European Yearbook of International Economic Law 2022

Editorial
Reference
Contents
Part I: Climate Change & Liability
Climate Change Challenges Constitutional Law: Contextualising the German Federal Constitutional Courts Climate Jurisprudence W...
1 Climate Change as a Challenge for Constitutional Law
2 Types of Constitutional Provisions Relevant to Climate Protection
2.1 Specific Climate Protection Clauses
2.2 General Environmental Protection Clauses
2.3 Fundamental Rights
2.4 Constitution Matters
3 Constitutional Standard-Setting Against the Background of Climate Protection´s Special Features
3.1 Climate Protection as a Global Challenge
3.2 Climate Protection as a Knowledge-Dependent Challenge
3.3 Climate Protection as a Temporal Challenge
3.4 Climate Protection as an Institutional Challenge
4 Obligations to Protect Against Climate Change: Determination and Application of the Constitutional Standard
4.1 Constitutional Climate Protection Obligations Arising from General Environmental Protection Clauses
4.1.1 Normative Openness of a Climate Protection Obligation as an Initial Problem
4.1.2 Preserving a Temperature Threshold as the Core of Climate Protection
4.1.3 Constitutionally Bound Prerogative of the Legislature to Determine the Relevant Temperature Threshold
4.1.4 Addressing the International Dimension and Advancing Knowledge
4.1.5 Constitutional Review by Applying the Temperature Target with Recourse to a Budget Approach
4.2 Fundamental Rights Guarantees of Protection
4.2.1 Combining Climate Protection and Adaptation
4.2.2 International Component of the Duty to Protect
4.2.3 Legislative Discretion and Limited Standard of Review
5 Preserving Freedom on the Path to Climate-Neutrality
5.1 The Inextricable Connection Between Present and Future Freedom
5.2 Necessity to Protect Future Freedom at Present
5.3 The Intertemporal Preservation of Freedom and Its Difficulties
5.3.1 Making the Future the Present
5.3.2 Assessing Current Climate Protection Measures´ Future Impact on Freedom
5.3.3 Procedural Safeguards to Internalize Future Effects and Trigger Innovations
6 Conclusion
References
Trans-Nationally Determined Contributions for Climate Justice: Resolving a Paris Agreement´s Contradiction That Is Working Aga...
1 Introduction
2 Historicising the Contradiction
2.1 The Law of Transactions
2.2 The Law of Negative Side Effects
2.3 Developing a Cure
3 Adoption of TNDCs
4 Compliance with TNDCs
4.1 Applying the Compliance Mechanism to TNDCs
4.2 (In)effective Compliance Mechanism
4.2.1 Critique
4.2.2 The Value
5 A Few Remarks: The Place of Climate Justice
References
The Green Climate Fund, Climate Change and Corporate Due Diligence: What Role for the Private Facility Sector?
1 Introduction
2 UNFCCC, COP and Green Climate Fund
3 The Private Sector Facility
4 Corporate Climate Due Diligence
5 Conclusion
References
Market Access Conditionality and Border Carbon Adjustments
1 Introduction
2 Measures
2.1 Carbon Pricing
2.2 Border Carbon Adjustments
3 Inconsistency with WTO Law
3.1 Border Adjustability
3.1.1 Charge Upon Importation
3.1.2 Is the ETS An Indirect Tax?
No Tax
No Tax on Products
No Consumption Tax
Tax on PPMs
3.1.3 Conclusions
3.2 Article I:1 GATT
3.2.1 Advantage
3.2.2 Likeness
Processes and Production Methods
Legitimate Regulatory Distinction
Consumers´ Perceptions and Behaviour
Conclusions
3.2.3 Unconditionally
Lower Embedded Emissions
Discount for Carbon Price Paid in the Country of Origin
3.2.4 Conclusions
3.3 TBT Agreement
3.3.1 Technical Regulation
No Product Characteristics
No Related Processes and Production Methods
Applicable Administrative Provisions
3.3.2 Conclusions
4 Justifications
4.1 Article XX(b) GATT
4.1.1 Protection of Human, Animal or Plant Life or Health
CBAM´s Objectives
Extraterritoriality
4.1.2 Necessity
Importance of the Policy Objective Pursued
Contribution to the Achievement of the Stated Objective
Trade-restrictiveness of CBAM
Alternative Measures
Conclusions
4.2 Article XX(g) GATT
4.2.1 Conservation of an Exhaustible Natural Resource
4.2.2 Relating to
4.2.3 Made Effective in Conjunction with Restrictions on Domestic Production or Consumption
4.3 Article XX(a) GATT
4.4 Chapeau
4.4.1 Elements of the Chapeau
4.4.2 Relevance of an Internationally Agreed Solution
Obligation to Cooperate
Good Faith Attempts of the EU
4.4.3 Arbitrary Discrimination
Scope of CBAM
Non-Tradability of CBAM Certificates
Additional Compliance Costs
Minimum Purchase Requirement and Validity Period
Special and Differential Treatment for Developing and Least-Developed Countries
Default Values
Price of CBAM Certificates
Equivalent Climate Action Elsewhere: Pricing vs Regulatory Measures
4.4.4 Conclusions
4.5 Article XXI(b)(iii) GATT
4.5.1 Climate Crisis as An `Other Emergency in International Relations´
4.5.2 Protection of Essential Security Interests
5 Conclusions
References
Removing Barriers to Climate Change Litigation: The Progressive Erosion of Central Banks´ Immunity
1 Introduction
2 Central Banks: Their Mandates and Independence
2.1 Price Stability and the Case for Independence
2.2 Expanding the Role of Central Banks
2.3 Accountability and Legal Protection of Central Banks
3 Sovereign Immunity and Central Banks
3.1 Introduction
3.2 Commercial Exemption and Central Banks
3.2.1 From an Absolute to a Restrictive Approach Towards Immunity
3.2.2 Legal Sources
3.2.3 Immunity from Jurisdiction: Central Banking Acts of a Commercial Nature
3.2.4 Immunity from Enforcement Measures: Central Banks´ Property with a Commercial Purpose
3.3 Special Immunity Protection for Central Banks´ Property
4 Evolving Standards of Central Banks´ Legal Protection
4.1 Swedish Supreme Court Case No. Ö 3828-20
4.1.1 Background to the Case
4.1.2 Scope of Protection Under UNSCI Article 21(1)(c)
4.1.3 UNCSI Article 19(c) and States´ Purpose When Investing in Financial Assets
4.2 Backlash Against Immunity for Central Banks´ Property?
5 Conclusion
References
The WTO Panel Report on US-Safeguard Measure on PV Products: A Decisive Victory for the Fight Against Climate Change?
1 Introduction
2 The WTO Jurisprudence: US-Safeguard Measure on PV Products
2.1 The Road to Dispute
2.2 The Panel´s Rulings
2.2.1 Unforeseen Developments and the Effect of the Obligations Incurred
The Existence of Unforeseen Developments
Imports Increased as a Result of the Unforeseen Developments
Imports Increased as a Result of the Effect of the Obligations Incurred by the US
2.2.2 Causal Link Between Increased Imports and Serious Injury
2.2.3 The USITC´s Treatment of Confidential Information
2.2.4 Conclusion of the Panel´s Rulings
3 Impact of US-Safeguard Measure on PV Products on WTO Members´ National Strategies for Promoting the Use of Clean Energy
3.1 Diversifying the Supply Chains of PV Products
3.2 Preventing Pollution Throughout the Life Cycle of PV Products
4 A More Comprehensive Analytical Framework
5 Conclusion
References
The Innovative Trade and Climate Action-Linkage in the EU-UK Trade and Cooperation Agreement: A Template for the EU´s New Appr...
1 The Trade and Climate Action-Linkage Post Brexit
2 Expanding Substantive Provisions on Climate Action
2.1 Climate Action as an Essential Element of the TCA
2.2 Non-Regression of Domestic Law in Combatting Climate Change
2.2.1 Weakening or Reducing Levels of Protection
2.2.2 Affecting Trade or Investment
2.2.3 Differences to Other EU FTAs
2.3 Right to Regulate for Climate Action
2.4 Integrating International Climate Treaties Into the FTA
2.4.1 Reaffirming and Integrating International Climate Treaties
2.4.2 Respecting Environmental and Climate Principles
2.5 Expanding Climate Action Commitments
2.5.1 Ambition of Economy-Wide Climate Neutrality by 2050
2.5.2 Carbon Pricing
Term and Concept
Obligations Under the TCA
No ETS Linkage, No Mention of Cardon Border Adjustment Mechanisms
2.5.3 Renewable Energies
2.5.4 Subsidies
2.6 Interim Conclusion
3 A Shift From ``Soft´´ to ``Hard´´ Dispute Settlement
3.1 The EU´s Promotional Approach to Sustainable Development FTA Chapters
3.2 Dispute Settlement for Breaches of Climate-Related TCA Provisions
3.2.1 The Different Applicable Procedures
3.2.2 New Panels of Experts with Extended Powers to Authorise Trade Sanctions
3.2.3 Binding Declaratory Determinations by ``Ordinary´´ Panels of Expert
3.3 Arbitration Without Breaches of the TCA: Rebalancing
3.4 Interim Conclusion
4 The TCA as a Template for Linking Trade and Climate Action in Future FTAs
References
The Investment Treaty Regime and the Clean Energy Transition
1 Introduction
2 The Investment Treaty Regime at the Crossroads of the Clean Energy Transition
2.1 Regulatory Chill and Climate Regulation
3 Fossil Fuel Companies, Host States, and Climate Policies
3.1 The EU and Climate Change
3.2 Context: Germany, the Netherlands, and Bulgaria
3.2.1 Economies
3.2.2 Climate Law, Policy, and Litigation
3.2.3 Energy Mix
3.3 Response to Foreign Investors and the Threat of ISDS
3.3.1 Germany
3.3.2 The Netherlands
3.3.3 Bulgaria
4 Renewable Energy and the Investment Treaty Regime
4.1 Spain
4.1.1 Response to Foreign Investors and the Threat of ISDS
4.2 Czech Republic
4.2.1 Response to Foreign Investors and the Threat of ISDS
5 The Reform of the Investment Treaty Regime to Ensure the Clean Energy Transition
6 Conclusion
References
Making the Energy Charter Treaty Climate-Friendly: An (Almost) Impossible Leap
1 Prologue
2 Introduction
3 Can the ECT Become Climate Friendly?
3.1 The Clash Between the ECT and Climate Action
3.1.1 Excluding a Conflict of Norms
3.1.2 The Results of Treaty Interpretation: ECT First
3.2 The `Modernised´ ECT
3.2.1 Standards, Exceptions and the `Disconnection Clause´
3.2.2 Sustainable Development, the Fossil-Fuel `Carve-Out´ and Its Limits
4 Trapped in a Dead End?
4.1 The Project of Investment Law and the ECT
4.2 The Strategy of Withdrawal
5 Conclusion
References
Making Finance Flows Consistent with the Aims of the Paris Agreement: Roles, Obligations, and Limitations of the EU Banking Se...
1 Introduction
2 Setting the Scene: International Climate Law and the EU Banking Sector
2.1 The UNFCCC Regime
2.2 The Paris Agreement and the Banking Sector
2.3 EU Implementation
2.4 Selected International Initiatives Promoting Greening Financial Systems
3 Examining the Status Quo: The EU Banking Sector Activities and Climate Change
3.1 General Remarks
3.2 Private Banking Sector
3.2.1 The EU Prudential Regulatory Framework for Activities of Private Banks and Climate Change
3.2.2 Activities of the Private Banking Sector and Climate Change
3.3 EU Banking Supervisory Authorities
3.3.1 The Role and Tasks of Banking Supervisory Authorities and Climate Change
3.3.2 Activities of EU Banking Supervisory Authorities and Climate Change
3.4 Central Banks: The Example of ECB and ESCB
3.4.1 The Role and Tasks of the ECB and the ESCB and Climate Change
3.4.2 Activities of the ECB and Climate Change
4 Exploring the Way Forward: Potential Policies and Measures in the Banking Sector Contributing to Achieving the Goals of the ...
5 Conclusion
References
The Double Materiality Principle (Article 19a NFRD) as Proposed by the Corporate Sustainability Reporting Directive: An Effect...
1 Introduction
2 What Is Materiality? Different Concepts
2.1 Materiality in Accounting
2.2 Materiality in the ``Sustainability´´ Context
2.2.1 Background: A Need for Materiality
2.2.2 The Way to the Principle of ``Double Materiality´´: And How to Understand It
3 Evaluation of the (Double) Materiality Concept in the ``Sustainability´´ Context
3.1 Benefits of (Double) Materiality
3.1.1 Materiality in General
3.1.2 Double Materiality
Tackling Information Overload and Greenwashing
Adapting to Changing Circumstances
Practical Benefits of Double Materiality
3.2 Issues of Double Materiality
4 Conclusion
References
Assessing the Climate of `Shareholder Based Climate Change Litigation´ in the Global South
1 Introduction
1.1 Setting the Context
1.2 Defining the Scope of Study
2 Shareholder Based Climate Litigation: Understanding the Rationale, the Legal Arguments Invoked and Relief Sought
2.1 The Rationale Behind Shareholder Action
2.2 Understanding Climate Risks
2.3 Relief Sought
3 Legal Opportunities Structure (``LOS´´) Analysis of Select Countries of Global South
3.1 Standing
3.1.1 Enforceability of Disclosure Requirements
3.1.2 Breach of Duty/Directors´ and Officers´ (D&O) Responsibility
3.2 Costs
3.2.1 Third Party Litigation Funding
3.2.2 Class Action Suit
3.3 Judicial Receptiveness
4 Result and Discussion
5 Conclusion
References
From Unilateral Border Carbon Adjustments to Cooperation in Climate Clubs: Rethinking Exclusion in Light of Trade and Climate ...
1 Introduction
2 The Exclusion Features of the EU CBAM in Their Context
3 WTO and Climate Law Implications of the EU CBAM Exclusion Scope
4 From Exclusion to Climate Clubs
5 Concluding Remarks
References
Environmental and Sustainability Aspects in EU Competition Law: Towards a ``More Economic & Ecological Approach´´ Under Articl...
1 Introduction
2 Environmental Considerations and Sustainability Aspects: The Treaties, Competition Law Objectives and the Green Deal
2.1 The Treaties and Competition Law Objectives
2.2 The European Union Going ``Green´´: The EU Green Deal
3 Environmental Considerations and Sustainability Aspects Under Article 101 TFEU
3.1 Article 101 TFEU
3.2 The Different Routes to Consider Environmental and Sustainability Aspects Under Article 101 TFEU in the Literature
3.3 The Four Categories to Consider Environmental and Sustainability Aspects Under Article 101 TFEU
3.3.1 General Remarks
3.3.2 Agreements that Are Not by Object Restrictions of Competition but Lack an Appreciable Effect on Competition
3.3.3 Agreements Falling Outside Article 101(1) TFEU Due to Their Effects Being Ancillary to Achieve a Legitimate Aim (Ancilla...
3.3.4 Agreements Falling Outside Article 101(1) TFEU Due to the Reasoning of the ECJ in Albany
3.3.5 Article 101(3) TFEU
4 Conclusion
References
Climate-Related Individual Rights Under EU Secondary Law and Limitations to Their Material Scope
1 Introduction
2 Climate-Related Individual Rights Under EU Secondary Law
2.1 Preliminary Remarks
2.2 Individual Rights Under the Effort Sharing Regulation
2.2.1 Formal and Material Differences Between the Effort Sharing Regulation and the Directive 2008/50 on Air Pollution Control
2.2.2 Individual Rights of Natural and Legal Persons Under the Effort Sharing Regulation
2.2.3 Interim Conclusion
2.3 Interplay Between Individual and Fundamental Rights
3 Restrictions on Trade-Related Climate Protection Measures
3.1 Preliminary Remarks
3.2 Conformity with WTO Law
3.2.1 Violation
3.2.2 Justification
3.2.3 Interim Result
3.3 Conformity with EU Primary Law
3.3.1 Free Movement of Goods
3.3.2 Justification
4 Conclusion
References
Reducing GHG Emissions in a Constitutional Democracy: When EU Civil Courts Adjust the EU Emission Trading System
1 Introduction
2 Climate Change Disputes Against Private Companies in the Netherlands and Germany: A Summary of Case-Law
2.1 Shell Decision, The Hague District Court (2021)
2.2 RWE Decision, Higher Regional Court of Hamm (2017)
2.3 Comparison of the Shell Decision and the RWE Decision
3 The Influence of Public Law on the Liability in Tort Law: A Comparative Analysis of German and Dutch Tort Law
3.1 Breach of a Duty of Care
3.2 No Justification for the Interference
4 The Effect of the ETS on the Liability of Private Companies in EU Climate Change Disputes: A Critical Analysis of Current Ca...
4.1 The Influence of ETS Allowances on the Duty of Care and the Justification for the Interference
4.2 Limits of the ETS´ Effects on Climate Change Disputes
4.2.1 Indirect Emissions
4.2.2 GHG Emissions from Installations Outside the EU
4.2.3 No Justification for the State of Nuisance
4.2.4 Inefficiency of the ETS
5 Conclusion: Who Is Responsible for Reducing GHG Emissions in the EU?
References
The Proposed EU Regulation on Trade in Forest-Risk Commodities (FRCs): A First Assessment
1 Preliminary Remarks
2 The Relevance of EU´s Import and Consumption of Forest-Risk Commodities to Global Deforestation ``Footprint´´
3 International Initiatives on Forests: The Legal Framework
4 EU Action on Forests
4.1 Current EU Action
4.1.1 The Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan (2003) and the FLEGT Regulation (2005)
4.1.2 The Timber Regulation (EUTR, 2010)
4.2 Future EU Action
4.2.1 The (Proposed) Regulation on Forest-Risk Commodities´ Trade: Content, Aim and Scope
4.2.2 and Main Differences from EUTR
The Conditions for Legally Placing Covered Commodities and Derived Products on the EU Market (or for Exporting Them)
The (Three-Tier) Country Benchmarking System
The Role and Importance of Agreements Between the EU and Third Countries
The Enforcement Requirements
5 A First Assessment of the Recent Commission´s Proposal of Regulation
5.1 Appropriateness and Necessity of EU Action on FRCs´ Trade
5.2 Shortcomings and Limits (of Ambitions) in the Commission´s Proposal
6 Prima facie Considerations on the WTO-Compatibility of the (Proposed) Regulation
6.1 Possible Tension with Core WTO Disciplines
6.2 Possible Justification Under WTO Exception Clauses (Article XX GATT)
7 Concluding Remarks
References
Part II: Current Challenges, Development and Events in European and International Economic Law
Seven Years Inside the Trade Defence Machinery Room: How Political Is the European Commission?
1 Introduction
2 Anti-Dumping Practice
2.1 The Initiation of Cases
2.2 The New Methodology for Establishing Dumping
2.3 The Injury Analysis
2.4 The Causality Analysis
2.5 The Union Interest Test
2.5.1 Policy Interests Are Interests Under Article 21 of the Basic Regulation
2.5.2 Modulation of the Form Measures Because of Union Interest Considerations
2.6 The Timing of Measures
2.6.1 Provisional Measures
2.6.2 Retroactive Imposition of Measures
2.6.3 Retroactive Implementation of Court Judgments
2.6.4 Temporary Suspension of Measures
2.6.5 Prolongation of Measures
2.6.6 Review of Measures
2.7 Interim Conclusion
3 Anti-Subsidy Practice
3.1 Export Restrictions
3.2 Investment Subsidies
3.3 Financial Support to Entities Outside the Jurisdiction of the Granting Authority: Cross-Border Subsidies
3.4 R & D Contracts
3.5 Calculating the Benefit of Preferential Lending
3.6 The Timing of Measures
3.7 Interim Conclusion
4 Safeguard Practice
5 Special and Differential Treatment of Developing Countries
6 Internal Decision Making
7 Conclusion
References