How Europe employs disguised regulatory protectionism to weaken American free enterprise

International Journal of Economic Development, April-July, 2005 by Lawrence A. Kogan

Over time, European civil society also enlisted the aid of politically-minded European scientists in search of research grants, who successfully helped them to translate this policy message into a series of regional legislative frameworks premised on the new legal and scientific benchmark of 'hazard'-based analysis. (15) Hazard-based analysis looks to the inherent characteristics and intrinsic qualities of substances and products to determine whether they may pose possible future harm to health and the environment. Hazard-based analysis does not require that regulators undertake an economic cost-benefit analysis, or the painstaking process of risk assessment that requires empirical proof of harm based on actual exposure. Hazard-based analysis has a less technical and scientific name--it is otherwise known in European political circles as the 'precautionary principle'. And, it has been established as a norm of EC Treaty law.

B. Incorporating Regional EHS Policy into the International Trade System

In order to exploit this regional policy for purposes of international trade, European regulators have endeavored to promote on a global level the same very close link between EHS regulation (government policymaking) and 'top-down' (rather than industry-driven) product, process and service standardization that they have already established at the European regional level. The process of standardization serves an important role within Europe--it helps to translate essential environment, health and safety regulatory and policy requirements into understandable technical guidelines which businesses may then use to design, manufacture, formulate, assemble and dispose of their products. In light of this important link, the EU Commission has emphasized the need to involve 'all relevant stakeholders', including European civil society, in the EU standards process to ensure that European EHS policy considerations are fully taken into account. (16) This practice has been self-reinforcing, insofar as, it has resulted in more and more environmental, health and safety requirements being promulgated and incorporated into EU regional regulations and standards.

To broaden and strengthen the impact of European regional regulation and standardization globally, the EU Commission has promoted the use of cooperative agreements (17) between the European political and technical communities and the relevant international bodies referenced in the World Trade Organization ('WTO') Agreements. (18) These bodies are held responsible for developing globally harmonized, science-based, and economically-efficient international standards. They are also entrusted with ensuring that while divergent national and regional regulations and standards may incorporate an appropriate level of EHS protection consistent with national and/or regional policy objectives, those protections are not used as disguised barriers to international trade. To this end, the EU has argued that the appropriate level of protection is that which reflects the use of the precautionary principle to adequately safeguard important European public EHS interests and cultural values.