information. It would be proportionate to loosen the requirements of the preventative measure when the new research shows that the suspected risk does not seem as serious as the previous evaluation. Here, since the application of the precautionary principle can be seen as the exception of the proportionality principle, the preventative measures adopted shall be provisional and the institutions shall continue its research and re-examine its preventative measures in time, in order to make a balance between the two principles.
4.2 Examining the Precautionary Measures by the Precautionary Principle
In 2000, the European Commission (hereafter referred to as ‘Commission’) produced a Communication seeking to inform all interested parties how the Commission would apply or intent to apply the precautionary principle when taking the preventative measures to confront with the risk, whose nature is scientific uncertainty. Although the communication is not binding, the EU judicial organs can examine whether an EU measure complies with the guidelines the Commission have presented. In other words, in accordance with the equal principle[48], the Commission shall adopt a communication-consistent measure[49].
It is quite observed that the EU courts are reluctant to conduct the substantive review of the precautionary measures adopted by the EU institutions. As mentioned before, the courts also admitted that it is the duty and competence of the institutions to make a political decision whether it is necessary to adopt a preventative measure under the precautionary principle. Thus, the institutions enjoy wide discretionary powers when enacting a precautionary measure[50]. However, also mentioned above, in order to avoid the abuse of the precautionary principle resulting from the view of the populist[51], several steps need to be fulfilled before adopting a preventive measure:
l The necessity of conducting a risk assessment;
l The risk assessment shall be based on the all scientific evidence available at the time when adopting preventative measures;
l The risk assessment shall contain the latest results of the international research;
l The risk assessment shall be conducted in an excellent, independent ,and transparent manner, in order to ensure the quality of the risk assessment;
l When the decision-makers want to disregard a scientific opinions issued by an EU relevant scientific committee or an agency, they shall provide the equal scientific opinion as the one they do not concern.
Whereas the institutions already have the wide discretionary powers to determine a preventative measure under the precautionary principle, it shall severely observe the procedural steps it enacted. While, the GC widely recognized the criteria presented by the Communication, it missed the chance to use those criteria to examine the institution’s decisions. Here, we do not see the court had examined whether the institutions have conducted an as thorough risk assessment as possible and required adequate guarantees of scientific objectivity[52]. A risk management decision without fulfilling the all procedural steps above-mentioned would not solve the controversial dispute, while bringing more problems.
On the other hand, despite its avoidance of entering to the substantively scientific detail, it did conduct several substantive examinations in the cases[53]. Therefore, we may wonder, first whether the courts themselves have the capacity to judge so, and second, whether the courts conducted those factual examinations based on the firmly scientific ground. The author thus suggested in case involving highly technical or controversial scientific evidence, the courts shall submit the evidence to the independent experts to assess the validity of the scientific arguments involved[54].
With regard to the precautionary measures adopted by the Member States, in cases of scientific uncertainty, Member States also enjoy wide discretion in deciding the adoption of the preventative measures. They shall also deliver some evidence of scientific uncertainty. The evidence presented shall be related to a specific, concrete risk and not a potential risk on the basis of a general preventative approach, and this special risk shall be assessed in terms of the specific eating habits of a nation[55].
5. The Precautionary Principle and the SPS Agreement
From the outset, the negotiators of the SPS Agreement did not intend to include the precautionary principle into the SPS Agreement[56].
Article 2, paragraph 2 of the SPS Agreement provides that, a SPS measure cannot be maintained without ‘sufficient scientific evidence’. The exception is to enact a provisional measure, in accordance with Article 5, paragraph 7 of the SPS Agreement[57], and this provision can be seen as the expression of the precautionary principle under the WTO law[58].
In Japan-Varietals, the Appellate Body ruled that, the ordinary meaning of 'sufficient' is 'of a quantity, extent, or scope adequate to certain purpose or object'. 'Sufficiency' requires the existence of a sufficient or adequate relationship between the SPS measure and the scientific evidence. Whether there is a rational relationship between an SPS measure and the scientific evidence is to be determined on a case-by-case basis and will depend upon the particular circumstances of the case, including the characteristics of the measure at issue and the quality and quantity of the scientific evidence[59].
Here, the Appellate Body clearly stated that, the requirement of sufficient scientific evidence is both determined by the quality and quantity of the scientific evidence.
According to Article 5, paragraph 7 of the SPS Agreement, A Member can enact a provisional measure provided that:
l in a situation where 'relevant scientific information is insufficient;
l the measure adopted is 'on the basis of available pertinent information'.
In addition, a provisional measure may not be maintained unless:
l the Member seeks to obtain the additional information necessary for a more objective assessment of risk;
l the Member reviews the provisional measure accordingly within a reasonable period of time.
The four criteria are cumulative[60]. With respect to the reasonable time limits of review, the Appellate Body noted that, in our view, what constitutes a 'reasonable period of time' has to be established on a case-by-case basis and depends on the specific circumstances of each case, including the difficulty of obtaining the additional information necessary for the review and the characteristics of the provisional SPS measure[61]. Thus, here the Appellate Body has taken into account the difficulty of obtaining the necessary scientific information, in order to complete the full risk assessment. The requirement of the reasonable time limits of review is not so strict and in line with the precautionary principle[62].
However, the core concept used in the text of Article 5, paragraph 7 of the SPS Agreement is ‘insufficient’, instead of ‘uncertainty’. At first glance, one may wonder the scope of precautionary principle under the WTO law has been significantly narrowed[63]. Nonetheless, recalling the ruling of the Appellate Body in Japan-Varietals, the ordinary meaning of 'sufficient' is 'of a quantity, extent, or scope adequate to certain purpose or object. If all available information is insufficient for the scientists to make a conclusion, or even the current state of scientific knowledge is insufficient to assess the suspected risk, Member shall be allowed to adopt a provisional measure to address the unknown risks or the urgent problems under the WTO law.
Therefore, Article 5, paragraph 7 of the SPS Agreement aims to deal with the situation where there is a lack of sufficient scientific evidence concerning the suspected risk, including the accumulated evidence is inconclusive or unreliable[64]. The standard for permitting to adopt a provisional measure under Article 5, paragraph 7 of the SPS Agreement is to test whether there is sufficient scientific evidence for completing a full risk assessment under Article 5, paragraph 1 of the SPS Agreement[65].
Furthermore, here I would like to emphasize that, science, per se, is an evolving process. It is not a stable concept, and every day, scientists would have new findings about the new potential risks. Thus, it is rationale for Members to enact a provisional measure to address a new risk found in the substances that had been used in the manufacture of specific products for many years. In other words, recognizing the limits of science and the dynamic nature of the science, today the food is safe, tomorrow it would be deemed as unsafe, and thus a rational measure shall be figured out.
Also, in EC-Hormones, with respect to the legal status of the precautionary principle under the international law, the Appellate Body stated that, whether the precautionary principle has been widely accepted by Members as a principle of general or customary international law appears less than clear. We note that the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation[66].
Although, the Appellate refuse to recognize the legal status of the precautionary principle as the customary international law, and thus can be invoked to interpret Article 5, paragraph 1 of the SPS Agreement, considering that to become a principle of customary international law is also an evolving process, the precautionary principle may be recognized as a principle of customary international law in the future.
Nevertheless, in EC-Hormones, the Appellate Body explicitly stated that, the precautionary principle cannot override the requirements of Article 5, paragraph 1 and 2 of the SPS Agreement[67].
Finally, it is noteworthy that, despite the fact that the ECJ has denied the direct effect of the WTO Agreement[68], where the Union acts aimed to implement a specific WTO obligation, the European courts has expressed its willingness to review the legality of the Union measures under the WTO law[69].
6. Conclusion
In the end, we would like to review our findings in the previous sections. First, in line with the WTO case law, also considering the requirements of the Communication, the EU institutions shall severely obey the procedural requirements it enacted before adopting a preventative measure.
Second, after reviewing the relevant cases, the application of the precautionary principle did change the criteria of the proportionality principle. Therefore, it is vital to strike a balance between the two principles by requiring the institutions to completely fulfill all the relevant requirements when making decisions. In particular, the economic interests shall not be entirely sacrificed without goods reasons, and the measures adopted shall be provisional. Whereas science plays an important role in the decision-making of risk regulation, the advice shall be offered in an independent, excellence, and transparent manner, in order to well solve the disputes.
Third, it is pity to see that the General Court missed the opportunities to use those procedural requirements to review the institution’s decisions. The GC failed to examine whether the institutions had an as through risk assessment as possible and whether the adequate requirements of scientific objectivity had been guaranteed. Without a strict test performed by the judicial review, it would inevitably offer the incentive for the institutions to abuse the wide discretion they have. Furthermore, if the courts have conducted reviews in the area of scientific issues, it is rational for the courts to submit the evidence to the experts to assess the scientific arguments in question.
Finally, is there any possible to seek a compromise between the precautionary principle and the SPS Agreement? Limited by the texts of the current provisions of the SPS Agreement, also given the negative outcomes of the relevant WTO cases, the room of applying the precautionary principle under the WTO law is narrow and only can be sought by invoking Article 5, paragraph 7 of the SPS Agreement. Nonetheless, there is still room to include the precautionary principle by well interpretation.
[1] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 165.
[2] It is interesting to note that, it is also possible to invoke the precautionary principle as a sword to challenge the legality of acts of Member States, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 257.
[3] Case C-180/96 R United Kingdom v. Commission [1996] ECR I-3903, para. 93.
[4] Case T-13/99 Pfizer, [2002] ECR II-03305, para. 139.
[5] See COMMUNICATION FROM THE COMMISSION on the precautionary principle, Brussels 02.02.2000 COM (2000) 1 at p. 10. The legal basis can also be found in Article 114, paragraph 3 of the TFEU, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 256, J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at pp. 52-53.
[6] Case T-13/99 Pfizer, [2002] ECR II-03305, para 387.
[7] Ellen Vos, Antibiotics, the Precautionary Principle and the Cout in First Instance. Maastricht Journal of European and Comparative Law,2004, at p. 193.
[8] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at pp. 146-147.
[9] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 148.
[10] Cass R. Sunstein, Beyond the Precautionary Principle, Public Law and Legal Theory Working Paper No. 38: the Law School, The University of Chicago, at: http://www.law.uchicago.edu/publications/papers/publiclaw/1-99 , p. 13.
[11] Case T-13/99 Pfizer [2002] ECR II-03305, para. 143. See also, J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 60.
[12] Appellate Body Report, EC-Hormones, para. 186.
[13] Case C-236/01, Monsanto Agricoltura Italia, para. 113.
[14] Case T-13/99 Pfizer [2002] ECR II-03305, paras. 155-156.
[15] Case C-236/01, Monsanto, para. 113.
[16] Appellate Body Report, EC-Hormones, para. 186.
[17] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 153.
[18] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 154.
[19] See Article 10.1 of the Directive 2001/42/EC.
[20] Case C-192/01, Commission v. Denmark, para. 51.
[21] Case T-13/99 Pfizer [2002] ECR II-03305, para. 162.
[22] Appellate Body Report, Australia-Salmon, para. 199.
[23] Case T-13/99 Pfizer [2002] ECR II-03305, para. 201.
[24] Case C-405/92, Armand Mondiet, paras. 31-32.
[25] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 162.
[26] Case T-13/99 Pfizer [2002] ECR II-03305, para. 171.
[27] Case T-13/99 Pfizer [2002] ECR II-03305, para. 152.
[28] Case T-13/99 Pfizer [2002] ECR II-03305, para. 391.
[29] J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 60.
[30] Case T-13/99 Pfizer [2002] ECR II-03305, para. 62.
[31] Case T-13/99 Pfizer [2002] ECR II-03305, para. 145.
[32] Case C-42.02, Commission v. Netherlands, para. 49.
[33] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 166.
[34] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance, Maastricht Journal of European and Comparative Law, 2004, at p. 196.
[35] Case T-13/99 Pfizer [2002] ECR II-03305 para. 169.
[36] Case C-157/96 The Queen v. Ministery of Agriculture, Fisheries, and Food [1998] ECR I-2211, para. 63.
[37] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 195.
[38] Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 257.
[39] In contrary, the author indicated that, the proportionality principle would serve to temper precaution in a European Union setting, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 62.
[40] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law,2004, at p. 196, Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 260.
[41] Case T-13/99, Pfizer [2002] ECR II-03305, para. 411.
[42] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at p. 168.
[43] Case C-180/96 P UK v Commission [1996] ECR I-3903, para. 93.
[44] Case T-74/00 Artegodan, para. 173. However, this sentence shall not be merely construed as a slogan. Instead, here the policy-makers are truly faced with hard choices and required to strike a balance between trade and non-trade interests, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 66.
[45] Case T-74/00 Artegodan, para. 186.
[46] Case C-286/02 Bellio F. lli Srl. Para. 60.
[47] With regard to the WTO law, Article 5.7 of the SPS Agreement; with regard to the EU law, see paragraph 6.3.5 of COMMUNICATION FROM THE COMMISSION on the precautionary principle, Brussels 02.02.2000 COM (2000) 1.
[48] It is the administrative self-restraints principle in German administrative law.
[49] Nicolas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, Vol. 12, No. 2, March 2006, at pp. 141-142.
[50] To note, in the absence of harmonization, Member States are also allowed considerable discretion, while, they must have regard to the requirement of free movement, see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 261.
[51] With regard to the discussion between technocratic and populist, see Cass R. Sunstein, The Laws of Fear, JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 128, p. 3, at: http://www.law.uchicago.edu/Lawecon/wp101-150
[52] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 200.
[53] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at pp. 198-199. A similar opinion, see J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 62.
[54] Ellen Vos, Antibiotics, the Precautionary Principle and the Court in First Instance. Maastricht Journal of European and Comparative Law, 2004, at p. 200.
[55] Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 261.
[56] Appellate Body Report, EC-Hormones, para. 124. Denise Prévost, What Role for the Precautionary Principle in WTO Law After Japan-Apples, Ecolomic Policy and Law: Journal of Trade and Environmental Studies, Vol. 2 (4), June 2005, at pp. 2-3.
[57] Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Dipsutes EC - Hormones, Australia - Salmon and Japan – Varietals, Journal of International Economic Law (1999), at p. 645, also see Joanne Scott and Ellen Vos, ‘The Justification of Uncertainty: Observations of the Ambivalence of the Precautionary Principle within the EU and the WTO’, in C, Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market (Oxford University Press: 2002), at p. 273.
[58] Denise Prévost, What Role for the Precautionary Principle in WTO Law After Japan-Apples, Ecolomic Policy and Law: Journal of Trade and Environmental Studies, Vol. 2 (4), June 2005, at p. 13.
[59] Appellate Body Report, Japan-Varietals, paras. 73 and 84.
[60] Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 863.
[61] Appellate Body Report, Japan-Varietals, para. 93.
[62] Similarly, the author states that the requirement of reasonable time limit is flexible and allows a Member to maintain a measure as long as necessary for completing a full risk assessment, see Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 867.
[63] However, In Japan-Apples, the Appellate Body indicated that, Article 5, paragraph 7 of the SPS Agreement is not triggered by the existence of scientific uncertainty, but rather by the insufficiency of scientific evidence, see Appellate Body Report, Japan-Apples, para. 8.215.
[64] Peter Van den Bossche, The Law and Policy of the World Trade Organization-Texts, Cases, and Materials, (Cambridge University Press, 2007), at p. 865.
[65] Panel Report, EC-Approval and Marketing of Biotech Products, para. 7.3239.
[66] Panel Report, EC-Hormones, para. 8.610.
[67] Appellate Body Report, EC-Hormones, para. 124.
[68] Case C-149/96 Portugal v. Council [1999] ECR I-8395.
[69] J. Scott, ‘The Precautionary Principle Before the European Courts’, in: R. Macrory (eds.), Principles in Environmental Law, (Europa Law Publishing, 2004), at p. 69.
The Conflicts Between Trade Mark Protection and Public Health Under the Bilateral Investment Agreement
The Conflicts Between Trade Mark Protection and Public Health
Under the Bilateral Investment Agreement
—A Case Study of Tobacco Control—
Wen-Cheng Huang
1. Introduction
This contribution aims to explore the potential conflict between trade mark protection and public health under the Bilateral Investment Agreement (BIA). Normally, the protection of trade mark would contribute to consumer protection. However, in some circumstances, the excessive protection of trade mark would lead to the impairment of public health. Furthermore, the traditional BIT model normally lacks an exceptional clause to strike a balance between investment protection and the maintenances of the other public interests.
This article would first start to ask two primary questions: why does the BIA include trademarks and how does the BIA protect trademarks. After analyzing the main features of trade mark protection under the BIA, this article would move to a case study of tobacco control. The author attempts to point out the functions of trade mark and its corresponding monopoly rights. The author tends to point out that, in some circumstances, tobacco control does not constitute indirect expropriation.
2. The Regime of Trade Mark Protection Under the Bilateral Investment Agreement
2.1 Why does the Bilateral Investment Agreement include Trade Mark?
Initially, only tangible property has been recognized as investment under the Bilateral Investment Agreement (BIA). However, on the one hand, the inclusion of intellectual property rights (IPRs) within the scope of foreign investment under the BIA is due to the widespread violations of IPRs created in developed countries. To protect trade mark under the BIA would create an incentive for multinationals to invest in developing countries by establishing a commercial presence within the territory of the host state. On the other hand, the ground for the BIA to protect IPRs is to promote more technology transferred to developing countries[1], and here more specifically, protecting trade mark under the BIA would keep the income in the hands of the local firms and avoid counterfeiting[2].
The difficulty of protecting IPRs under the BIT is because those IPRs depend on the extent to which the law of the host state itself recognizes. In other words, any IPRs including trade mark only has territory effect[3]. While now it becomes widely acceptable that, once IPRs has been acquired by the alien under the national law of the host state, the acquired IPRs could be converted into IPRs protected by international law through the application of BITs[4]. The condition that the host state can absolutely control the property it had created can no longer keep, as a result of the application of the BIT. Therefore, any state interference with IPRs may violate the BIT which amounts to an expropriation and needs to be compensated[5].
2.2 How does the BIA Protect Trade Mark
Basically, most of the BIAs start from the minimum protection provided by the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement), and go further beyond the TRIPS.
Frist, The TRIPS Agreement requires Member States of the WTO to apply the Paris Convention standards concerning trade mark[6], and in some points, it imposes its own additional obligations on Member States[7].
Nevertheless, Article 7 of the TRIPS provides that, the protection of IPRs should contribute to the mutual advantage of producers and users of technological knowledge and in a manner conductive to social and economic welfare, and to a balance of rights and obligations. Article 8.1 entitles Members to adopt measures necessary to protect public health, as long as such measures are consistent with the provisions of this Agreement. Therefore, when applying the TRIPS standards, countries are still entitled to strike a balance between trade mark protection and public health[8].
Second, due to the deadlock of Doha negotiation, more and more countries choose to gain more IPRs protection from the other countries by engaging in BIAs[9]. The so-called TRIPS-plus approach adopted by the BIAs aims to provide more IPRs protection beyond the level of the protection of the TRIPS, while there is no fixed definition of TRIPS-plus, since the investment provisions are produced on an ad hoc basis[10].
Third, it is increasingly acceptable that the property value of trade mark becomes more important for investors and needs to be protected under the BIA, other than the original function of trade mark as identifying the origin of products. Therefore, the importance of property value of trade mark has been overemphasized under the BIA, while original function of trade mark aiming to promote consumer protection has been overlooked.
Finally, the BIA prevents trade mark from unlawful expropriation and confers the trade mark holder a direct access to an international arbitral tribunal[11]. By giving their consents to investor-state arbitration under the BIAs, states waive their immunity and grant arbitrators a broad jurisdiction over investment issues regarding domestic public law[12].
3. A Case Study: Philip Morris v. Uruguay
In this case, I would like to discuss two contested measures imposed by Uruguay. First, Uruguayan regulation requires each cigarette brand to keep only one presentation, and thus this leads to the prohibition of different presentations for cigarettes sold under a given brand[13]. Second, Uruguayan regulation increase the size of health warnings on cigarette packages to 80 per cent of the surface of the front and back of the packages[14].
3.1 Single Presentation Requirement
3.1.1 The Plaintiff’s Claim
On 6 March 2008, Uruguay first passed a law prohibiting the use of description which may directly or indirectly create an incorrect impression that a specific tobacco product is less harmful than another. Therefore, the purpose of this law is to prevent consumers from misunderstanding the quality of the cigarette. As long as the presentations of certain trade marks have such effect, they shall be prohibited by this law.
Subsequently, on 18 August 2008, the Ministry of Public Health of Uruguay issued an Ordinance to implement this law. This Ordinance effectively prohibited all tobacco companies from the sale of different products under the same brand. As a result, the plaintiff was only allowed to sell one of the five presentations under the same brand.
Philip Morris asserted that the single presentation requirement for each brand by the Uruguayan Ordinance constituted an unreasonable measure under Article 3.1 of the Switzerland-Uruguay BIT[15], since this Ordinance went beyond the purpose of the original to include some presentations which do not convey a wrong impression to consumers. In addition, there is no rational relationship between the single presentation requirement and the goal pursued by the law.
3.1.2 The New Forms of Expropriation
In early days, expropriation involved the direct seize of physical property. While, later identifying indirect expropriation becomes more difficult, since it is not visibly recognized as expropriations or as creeping expropriation[16]. In Middle East Cement Shipping and Handling Co. v. Egypt, indirect expropriation was described as ‘measures taken by a state the effect of which is to deprive the investor of the use and benefits of his investment even though he may retain nominal ownership of the respective rights[17].’
3.1.3 The Multiple Functions of Trade Mark
In modern society, a trade mark may have several roles. Initially, the basic function of a trade mark has been used to give the consumer a guarantee of the identity of the origin of the marked product or service by enabling him to distinguish, without any confusion, that product from others of a different provenance[18]. The second important function of a trade mark is to indicate to the consumers the quality of the specific goods or services sold with a registered mark[19]. The third function of a trade mark is to be a means of advertising[20]. Finally, a trade mark can also be seen as an investment vehicle[21].
However, all functions of a trade mark lie in the basic presumption that conveys correct information to consumers. Therefore, in the present case, as long as Uruguay can demonstrate that several trademarks containing the word ‘Marlboro’ plus several colors leads to the false impression that the contested measures aim to prevent, Uruguay can justify its measure. A trade Marks only confers its holder a monopoly over the use of the mark associated with the goods for which it is registered[22]. Therefore, even under the international protection provided by the BIT, the plaintiff is still not entitled to convey incorrect information to the consumers.
Article 3.1 of the Switzerland-Uruguay BIT provides that, each Contracting Party shall protect within its territory investments ‘made in accordance with its legislation’ by investors of the other Contracting Party. It is therefore legitimate for the plaintiff’s trade makes to be subject to Uruguayan relevant rules.
Furthermore, the nature of a trade mark is not an absolute property right. Instead, it aims to seek a balance between private interests of right holders and public interests. Also, Article 20 of the TRIPS Agreement only prohibits the unjustifiable limits imposed on the use of trademarks by national laws[23].
Nevertheless, in principle, without the above concerns, there is no rational underlying the single presentation requirement under each brand. Likewise, without the justified grounds mentioned above, the effect of the single presentation under the same brand would force the plaintiff to discontinue the use of the other registered trademarks and thus eventually lose their rights[24]. Therefore, without the above justifications, this measure would lead to indirect expropriations under Article 5 of the Switzerland-Uruguay BIT.
3.2 The Excessive Health Warning Requirement
3.2.1 The Plaintiff’s Claim
Since 1982, Uruguay imposed written health warnings on tobacco cigarette packages. In 2005, the size of the health warnings was increased to cover 50 per cent of the surface of the both sides of cigarette packages. On 25 June 2009, a Decree was issued to further increase the size of the health warnings to cover 80 per cent of the surface of the both sides of cigarette packages[25].
The plaintiff claimed that, the excessive 80 per cent health warnings requirement has effectively curtailed the room the right holders can use to display its marks on the surface of its product packages. To obtain the goal of health protection, the old 50 per cent requirement is sufficient and less restrictive. The old 50 per cent requirement is even over the minimum 30 per cent health warning requirement provided by Article 11.1(b)(iv) of the WHO Framework Convention on Tobacco Control. Therefore, the new 80 per cent requirement is not necessary.
3.2.2 The Issue of Constituting an Indirect Expropriation
Article 5.1 of the Switzerland-Uruguay BIT provides that, neither of the Contracting Parties shall take, either directly or indirectly, measures of expropriation, nationalization or ‘any other measure having the same nature or the same effect against investments’ belonging to investors of the other Contracting Party, unless the measures are taken for the public benefit as established by law, on a non-discriminatory basis, and under due process of law, and provided that provisions be made for effective and adequate compensation.
Before discussing whether the excessive health warnings requirement is a lawful indirect expropriation, first, we shall examine whether the excessive health warnings requirement constitutes indirect expropriation under the BIT.
Recalling the original function of a trade mark is to identify the origin of goods or services[26], as long as there is still enough room for the plaintiff to show Marlboro on its packages, it is sufficient for the plaintiff to use its own registered trademarks. Since the right holders could still use the rest space of surface of packages to display its own marks, the main function of the trademarks at issue did not virtually impaired by the Uruguayan measure. Also, in the present case, neither counterfeiting the marks nor destroying the marks exist in the given contexts, there is no trade mark infringement under both the domestic and international relevant rules.
In addition, the plaintiff may argue that, this requirement would significantly limit free speech[27]. Although, free expression is the basis for the right holders to develop its own marks by combing signs, voices, colors. It is also noteworthy that trademarks as a means of advertising, belongs to the low value of speech. Unlike the political speech, it would be subject to the stricter regulations on the ground of consumer protections.
3.2.3 The Issue of Constituting a Lawful Expropriation
According to Article 5.1 of the Switzerland-Uruguay BIT, in determining a lawful expropriation, four cumulative elements need to be fulfilled:
l measures are taken for the public benefit as established by law;
l on a non-discriminatory basis;
l under due process of law;
l provided that provisions be made for effective and adequate compensation[28].
With regard to the first element, first, the World Health Organization on Framework Convention on Tobacco Control has set up a cognitive and normative consensus to control tobacco consumption for promoting global public health[29].
Second, graphic warnings have been effective in helping people who are illiterate. Third, in GATT Thailand-Cigarettes, the Panel confirmed that the priority of public health over free trade[30].
Therefore, public health can be seen as the legitimate ground for the host state to regulate investments.
With regard to the second element, the factual context reveals that, Uruguayan laws applied equally to both domestic and foreign producers.
In The Queen v. Secretary of State for Health, the ECJ stated that, the right to property forming part of the general principles of Community law can be exercised in a restrictive manner, in order to fulfill the objective of general interest[31]. The Court ruled that the contested measures did not prejudice the substance of trade marks, but only constituted a proportionate restriction on the use of the right to property, in order to ensure a high level of health protection. The restrictions did virtually correspond to an objective of general Community interests and did not constitute a disproportionate interference[32]. Since light cigarettes are as harmful as normal cigarettes, the use of health warnings on the cigarette packages would offer consumers correct information when purchasing cigarettes[33].
In Anheuser-Busch Inc. v. Portugal, the ECtHR has confirmed that trademarks are protected by the property rights clause of First Protocol of the European Convention. In this regard, an important public interest will overweigh the control of the use of property without compensation. In examining whether a fair balance of public and private interests has been involved, the Court takes a look at the characteristics and proportionality of the interference and at the legitimate expectations of the private owners[34].
In Pinnacle Meat Processors Co. v. United Kingdom, the Commission observed that protecting people against a fatal disease was a preeminent interest. The Commission thus declared the loss of the applicants was not expropriation[35].
Recently, the Annex B of the US Model Bilateral Investment Treaty 2004 further provides that, except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as ‘public health’ and the environment, do not constitute indirect expropriations[36].
Finally, Article 11 of the Switzerland-Uruguay BIT provides that, either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party. This provision can be used to include the other norms of international rules which are relevant to investments at issue[37]. It is therefore important for the Arbitral Tribunal to take those relevant international norms including provisions of international health agreements into account when interpreting the investment provisions[38]. By doing so, there would be a balance between trademarks protection and public health under the BIT through interpretation.
4. Conclusion
Due to the deadlock of Doha negotiation, countries turn to choose bilateral approach to gain more TRIPS-plus benefits by engaging in Bilateral Investment Agreements. The flourishing of BIAs also brings more conflicts between investment protection and the other social values, while normally the BIA model lack the exceptional clause like GATT XX to solve this problem. However, by invoking Article 31.3 (c) of the VCLT or the commit provisions (Article 11 of the Switzerland-Uruguay BIT) found in some BIAs, the Arbitrators still can invoke some legal resources to remedy these imbalances.
If we go back the starting point of protecting trade mark, the original function of trade mark is to help consumer to identify the origin of goods. Therefore, a trade Marks only grants its holder a monopoly over the use of the mark in conjunction with the goods for which it is registered. Therefore, excessive health warnings do not constitute indirect expropriations. While, with respect to single presentation requirement, there is no rational underlying single presentation under the same brand. Nevertheless, considering the importance of human health, as long as the host State can demonstrate that the plaintiff attempts to create a false impression that light cigarettes are less harmful than regular ones by using several different colors of marks under the same brand, the defendant’s measure can be justified on the ground of public health and consumer protection. In some circumstances, those measures even would not be seen as indirect expropriations.
Bibliography
Books
Holyoak & Torremans, Intellectual Property Law, (Oxford 2010)
MacQueen, Waelde & Laurie, Contemporary Intellectual Property-Law and Policy, (Oxford 2006)
Matthews D., Globalising Intellectual Property Rights: The TRIPS Agreement, (Routledge 2006)
Sornarajah M., The International Law on Foreign Investment, Cambridge 2010
Van den Bossche P., The Law and Policy of the World Trade Organization-Text, Cases and Materials, (Cambridge 2008)
Articles
Helfer, ‘Toward a Human Rights Framework for Intellectual Property’, 40 UC Davies L Rev (2006-2007)
Helfer, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’, 29 Yale J Int’l L (2004)
Mountfield, ‘Regulatory Expropriation in Europe: The Approach of the European Court of Human Rights’, 11 NYU Environmental LJ (2002-2003) 136
Raustialia, ‘Density and Conflict in International Intellectual Property Law’, 40 UC Davis L Rev (2006),
Vadi V., ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3
Van Harten, ‘The Public-Private Distinction in the International Arbitration of Individual Claims Against the State’, 56 ICLQ (2007)
Under the Bilateral Investment Agreement
—A Case Study of Tobacco Control—
Wen-Cheng Huang
1. Introduction
This contribution aims to explore the potential conflict between trade mark protection and public health under the Bilateral Investment Agreement (BIA). Normally, the protection of trade mark would contribute to consumer protection. However, in some circumstances, the excessive protection of trade mark would lead to the impairment of public health. Furthermore, the traditional BIT model normally lacks an exceptional clause to strike a balance between investment protection and the maintenances of the other public interests.
This article would first start to ask two primary questions: why does the BIA include trademarks and how does the BIA protect trademarks. After analyzing the main features of trade mark protection under the BIA, this article would move to a case study of tobacco control. The author attempts to point out the functions of trade mark and its corresponding monopoly rights. The author tends to point out that, in some circumstances, tobacco control does not constitute indirect expropriation.
2. The Regime of Trade Mark Protection Under the Bilateral Investment Agreement
2.1 Why does the Bilateral Investment Agreement include Trade Mark?
Initially, only tangible property has been recognized as investment under the Bilateral Investment Agreement (BIA). However, on the one hand, the inclusion of intellectual property rights (IPRs) within the scope of foreign investment under the BIA is due to the widespread violations of IPRs created in developed countries. To protect trade mark under the BIA would create an incentive for multinationals to invest in developing countries by establishing a commercial presence within the territory of the host state. On the other hand, the ground for the BIA to protect IPRs is to promote more technology transferred to developing countries[1], and here more specifically, protecting trade mark under the BIA would keep the income in the hands of the local firms and avoid counterfeiting[2].
The difficulty of protecting IPRs under the BIT is because those IPRs depend on the extent to which the law of the host state itself recognizes. In other words, any IPRs including trade mark only has territory effect[3]. While now it becomes widely acceptable that, once IPRs has been acquired by the alien under the national law of the host state, the acquired IPRs could be converted into IPRs protected by international law through the application of BITs[4]. The condition that the host state can absolutely control the property it had created can no longer keep, as a result of the application of the BIT. Therefore, any state interference with IPRs may violate the BIT which amounts to an expropriation and needs to be compensated[5].
2.2 How does the BIA Protect Trade Mark
Basically, most of the BIAs start from the minimum protection provided by the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement), and go further beyond the TRIPS.
Frist, The TRIPS Agreement requires Member States of the WTO to apply the Paris Convention standards concerning trade mark[6], and in some points, it imposes its own additional obligations on Member States[7].
Nevertheless, Article 7 of the TRIPS provides that, the protection of IPRs should contribute to the mutual advantage of producers and users of technological knowledge and in a manner conductive to social and economic welfare, and to a balance of rights and obligations. Article 8.1 entitles Members to adopt measures necessary to protect public health, as long as such measures are consistent with the provisions of this Agreement. Therefore, when applying the TRIPS standards, countries are still entitled to strike a balance between trade mark protection and public health[8].
Second, due to the deadlock of Doha negotiation, more and more countries choose to gain more IPRs protection from the other countries by engaging in BIAs[9]. The so-called TRIPS-plus approach adopted by the BIAs aims to provide more IPRs protection beyond the level of the protection of the TRIPS, while there is no fixed definition of TRIPS-plus, since the investment provisions are produced on an ad hoc basis[10].
Third, it is increasingly acceptable that the property value of trade mark becomes more important for investors and needs to be protected under the BIA, other than the original function of trade mark as identifying the origin of products. Therefore, the importance of property value of trade mark has been overemphasized under the BIA, while original function of trade mark aiming to promote consumer protection has been overlooked.
Finally, the BIA prevents trade mark from unlawful expropriation and confers the trade mark holder a direct access to an international arbitral tribunal[11]. By giving their consents to investor-state arbitration under the BIAs, states waive their immunity and grant arbitrators a broad jurisdiction over investment issues regarding domestic public law[12].
3. A Case Study: Philip Morris v. Uruguay
In this case, I would like to discuss two contested measures imposed by Uruguay. First, Uruguayan regulation requires each cigarette brand to keep only one presentation, and thus this leads to the prohibition of different presentations for cigarettes sold under a given brand[13]. Second, Uruguayan regulation increase the size of health warnings on cigarette packages to 80 per cent of the surface of the front and back of the packages[14].
3.1 Single Presentation Requirement
3.1.1 The Plaintiff’s Claim
On 6 March 2008, Uruguay first passed a law prohibiting the use of description which may directly or indirectly create an incorrect impression that a specific tobacco product is less harmful than another. Therefore, the purpose of this law is to prevent consumers from misunderstanding the quality of the cigarette. As long as the presentations of certain trade marks have such effect, they shall be prohibited by this law.
Subsequently, on 18 August 2008, the Ministry of Public Health of Uruguay issued an Ordinance to implement this law. This Ordinance effectively prohibited all tobacco companies from the sale of different products under the same brand. As a result, the plaintiff was only allowed to sell one of the five presentations under the same brand.
Philip Morris asserted that the single presentation requirement for each brand by the Uruguayan Ordinance constituted an unreasonable measure under Article 3.1 of the Switzerland-Uruguay BIT[15], since this Ordinance went beyond the purpose of the original to include some presentations which do not convey a wrong impression to consumers. In addition, there is no rational relationship between the single presentation requirement and the goal pursued by the law.
3.1.2 The New Forms of Expropriation
In early days, expropriation involved the direct seize of physical property. While, later identifying indirect expropriation becomes more difficult, since it is not visibly recognized as expropriations or as creeping expropriation[16]. In Middle East Cement Shipping and Handling Co. v. Egypt, indirect expropriation was described as ‘measures taken by a state the effect of which is to deprive the investor of the use and benefits of his investment even though he may retain nominal ownership of the respective rights[17].’
3.1.3 The Multiple Functions of Trade Mark
In modern society, a trade mark may have several roles. Initially, the basic function of a trade mark has been used to give the consumer a guarantee of the identity of the origin of the marked product or service by enabling him to distinguish, without any confusion, that product from others of a different provenance[18]. The second important function of a trade mark is to indicate to the consumers the quality of the specific goods or services sold with a registered mark[19]. The third function of a trade mark is to be a means of advertising[20]. Finally, a trade mark can also be seen as an investment vehicle[21].
However, all functions of a trade mark lie in the basic presumption that conveys correct information to consumers. Therefore, in the present case, as long as Uruguay can demonstrate that several trademarks containing the word ‘Marlboro’ plus several colors leads to the false impression that the contested measures aim to prevent, Uruguay can justify its measure. A trade Marks only confers its holder a monopoly over the use of the mark associated with the goods for which it is registered[22]. Therefore, even under the international protection provided by the BIT, the plaintiff is still not entitled to convey incorrect information to the consumers.
Article 3.1 of the Switzerland-Uruguay BIT provides that, each Contracting Party shall protect within its territory investments ‘made in accordance with its legislation’ by investors of the other Contracting Party. It is therefore legitimate for the plaintiff’s trade makes to be subject to Uruguayan relevant rules.
Furthermore, the nature of a trade mark is not an absolute property right. Instead, it aims to seek a balance between private interests of right holders and public interests. Also, Article 20 of the TRIPS Agreement only prohibits the unjustifiable limits imposed on the use of trademarks by national laws[23].
Nevertheless, in principle, without the above concerns, there is no rational underlying the single presentation requirement under each brand. Likewise, without the justified grounds mentioned above, the effect of the single presentation under the same brand would force the plaintiff to discontinue the use of the other registered trademarks and thus eventually lose their rights[24]. Therefore, without the above justifications, this measure would lead to indirect expropriations under Article 5 of the Switzerland-Uruguay BIT.
3.2 The Excessive Health Warning Requirement
3.2.1 The Plaintiff’s Claim
Since 1982, Uruguay imposed written health warnings on tobacco cigarette packages. In 2005, the size of the health warnings was increased to cover 50 per cent of the surface of the both sides of cigarette packages. On 25 June 2009, a Decree was issued to further increase the size of the health warnings to cover 80 per cent of the surface of the both sides of cigarette packages[25].
The plaintiff claimed that, the excessive 80 per cent health warnings requirement has effectively curtailed the room the right holders can use to display its marks on the surface of its product packages. To obtain the goal of health protection, the old 50 per cent requirement is sufficient and less restrictive. The old 50 per cent requirement is even over the minimum 30 per cent health warning requirement provided by Article 11.1(b)(iv) of the WHO Framework Convention on Tobacco Control. Therefore, the new 80 per cent requirement is not necessary.
3.2.2 The Issue of Constituting an Indirect Expropriation
Article 5.1 of the Switzerland-Uruguay BIT provides that, neither of the Contracting Parties shall take, either directly or indirectly, measures of expropriation, nationalization or ‘any other measure having the same nature or the same effect against investments’ belonging to investors of the other Contracting Party, unless the measures are taken for the public benefit as established by law, on a non-discriminatory basis, and under due process of law, and provided that provisions be made for effective and adequate compensation.
Before discussing whether the excessive health warnings requirement is a lawful indirect expropriation, first, we shall examine whether the excessive health warnings requirement constitutes indirect expropriation under the BIT.
Recalling the original function of a trade mark is to identify the origin of goods or services[26], as long as there is still enough room for the plaintiff to show Marlboro on its packages, it is sufficient for the plaintiff to use its own registered trademarks. Since the right holders could still use the rest space of surface of packages to display its own marks, the main function of the trademarks at issue did not virtually impaired by the Uruguayan measure. Also, in the present case, neither counterfeiting the marks nor destroying the marks exist in the given contexts, there is no trade mark infringement under both the domestic and international relevant rules.
In addition, the plaintiff may argue that, this requirement would significantly limit free speech[27]. Although, free expression is the basis for the right holders to develop its own marks by combing signs, voices, colors. It is also noteworthy that trademarks as a means of advertising, belongs to the low value of speech. Unlike the political speech, it would be subject to the stricter regulations on the ground of consumer protections.
3.2.3 The Issue of Constituting a Lawful Expropriation
According to Article 5.1 of the Switzerland-Uruguay BIT, in determining a lawful expropriation, four cumulative elements need to be fulfilled:
l measures are taken for the public benefit as established by law;
l on a non-discriminatory basis;
l under due process of law;
l provided that provisions be made for effective and adequate compensation[28].
With regard to the first element, first, the World Health Organization on Framework Convention on Tobacco Control has set up a cognitive and normative consensus to control tobacco consumption for promoting global public health[29].
Second, graphic warnings have been effective in helping people who are illiterate. Third, in GATT Thailand-Cigarettes, the Panel confirmed that the priority of public health over free trade[30].
Therefore, public health can be seen as the legitimate ground for the host state to regulate investments.
With regard to the second element, the factual context reveals that, Uruguayan laws applied equally to both domestic and foreign producers.
In The Queen v. Secretary of State for Health, the ECJ stated that, the right to property forming part of the general principles of Community law can be exercised in a restrictive manner, in order to fulfill the objective of general interest[31]. The Court ruled that the contested measures did not prejudice the substance of trade marks, but only constituted a proportionate restriction on the use of the right to property, in order to ensure a high level of health protection. The restrictions did virtually correspond to an objective of general Community interests and did not constitute a disproportionate interference[32]. Since light cigarettes are as harmful as normal cigarettes, the use of health warnings on the cigarette packages would offer consumers correct information when purchasing cigarettes[33].
In Anheuser-Busch Inc. v. Portugal, the ECtHR has confirmed that trademarks are protected by the property rights clause of First Protocol of the European Convention. In this regard, an important public interest will overweigh the control of the use of property without compensation. In examining whether a fair balance of public and private interests has been involved, the Court takes a look at the characteristics and proportionality of the interference and at the legitimate expectations of the private owners[34].
In Pinnacle Meat Processors Co. v. United Kingdom, the Commission observed that protecting people against a fatal disease was a preeminent interest. The Commission thus declared the loss of the applicants was not expropriation[35].
Recently, the Annex B of the US Model Bilateral Investment Treaty 2004 further provides that, except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as ‘public health’ and the environment, do not constitute indirect expropriations[36].
Finally, Article 11 of the Switzerland-Uruguay BIT provides that, either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party. This provision can be used to include the other norms of international rules which are relevant to investments at issue[37]. It is therefore important for the Arbitral Tribunal to take those relevant international norms including provisions of international health agreements into account when interpreting the investment provisions[38]. By doing so, there would be a balance between trademarks protection and public health under the BIT through interpretation.
4. Conclusion
Due to the deadlock of Doha negotiation, countries turn to choose bilateral approach to gain more TRIPS-plus benefits by engaging in Bilateral Investment Agreements. The flourishing of BIAs also brings more conflicts between investment protection and the other social values, while normally the BIA model lack the exceptional clause like GATT XX to solve this problem. However, by invoking Article 31.3 (c) of the VCLT or the commit provisions (Article 11 of the Switzerland-Uruguay BIT) found in some BIAs, the Arbitrators still can invoke some legal resources to remedy these imbalances.
If we go back the starting point of protecting trade mark, the original function of trade mark is to help consumer to identify the origin of goods. Therefore, a trade Marks only grants its holder a monopoly over the use of the mark in conjunction with the goods for which it is registered. Therefore, excessive health warnings do not constitute indirect expropriations. While, with respect to single presentation requirement, there is no rational underlying single presentation under the same brand. Nevertheless, considering the importance of human health, as long as the host State can demonstrate that the plaintiff attempts to create a false impression that light cigarettes are less harmful than regular ones by using several different colors of marks under the same brand, the defendant’s measure can be justified on the ground of public health and consumer protection. In some circumstances, those measures even would not be seen as indirect expropriations.
Bibliography
Books
Holyoak & Torremans, Intellectual Property Law, (Oxford 2010)
MacQueen, Waelde & Laurie, Contemporary Intellectual Property-Law and Policy, (Oxford 2006)
Matthews D., Globalising Intellectual Property Rights: The TRIPS Agreement, (Routledge 2006)
Sornarajah M., The International Law on Foreign Investment, Cambridge 2010
Van den Bossche P., The Law and Policy of the World Trade Organization-Text, Cases and Materials, (Cambridge 2008)
Articles
Helfer, ‘Toward a Human Rights Framework for Intellectual Property’, 40 UC Davies L Rev (2006-2007)
Helfer, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’, 29 Yale J Int’l L (2004)
Mountfield, ‘Regulatory Expropriation in Europe: The Approach of the European Court of Human Rights’, 11 NYU Environmental LJ (2002-2003) 136
Raustialia, ‘Density and Conflict in International Intellectual Property Law’, 40 UC Davis L Rev (2006),
Vadi V., ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3
Van Harten, ‘The Public-Private Distinction in the International Arbitration of Individual Claims Against the State’, 56 ICLQ (2007)
[1] M. Sornarajah, The International Law on Foreign Investment, Cambridge 2010, at pp. 12-13.
[2] V. Vadi, ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3, at p. 775.
[3] MacQueen, Waelde & Laurie, Contemporary Intellectual Property-Law and Policy,(Oxford 2006), at p. 686.
[4] M. Sornarajah, The International Law on Foreign Investment, Cambridge 2010, at p. 193.
[5] M. Sornarajah, The International Law on Foreign Investment, Cambridge 2010, at p. 13.
[6] Art. 2.1 of the TRIPS Agreement.
[7] D. Matthews, Globalising Intellectual Property Rights: The TRIPS Agreement, (Routledge 2006), at p. 46.
[8] Peter Van den Bossche, The Law and Policy of the World Trade Organization-Text, Cases and Materials, (Cambridge 2008), at pp. 744-745.
[9] Helfer, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’, 29 Yale J Int’l L (2004) 1.
[10] V. Vadi, ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3, at p. 778.
[11] V. Vadi, ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3, at p. 779.
[12] Van Harten, ‘The Public-Private Distinction in the International Arbitration of Individual Claims Against the State’, 56 ICLQ (2007) 371.
[13] Philip Morris v. Uruguay, Request of Arbitration, available at http://ita.law.uvic.ca/documents/PMI-UruguayNoA.pdf, para. 3.
[14] Philip Morris v. Uruguay, Request of Arbitration, para. 5.
[15] Article 3.1 of the Switzerland-Uruguay BIT provides that, each Contracting Party shall protect within its territory investments made in accordance with its legislation by investors of the other Contracting Party and shall not impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension, sale and, should it so happen, liquidation of such investments.
[16] Judge Fitzmaurice in Barcelona Traction Case [1971] ICJ Report 3.
[17] ICSID Case No. ARB/99/6 (2002), at para. 107.
[18] Centrafarm v. America Home Products [1996] FSR 225.
[19] SA Cnl-Sucal NV v. Hag GF AG, Case C-10/89 [1991] FSR 99 at pp. 129-130.
[20] Souza Cruz SA v. Hollywood SAS, R283/1999-3 [2002] ETMR (64) 705, para. 7.
[21] Parfums Christian Dior and Parfums Christina Dior BV v. Evora BV, Case C-337/95 [1998] RPC 166.
[22] MacQueen, Waelde & Laurie, Contemporary Intellectual Property-Law and Policy, (Oxford 2006), at p. 540.
[23] It is only ‘unjustifiable’ encumbrances that are covered by Article 20 of the TRIPS Agreement. See Peter Van den Bossche, The Law and Policy of the World Trade Organization-Text, Cases and Materials, (Cambridge 2008), at pp. 777.
[24] It is essential to ensure the actual and genuine use of a trade mark, including the need to put a registered mark to genuine use to retain it on the trade mark register, see MacQueen, Waelde & Laurie, Contemporary Intellectual Property-Law and Policy, (Oxford 2006), at p. 541.
[25] Philip Morris v. Uruguay, Request of Arbitration, paras. 33-38.
[26] Holyoak & Torremans, Intellectual Property Law, (Oxford 2010), at pp. 388-389.
[27] Macan-Markar,’Thai Authorities Have Marlboro Man Fuming’, Asia Times, 14 May 2002.
[28] Similar provision, see article 1110 of the NAFTA.
[29] V. Vadi, ‘Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes’, EJIL (2009), Vol. 20 No. 3, at p. 786.
[30] GATT Panel Report, Thailand-Cigarettes, adopted on 7 Nov. 1990, BISD 375/200, at para. 73.
[31] Case C-491/01, The Queen v. Secretary of State for Health [2002] ECR I-11453, at para. 149.
[32] Case C-491/01, The Queen v. Secretary of State for Health [2002] ECR I-11453, at paras. 149-153.
[33] Helfer, ‘Toward a Human Rights Framework for Intellectual Property’, 40 UC Davies L Rev (2006-2007), at p. 1017.
[34] Mountfield, ‘Regulatory Expropriation in Europe: The Approach of the European Court of Human Rights’, 11 NYU Environmental LJ (2002-2003) 136, at p. 142.
[35] App No 33298/96, Pinnacle Meat Processor Co. v. UK, 27 EHRR (1998) (Commission Report), at p. 223.
[36] Available at http://www.state.gov/documents/organization/38710.pdf . Also, see Article 20.8 of Common Market for Eastern and Southern Africa Investment Agreement for the COMESA Common Investment Area.
[37] Also see Article 31.3(c) of the VCLT.
[38] Raustialia, ‘Density and Conflict in International Intellectual Property Law’, 40 UC Davis L Rev (2006), at p. 1021.
Why the full understanding of law should start from the multi-level regulation
我們對法律的日常理解，起源於決定日常生活的權威，路上開車要遵守交通號誌，小孩滿七歲強制入學。然而這些直接規範我們的國內法律，卻開始漸漸深受雙邊/區域及國際規範的影響，甚至直接來自其文本。因此今天欲窮整體法律之脈絡，不可能不從承認Multilevel Regualtion between international,regional, and national aspects, 此一框架作為起點。
舉例而言，與中國欲簽訂的雙邊投資協定，很可能在投資人與地主國有關投資紛爭間，置入常見的國際仲裁條款，排除地主國司法機關及管轄地法的程序暨實體法之管轄權，而回歸國際社會形之有年的仲裁規則，以之進行紛爭解決。
又如今日強力國際組織，常採納其他不具拘束力之國際組織之建議書(so called soft law) 作為自己執行某項國際條約之基礎，甚至提供自己的爭端解決機制給上述國際組織。此類合縱連衡，使得片面性的國際協定自生性連結成網絡，強化了個別國際組織之獨立性與影響力，衝擊了傳統上的國家有限授權模式。國家給出的權力，因國際組織彼此連結，漸漸有邁向整合成實踐上全球憲法的模式，特別表現在近來 WTO 爭端解決機構，針對若干貿易與人權/貿易與環保/貿易與勞工之重大判決。
舉例而言，與中國欲簽訂的雙邊投資協定，很可能在投資人與地主國有關投資紛爭間，置入常見的國際仲裁條款，排除地主國司法機關及管轄地法的程序暨實體法之管轄權，而回歸國際社會形之有年的仲裁規則，以之進行紛爭解決。
又如今日強力國際組織，常採納其他不具拘束力之國際組織之建議書(so called soft law) 作為自己執行某項國際條約之基礎，甚至提供自己的爭端解決機制給上述國際組織。此類合縱連衡，使得片面性的國際協定自生性連結成網絡，強化了個別國際組織之獨立性與影響力，衝擊了傳統上的國家有限授權模式。國家給出的權力，因國際組織彼此連結，漸漸有邁向整合成實踐上全球憲法的模式，特別表現在近來 WTO 爭端解決機構，針對若干貿易與人權/貿易與環保/貿易與勞工之重大判決。
請你直接面對法律
直到那一天歐洲競爭法的課堂上，同學跟我抱怨沒教科書讀時，我才發現這個問題，東西方的法學院世界都有—請你直接面對法律。
更精準地說，當你遇到法律問題或是在學習法律時，請你直接尋找法源，閱讀法條，思考如何解讀法律文字跟可能可以用來解決問題的途徑。
這很基本是吧!!! 對於絕大多數的法學教授、律師與實務工作者，是。對於法學院學生，不是。學生不應該有這樣的假設，需要讀了一大把教科書，讓別人來教你法律是什麼，從別人的話語中拼湊法律的圖像。我不是說理論或學說或上課不重要，而是你應該先回到文本，先去讀相關的母法或子法，先去讀判決或決議，他們不僅告訴你實際執行層面的法律是什麼，通常讀起來也比法條更具體。
更重要的是，以你自己的疑問為出發點，去尋找答案，這樣的學習才是有效率的。無論出發的點有多低，遠勝過終日埋首各類參考書籍，只是不自覺淪於反覆背誦的命運。學習應該像平常生活一樣，遇到問題時，嘗試用手邊的資料去解決。
請放下手邊的書本(順便放下萬惡的電視遙控器，^^)，直接翻閱你正在研讀的某個法律文本，嘗試集中地用一到兩天，集中在條文閱讀上，試圖光憑閱讀文本拼湊出這個法律的整體圖像。然後，帶著滿腹疑問，開始閱讀相關書籍。
更精準地說，當你遇到法律問題或是在學習法律時，請你直接尋找法源，閱讀法條，思考如何解讀法律文字跟可能可以用來解決問題的途徑。
這很基本是吧!!! 對於絕大多數的法學教授、律師與實務工作者，是。對於法學院學生，不是。學生不應該有這樣的假設，需要讀了一大把教科書，讓別人來教你法律是什麼，從別人的話語中拼湊法律的圖像。我不是說理論或學說或上課不重要，而是你應該先回到文本，先去讀相關的母法或子法，先去讀判決或決議，他們不僅告訴你實際執行層面的法律是什麼，通常讀起來也比法條更具體。
更重要的是，以你自己的疑問為出發點，去尋找答案，這樣的學習才是有效率的。無論出發的點有多低，遠勝過終日埋首各類參考書籍，只是不自覺淪於反覆背誦的命運。學習應該像平常生活一樣，遇到問題時，嘗試用手邊的資料去解決。
請放下手邊的書本(順便放下萬惡的電視遙控器，^^)，直接翻閱你正在研讀的某個法律文本，嘗試集中地用一到兩天，集中在條文閱讀上，試圖光憑閱讀文本拼湊出這個法律的整體圖像。然後，帶著滿腹疑問，開始閱讀相關書籍。
Comitology 的故事---> 不只是法律保留 (歐洲整體公法秩序的一環)
當歐體條約誕生時，會員國意識到，條約的實踐勢必將交由委員會(Commission)制定第二級的歐盟指令或規則來落實，並由會員國據此執行。因此，委員會是歐體條約中實際的行政機關。
然而，由部長組成的理事會(當時的最高機關)，儘管明白授權勢在必行，但是對於光是以" 授權明確性 "此一機制，來控制委員會的二級法令，缺乏信心，也不認為司法審查可以真正有效控制委員會的二級法令，因此理事會創造了comitology committee。
Comitology committees 是由各會員國的代表組成，依據不同管制領域，各會員推派自己的代表(例如公共衛生議題，就可能是由衛生部門派出代表與會)與會，代替理事會審查委員會提出的二級法令。
雖然，本質上，Comitology committees 是外交場域，由各國代表組成，容易淪為各會員彼此交換籌碼的場合，而不是為了聯盟整體的利益而努力，特別是若干法案對特定會員國有重大影響時。然而，實證研究顯示，由於各國代表長期透過參予Comitology committees會議，彼此合作審查法案，不僅形成良好的默契與合作氛圍，傾向以合作取代對抗以解決共同的問題，提出共同的方案，也能適時向歐盟委員會反映個別會員國特殊情況，與該法案之不適當處。
由於，Comitology committees 是由各會員國的行政機關代表組成，其審議不同於議會，本身較具有專業素質，並且與歐盟委員會協商後推出的妥協方案，也較能為會員國所接受，並據以實踐。這裡充分體現以合作取代上下命令式的治理模式。
然而，隨著歐洲議會的角色越益重要，議會希望取代Comitology committees，監督歐洲委員會得二級法令，同時委員會也希望藉此擺脫Comitology committees的束縛。因此，在里斯本條約通過後，Comitology committees的審理範圍被大幅限縮，僅能審查 implemneting acts, delegated acts 則必須交由歐洲議會審查。
值得關注的是，其一，如何區別 implenetiung acts and delegated acts, 條約中沒有明確規定，目前已是法律保留歐盟版的熱門議題。 其二，統計指出，目前每年歐洲議會只通過三百多個法案，但是Comitology committees卻對三千多個授權下的二級法令作出決議，歐洲議會將如何承擔移轉而來的工作量。其三，從歐體條約迄今，Comitology committees從未出現在條約文本中，卻成監督制衡機制中不可缺少的一環，從廣義的憲政實踐角度來說，固執於文本主義，往往會與現實脫節，憲法會根據實際需要成長與演化。
最後，台灣固然缺乏這樣的機制，但是隨著外交事務性質的轉變(幾乎每個部門都有可能與外國簽訂雙邊合作協議)，我國法律過去對行政機關的寬泛授權，是不是應該有所限制(不動到法律，卻對人民生活影響重大的國際協定太多太多了)，是不是應該在國會中有一個持續與行政部門對話的機制，監督行政部門如何具體落實或執行法律，如何與外國進行談判，避免行政部門透過空白支票授權，將許多實質性規範要素(甚麼東西叫做重要，應該是一個流動性的概念，歐洲議會當年也質疑過，為什麼我們不能直接干涉BSE，複製動物食品)，逸脫民主的控制機制，而假談判之名。
然而，由部長組成的理事會(當時的最高機關)，儘管明白授權勢在必行，但是對於光是以" 授權明確性 "此一機制，來控制委員會的二級法令，缺乏信心，也不認為司法審查可以真正有效控制委員會的二級法令，因此理事會創造了comitology committee。
Comitology committees 是由各會員國的代表組成，依據不同管制領域，各會員推派自己的代表(例如公共衛生議題，就可能是由衛生部門派出代表與會)與會，代替理事會審查委員會提出的二級法令。
雖然，本質上，Comitology committees 是外交場域，由各國代表組成，容易淪為各會員彼此交換籌碼的場合，而不是為了聯盟整體的利益而努力，特別是若干法案對特定會員國有重大影響時。然而，實證研究顯示，由於各國代表長期透過參予Comitology committees會議，彼此合作審查法案，不僅形成良好的默契與合作氛圍，傾向以合作取代對抗以解決共同的問題，提出共同的方案，也能適時向歐盟委員會反映個別會員國特殊情況，與該法案之不適當處。
由於，Comitology committees 是由各會員國的行政機關代表組成，其審議不同於議會，本身較具有專業素質，並且與歐盟委員會協商後推出的妥協方案，也較能為會員國所接受，並據以實踐。這裡充分體現以合作取代上下命令式的治理模式。
然而，隨著歐洲議會的角色越益重要，議會希望取代Comitology committees，監督歐洲委員會得二級法令，同時委員會也希望藉此擺脫Comitology committees的束縛。因此，在里斯本條約通過後，Comitology committees的審理範圍被大幅限縮，僅能審查 implemneting acts, delegated acts 則必須交由歐洲議會審查。
值得關注的是，其一，如何區別 implenetiung acts and delegated acts, 條約中沒有明確規定，目前已是法律保留歐盟版的熱門議題。 其二，統計指出，目前每年歐洲議會只通過三百多個法案，但是Comitology committees卻對三千多個授權下的二級法令作出決議，歐洲議會將如何承擔移轉而來的工作量。其三，從歐體條約迄今，Comitology committees從未出現在條約文本中，卻成監督制衡機制中不可缺少的一環，從廣義的憲政實踐角度來說，固執於文本主義，往往會與現實脫節，憲法會根據實際需要成長與演化。
最後，台灣固然缺乏這樣的機制，但是隨著外交事務性質的轉變(幾乎每個部門都有可能與外國簽訂雙邊合作協議)，我國法律過去對行政機關的寬泛授權，是不是應該有所限制(不動到法律，卻對人民生活影響重大的國際協定太多太多了)，是不是應該在國會中有一個持續與行政部門對話的機制，監督行政部門如何具體落實或執行法律，如何與外國進行談判，避免行政部門透過空白支票授權，將許多實質性規範要素(甚麼東西叫做重要，應該是一個流動性的概念，歐洲議會當年也質疑過，為什麼我們不能直接干涉BSE，複製動物食品)，逸脫民主的控制機制，而假談判之名。
胡說集 I ~ 打造一個未來法學院~催生亞洲法學院
我們有培養國內法人才的法學院，但沒有培養國際法人才的法學院。我們有外交學院，但是現代的國際法，越來越來趨於專業化，分工化，不是單單只有國際關係研究，區域整合研究，環保，貿易，漁業，公共衛生，都是國際法最前線的議題。
我們有很多前往美，日，歐洲留學的法學教授/博士，但是研究重心泰半集中於國內議題，談移民反歧視議題的人多，談吸引高技術移民的人少。更甚者，除中國大陸外，我們對於越南，南韓，印度，還有東協，這樣的區域重要鄰國的法律制度理解，很有限。
當然，目前政府在一些智庫已經成立了東協研究中心，而中央研究院也有所謂的歐美所在從事區域整合研究。但是，這樣的研究並沒有延伸至教學，這樣的研究也缺乏從教學中培養下一代研究/技術人才的機制。
如果，台灣真的以融入亞洲區域整合為目標，我們需要一所亞洲法學院，它可以為企業提供熟稔東協法律的法務(特別是越南與印尼)，為政府培養新一代熟稔國際法的國際事務人才，也讓台灣過去累積數十年的法學研究成果，轉化為區域整合機制提案，向外輸出，成為未來區域整合的可能方案之ㄧ。
因此，我們需要一間像歐洲法學院一樣建制的亞洲法學院。所謂有意義的國際對話，應該從近鄰開始。它可以幫助我們處理若干國內議題，從理解鄰國開始，重新反思我們過去對待外勞/外籍配偶的偏差態度。它更可以協助政府/企業/第三部門，尋找與鄰國政府/企業/第三部門合作的契機。
所謂的亞洲法學院，不代表研究者就一定要在此一區域取得學位，有許多歐洲整合研究，多有參考美國過去兩百年整合國內各州的經驗。然而，除了英語，作為基本能力的要求，學習特定國家語言已成為奠基此一研究不可或缺之要求。藉由亞洲法學院的建置，除了鼓勵若干學者在這些國家取得博士學位/博士後研究，與重要地區大學進行教學與研究合作，鼓勵更多的交換學生/雙聯學位(學士, 碩士到博士)。
亞洲法學院的教學與研究是合ㄧ的，除了本國法的基礎教學外(僅限於學士)，很大的重心會放在比較各國法，國際組織合作，區域整合研究上，這三者是相互交纏的。區域整合研究的第一步，是了解彼此的制度，尋求對話的空間，所以不可能沒有比較法。但是區域整合機制的參考，不可能不以國際法為基礎，參考現有的區域整合模式(如歐盟，美國聯邦制度)，設計出適合東亞/亞太/亞洲的區域整合模式/機制/協定。
亞洲區域整合早已悄然從ASEAN PLUS N, TPP, and APEC 展開，隨著亞洲未來可能成為全球最大的區域經濟體，相對於衝突，有更多可以合作之處。台灣處於另一段區域整合歷史的起點，應該運用國家資源，思考真正有益國家發展的資源投入，ㄧ間以ㄧ百位教員為基礎規模的亞洲法學院，應該可以做為起點之ㄧ。
我們有很多前往美，日，歐洲留學的法學教授/博士，但是研究重心泰半集中於國內議題，談移民反歧視議題的人多，談吸引高技術移民的人少。更甚者，除中國大陸外，我們對於越南，南韓，印度，還有東協，這樣的區域重要鄰國的法律制度理解，很有限。
當然，目前政府在一些智庫已經成立了東協研究中心，而中央研究院也有所謂的歐美所在從事區域整合研究。但是，這樣的研究並沒有延伸至教學，這樣的研究也缺乏從教學中培養下一代研究/技術人才的機制。
如果，台灣真的以融入亞洲區域整合為目標，我們需要一所亞洲法學院，它可以為企業提供熟稔東協法律的法務(特別是越南與印尼)，為政府培養新一代熟稔國際法的國際事務人才，也讓台灣過去累積數十年的法學研究成果，轉化為區域整合機制提案，向外輸出，成為未來區域整合的可能方案之ㄧ。
因此，我們需要一間像歐洲法學院一樣建制的亞洲法學院。所謂有意義的國際對話，應該從近鄰開始。它可以幫助我們處理若干國內議題，從理解鄰國開始，重新反思我們過去對待外勞/外籍配偶的偏差態度。它更可以協助政府/企業/第三部門，尋找與鄰國政府/企業/第三部門合作的契機。
所謂的亞洲法學院，不代表研究者就一定要在此一區域取得學位，有許多歐洲整合研究，多有參考美國過去兩百年整合國內各州的經驗。然而，除了英語，作為基本能力的要求，學習特定國家語言已成為奠基此一研究不可或缺之要求。藉由亞洲法學院的建置，除了鼓勵若干學者在這些國家取得博士學位/博士後研究，與重要地區大學進行教學與研究合作，鼓勵更多的交換學生/雙聯學位(學士, 碩士到博士)。
亞洲法學院的教學與研究是合ㄧ的，除了本國法的基礎教學外(僅限於學士)，很大的重心會放在比較各國法，國際組織合作，區域整合研究上，這三者是相互交纏的。區域整合研究的第一步，是了解彼此的制度，尋求對話的空間，所以不可能沒有比較法。但是區域整合機制的參考，不可能不以國際法為基礎，參考現有的區域整合模式(如歐盟，美國聯邦制度)，設計出適合東亞/亞太/亞洲的區域整合模式/機制/協定。
亞洲區域整合早已悄然從ASEAN PLUS N, TPP, and APEC 展開，隨著亞洲未來可能成為全球最大的區域經濟體，相對於衝突，有更多可以合作之處。台灣處於另一段區域整合歷史的起點，應該運用國家資源，思考真正有益國家發展的資源投入，ㄧ間以ㄧ百位教員為基礎規模的亞洲法學院，應該可以做為起點之ㄧ。
訂閱：
意見 (Atom)