1. WTO disputes between the EU and Russia
International Annual WTO Forum Kaliningrad State Technical University 26 March 2015
Rainer M. Bierwagen
Rechtsanwalt Brussels and Berlin
Dr. jur. Universität Konstanz
Honorarprofessor Universität des Saarlandes

2. Introduction Overview of WTO dispute settlement proceedings
DS 462 Recycling fee on motor vehicles (EU)
DS 474 Cost Adjustment Methodologies and Anti-Dumping Measures
DS 475 Measures on Importation of Live Pigs, Pork etc. (EU)
DS 476 Measures Relating to the Energy Sector
DS 479 Anti-Dumping Measures on Light-Commercial Vehicles (EU)
DS 485 Tariff Treatment of Agricultural products (EU)
For the WTO references see

3. Issue Principal questions What do you want to achieve?
Which options are available?

4. DS 462 Recycling fee on motor vehicles
Overview of facts
Recycling fee on imported vehicles
Domestic vehicles are excepted under certain conditions
Vehicles from Belarus and Kazakhstan are also excepted under certain conditions
No exception for vehicles from the EU possible
Structure of the fees is progressive
Distinction between “new” produced vehicles and vehicles produced “three years ago”

5. DS 462 Recycling fee on motor vehicles
Overview of legal arguments
The European Union claims that the measures appear to be inconsistent with:
Articles I:1, II:1(a), II:1(b), III:2 and III:4 of the GATT 1994; and
Article 2.1 and 2.2 of the TRIMs Agreement.

6. DS 462 Recycling fee on motor vehicles
Text of articles (1)
Articles I:1, II:1(a), II:1(b), III:2 and III:4 of the GATT 1994
Article I: General Most-Favoured-Nation Treatment
Article I:1 reads
1.       With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III,* any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

7. DS 462 Recycling fee on motor vehicles
Text of articles (2)
Article II: Schedules of Concessions
Article II:1(a) reads
(a) Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.
Article II:1(b) reads
(b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided therein. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date.

8. DS 462 Recycling fee on motor vehicles
Text of articles (3)
Article III: National Treatment on Internal Taxation and Regulation
Article III:2 reads
The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1.*
Article III:4 reads
4.       The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.

9. DS 462 Recycling fee on motor vehicles
Text of articles (4)
Article 2.1 and 2.2 of the TRIMs Agreement
They read
Article 2: National Treatment and Quantitative Restrictions
1.       Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
2.       An illustrative list of TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 and the obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 is contained in the Annex to this Agreement.

10. DS 463 Recycling fee on motor vehicles
Legal texts (5)
In the parallel case, DS 463, Japan claims moreover that the measures are inconsistent with :
Article 2.1 and 2.2 of the TBT Agreement

11. DS 462 Recycling fee on motor vehicles
Text of articles
Article 2.1 and 2.2 of the TBT Agreement
Technical Regulations and Standards
Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies
With respect to their central government bodies:
Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.
Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.

12. DS 462 Recycling fee on motor vehicles
Overview of timetable
On 9 July 2013, the European Union requested consultations with the Russian Federation
At its meeting on 25 November 2013, the DSB established a panel

13. DS 462 Recycling fee on motor vehicles
Principal questions
What do you want to achieve?
Which options are available?

14. DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU
Overview of facts
27 Jan. 2014: 2 cases of African Swine Fever (ASF) on wild boar in Lithuania; 17 & 19 Feb. 2014: 2 cases of ASF wild boar in eastern Poland
25 Jan. 2014: Russia imposed emergency measures against Lithuania
Importing of wild boar, horned-hoof , leather and all materials used for transport or slaughter was rejected (same to Poland on 27 Feb. 2014)
Russia tried to stop all imports of pig and pig products from the EU
The EU, Poland and Lithuania took all steps on OIE standards to prevent a wide spread of ASF, Russia was informed about the measures
In an ASF case in the Ukraine Russia only restricted but did not stop imports
For ASF cases in Belarus Russia was lifting their importing restrictions

15. DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU
Overview of legal arguments
The European Union claims that the measures at issue are inconsistent with:
Articles 2.2, 2.3, 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.1, 6.2, 6.3, 7, 8, Annex B, and Annex C of the SPS Agreement; and 
Articles I:1, III:4 and XI:1 of the GATT 1994.

16. DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU
Headlines of articles (SPS Agreement)
Article 2: Basic Rights and Obligations
Article 3: Harmonization
Article 5: Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection
Article 6: Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence
Article 7: Transparency
Article 8: Control, Inspection and Approval Procedures
Annex B: Transparency Of Sanitary And Phytosanitary Regulations
Annex C: Control, Inspection And Approval Procedures

17. DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU
Headlines of articles (GATT 1994)
Article I: General Most-Favoured-Nation Treatment
Article III: National Treatment on Internal Taxation and Regulation
Article XI: General Elimination of Quantitative Restrictions

18. DS 475, Measures on the Importation of Live Pigs, Pork and Other Pig Products from the EU
Overview of timetable
On 8 April 2014, the European Union requested consultations with Russia
At its meeting on 22 July 2014, the DSB established a panel

19. DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Overview of facts
14 May 2013: Eurasian Economic Commission puts anti dumping duties on Italian and German LCV’s
Only Russia is member of the WTO from the Eurasian Economic Commission, due to that Russia is respondent in this case
light commercial vehicles weight from 2.8 t to 3.5 t, van-type bodies and diesel engines with a cylinder capacity not exceeding 3.000cm3 are covered
The anti-dumping duties are 29.6% for imports from Germany, 23% for imports from Italy and 11.1% for imports from Turkey.

20. DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Overview of legal arguments
The European Union claims that the measures are inconsistent with:
Articles 1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.4, 3.5, 4.1, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9, 6.10, 9.2, 9.3, 12.2, , 18.4 and Annex II of the Anti‑Dumping Agreement; and
Article VI of the GATT 1994.

21. DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Headlines of articles (Anti-Dumping Agreement)
Article 1: Principles
Article 2: Determination of Dumping
Article 3: Determination of Injury
Article 4: Definition of Domestic Industry
Article 6: Evidence
Article 9: Imposition and Collection of Anti-Dumping Duties
Article 12: Public Notice and Explanation of Determinations
Article 18: Final Provisions
Annex II: Best Information Available in Terms of Paragraph 8 of Article 6

22. DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Headlines of articles (GATT 1994)
Article VI: Anti-dumping and Countervailing Duties

23. DS 479, Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Overview of timetable
On 21 May 2014, the European Union requested consultations with Russia
On 18 December 2014, the Director-General composed the panel

24. DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products
Overview of facts
Russia did not observe bound rates for certain products
Duty rates on paper and paperboard products (10-15 % instead of 5 %)
Duty on palm-oil and its fractions, refrigerators and combined refrigerators-freezers
For some good the valuation for customs purposes is not based on the actual value of the imported merchandise

25. DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products
Overview of facts
Russia did not observe bound rates for certain products
Duty rates on paper and paperboard products (10-15 % instead of 5 %)
Duty on palm-oil and its fractions, refrigerators and combined refrigerators-freezers
For some good the valuation for customs purposes is not based on the actual value of the imported merchandise

26. DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products
Overview of arguments
The European Union claims that the measures appear to be inconsistent with:
Articles II:1(a), II:1(b) and VII of the GATT 1994; and
Articles 1 through 7, and Annex I, of the Customs Valuation Agreement.

27. DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products
Text of articles (GATT 1994)
Article II:1(a) reads
Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.
Article II:1(b) reads
The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided therein. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date
Article VII: Valuation for Customs Purposes (Headline)

28. DS 485, Tariff Treatment of Certain Agricultural and Manufacturing Products
Overview of timetable
On 31 October 2014, the European Union requested consultations with Russia
On 26 February 2015, the EU requested the establishment of a panel

29. More cases coming? Grain export tax
Russia introduced a new tax on grain exports earlier in February 2015, as part of a broader response to rising domestic food prices.
This is the third time Russia has imposed grain export restrictions since 2008, having banned exports altogether in August 2010.

30. Contact

31. Contact Dr. Rainer M. Bierwagen BEITEN BURKHARDT Avenue Louise 489
B-1050 Brussels
Tel.:
Mobile: