(EU) and the Common Market of the South (MERCOSUR)? - FDCL
(EU) and the Common Market of the South (MERCOSUR)? - FDCL
(EU) and the Common Market of the South (MERCOSUR)? - FDCL
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48<br />
allowed by law to give preferential treatment to local suppliers <strong>and</strong> producers (“local<br />
content”). A country which has signed <strong>the</strong> agreement can, according to <strong>the</strong> Mode 3<br />
<strong>of</strong> GATS (“commercial presence”, cross-border supply <strong>of</strong> services), no longer make<br />
any so-called “performance requirements” <strong>of</strong> foreign investors (like, e.g., <strong>the</strong> minimum<br />
percentage requirement for employing <strong>the</strong> local workforce or for technology<br />
transfers). Even environmental <strong>and</strong> social regulations <strong>of</strong> each member state run <strong>the</strong><br />
risk <strong>of</strong> infringing upon <strong>the</strong> NT principle.<br />
In contrast to <strong>the</strong> GATT treaty, which was a so-called “top-down” agreement<br />
(i.e., <strong>the</strong> rules apply automatically to all member states unless a country has explicitly<br />
negotiated exceptions for some sectors in <strong>the</strong> form <strong>of</strong> so-called negative lists),<br />
<strong>the</strong> GATS is a so-called “bottom-up” agreement (<strong>the</strong> rules apply if <strong>the</strong>y appear in<br />
<strong>the</strong> so-called “list <strong>of</strong> commitments” <strong>of</strong> <strong>the</strong> respective country). It is in particular this<br />
“bottom-up”mechanism, which <strong>the</strong> WTO commonly quotes as an argument for <strong>the</strong><br />
democratic legitimacy <strong>of</strong> GATS: Democratically elected governments would in <strong>the</strong><br />
end decide which sectors in <strong>the</strong>ir country would be assigned to GATS <strong>and</strong> which<br />
would remain under national sovereignty, i.e., “in <strong>the</strong> exercise <strong>of</strong> governmental authority.”<br />
99<br />
The problem in this case is <strong>the</strong> unclear definition <strong>of</strong> “in <strong>the</strong> exercise <strong>of</strong> governmental<br />
authority” <strong>and</strong> secondly, <strong>the</strong> fact that everytime a (domestic or foreign) private<br />
supplier competes with public services, <strong>the</strong> set <strong>of</strong> regulations under GATS can be<br />
applied <strong>and</strong> with it <strong>the</strong> possibility <strong>of</strong> a legal complaint before <strong>the</strong> WTO arbitration<br />
court.<br />
Considering <strong>the</strong> rules under GATS, <strong>the</strong> danger exists, for example, in <strong>the</strong> case <strong>of</strong><br />
education, that a private school, which is mainly owned by a foreign investor, could<br />
take legal action against <strong>the</strong> “market-distorting subsidies” <strong>of</strong> a neighboring public<br />
school, even if <strong>the</strong> educational sector was explicitly excluded in <strong>the</strong> form <strong>of</strong> a negative<br />
sector list: Even if <strong>the</strong> sovereignty clause within <strong>the</strong> GATS applies:<br />
“Article I(3) <strong>of</strong> <strong>the</strong> GATS excludes “services supplied in <strong>the</strong> exercise <strong>of</strong> governmental<br />
authority”. These are services that are supplied nei<strong>the</strong>r on a commercial<br />
basis nor in competition with o<strong>the</strong>r suppliers. Cases in point are social<br />
security schemes <strong>and</strong> any o<strong>the</strong>r public service, such as health or education,<br />
that is provided at non-market conditions.” 100<br />
The formulation “nei<strong>the</strong>r on a commercial basis nor in competition with o<strong>the</strong>r<br />
suppliers” 101 is quite dubious. If a private school, mainly owned by a foreign investor,<br />
99<br />
http://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.<br />
100<br />
http://www.wto.org/english/tratop_e/serv_e/gatsqa_e.htm.<br />
101<br />
See: Hartmann, Eva / Scherrer, Christoph: Negotiations on Trade in Services – The Positions <strong>of</strong> <strong>the</strong> Trade Unions<br />
on GATS, in: Friedrich-Ebert Foundation, Occasional Papers No. 6, Geneva, May 2003, p. 12.