Regulatory Autonomy and International Trade in Services

Regulatory Autonomy and International Trade in Services

The EU Under GATS and RTAs

Bregt Natens

This book considers how the interplay between multilateral and preferential liberalisation of trade in services increasingly raises concerns, both from the perspective of the beneficiaries of such liberalisation (whose rights are uncertain) and that of regulators (whose regulatory autonomy is constrained). The author shows how these concerns lead to vast underutilisation of, and strong prejudices against, the benefits of services liberalisation. The book meticulously analyses and compares the EU's obligations under the GATS and the services chapters of several RTAs to finally assess the merits of the raised concerns.

Chapter 3: The scope of GATS and the selected EU RTAs

Bregt Natens

Subjects: law - academic, european law, international economic law, trade law, regulation and governance


Determining whether a measure falls within the scope of an agreement is the first step in establishing whether the measure could be inconsistent with that agreement. Thus, a wide scope constrains regulatory autonomy more than a narrow one. The GATS negotiators’ approach to delineating the scope of the agreement was pragmatic: there is no positive definition of the concept of services in GATS. In principle, it applies to almost every service in any sector. The same goes for the EU RTAs. To remedy this very wide scope, the scope of the agreements is limited by exemptions. In GATS, these are limited to what the Contracting Parties agreed to, whereas exemption in the services chapters of the selected EU RTAs are more conducive of EU sensitivities. Because GATS is a trade agreement, there must be trade in services, which is defined as the supply of a service through one of four modes of supply. The selected EU RTAs have largely mirrored this approach. Article I:1 GATS states that the agreement applies to measures by Members affecting trade in services. In paragraph 3 (b) of the same provision, services are defined negatively as any service in any sector except services supplied in the exercise of governmental authority.

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