Direct and Indirect Discrimination in WTO Law and EU Law
Working Paper No 2011/16 by Thomas Cottier and Matthias Oesch
Non-discrimination is at the heart of WTO law and EU law. Both layers of governance sharecommonalities in addressing the operation of the principle, essentially banning distinctions basedupon the origin of products and the nationality of persons. Both share the basic functions ofpreventing and correcting state failures in granting privileges and undue protection to domesticproducts and nationals. A closer analysis, however, shows important differences which we assignto different constitutional functions of the WTO and to a much wider and more ambitious scope ofEU law, including the explicit pursuit of other policy goals and the protection of human rights.Functional differences will remain. They need recognition. Yet, global regulatory needs show thatthe WTO will need to expand to recognise a wider range of legitimate policy goals. In so doing, itwill move closer to the matrix defining non-discrimination at the regional level of the EU. Strongeremphasis on compelling interests and proportionality offers a bridge to overcome some of thedivergence, contributing to the overall coherence of multilayered governance.