Recent European Community Safeguards Policy: 'Kill Them All and Let God Sort Them Out'?

摘要

The EC seems at a turning point regarding the use of the safeguard instrument. After a long period of inaction, the EC in the past two years has imposed three safeguard measures—conservatively counting the seven definitive steel safeguard measures as one—with more cases likely to follow in the near future. During these two years, the EC has arguably been "flexing its muscles", trying to see how far it can go while maintaining a facade of economic liberalism notably through adopting relatively liberal remedies. For the time being, this position has perhaps resulted in measures that do not "bite" too deeply, thereby decreasing the chances of its measures being challenged in the WTO or the EC courts. However, there are indications that the EC is becoming more strict, for example on the exclusion of developing countries on the basis of the 3 percent rule: While in Certain steel products, developing countries with less than 3 percent were excluded "tout court", language in the subsequent Canned mandarins and Farmed salmon cases would appear to indicate that the. Commission now takes the position that such exclusion is not a onetime decision, but an issue which may be re-visited throughout the course of the proceeding if the situation were to change. It is not at all clear whether such an evolutionary interpretation of the exclusion concept is in conformity with the WTO rules.