Regulatory autonomy in the EU and WTO: Defining and defending its limits
Journal of World Trade, 44, (4), .
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Tension between the pursuit of trade liberalization and the protection and exercise of national regulatory autonomy is an issue which has arisen in both the European Community (EC) and the World Trade Organization (WTO). While both legal orders provide for exceptions to the fundamental rules concerning free movement and access to markets, the interpretation and application of these exceptions represents a challenge. The fundamental question is how to distinguish between unlawful barriers to trade and legitimate national regulation. This paper presents an analysis of the approaches applied to this question by the EC and WTO, in the areas of free movement of goods and services, from a comparative perspective. It explores, in particular, the implications of the market access - non-discrimination dichotomy, and focuses upon the role of ‘proportionality’ review in each legal order.
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