On 18 December 2012, the European Commission (EC) published proposed ‘improved rules’ for strengthening the EU’s ability to ensure that trading partners respect agreed trade rules. The Commission stated that ‘the proposal covers the EU's trade responses in cases of illegal trade measures in other countries’ and that it ‘would allow the EU to implement trade responses in a more streamlined, efficient manner in order to encourage the offending country to remove the illegal measures’.
The new framework essentially simplifies the procedures under which the EC can take action in response to proven violations of commitments made under trade agreements. This needs to be seen against the background of the Treaty of Lisbon provisions, which provide for co-legislative responsibility across different EU institutions (European Commission, European Council and European Parliament). According to the EC’s proposed regulation, ‘Enforcement of rights under international trade agreements is a typical executive function that may require adopting and implementing measures within strict deadlines.’ It is therefore seen as ‘appropriate for the Council and the European Parliament to establish a clear and predictable framework for the adoption of any such acts’. Under current arrangements, the adoption of a legislative act ‘takes 15 to 31 months on average’.
According to the EC, ‘under the present draft Regulation, the Commission may adopt the following types of commercial policy measures: customs duties, quantitative restrictions on imports or exports of goods, and measures in the area of public procurement.’ This may include such measures as ‘suspension of tariff concessions and the imposition of new or increased customs duties; introduction or increase of quantitative restrictions on imports or exports’.
The proposals form part of wider EU efforts to ‘enforce its rights under bilateral and multilateral agreements to open markets that are illegally closed’. It can be seen as complementary to efforts to strengthen WTO procedures for enforcing trade commitments: the EC considers that the WTO dispute-settlement system ‘is functioning well’, and ‘has helped to ensure real market-opening’.
Current EC efforts to establish a simplified single horizontal framework for responding ‘swiftly and efficiently’ to violations of trade agreements do not just apply to enforcement of multilateral trade disciplines. According to the EC press release, these efforts apply equally to enforcing EU rights under bilateral trade agreements. The new regulation thus seeks a formalisation of the delegation of powers to the EC to act to enforce EU rights under trade agreements. This is being sought under the current EC proposals for modification of MAR 1527/2007, which provides transitional duty-free, quota-free access to ACP countries that have initialled IEPAs.
This provides the background to the pending Trilateral Dialogue process between the European Commission, European Council and European Parliament on the deadline for completion of the EPA negotiations. For the EC, the EPA deadline discussion is about holding ACP governments to policy commitments they have initialled or signed up to. In this context, providing greater flexibility on the EPA deadline would be seen as inconsistent with these wider efforts to strengthen the enforcement of commitments entered into by the EU’s trading partners.
The new framework for enforcing third-party compliance with trade policy commitments entered into could also potentially impact on CARIFORUM countries that do not seem to have yet complied in full with their existing EPA commitments.