EU Policies and Approaches
Edited by Jan Wouters, Axel Marx, Dylan Geraets and Bregt Natens
Chapter 13: Just sue the bastards? An assessment of the alternative to negative harmonization of regulatory priorities
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’.
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