60

Legal Focus

JULY 2014

Trade & Customs

This month we focus on Trade and Customs, and the legal implications surrounding it by speaking to Georg M. Berrisch, a German Rechstanwalt practicing EU trade and competition law in Brussels from Baker Botts law firm.

What are the most common types of case you deal with related to Trade and Customs?

Back in 1991, as a young associate, I started representing the Council of the European Union as an outside counsel in trade remedy cases (anti-dumping and countervailing duties) before the Court of Justice of the EU and what is now the General Court. A few years later, I gradually moved into the role of lead lawyer for these cases, and eventually ended up representing the Council in about 150 trade remedy cases before the EU Courts between 1991 and 2013. This was extremely exciting and gratifying work, often involving novel questions of law and, thus, shaping the case law in areas such as the rights of defence, the assessment of requests for market economy status, the effect of WTO law and rulings of WTO panels and the WTO Appellate Body in the EU legal order, or recently, dual pricing practices. Many of the cases also concerned measures that were very controversial politically, for example the anti- dumping duties on shoes or energy saving light bulbs. Having been involved in virtually all trade defence court cases over a period of more than 20 years provided me with a unique perspective on the workings of DG Trade.

When moving to Baker Botts last September, I stopped representing the Council and I now concentrate my trade remedies practice on private sector clients. In fact, several years ago, I had already started representing EU industries as complainants, for example in aluminium wheels from China or seamless pipes and tubes from China. Currently, I am representing three different EU industries as complainant in an expiry review investigation before the Commission and in two court cases before the EU courts, respectively.

In addition to trade remedies work, economic sanctions have been a major focus of my trade

www.lawyer-monthly.com

practice during the past several years. Most of that work involves helping private sector clients to navigate the complex obligations that flow from the sanctions imposed by the EU. This is challenging, because many of the concepts used in the sanctions regulations are vague and poorly defined. Also, enforcement is delegated to the competent authorities of the 28 Member States. To make matters more difficult, the Commission and the Council provide very little, if any, official guidance. Member States authorities often provide no or, worse, conflicting guidance, and there is virtually no pertinent case law.

I am also representing, before the General Court of the EU, an individual who is seeking to overturn his designation in relation to the sanctions imposed against Belarus. In the course of that case I have obtained a good insight on how the Council -- or, to be fair, the Member States -- adopts decisions on sanctions and how few rights the parties affected by these decisions have in the proceedings before the Council.

Fortunately, I sometimes also deal with market access cases, either for companies seeking to enter the EU market or for EU or US companies who encounter trade barriers in third countries. A recent example is that of an EU company that was the victim of discriminatory VAT treatment in China. We were able to demonstrate to the EU Commission that there was a GATT violation. DG Trade then raised the matter with China and China agreed to change its law.

Can you tell me about anti-dumping, countervailing duties, safeguards and other trade remedies in your country?

The EU is a frequent -- but I would also submit measured -- user of trade remedies. The trade remedy instrument most frequently used by the EU is the imposition of anti-dumping duties. Countervailing duties have recently gained