Marco Bronckers

China Raw Materials: A Controversial Step Towards Evenhanded Exploitation of Natural Resources

This paper discussed the WTO panel and Appellate Body rulings in the China Raw Materials case. This sheds light on the question whether WTO members, when exploiting their natural resources, can give priority to the needs of their domestic market as opposed to the needs of other WTO Members. From the ruling of the Appellate Body, and the unappealed part of the panel decision, one can conclude that a WTO Member normally must ensure an evenhanded distribution of the natural resources that it decides to mine or harvest amongst the WTO membership. The only difference arises where a Member’s citizens or industries face a crisis because of a temporary shortage of an essential product. For those who share an international outlook on the world, this is an acceptable, and even a desirable outcome. The ruling potentially has far-reaching implications for international trade, not only in minerals and metals, but for agricultural and energy goods as well (US restrictions on exports of shale gas are taken as an example). However, in reaching this laudable result, circumscribing the use of export restrictions, the Appellate Body also made a highly regrettable finding. It ruled that China, because of the wording of its Accession Protocol, was not allowed to invoke a public policy justification for certain of its export restrictions (notably: its export duties, on which it had assumed additional commitments). The underlying assumption that sovereign states can sign away their rights to pursue public policies, such as environmental protection, which are generally admitted amongst the WTO membership, is deplorable.

Trade and competition law in the EU and beyond

Trade and Competition Law in the EU and Beyond, edited by Inge Govaere, Reinhard Quick and Marco Bronckers, is a Festschrift for the 75th birthday of the eminent lawyer Jacques Bourgeois. It is composed of a triple foreword and 29 contributions divided into three parts: ‘Trade and Competition’ (two texts), ‘Trade’ (16 texts), and ‘Competition’ (11 texts). The authorsthe European and American academics, judges, practising lawyers, officials and, at the same time, colleagues, friends, and former students of the celebrated Geburtstagskindwere not shy to cast some light on their relationship with, and the personality of, Jacques Bourgeois, making it a particularly personal academic volume, a true liber amicorum.

Fair and Effective Competition Policy in the EU: Which Role for Authorities and Which Role for the Courts after Menarini

Competition law enforcement in the EU and in most EU Member States follows an administrative model: decisions on the infringement and on the fine are taken by an administrative agency; when courts are called upon to review these decisions they traditionally leave a large measure of discretion to these agencies. With the considerable increase in fines, and attendant measures such as recidivism factors, this model has now clearly taken on features of criminal enforcement. From a fundamental rights perspective serious questions have arisen as to whether this model still conforms to the precepts of a fair trial. These questions were addressed in part in the recent Menarini-judgment of the European Court of Human Rights and subsequent judgments by the European Courts (KME, Chalkor, Posten Norge). These recent judgments show that judicial review of administrative competition law fines will have to intensify. Fairness also requires at some point a shift from administrative to judicial enforcement.