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van Calster, Geert --- "Just sue the bastards? An assessment of the alternative to negative harmonization of regulatory priorities" [2015] ELECD 1476; in Wouters, Jan; Marx, Axel; Geraets, Dylan; Natens, Bregt (eds), "Global Governance through Trade" (Edward Elgar Publishing, 2015) 329

Book Title: Global Governance through Trade

Editor(s): Wouters, Jan; Marx, Axel; Geraets, Dylan; Natens, Bregt

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783477753

Section: Chapter 13

Section Title: Just sue the bastards? An assessment of the alternative to negative harmonization of regulatory priorities

Author(s): van Calster, Geert

Number of pages: 18

Abstract/Description:

In this contribution I summarily, and largely in essay style, review the state of, and challenges to, the main alternative to negative harmonization of regulatory priorities. I introduce the concepts of regulatory autonomy, ‘negative’ and ‘positive’ harmonization; I highlight the shortcomings in the approach of the European Union (EU or Union) (the EU often being hailed as having the better approach to the issues under consideration); I review the achievements of both negative and positive harmonization at the level of the World Trade Organization (WTO); and I end with succinct references to similar issues in mega-free trade agreements (FTAs). Trade and regulatory law collide where barriers to trade are established in the name of regulatory, non-trade priorities. The usual suspects among these latter priorities are environmental protection, public health and consumer protection, although the list is by definition endless. Indeed, the unpredictable character of what at some point in time might emerge as requiring protection, even if the protective measures clash with free trade, is what prompted the European Court of Justice (ECJ) to develop its case law on the ‘rule of reason’. This case law supplemented the EEC Treaty-sanctioned exceptions to free trade, with a judge-invented regime protecting newer, modern societal values which the Treaty drafters did not or could not anticipate. Any modern (post 1940s) trade agreement in principle respects ‘regulatory autonomy’.