Article 34 of the Treaty on the Functioning of the European Union (TFEU) provides that measures equivalent to a quantitative restriction shall be prohibited. The case law of the European Court of Justice interpreting this has addressed product standards, selling arrangements and all other kinds of national measures that might tend to hinder trade or affect consumer behaviour and thereby restrict imports. Relying on judge-made ideas such as mutual recognition and mandatory requirements, the Court has put the informed consumer at the heart of the market, at the expense of the paternalistic state. On the other hand, it recognises the need to restrict free movement where legitimate public interests are at stake, with the proportionality of such restrictive measures being the main question in most cases.

Chapter 4 explores the utility of different WTO rules in disciplining market-distortive behaviour of SOEs and subsidies, including GATT rules on import monopolies, state trading enterprises (STEs), transparency, and anti-dumping (AD) measures. In our view, these rules are all of limited utilities, albeit for different reasons: the rules on import monopolies and STEs are quite narrow in terms of the coverage of policy instruments and the prescribed obligations, the transparency obligation is rather tooth-less, while the ability to use AD measures to deal with market distortions due to state intervention has been curtailed by the Appellate Body (AB) in recent cases.

This chapter examines relevant rules regulating export restrictions under the WTO framework, covering a set of provisions relating to export restrictions, WTO-plus obligations and commitments in accession protocols and Working Party Reports, proposals in Doha negotiations and regulations in regional trade agreements (RTAs). Under current WTO rules, the most relevant are Article XI of the GATT, Article 12 of the Agreement on Agriculture and Article 11 of the Agreement on Safeguards. In addition, export restrictions may constitute domestic subsidies to domestic downstream producers. The critical point is whether such criteria for a subsidy necessitate ‘a charge on the public account’. Export restrictions may also give rise to anti-dumping investigations where the determination of normal values is a key. The attempt to remedy the regulatory deficiency under the WTO agreements through accession negotiation processes, Doha negotiations and in RTA contexts have resulted in a patchwork of legal rules and given rise a systemic issue: how to integrate obligations and commitments in the accession protocols and Working Party Reports into the WTO Agreemen.

Decentralization of the energy sector means the breaking-up of the sector and its vertically integrated enterprises and/or global cartels by separating its distinct functions (extraction, transmission and sale), thereby allowing for increased competition in the market. This chapter uses two case studies to illustrate the challenges the decentralization of largely vertically integrated energy markets poses for international trade law, including international trade law’s inability to deal comprehensively with the production quota practices of global energy cartels such as the Organization of Petroleum Exporting Countries (OPEC). The chapter then studies regional energy market decentralization policies (in this case the European internal market), focusing on the panel report in EU – Energy Package, and considers which WTO rules facilitate such policies and which constrain them.