Borlini & Dordi: Deepening International Systems of Subsidy Control: The (Different) Legal Regimes of Subsidies in the EU Bilateral Preferential Trade Agreements

Leonardo Borlini (Bocconi Univ.) & Claudio Dordi (Bocconi Univ.) have published Deepening International Systems of Subsidy Control: The (Different) Legal Regimes of Subsidies in the EU Bilateral Preferential Trade Agreements (Columbia Journal of European Law, Vol. 23, no. 3, pp. 551-606, 2017). Here’s the abstract:

An increasingly important aspect of EU external action and trade policy since the lifting of its self-imposed moratorium on preferential trade agreements (PTAs) has been the inclusion of WTO+ provisions on non-agricultural subsidies in bilateral agreements negotiated with a number ofcountries. These provisions are generally designed to achieve a range of objectives, related to developing trade between the contracting parties and to economic and legal/regulatory development within the partner State. However the resulting legal framework is rather fragmented, especially after the conclusion of recent PTAs like the Comprehensive Economic Trade Agreement (CETA) and the EUSingapore PTA. This Article aims at producing a comprehensive discussion of the different subsidies disciplines embodied in the EU bilateral agreements. Part I identifies four main groups of EU bilateral agreements-agreements with candidates and potential candidates; agreements with former Soviet Union States and Euro- Mediterranean agreements; early agreements with selected trade partners; 'second generation' trade agreements-and examines how such agreements have increasingly been used as an avenue to strengthen subsidies disciplines as substitutes for trade remedy measures, while investigating the determinants that conducted the EU and its several partners to intensify in a selective manner (i.e. not in all the relevant PTAs), the scope of the WTO SCM agreement. Part II of the Article first investigates the normative rationales of the discipline in question and its influence on the operation of the relevant rules. It then turns to assess the main problems concerning the possibility of designing a rigorous system of subsidy control in the context of EU bilateral trade relations and the interpretation of the key notions ofsuch regimes. Finally, it analyses the enforcement mechanisms and the trade remedial measures established by the different classes of PTAs. Against such analytical backdrop, the article formulates a number of conclusions on the substance and procedure of the EU PTAs' regimes on public aid. Most notably, it argues that only the discipline established by some of such agreements substantially improves the multilateral framework and reflects the constitutional settlement that should feature in any wellbalanced system ofsubsidy control-that is to say the prohibition of measures impairing market access and the functioning of competition, combined with the recognition of the legitimacy of those subsidies pursuing social and other (economic and noneconomic) public goals. In practice, this means that such agreements recover afundamental 'policy space, 'which is currently absent in the WTO SCM. On the procedural side, the article maintains that the enforcement mechanisms and the remedial measures vary considerably with the different PTAs; this, of course, influences also the actual enforceability of the same rules.