EUROPE
Representing the global electronics, software and information technology industries

AEA
Legality under International Trade Law of
Draft Directive on Waste from Electrical and Electronic Equipment (see the full directive)
March 1999

Prepared by
Rod Hunter and Marta Lopez
Hunton & Wiliiams, Brussels
 

Mid-1998 the European Commission's DG IX circulated a draft proposal for a Council Directive on Waste from Electrical and Electronic Equipment (WEEE) that would apply to virtually all electronic products placed on the Community market.  That proposal, if adopted in its current form, would cause the Community to violate its international trade law obligations.

Draft directive's substance restrictions would be illegal. The proposal's ban on electronic products containing lead, mercury, cadmium, hexavalent chromium and halogenated flame retardants would infringe GATT's prohibition of quantitative restrictions and the TBT Agreement. First,  the bans are not designed to achieve a legitimate environmental protection purpose as would be necessary to justify such quantitative restrictions. Secondly, the substance restrictions are not "necessary," in that there are other less trade-restrictive alternatives  to achieve the proffered policy objectives (e.g. selective landfill bans, eco-taxes).

Draft directive's recycled content rule would be illegal.  The proposal's recycled content rule, which would ban import of electronic products made of less than 5% recycled plastic, would also infringe the GATT's prohibition of quantitative restrictions and the TBT Agreement. Even if the recycled content rule is intended for environmental protection, the environment protected would be that in third countries. The recycled content rule would hence be a unilateral trade restrictive measure affecting countries outside the Community's  jurisdiction, in violation of  GATT obligations.

These provisions in articles 4 and 7 of the draft  WEEE Directive should accordingly be removed from the proposal.

'This memorandum explains the trade law concerns  arising from the proposal. Part I reviews the draft directive's major elements. Part II recapitulates, by way of background, relevant international trade law. Part III examines how the draft directive would cause the Community to violate its trade law undertakings

1. Draft  WEEE Directive

In July 1998, DG XI issued a second draft for a Proposal for a Directive on Waste from Electrical and Electronic Equipment. The draft legislation aims at "the prevention of waste from electrical and electronic equipment" and "minimizing  the risks and impacts to the environment associated with the treatment and disposal of end-of-life electrical and electronic equipment." ¹ The basic provisions of the draft directive, which is to apply to virtually all electronics products, may he described as follows.
 

(1) Substance bans: article 4 would ban the use of  lead, mercury, cadmium., hexavalent chromium and halogenated flame retardants as of January 2004, subject to exceptions to be granted through a comitology process.

(2) Recycled content-- article 7 would require 5% of plastics in new products to be made of recycled plastics as of January 2004; national officials are encouraged to demand higher recycled content levels through public procurement.

(3) National design and material choice rules: article 4(l)-(2) would require member states to take measures encouraging "repair-ability," recyclable materials, reduction of numbers of plastics, reduction of the use of dangerous substances,. etc.

(4) Collection obligations: articles 5 and 8 would require producers to collect, at their expense, used equipment from households. Articles 7 and 8 would oblige producers to recover and dispose of, at their expense, collected used
equipment from households. Article 8 specifies that producers of new products must pay costs associated with old products, on the basis of current market shares.

Two World Trade Organization (WTO) agreements are particularly relevant to the analysis of the draft WEEE Directive under international trade law - the General Agreement on Tariffs and Trade (GATT), and the Technical Barrier to Trade (TBT)
Agreement.

A. GATT

I . Quantitative Restrictions and National Treatment

Trade restrictions contravening article XI and article III may nonetheless be permissible where justified pursuant to article XX, which lists the general exceptions to GATT principles. Article XX provides only a limited and conditional exception from GATT obligations. Panels have interpreted article XX narrowly, "in a manner that preserves the basic objectives and principles of the GATT."³ A contracting party invoking an  article XX exception bears the burden of proof in demonstrating that; (1) the contested measure falls under one of the ten categories of exceptions listed in the article, and (2) the measure satisfies the requirements of the preamble of the article (the so-called "chapeau").⁴  In accordance with the chapeau, article XX exceptions apply under the following conditions.

(1) Measures complying with the requirements of article XX may not be applied in a way that would constitute "a disguised restriction on international trade."

(2) Measures justified under article XX may not be applied "in a manner which would constitute a means of arbitrary or unjustifiable discrimination  between countries where the same conditions prevail."

Article XX does not contain a general environmental clause. However, the article XX list of ten legitimate justifications for trade restrictions does include two relevant grounds. First, article XX(b) countenances exceptions for measures "necessary  to protect human, animal or plant life or health." Secondly, article XX(g) foresees exceptions for measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption."

Under article XX(b) (protection of health) the party bearing the burden of proof must demonstrate: (1) that the policy in respect of the measures for which the provision was invoked falls within the range of policies designed to protect human, animal or plant life or health, (2) that the inconsistent measures for which the exception is being invoked are "necessary" to fulfil  the policy objective, and (3) that the measures are applied in conformity with the requirements of the chapeau of article XX. ⁵

Under the exception of article XX(g) (conservation of exhaustible resources), the party invoking the exception must demonstrate that: (1) the policy in respect of the measures for which the provision was invoked fell within the range of policies related to the conservation of exhaustible natural resources, (2) the measures for which the exception is invoked are related to the conservation of exhaustible natural resources, (3) the inconsistent measures are made effective in conjunction with restriction on domestic production or consumption, and (4) the measures are applied in conformity with the requirements of the chapeau of article XX.⁶
 

2. Nullification  and Impairment

The GATT, Article XXIII.1(b) , creates a remedy for situations in which parties to the Agreement undermine the value of a tariff, trade concession, or any other trade benefit through the application of legislative measures, whether they violate GATT obligations or not.  This "nullification or impairment" of accrued trade benefits entitles a GATT party to bring the measures before a WTO panel. Under Article XXIII.1(b), a country may not implement measures impairing other party's benefits that could not have been reasonably expected when trade concessions where negotiated.⁷
 

B. TBT Agreement

Article 2.2 seeks to minimize the trade-restrictive effects arising form Members' pursuit of legitimate objectives. For a technical regulation imposing trade restrictions to be justified under article  2.2, three conditions must be met.

(1) The policy in respect of  the measure  must correspond to a legitimate policy objectives.

(2) Technical regulations must not be more trade-restrictive than "necessary" to fulfil  the legitimate objective.

(3) Trade-restrictive technical regulations must be proportional to the objectives pursued by a legitimate policy by taking account of the risks that non-fulfillment would create. Article 2.2 cites as relevant considerations for assessing such risks "available scientific and technical information, related processing technology or intended end-uses of products."

The TBT Agreement further provides for instruments to ensure monitoring of compliance of technical regulations with the Agreement's provisions including notification procedures, and the requirement that Members preparing or adopting technical
regulations explain  "upon request of another Member, ... the justification for that technical regulation in terms of the provisions of (article 2)."⁸

In short,  under the TBT Agreement, technical regulations must be developed in accordance with the principles outlined in the agreement (particularly non-discrimination), not be more trade restrictive than necessary, monitored and reviewed as necessary, reflect international standards where appropriate, be  performance based, its development must be transparent and consultative, and the compliance procedures adopted must not create unnecessary obstacles to trade.
 

III.. Trade Legality of Draft WEEE Directive

The WEEE draft directive's material bans and recycled content rule would infringe the GATT and TBT Agreement.  Also, while it will not become clear until national implementation, the draft directive's provisions inviting member states to promulgate their own product standards could result in further violations.

A. Substance Bans
1. GATT

DG XI has not been forthcoming with explanations of the precise purpose of the substance restrictions. However, the draft directive does set the somewhat vague objective for the entire piece of  legislation as minimizing "the risks and impacts to the environment associated with the treatment and disposal of end-of-life electrical and electronic equipment." The question would
then be whether the bans are justified under article XX(b) as a measure "necessary to protect human, animal or plant life or health."

As noted above, panel practice has determined that a party invoking the exception of article XX(b) must prove that (1) the policy in respect of the measures falls within the range of policies designed to protect human, animal or plant life or health, (2) the inconsistent measures are necessary to fulfill the policy objective, and (3) the measure fulfills the requirements of the chapeau of Article XX. The substance ban in the draft WEEE Directive fails to fulfill the requirements for the application of the article XX(b) exception for the following reasons.

The policy in respect to the measures does not protect human, animal or plant health.  DG XI has provided no evidence that the use of these substances in electronic and chemical products poses a threat to human health or the environment, or that alternatives (if available) could eliminate such risks. Furthermore, even if one assumed that the use of these substances were
damaging to the environment, there is no evidence showing that their use in the electronics industry gives rise to higher or different risks that in other industries. If scientific risk assessments carried out under Community chemical legislation showed that significant health and environmental risks were posed by the banned substances, the Community should impose restrictions on the materials as they appear in all consumer and industrial products. As it is, the ban of their use exclusively in electronic products, without the backing of a scientific risk assessment, does not appear to be part of a policy designed to protect health and the environment.

The measures are not "necessary" to fulfill the policy objective. Even if the policy goal were deemed legitimate, a trade restriction on all products containing the banned substances is not "necessary" to fulfill the environmental protection objectives. The "necessity test" has become the crucial step in panel practice when examining the application of article XX(b).  Panels have interpreted the "necessity" requirement strictly. So far, no panel called to apply article XX(b) has accepted the necessity of a measure otherwise inconsistent with other GATT provisions.

The requirement of article XX(b) that exceptions to free trade rules are "necessary" has  been interpreted as an obligation to choose the "least restrictive alternative." Thus, a contracting party may not justify a measure under article XX(b) "if an alternative measure which it could reasonably be expected to employ and which is not inconsistent with other GATT provisions is available to it."⁹ Thus, the invoking party must prove that it has "exhausted all the options reasonably available ... through measures consistent with the General Agreement."¹⁰ When a measure consistent with other GATT provisions is not available, a country is bound to use "among the measures reasonably available, that which entails the least degree of inconsistency with other GATT provisions." In particular, panel practice has given special relevance to the existence of efforts to encourage international cooperative arrangements.

In this context, "it is relevant to observe that an import prohibition is, ordinarily, the heaviest 'weapon' in a Member's armory of trade measures."¹¹ Other less restrictive measures are conceivable as means to reduce the risks that might he posed by the banned materials: selective landfill bans, eco-taxes, etc. DG XI has provided no evidence that it has exhausted all alternatives available to it, before resorting to a total import ban --arguably, the most restrictive measure. Furthermore, there is no evidence of efforts to encourage international cooperation on the matter. Therefore, the substance bans do not appear to be "necessary" in relation to the policy goals and do not satisfy the requirements for the application of the article XX(b) exception.
 

2. TBT Agreement

The substance bans do not fulfil a legitimate objective. As noted above, DG XI has provided no evidence that use of these substances in electronic and electrical products poses a threat to human health or the environment. Furthermore, even if one assumes that use of these substances is damaging to the environment, there is no evidence showing that their use in the electronics industry gives rise to higher or different risks that in other industries. DG XI has thus failed to demonstrate that the measures fulfill a legitimate objective such as the protection of human health or the environment.

The bans are more restrictive than necessary to fulfill the legitimate objective. Even if the policy goal were deemed legitimate, a trade restriction on all products containing the banned substances is not "necessary" to fulfill the environmental protection objectives. The concept of  "necessity" in article 2.2 of the TBT Agreement must be interpreted in the same way as in the GATT, article XX(b), as a requirement to chose the "least restrictive alternative. " Consequently, the arguments advanced in respect to legality of the measure under the GATT are equally valid to the assessment of its legality under the TBT Agreement, article 2.2. A technical regulation is more restrictive than necessary when the objective aimed at can be achieved
with alternative measures that would cause less disruption to trade.  The Commission's DG XI  has not demonstrated that it has exhausted all alternatives available, before imposing an import ban -- the most restrictive measure possible. Furthermore, it has not encouraged international negotiations on the issue. Therefore, the substance  bans appear to be more trade restrictive
than necessary to achieve the policy goals.

The substance bans are not proportional to the objectives pursued by the policy. Article 2.2 of the TBT Agreement requires that account is taken of  "the risks nonfulfillment would create," when adopting a technical  regulation that affects trade. Under this provision, even if there are no alternative measures available, a measure could still be considered more restrictive than necessary when its effects on trade are disproportionate to the risks in question. To assess these risks, one has to take into consideration all available scientific evidence and technical information, related processing  technology and the intended end-uses of the products. DG XI has not provided evidence on how the absence of the ban would risk the fulfillment  of its policy to prevent waste and minimize the risks to the environment associated with the disposal of electrical and electronic equipment. The substance bans therefore appear disproportionate in relation to the objectives of the draft WEEE
Directive.
 

B. Recycled Content
1 . GATT

The recycled content rule has an extraterritorial effect. Many electronics sold in Europe are produced elsewhere, or, even if produced in Europe, are produced from components and materials from elsewhere. Imposing a recycled content rule would not  "protect" life of health in the Community, but rather life and health where the virgin natural resources would have been
extracted, and resources conserved would in most cases be outside the Community. Furthermore, by requiring the use of recycled plastics,  the legislation would discriminate against imports from countries where recycled plastic may not be available.

The draft WEEE Directive does not state the precise purpose of the recycled content rule. Article I of the directive lays down that one of the objectives of  the legislation is "the prevention of waste  from electrical and electronic equipment." In this context, the question would be whether the bans are justified under article XX(b) as a measure "necessary to protect human, animal or plant life or health." DG XI might also justify  the rule under article XX(g) as a measure "relating to the conservation of exhaustible natural resources," such as oil, because the use of recycled plastic would reduce the production of new plastics, and fewer the consumption of oil. The analysis of article XX shows that the import restriction imposed by the recycled content rule is not justified under either exception.

a. Article XX(b)

The measure does not fall within the range of measures covered by Article XX(b).  As noted above, imposition of an import ban on products containing less than 5% recycled plastic would result in effect result in a measure that regulates  environmental protection  in a country outside the EC. Measures allowed under the article XX(b) exception  may not have extraterritorial (or more precisely extra-jurisdictional) reach. The GATT Panel report on U.S. restrictions on imports
of tuna noted that article XX(b) allows each contracting party to set its own human, animal or plant life health standards.¹²  However, the panel declared that a country may not unilaterally determine the life or health protection policies from which other contracting parties may not deviate without jeopardizing their GATT rights.  Thus, as the draft directive's recycled content rule is designed to influence environmental protection beyond the EC's jurisdiction, the rule would not be justified under GATT. ¹³

The policy in respect of the measure is not designed to protect human health.  DG XI has provided no evidence that the use of new plastics in electronic and electrical products pose a threat to human health or the environment. As it is, the recycled content rule, without the backing of a scientific risk assessment, does not appear to be part of a policy calculated to protect human, animal or plant health.

The measures are not "necessary" to fulfill the policy objective.  Even if the policy goal were deemed legitimate, a trade restriction on all products containing more than 5% recycled plastic is not "necessary" to fulfill the environmental protection objectives.  Other less restrictive measures are conceivable as means to encourage the use of recycled plastic:  subsidies for collection or recycling, public procurement policies, eco-taxes, etc.  DG XI has provided no evidence that it has exhausted all alternatives available to it, before resorting to the import ban.  Furthermore, there is no evidence of efforts to encourage international cooperation on the matter. Therefore, the recycled content rule is not "necessary" in relation to the policy goals and does not satisfy the requirements for the application of the article XX(b) exception.

The recycled content rule does not satisfy the requirements of article XX's chapeau as it causes unjustifiable discrimination.  The article XX chapeau requires that measures covered by the exceptions are "not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination  between countries where the same conditions prevail." The requirements of the chapeau are, according to panel practice, to be read jointly and interpreted in the light of  GATT principles and in the light of their object and purpose.¹⁴ The Shrimp-Turtle Appellate Body report states that a unilateral measure, "heightens the disruptive and discriminatory influence of the import prohibition and underscores its unjustifiability."¹⁵ The Shrimp-Turtle report also confirmed  that a key consideration in determining the existence of unjustifiable discrimination under article XX was whether cooperative multilateral approaches had been pursued to address an environmental problem."¹⁶

The availability of recycled plastics is dependant on various factors, including local collection and recycling  infrastructure. As a densely populated region, Europe is more likely than many other regions to have the ability to recycle plastic. Furthermore, policies requiring the use of recycled materials, such as the recycled content rule, would encourage local production of recycled plastics. Producers located in other parts of the world might not have access to the quality recycled plastics necessary to
comply with the requirements  of the directive. Countries who do not adopt equivalent policies to that pursued by DG XI with the draft WEEE- Directive, will see their access to the Community market impaired.  The effect of this requirement would be to favor producers located in the European market and discriminate among exporters in favor of those implementing particular
policies. The rule would also in fact disproportionately affect developing countries. Moreover, DG XI U has not shown that international cooperation on the matter was pursued before retorting a unilateral measure. It therefore seems that the recycled content rule will result on unjustifiable discrimination discrimination among third countries and further favor European producers.

b.  Article XX(g)

The measure does not fall within the range of measures covered by Article XX(g). The Appellate Body Report in the Shrimp Turtle case did state that measures justified under the provision may affect jurisdictions outside that of the invoking, country."¹⁸ However, it also went on to state that "it is not acceptable, in international trade relations. for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within the Member's territory. ¹⁹  The extraterritoriality of a measure covered by article XX(G) may be justified only under exceptional circumstances.  It is understood that for a transboundary measure to be justified under article XX(g), four conditions must be met:

b. the measure must be justified under exceptional circumstances (e.g. because the protected resources are migratory animals moving across jurisdictions),

b. the measure must not be more trade restrictive than required to protect the globally shared environmental resource,

b. the measure must be directly connected to the environmental objective, and

b. the member must have made genuine efforts to enter into cooperative environmental agreements with other members. ²⁰

The recycled content rule is not related to the conservation of exhaustible natural resources.   Panel practice has determined that for a trade-restrictive measure to be justified under article XX(g). it has to be "primarily aimed" at the conservation of an exhaustible natural resource.²¹  According to the draft WEEE Directive, its objectives are the prevention of waste, and minimizing the risks associated with the treatment and disposal of waste.  The recycled content rule is contained in article 7 of the draft directive entitle "recovery" and forms part of a group of provision encouraging EC member states to promote the recovery and recycling of electronic "waste" in order to meet the objectives laid down in this Directive.²²  The draft legislation does not suggest that one of its objectives may be the conservation of exhaustible natural resources such as oil.
The recycled content rule is perceived as a measure contributing to the prevention of waste. It is not "primarily aimed" at the conservation of exhaustible natural resources, as required by article XX(g).

The recycled content rule does not satisfy the requirements of article XX's chapeau as it causes unjustifiable discrimination.  For the reasons outlined in the analysis of article XX(b), above, the recycled content rule infringes the
requirements of article XX chapeau, as it will result on unjustifiable discrimination among third countries, and favor European producers.
 

2. TBT Agreement

The recycled content rule does fulfill a legitimate objective. As noted above, DG  XI  has provided no evidence that the use of plastics in electronic and electrical products pose a threat to human health or the environment. DG XI has thus failed to demonstrate that the measures fulfill  a legitimate objective such as protection of human health or the environment. Furthermore, taking  into account the interpretation of equivalent provisions in the GATT, it is doubtful that a measure with extraterritorial  effects may bc considered  a legitimate purpose under the TBT Agreement.

The recycled content rule is more restrictive than necessary to fulfill a legitimate objective. The recycled content rule is not "necessary" to fulfill the environmental protection objectives. The concept of "necessity" in article 2.2 of the TBT Agreement must be interpreted in the same way as in the GATT, article XX(b), as a requirement to choose the "least restrictive alternative."  Consequently, the same arguments advanced before in respect to the legality of  the measure under the GATT are equally valid in assessing legality under article 2.2. The Commission's DG XI has not demonstrated that it has exhausted all alternatives available. Therefore, the recycled content rule appears  to be more trade restrictive than necessary  to achieve the policy goals.

The substance bans are not proportional to the objectives pursued by the policy.  Even if there are not alternative means available, a measure may still be considered more restrictive than necessary when its effects on trade are disproportionate to the risks in issue.  DG XI has not provided evidence on how the absence of a requirement to use recycled plastic would jeopardize the fulfillment of its policy to prevent waste or minimize the risks to the environment associated with the disposal of electrical and electronic equipment.  The recycled content rule is therefore a disproportionate measure in relation to the objective of the draft WEEE Directive.

The recycled content rule would adversely affect developing countries.  The TBT Agreement imposes obligations on developed countries in respect to developing countries.  Article 12.2 requires that members "take into account the special development, financial and trade needs of developing country Members in the implementation of this agreement."  Article 12.3 provides that Member must "in the preparation and application of technical regulations,...take account of the special development, financial and trade needs of developing country Members, with a view to ensuring that such technical regulations, do not create unnecessary obstacles to exports form (sic) developing country Members. .  As noted above, the application of the recycled content rule would have a negative impact on trade with developing countries that lack the necessary infrastructure to ensure the availability of recycled plastic. Furthermore, the measure creates "unnecessary" obstacles to developing country exports, as other less trade-restrictive measures could have been adopted to achieve the policy goals.  In drafting the recycled content rule, DG XI has not taken account of the special needs of developing countries and thus infringed the TBT Agreement, article 12.
 

C.  National Design and Material Choice Rules

D.  Nullification and Impairment

The European Community has made concessions over the past fifty years on most products covered by he draft directive.  Furthermore, under the Information Technology Agreement, negotiated in the context of the Uruguay Round, the European Community committed to the elimination of trade barriers on a number of products that would be affected by the draft WEEE Directive, such as computers and semi-conductors.

These tariff concessions have been agreed in successive tariff negotiations.  The measures that would be introduced by the draft WEEE Directive affecting these products would not be anticipated by other GATT  contracting parties at the time when tariff concessions were made:  the first draft proposal had not yet been produced when the Uruguay Round negotiations ended.  Any provisions of the draft WEEE Directive that affect the import of products on which tariffs and other GATT concessions have been agreed would impair the benefits of other GATT contracting parties.  The substance bans, the recycled content rule, and the national design and material choice rules would substantially alter conditions of competition in the Community so that third countries' trade benefits are nullified or impaired.
 

1. Draft WEEE Directive, art 1.
2. 1984 Panel Report on "Japan-Measures on Imports of Leather, " L/5623, adopted on May 15/16, 1994, 3 1 S/94.
3 1994 Panel Report on "United States-Restrictions on Imports of Tuna," DS29/R, not adopted,  at par. 5.26
4. See GATT/WTO Dispute Settlement Practice Relating to Article XX, Paragraphs (b), (d) and (g) of GATT,
Note by the Secretariat, WT/CTE/W/53/Rev.1,  Oct. 26, 1998, at par. 5.
5. 1996 Panel Report  on "United States-Standards for Reformulated and  Conventional Gasoline" WT/S2/9, adopted on May 1996, at par. 6.20 and 1994 Panel Report on "United States-Restrictions on Imports Tuna," DS29/R, not adopted, at par. 5.29,
6.  1996 Panel Report on "United States-Standards for Reformulated and Conventional Gasoline," WT/S2/9, adopted on May 1996, at par. 6.35.
7. 1998 Panel Report on "Japan-Measures Affecting Consumer Photographic Film and Paper," WT/DS44/R, adopted on 1998, at par. 10.76.
8. TBT Agreement, art. 2.5.
9. 1990 Panel Report on "Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes," DS10/R, adopted on Nov. 7, 1990, 37S/200.
10. 1991 Panel Report on "United States-Restrictions on Imports of Tuna," 39S/155, not adopted, at par.
5.27.
11. 1998 Appellate Body Report on "United States-Import Prohibition of Certain Shrimp and Shrimp Products," WT/DS58/AB/R, circulated on October 12,1998, at par. 171.
12.  1994 Panel Report on, "United States--Restrictions on Imports of Tuna"  DS29/R, not adopted.
13.  The Tuna 11 panel report considered that Article XX(b) did not preclude the possibility of environmental policies having an extraterritorial reach. However, the panel reasoned that measures that force third countries to change their environmental policies in order to be able to export their products could not possibly be considered "necessary" within the meaning of Article XX(b). (1991 Panel Report on "United States-Restrictions on Imports of Tuna," 39S/155, not adopted).
14.  1996 Appellate Body Report on "United States-Standards for Reformulated and Conventional Gasoline," WT/S2/9, adopted on May 1996, at par. 25.
15.  1998 Appellate Body Report on "United States-Import Prohibition of Certain Shrimp and Shrimp Products,"  WT/DS58/AB/R, circulated on Oct. 12,1998, at par. 166.
16. This approach has been received as a guiding principle for resolving free trade and environment conflicts. See WTO Committee  on Trade and Environment Bulletin No. 27, WT/CTE/W/97. October 26,1998, PRESS/TE/27 (Dec. 9,1998).
17 1996 Panel Report on "United States-Standards for Reformulated and Conventional Gasoline",  WT/S2/9, adopted on May 1996, at par. 6.35.
18.  In reaching this conclusion, however,  the Appellate Body focused on the fact that the protected turtles were migratory species found and moved across jurisdictions, which could justify a rule having an extraterritorial dimension.
19.  1998 Appellate Body Report on "United States-Import Prohibition of Certain Shrimp and Shrimp Products," WT/DS58/AB/R, circulated on October 12, 1998, at par. 164.
20. European Communities' submission to the Shrimp-Turtle Appellate Body Report, 1998 Appellate Body Report on "United States-Import Prohibition of Certain Shrimp and Shrimp Products," WT/DS58/AB/R, circulated on October 12, 1998, at par. 68.
21. 1998 Panel Report on "Canada-Measures Affecting Exports of Unprocessed Herring and Salmon", 35S/98, adopted on March 22, 1998, at p. 4.6
22.  Draft WEEE Directive art. 7.
 

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