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Public play upon private standards

Geplaatst op 01-06-2017  -  Categorie: Columns speciale onderwerpen  -  Auteur: Enrico Partiti

How European and international economic law enter into voluntary regimes for sustainability (thesis)

The emergence, consolidation, and proliferation of private product standards in the domain of sustainability has been one of the most striking features in global governance in the social and environmental fields. Companies, sectoral associations and multi-stakeholder organisations set and enforce standards defining products and process features in domains ranging from forestry to fisheries, from agricultural products to raw materials, and from textiles to biofuels. Certified goods, as well as Fair trade and animal welfare-compliant products are now ubiquitous in European stores and homes. Voluntary sustainability standards (VSS) are non-mandatory regulatory schemes designed by private bodies with the purpose of addressing, directly or indirectly and by means of third-party certification of products and processes, the social and environmental impact resulting from the production of goods. As these initiatives do not just represent a market niche but go mainstream, the study of their effects and the possibilities for regulators to intervene in their coordination, influence and review becomes pressing.  This doctoral dissertation follows the assertion that public authorities should play an increasingly visible role in transnational private regulation by means of directing mechanisms. It examines the interaction between VSS and the rules and meta-rules of European and international economic law regimes and assesses the extent to which European Union internal market law and World Trade Organisation law apply, or can be interpreted to apply to VSS. The explicit goal is to address and remedy barriers to market access and consumer confusion generated by private standards.

This book illustrates the presence of a multilayered system of norms at the WTO and EU level which applies or has the potential to apply to many different types of VSS. WTO provisions enshrined in the Technical Barriers to Trade (TBT) Agreement lay down broad ‘constitutional’ meta-requirements applying to private standards also in the sustainability domain. Such application is however indirect, i.e. mediated by ‘reasonably available’ measures WTO Members are required to take to ensure private standards’ compliance with such principles. EU internal market law, and in particular freedom of movements provisions, could apply under certain conditions to voluntary private standards which affect market access. Furthermore, standards which are drafted by undertakings and have an impact on market parameters and consumer welfare fall under the scrutiny of EU competition law. This book shows that the non-discrimination and necessity provisions applicable to private standards and contained in WTO Agreements, freedom of movement obligations under Art. 34 TFEU, and EU competition law discipline under Articles 101 and 102 TFEU, can all be interpreted in a manner which remedies the most serious trade barrier effects and confusion generated by the schemes, potentially even permitting an extent of review over the standards’ contribution to their objective.

This book also shows that ad-hoc solutions such as those employed under EU law could be effective under specific circumstances to direct, orchestrate and coordinate private standards to limit trade barrier effects, ensure consumer trust, and schemes’ effectiveness. These solutions encompass a host of different measures in the domain of market regulation that, without directly regulating private schemes, are nevertheless capable of indirectly addressing and improving procedural and substantive features of VSS. The employment of private standards is increasingly permitted in trade measures to serve as a verification of compliance with certain requirements, or as a tool to demonstrate the legality of the products in question. The possibility to employ a standard comes with strings attached; often requirements are laid down addressing features of the standard or the process that brought it to existence. These types of interaction between public and private authority constitute promising mechanisms to exert influence on private standards and steer transnational private regulation by means of incentives and the legitimacy generated by the association of private standards to public authority. They also bring back, if partially, the regulation of transnational phenomena under a degree of control of the public authority.

By dr. E.D. (Enrico) Partiti LLM, University of Amsterdam, June 2017