Jean Monnet Center at NYU School of Law


XI. Conclusion

A striking conclusion 231 of the asymmetry requirement might be that depending on the current composition of the domestic industry, one WTO Member is allowed to apply a measure that another Member must remove. For example, a country producing beer, but no wine, could not apply a higher tax to wine than to beer, whereas a country producing both goods could. 232 This would indeed be an astonishing result if it related to an objective and horizontal prohibition of disproportionate obstacles of the type of Article 28 (ex Article 30) EC. In contrast, a discrimination prohibition operates through comparison and, therefore, depends on the balance in the facts. If one compares like products from both sides of the border it should matter what these two groups contain. The group might even be empty or its composition change over time. Those economic facts are certainly beyond the control of governments, but that seems to be the typical case of indirect or de facto discrimination. Whether a measure amounts to a de facto violation naturally depends on the facts to which the measure applies. These facts may vary from country to country. It is therefore no surprise that the same law is not identically de facto discriminatory in different Members with differently composed domestic production and import patterns.

More disappointing and problematic might be another perspective on the same phenomenon: the position of a single economic operator who engages in international trade depends on the commercial activity of other operators. One may counter that unlike equal treatment, national treatment and most-favored-nation treatment refer to origin as an additional element. In cases of identical treatment according to that element, as it results from formally origin-neutral measures, the particularity of the reference to origin may serve as justification for evaluating the treatment of the collectives defined by this reference. 233

In conclusion, the asymmetry approach to origin-neutral national measures limits the scope of the WTO's non-discrimination obligations to a ban on protection in general, while disregarding individual instances of distorted competition between like or competitive products. It offers the advantage of respecting wider legislative discretion at the national level. Although the past jurisprudence has often applied a certain asymmetry test, its formal adoption and strict application could raise problematic implications. Future cases and writing should contribute to their exploration.

231 A.J. Easson, supra note 125, at 63.

232 See also Paul Farmer & Richard Lyal, supra note 123, at 67.

233 The legal position of a part-time working man under sex discrimination law similarly depends on whether or not men form an appreciable majority among part-time employees. Only if they do, can part-time working men demand the treatment enjoyed by full-time employed women. See supra section V.B.




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