Annex To The Trade Policy Review Communication
EUROPEANCOMMISSIONBrussels, 18.2.2021COM(2021) 66 finalANNEXANNEXto theCOMMUNICATION FROM THE COMMISSION TO THE EUROPEANPARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIALCOMMITTEE AND THE COMMITTEE OF THE REGIONSTrade Policy Review - An Open, Sustainable and Assertive Trade PolicyENEN
ANNEXREFORMING THE WTO: TOWARDS A SUSTAINABLE AND EFFECTIVEMULTILATERAL TRADING SYSTEM1.Why does the WTO matter and why is it in crisis?1.1 Why the WTO mattersSince the foundation of the multilateral trading system in 1947 1, world trade hasexpanded 300-fold, and today makes up more than 60% of global GDP, supportingjobs, growth and investment around the world. This is partly thanks to successivereductions in tariffs negotiated through the multilateral system: in 1947, applied tariffs rangedbetween 20% and 30%, today, the world's applied tariffs stand at an average of around 9%.But this is also thanks to the stability the system provides. The WTO’s most-favoured nationprinciple (MFN) limits discrimination between goods and services from different tradingpartners. It provides a stable floor of economic openness that promotes competition on globalmarkets based on efficiency and innovation. 60% of EU trade is conducted on MFN terms,including our trade with the United States, China, Russia and India. The rules of the WTOprotect the interests of all trading nations against discriminatory, behind-the-border actionand ensure that contingent trade protection is based on multilaterally agreed disciplines.Furthermore, the binding of tariffs has decreased the likelihood that countries increase tariffsas a response to shocks2, and the dispute settlement system has ensured compliance with therules and avoided the escalation of trade conflicts.Though more needs to be done, the WTO has also contributed to global sustainabledevelopment. The economic openness it has guaranteed has helped integrate manydeveloping countries into the world economy, lifting hundreds of millions of people out ofpoverty and decreasing inequalities between countries3.1.2 The reasons for the crisisToday’s crisis affects all three functions of the WTO: negotiations have failed to modernisethe rules, the dispute settlement system has de facto reverted to the days of the GATT where123With the WTO’s predecessor agreement, the General Agreement on Tariffs and Trade (GATT).Jakubik, A. and Piermartini, R. (2019). ‘How WTO commitments tame uncertainty!’, WTO Staff WorkingPapers ERSD-2019-06, World Trade Organization (WTO).World Bank Group and World Trade Organization (2015). The Role of Trade in Ending Poverty. WorldTrade Organization: Geneva. See also Commission on Growth and Development in 2018 ‘The GrowthReport: Strategies for Sustained Growth and Inclusive Development’.1
panel reports could be blocked, and the monitoring of trade policies is ineffective. Inaddition, the trade relationship between the US and China, two of the three largestWTO members, is currently largely managed outside WTO disciplines.A key driver of the crisis is that China’s accession to the WTO has not led to itstransformation into a market economy. The level at which China has opened its markets doesnot correspond to its weight in the global economy, and the state continues to exert a decisiveinfluence on China’s economic environment with consequent competitive distortions thatcannot be sufficiently addressed by current WTO rules. But the WTO has not been able tonegotiate new rules to tackle this or other pressing issues (e.g. digital trade or sustainability).Reaching consensus among 164 members against the backdrop of today’s diffuse globalbalance of power is a huge challenge. Negotiations are also held back by disagreements aboutflexibilities for developing countries. It is not sustainable that two thirds of the membership including some of the world's most significant economies - claim special and differentialtreatment. Further, the WTO's monitoring and deliberative function is seriouslychallenged by insufficient transparency about members’ trade legislation and practice, andthe fact that topics such as environmental degradation, climate change or decent work areconsidered taboo. Last but certainly not least, the dispute settlement system was effectivelyparalysed at the end of 2019, due to the blockage of appointments of Appellate Bodymembers by the United States.1.3 The urgent need for reformA stable trading environment with the WTO at its centre is more essential than ever toaddress the challenges before us, starting with the economic recovery from the pandemic.The context is challenging in an organisation that seems to have lost its sense of commonpurpose. But the EU has a fundamental strategic interest in ensuring the effectiveness of theWTO. Not only is trade vital for our economy; promoting rules-based internationalcooperation is the very essence of the European project. The EU must therefore play aleading role in creating momentum for meaningful WTO reform.2
2.Restoring trust and a sense of common purpose: the WTO’s contribution tosustainable developmentThe collapse of the Doha Development Agenda in 2008 exemplified the lack of commonpurpose of the WTO membership. Despite the success in concluding the Trade FacilitationAgreement at the 9th WTO Ministerial Conference in Bali and the Decision on agriculturalexport competition at the 10th WTO Ministerial Conference in Nairobi, the WTO membershiphas become increasingly divided as to what it expects from the WTO. While part of themembership has argued that the ‘centrality of development’ in the WTO means that thereshould be a focus on exceptions and flexibilities from agreed and future commitments,another part has grown increasingly frustrated at the failure of progress in WTO negotiationsand shifted its attention to bilateral trade agreements. Without a sense of common purpose, ithas been extremely difficult to find a way forward for any initiative and to ensure that theWTO evolves in line with the changes in global trade.However, the vast majority of the membership remains committed to the idea ofmultilateralism, fully cognizant of the benefits of a rules-based system for global trade anddevelopment. The instability of the last few years, the climate and environmental crisis, theincreased use of unilateral measures and now the COVID-19 pandemic have led to a clearrealisation that the WTO is a vital component of healthy global economic governance but thatreform is necessary. The G20 Leaders’ statement4 in Riyadh contains the strongestcommitment to reform yet, at the highest political level.As global challenges proliferate, WTO members should be able to coalesce around theobjective of addressing the most pressing problems they face: economic recovery anddevelopment, free from competitive distortions, as well as environmental and socialsustainability as part of the green transition of economies. Addressing these problems wouldbe in line with the objectives of the UN Sustainable Development Goals (the ‘SDGs’), towhich all WTO members have committed. Such a focus could offer the sense of commonpurpose that the WTO has lacked in recent decades and rebuild trust among the membership.It could generate the confidence needed to modernise the WTO rulebook in a manner that is4Leaders' Declaration G20 Riyadh Summit November 21 - 22, 20203
responsive to the challenges of digitalisation and greening, as well as preventing and defusingconflicts caused by trade-distorting state intervention in the economy.2.1Restoring a sense of common purpose to the WTO: focus on sustainable developmentThis effort to restore a sense of common purpose must proceed incrementally, starting withshort-term confidence-building measures. Concluding the fisheries subsidies negotiationswould be an important step towards solidifying the WTO’s contribution to sustainability.This agreement is of importance not only as the first multilateral agreement in years, but alsoas the first agreement with implementation of an SDG as its core (SDG 14.6). This will notbe a straightforward task given the gaps between WTO members’ positions and thechallenges of finding consensus in multilateral negotiations (in good part because of the issueof special and differential treatment mentioned above), but the negotiations are at a moreadvanced stage than they have been in their long history. With sufficient political will, thereis scope for an agreement in advance of the 12th WTO Ministerial Conference (‘MC12’).The EU has presented together with the Ottawa Group5 a trade and health initiativecovering disciplines on export restrictions and a number of trade facilitating measures andsteps to facilitate transparency. The EU will continue to work with its partners and the newDirector-General to ensure that the trading system is responsive to the challenges raised bythe pandemic, including as regards the implementation of flexibilities available under theTRIPS agreement.Many SDGs relate to protection of the environment.The paramount importance ofprotecting the environment was already recognised at the time of the WTO’s creation, by theestablishment of a Committee on Trade and Environment to foster deliberation and commonaction. The current need for trade policy to be responsive to climate and environmentalchallenges is if anything more critical today, something which is supported by many WTOmembers. Contrary to fears expressed when the WTO was created, no country has beenforced to lower its desired level of health or environmental protection because of a ruling ofthe WTO dispute settlement system. Going forward, the EU will support in internationaldiscussions on trade and environment issues an interpretation of relevant WTO provisions5The Ottawa Group participants are: Australia, Brazil, Canada, Chile, the European Union, Japan, Kenya, SouthKorea, Mexico, New Zealand, Norway, Singapore and Switzerland4
that recognise the right of Members to provide effective responses to global environmentalchallenges, notably climate change and the protection of biodiversity.The European Union views sustainability as part of the necessary green transition ofeconomies, which will need to be reflected in the WTO’s work across the board. We willsoon present an initiative on trade and climate in the WTO. Initial reflections, presented ina non-paper6 shared with WTO members and stakeholders, centre on a range of buildingblocks, including the liberalisation of selected goods and services; transparency (including oncarbon border adjustment measures), information exchange and analysis as a first step todevelop disciplines on fossil fuel subsidies; greening aid for trade; and strengthening theWTO’s institutional framework dealing with trade and environment issues. In addition, theEU is also working with other WTO members in pursuing parallel environmental initiativesrelating to the circular economy (including plastics).The WTO also has a role to play in helping to implement the SDGs on decent work andgender equality, which are of utmost importance both outside the EU but also within the EU.As regards decent work, the WTO should foster analysis and exchange of experiences as tohow trade policies can contribute to social development, how stronger protection of workers’rights benefits growth and development, and how to ensure that – both within and outside theEU - the benefits of trade liberalisation reach all workers and vulnerable communities. Thisaction could be supported through further and more active cooperation between the WTO andthe International Labour Organization. The EU should work with partners to further integratethis social dimension of globalisation into the work of the WTO. As regards gender equality,the EU should pursue a leading role in raising awareness of the importance of ensuring that agender perspective is a mainstream part of trade policy, through initiatives such as theBuenos Aires Declaration on Trade and Women's Economic s/2020/november/tradoc 159117.pdf5
2.2How trade can contribute to development: the need for a forward-looking approachto special and differential treatment.One of the founding objectives of the WTO is to ensure that developing countries, andespecially the least developed among them, secure a share of the benefits of internationaltrade commensurate with the needs of their economic development. ‘Special and differentialtreatment’ (SDT) is meant to enable developing countries to make the best use of theopportunities for development that WTO membership offers.The EU is a strong supporter of SDT but believes its use must be guided by the underlyingeconomic reality that trade is a driver of development, rather than a threat. Those developingeconomies that have seen the most consistent growth are those that have focused their effortson integrating into the global economy and progressively opening their markets to greatercompetition. The great development challenge for the WTO is how the Organization caneffectively assist the efforts of those developing countries that are not yet sufficientlyintegrated into the global economy.Restoring the credibility of the WTO as a negotiating forum also requires a new approach toSDT. Such an approach should combine a more targeted focus on how to support integrationinto the trading system, along with greater differentiation between developing countries,based on identified needs. These needs include the capacity constraints of small publicadministrations. It is only by focusing on how to facilitate the capacity of countries to assumecommitments that foster integration in the global economy that the WTO can effectivelycontribute to development.In terms of process, an ‘agreement-by-agreement’ approach appears to be the most likely todeliver real progress on SDT. While it would be desirable that all WTO members agreed oncrosscutting criteria for SDT, it is more realistic to try to find convergence in specificnegotiations. Still, the EU’s approach will be guided by some overall considerations. The EUwould strongly support SDT provisions that effectively respond to the capacity constraints ofthe vast majority of developing countries. At the same time, the EU expects full commitmentsin ongoing negotiations and future agreements from a) OECD members (including OECDaccession candidates); b) countries classified as ‘high income’ by the World Bank; and c)countries that represent a sufficiently high share of global exports in general or in the sectorsconcerned by a particular negotiation. Due to its weight in the system, China should lead byexample and not claim SDT in any ongoing negotiation.6
3. Restoring a fully functioning WTO dispute settlement system with a reformedAppellate BodyBinding dispute settlement is not only critical to protect the interests of WTO membersagainst measures that limit market access rights. It also provides the stability for companiesto be able to invest and export in the knowledge that rules will be respected and that there areremedies in case of breach. It protects big and small WTO members alike against unilateralactions and prevents trade disputes escalating into political conflicts. While certain aspects ofthe Appellate Body’s operation and jurisprudence have been criticised, it is also important torecognise that the Appellate Body has greatly enhanced legitimacy and predictability of thedispute settlement system, including through its careful attention to the protection of the rightof WTO members to regulate for health, environmental or other legitimate policy objectives.The most urgent of WTO reforms is finding an agreed basis to restore a functioning disputesettlement system and to proceed to the appointment of the members of the Appellate Body.This task should be addressed as a priority and not be linked to the others aspects of WTOreform. In the absence of a functioning dispute settlement system, it is difficult to see whatcould be the motivation for countries to modernise and fill gaps in the rules.The United States has raised a number of valid concerns about certain adjudicativeapproaches of the Appellate Body as well as about specific rulings in certain cases. TheEuropean Union agrees that adjudicators should exercise judicial economy and are not boundby “precedent” but should take into account previous rulings to the extent they find themrelevant in the dispute they have before them. In the WTO dispute settlement system, thepanels are the triers of fact, and the role of the Appellate Body should be strictly limited toaddressing legal issues raised on appeal to the extent this is necessary to resolve a dispute.The independence of panels and of the Appellate Body is essential so that cases are decidedexclusively on their merits. This is compatible with a strengthening of accountability toMembers as regards the fulfilment of its duties. Mandatory timelines should be strictlyrespected both at the Panel and Appellate Body stage of disputes – justice delayed is justicedenied – and appropriate measures should be adopted in order to make this possible. TheEuropean Union therefore agrees that a meaningful reform is needed. Such reform shouldmaintain the negative consensus rule, the independence of the Appellate Body and the central7
role of dispute settlement in providing security and predictability to the multilateral tradingsystem.In particular, while many of the issues above are reflected in principles developed in theInformal Process on matters related to the functioning of the Appellate Body led by theChairman of the Dispute Settlement Body, the EU is open to consider how to give them astronger legal formulation, as well as to consider additional improvements. An early signal bythe United States of their readiness to enter into good faith negotiations to find a multilateralagreement on dispute settlement reforms would greatly enhance confidence and shouldenable reaching an agreement to restore binding dispute settlement and a functioningAppellate Body.4. Towards a more effective negotiating functionAt the heart of the crisis in the WTO lies the failure of its negotiating function. WTO reformshould aim at restoring the effectiveness and credibility of the WTO as a forum for thenegotiation of trade rules and further liberalisation. WTO rules need to be brought into linewith the economic and trade realities of the 21st century. On substance, the priority should beto modernise the rules of the WTO on e-commerce, investment facilitation, services domesticregulation and on the role of the state in the economy, including on subsidies. Once rules aremodernised, consideration could also be given to advancing liberalisation on goods andservices in a manner that ensures a better balance of commitments. As regards the method fornegotiations, a single undertaking approach has failed to deliver and progress can be bestachieved through different processes, in particular open, plurilateral agreements. In parallel tosubstantive negotiations, WTO members should reflect on ways of better integratingplurilateral agreements into the WTO framework.4.1 Modernising WTO rulesA. Establishing new rules on digital trade, services and investmentNegotiations with broad participation are ongoing on services domestic regulation, ecommerce and investment facilitation. All three negotiations are essential to make the rules ofinternational trade responsive to the digital transformation of the economy, the growingimportance of services and the need to facilitate investment as a key for development.8
The EU is fully committed to these negotiations. MC12 provides an opportunity to recordsubstantial progress on the e-commerce and investment facilitation initiatives and to concludean agreement on services domestic regulation. Concluding negotiations on ambitious andinclusive agreements in these three areas is critical to demonstrate the relevance of the WTOto the main drivers for the e
between 20% and 30%, today, the world's applied tariffs stand at an average of around 9%. But this is also thanks to the stability the system provides. The WTO’s most-favoured nation principle (MFN) limits discrimination between goods and services from different trading partners.
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Le genou de Lucy. Odile Jacob. 1999. Coppens Y. Pré-textes. L’homme préhistorique en morceaux. Eds Odile Jacob. 2011. Costentin J., Delaveau P. Café, thé, chocolat, les bons effets sur le cerveau et pour le corps. Editions Odile Jacob. 2010. Crawford M., Marsh D. The driving force : food in human evolution and the future.
