Ei dian otsikkoa

1
Globalism and Social Policy Programme
General agreement on trade in services (GATS) and
alcohol Meri Koivusalo, Globalism and Social
Policy Programme, STAKES, Finland
2
GENERAL AGREEMENT ON TRADE IN SERVICES

• World Trade Organisation agreement
• Focus on trade in services, alcohol is a good -
  issues relate also to trade in goods
• Several dispute settlement cases on alcohol
  taxation (Japan/Sochu- like products, Chile/Pisco
  taxing more higher content of alcohol)
• Distribution and advertising services
• Domestic regulation
• Dispute settlement cases market access
• EU and trade in services

3
PUBLIC HEALTH CLAUSE XIV

• Subject to the requirement that such measures are
  not applied in a manner which would constitute a
  means of arbitrary or unjustifiable
  discrimination between countries where like
  conditions prevail, or a disguised restriction on
  trade in services, nothing in this Agreement
  shall be construed to prevent the adoption or
  enforcement by any Member of measures
• (a)necessary to protect public morals or to
  maintain public order1
• (b)necessary to protect human, animal or plant
  life or health
• (c)necessary to secure compliance with laws or
  regulations which are not inconsistent with the
  provisions of this Agreement including those
  relating to/(fraudulence, privacy/confidentiality
  , safety)
• 1 The public order exception may be invoked
  only where a genuine and sufficiently serious
  threat is posed to one of the fundamental
  interests of society.

4
ADVERTISING SERVICES

• No dispute settlement cases so far
• Domestic regulation requirements and need to
  show that limiting of advertising is not
  restricting market actors more than necessary -
  i.e. could same public health aim be achieved
  through another less restricting measure, such as
  individual health education, for example
• The potential for discriminating between
  domestic and foreign suppliers of alcohol as ban
  on advertising would favour locals (as ECJ
  Gourmet case articulation)

5
SCOPE AND AIMS OF GATS

• Free movement of services, progressive
  liberalisation of service provision
• Market access, non-discriminatory treatment
• de juro (legal) and de facto (actual)
  discrimination
• choice of what to committ or exclude, but then
  obligations tighter
• all services - distribution services and
  advertising services, covers measures affecting
  trade in services
• exceptions time-bound, committments sticky -
  changed only against giving in elsewhere ("lock
  in")
• influences scope for domestic regulation and how
  it is done

6
SERVICES OF RELEVANCE TO ALCOHOL POLICIES

• HEALTH AND SOCIAL SERVICES
• DISTRIBUTION SERVICES
• sale, retail and distribution of alcohol
  services
• monopolies, internet services
• ADVERTISING SERVICES
• all advertising services, domestic regulation
  and limiting of advertising services
• FOUR MODES
• Cross border provision (e.g. internet sales
  services)
• Consumption abroad (e.g. services access
  abroad)
• Investments in services (e.g. ownerships of
  retail services)
• Presence of natural persons (e.g. workers in
  sales outlets)

7
DOMESTIC REGULATION

• Regulatory policy space and terms
• Article VI4
• technical standards and licensing requirements do
  not constitute unnecessary barriers to trade in
  services
• based on objective and transparent criteria
• not more burdensome than necessary to ensure
  quality of the service
• licensing procedures do not in themselves
  restrict supply of services
• The emphasis of "not more trade restrictive than
  necessary" in comparison with countries with like
  conditions
• Equal treatment of foreign and domestic service
  suppliers

8
MARKET ACCESS

• US banned internet gambling - however, WTO
  dispute settlement case decided this was in
  effect making decision of a zero quota for
  service providers
• It could have been previously argued that
  domestics regulatory measures would be fine if
  these do not discriminate between domestic and
  foreign suppliers of services, however, the
  interpretation of a ban as zero quota puts this
  in another context
• see Rien ne vas plus ? by Pauwelyn (2005) for
  legal analysis of distinction between domestic
  regulation and market access

9
GATS AND ALCOHOL POLICIES

• Interpretation of what constitutes a monopoly
  for exception and how these should operate (e.g.
  not "disturbing or restricting markets")
• measures to restrict on limit the number or
  licensing of distribution outlets or drinking
  establishments
• restricting the sale of certain classes,
  strengths of alcoholic beverages in grocery
  stores (alcopops issues)
• restricting hours of sale of alcohol
• if distribution services are committed these
  aspects could become reassessed in the context of
  GATS (GATT)

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ARTICLE XVI MARKET ACCESS

• In sectors where market-access commitments are
  undertaken, the measures which a Member shall not
  maintain or adopt either on the basis of a
  regional subdivision or on the basis of its
  entire territory, unless otherwise specified in
  its Schedule, are defined as
• (a) limitations on the number of service
  suppliers whether in the form of numerical
  quotas, monopolies, exclusive service suppliers
  or the requirements of an economic needs test
• (b) limitations on the total value of service
  transactions or assets in the form of numerical
  quotas or the requirement of an economic needs
  test
• (c) limitations on the total number of service
  operations or on the total quantity of service
  output expressed in terms of designated numerical
  units in the form of quotas or the requirement of
  an economic needs test1
• /1 Subparagraph 2(c) does not cover measures
  of a Member which limit inputs for the supply of
  services.

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EU, ALCOHOL POLICIES AND TRADE

• alcohol as any other good and service in trade
  policies
• EU offensive to no committments in distribution
  services - "everything but arms initiative and
  pressure to liberalise all services"
• EU requests e.g. towards Canada
• EU pressure towards India tariffs and taxes on
  alcohol
• Defending national monopolies is not a high
  priority for trade officials aiming towards
  harmonising committments and getting rid of
  exceptions - representing of export industry
  interests
• Priority setting at national and EU level
  important for guiding trade policies to balance
  the influence from alcohol export industry

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SO DOES IT MATTER THEN ?

• Internal market regulations and trade in goods
  currently of more importance
• Distributional services likely to become
  liberalised as part of broader measures within
  internal markets and global trade
• Debate and Parliamentary stands both at EU and
  national level to guide national and EU stands on
  trade by broader policy priorities - Constitution
  pushes for more uniform trade policies and more
  EU representation on trade ("Health in all
  policies")
• National policy space for regulatory measures -
  how to regulate
• GATS disciplines government regulatory measures
  so as to promote free movement of services - it
  is in this context that impacts and implications
  to alcohol policies need to be evaluated

13
GATS AND ALCOHOL RESOURCES

• WTO website gives access to dispute settlement
  cases (alcohol taxation, trade in goods) and
  national schedules
• Canadian analysis on GATS (Grieshaber-Otto/Ellen
  Gould)
• Analysis on WTO Gambling dispute decision
• EU stands on DG trade, WTO services schedules
  and 2003 leaked requests available from NGO
  websites
• Most civil society pressure is for industry in
  the context of trade and on health mostly in the
  context of development