This article outlines the non-product-related process and production method (NPR-PPM) controversy, focusing on the current interpretation by the WTO Appellate Body and panels as background for an analysis of the EU ETS in aviation. In order to assess the possible application of the TBT Agreement to the EU ETS in aviation, the measures laid down in Directive 2008/101/EC, as well as in the recently adopted amending Regulation, are qualified as measures affecting trade in goods.
Such a finding leads us to consider whether they fall under the definition of ‘technical regulation’ laid down in Annex 1.1 of the TBT Agreement. To that effect, the three-tier test in EC-Asbestos and EC-Sardines is applied in light of the recent findings in EU-Seals. Finally, practical implications can be drawn in both senses. Should it be deemed inapplicable, GATT would continue to apply. Should it be considered to come within the scope of the TBT Agreement by virtue of Annex 1.1, an assessment of compatibility with Articles 2.1 and 2.2 of the TBT Agreement would be required.Journal of World Trade