EU's Renewable Energy Directive Saved by GATT Art. XX? Reflections on the Provisional Justification of Sustainability Criteria under GATT Art. XX in the Recent WTO Case 'European Union and Certain Member States - Certain Measures on the Importation and Marketing of Biodiesel and Measures Supporting the Biodiesel Industry' (DS459)

In May 2013 Argentina filed a dispute against the European Union (EU) concerning certain measures, imposed by the EU and its Member states, affecting the importation and marketing of biodiesel. The complaint was primarily focused on the Renewable Energy Directive (2009/28/CE), which, among others, lays out three “sustainability criteria” as a condition for considering biofuels both when determining eligibility for financial support, and when measuring compliance with the national target requirements for the overall share of energy from renewable sources in the EU. The first criterion requires that sustainable biofuels contribute to greenhouse gas emission savings of at least 35%, and the two others are concerned with the land from which raw materials used for the production of biofuels are obtained. If these criteria are found to be GATT-inconsistent, the EU will most certainly invoke GATT Article XX. This paper examines the possibility of a provisional justification of the sustainability criteria under GATT Article XX, paragraphs (b), (g) and (a), assessing the EU’s chance of successfully relying on these exceptions should a panel be established