法律翻译｜欧盟碳边境调整机制的法律问题

译者 | 陈邵逐颜 中国政法大学硕士

一审 | 戚若音 UCB LL.M.

二审 | 邓雅元 复旦大学本科

编辑 | NYZ 武汉大学本科

         于杰 上海对外经贸大学本科

责编 | 王有蓉 中国政法大学硕士

Legal Issues with the European Carbon Border Adjustment Mechanism

欧盟碳边境调整机制的法律问题

原文作者：James Bacchu，卡托研究所（Cato Institute）兼职学者，中佛罗里达大学全球事务教授，世界贸易组织上诉机构的创始法官，并曾两次担任主席。    

原文于2021年8月9日发表于Cato Institute 

Background

背景

Does the EU’s Carbon Border Adjustment Mechanism Proposal Comply with WTO Rules? 

欧盟的碳边境调整机制提案是否符合WTO规则？

Could the Carbon Border Adjustment Mechanism Be Excused by the General WTO Exceptions for Health and Environmental Measures?

碳边境调节机制能否以WTO健康和环境措施的一般例外豁免？

Conclusion

结论

The European Commission has proposed a carbon border adjustment mechanism (CBAM) as part of its European Green Deal. The CBAM would require importers to purchase carbon emissions certificates for imports that the European Union (EU) determines are not produced under emissions standards similar to those of the EU. The aim is to apply a carbon price to imported products that is equivalent to the carbon price applied to products manufactured in the EU. Although the CBAM may not be implemented for several years, merely proposing it has opened an entirely new front for trade confrontations. The prospect of the CBAM raises numerous issues about its consistency with the rules of world trade. 

（图片源于网络）

The immediate questions are: How will other members of the World Trade Organization (WTO) react? Will this proposed action by the European Union set off a chain reaction of similar climate-related trade restrictions elsewhere? Or will it provoke a wide outcry of global criticism of green protectionism, leading to a legal showdown in the WTO? The question over the longer term is: How will these proposed restrictions shape the future of both trade and climate policies and governance globally? Without revision and careful application, the EU’s proposed CBAM may be inconsistent with fundamental WTO rules.

Background

背景

Since 2005, many EU industries have been covered by the EU’s Emissions Trading System (ETS), which charges polluters for the carbon they emit. The ETS is a cap-and-trade system that puts a cap on overall carbon emissions, lowers that cap over time,

and sells the right to emit carbon at an increasing price. Companies in carbon-intensive sectors covered by the system must purchase emissions allowances from the EU and then surrender them for every ton of carbon they emit. If a company reduces its emissions, it can keep its spare allowances for its future needs or sell them to other companies. The ETS reduces the number of emissions allowances over time, which in turn drives up the price of the allowances and provides an incentive to adopt cleaner production techniques. The intention of the ETS is to send a price signal that will encourage European producers to shift away from carbon-based production.

The EU’s Green Deal builds upon the ETS by seeking carbon neutrality by 2050.Toward this end, the EU’s aim is to reduce its carbon emissions 55 percent from 1990 levels by 2030. Anticipating that higher carbon prices will result, prices for emissions permits for industries that are now part of the EU’s Emissions Trading System have rocketed to record highs, exceeding 50 euros per ton.

European businesses are worried that a higher carbon price in the EU will put them at a competitive disadvantage relative to firms in countries without carbon pricing. This could spark a further shift to more offshore production that would shrink economic activity in the EU. Climate activists everywhere are concerned that these proposed restrictions will result in shoving emissions to countries with lower carbon emissions standards, resulting in no net reduction in overall global emissions.

欧洲企业担心，与没有碳定价的国家的企业相比，欧盟更高的碳价格使他们处于竞争劣势。这可能导致欧盟进一步转向更多的海外生产，从而缩减欧盟的经济活动。各地的气候活动家都担心，这些拟议的限制措施将导致碳排放转移到排放标准较低的国家，导致全球总体碳排放量并没有净减少。

The European Commission released the details of its carbon border adjustment mechanism (CBAM) on July 14 as part of the European Green Deal. If the legislation is enacted, there would be a transition period of three years beginning on January 1, 2023, with the CBAM entering fully into force on January 1, 2026. The proposal requires the approval of the European Parliament and the European Council before taking effect. There is still much debate about the shape of the CBAM in the EU, where some of the affected industries remain resistant. Negotiations await among the EU’s 27 member states. The European Parliament has already adopted a resolution in support of the CBAM— provided it is consistent with WTO rules.

Accompanying the commission’s CBAM proposal is a proposal to expand the ETS to include more sectors of the European economy. The EU would establish a new authority to implement and operate the CBAM in concert with the ETS by applying a carbon price to imported products that is equivalent to the carbon price applied to products manufactured in the EU. Under the CBAM, the EU would require importers to purchase emissions certificates to account for the emissions embedded in certain carbon-intensive imported products. At the outset, the imported products requiring these emissions certificates would be those of the heavy-emitting electricity, iron, steel, aluminum, cement, and fertilizer industries. Although climate activists had hoped that indirect emissions would be included, the emissions counted would be only those that result directly from owned or controlled sources of production.

伴随着欧盟委员会的CBAM提案，一项扩大ETS使其囊括更多欧洲经济部门的提案也刚被提出[7]。欧盟将建立一个新的机构，通过对进口产品适用一个与欧盟生产的产品相同的碳价格，一起实施运作CBAM和ETS。根据CBAM，欧盟将要求进口商购买碳排放证书，对某些碳密集型进口产品的排放量负责。一开始，需要这些排放证书的进口产品将是那些高排放的电力、钢铁、铝、水泥和化肥行业。尽管气候活动家们希望将间接排放也包括在内，但所计算的排放将仅仅是那些直接由自有或受控的生产来源产生的排放。

（图片源于网络）

The prices of the certificates would be linked to the prices of the emissions allowances under the ETS. Only “authorized” importers would be permitted to import the products falling within the scope of the CBAM. To be authorized, importers would need to report on the embedded emissions in their imported products on an annual basis and would need to surrender a corresponding amount of CBAM certificates that they would have purchased in advance. Importers who do not have a carbon-audited supply chain after the transition period ends would be required to buy CBAM certificates priced at default values of carbon content equal to the average emissions of like products in the EU during the transition period.

碳排放证书的价格将与ETS的碳排放配额价格挂钩。只有“授权”的进口商允许进口属于CBAM范围的产品。为了获得授权，进口商需要每年报告其进口产品的内嵌排放，并需要交出提前购买的相应数量的CBAM证书。在过渡期结束后，没有碳审计供应链的进口商将被要求购买CBAM证书，该证书的价格将根据碳含量的默认价值计算，其中默认价值相当于过渡期内欧盟同类产品的平均碳排量。

The EU crafted these climate-related trade restrictions with the professed goal of ensuring that they are consistent with the EU’s WTO obligations.  Nevertheless, Brazil, China, India, and South Africa have already expressed “grave concern,” and have declared that the CBAM is protectionism disguised as climate action that will impose unfair discrimination on European imports of their traded products. These concerns are widely shared. One recent European study concluded that the most-affected products would be Colombia’s cement, China’s plastics, North Africa’s fertilizers, and South America’s pulp exports. Products from Russia, South Korea, Ukraine, and other countries are also likely to be affected.

欧盟起草这些与气候有关的贸易限制，声称是为了确保它们与欧盟的WTO义务相一致[8]。然而，巴西、中国、印度和南非已经表示“严重关切”，并宣布CBAM是伪装成气候行动的保护主义，将对进口到欧洲的、产自这些国家的贸易产品施加不公平的歧视[9]。这样的担忧是普遍存在的。欧洲最近的一项研究表明，受影响最大的产品将是哥伦比亚的水泥、中国的塑料、北非的化肥和南美的纸浆出口[10]。俄罗斯、韩国、乌克兰和其他国家的产品也可能受到影响[11]。

U.S. climate envoy John Kerry warned that CBAM should be a last resort, as it could detract from efforts to get more countries to elevate their climate ambitions before the upcoming UN climate summit in Glasgow in November 2021. But, on the same day the EU announced the CBAM, congressional Democrats announced that they will propose a similar restriction as part of their pending $3.5 trillion spending plan. In contrast to the detailed EU proposal, Democrats made their announcement of “polluter import fees” before deciding precisely what their proposal will be. Elsewhere, Canada has announced that it, too, is considering its own CBAM. Meanwhile, many countries are lining up to express their belief that the CBAM proposal by the Europeans is inconsistent with the EU’s WTO treaty obligations.

美国气候特使John Kerry警告说，CBAM应该是最后的手段，因为它可能会减损在即将于2021年11月在格拉斯哥召开的联合国气候峰会之前让更多国家提升其气候雄心的努力[12]。但是，在欧盟宣布CBAM的同一天，美国国会民主党人宣布将提出一个类似的限制，作为他们待定的3.5万亿美元支出计划的一部分[13]。与欧盟的详细提案相比，民主党人在决定提案的确切内容之前就宣布了“污染者进口费”[14]。在其他地方，加拿大已经宣布，也在考虑自己的CBAM[ 15]。同时，许多国家纷纷表示欧洲的CBAM提案不符合欧盟的WTO条约义务。

（图片源于网络）

Does the EU’s Carbon Border Adjustment Mechanism Proposal Comply with WTO Rules? 

欧盟的碳边境调整机制提案是否符合WTO规则？

The CBAM is a long way from being applied; it may be modified along the way, and precisely how it would be applied to individual traded products in particular factual circumstances cannot be foreseen. Nor can we foresee which of those products and circumstances would give rise to claims against the EU in WTO dispute settlement. Thus, any legal analysis is necessarily preliminary and provisional. Nevertheless, the legal issues raised by the CBAM about its compliance with the EU’s WTO obligations are likely to include at least three concerns.

CBAM距离实施还有很长的路要走；它可能会被修改，而且无法预见在特定事实情况下如何将其精确地应用于个别贸易产品。我们也不能预见这当中的哪些产品和情况会被诉至WTO争端解决程序，并引发对欧盟的索赔。因此，任何法律分析都必然是初步和临时的。但是，关于CBAM是否符合欧盟WTO义务的法律问题可能至少包括三个方面的考虑。

First, the CBAM could be inconsistent with the most favored-nation treatment rule that requires that any advantage granted to the imported products of one WTO member must be accorded immediately and unconditionally to the like products originating from all other WTO members. The CBAM would violate the most favored-nation treatment rule if it discriminated between and among like imported products originating in different WTO member countries based on their carbon content. In self-judging other WTO members on the extent and quality of their climate actions, and thus picking and choosing which imported products members will have to buy emissions certificates for, and how many they will have to buy, the European Union would be discriminating between and among other WTO members in trade in like products.

第一，CBAM可能不符合最惠国待遇规则，该规则要求给予一个WTO成员的进口产品的任何优待必须立即和无条件地给予来自其他所有WTO成员的同类产品[16]。如果CBAM基于碳含量区别对待来自不同WTO成员国的进口产品，其将违反最惠国待遇规则。

通过自我判断其他WTO成员在气候行动方面的程度和质量，从而挑选哪些进口产品的成员必须购买排放证书及其数量，欧盟将构成在同类产品的贸易中对不同的WTO成员的歧视

Second, because the CBAM could apply a charge on imported products in excess of the ceilings on customs duties and other charges connected with importation that have been agreed by the EU in its WTO schedule of commitments, the CBAM could also be inconsistent with another basic WTO rule. This inconsistency seems likely because the price of the new emissions certificates would start off fairly high and then climb higher as the EU implements and expands the CBAM and takes other climate actions over time.

第二，由于CBAM对进口产品的收费可能超过欧盟在其WTO承诺表中同意的关税和其他与进口有关的费用上限，CBAM也可能与WTO的另一项基本规则不一致[17]。这种不一致似乎是可能发生的，因为新的排放证书的价格开始时相当高，然后会逐渐随着欧盟实施、扩大CBAM和采取其他气候行动而上涨。

The EU will likely contend that this rule does not apply here because the CBAM would not be a border measure. The EU will likely maintain that the CBAM is a requirement of an internal regulation. On this reasoning, it would fall instead under another WTO rule, which imposes no quantitative limits on the impact of such requirements. As a result, there would be no legal violation if the prices for emissions certificates rose over time and exceeded the agreed ceilings of the EU’s commitments on customs duties. However, the fact that the CBAM mandate to purchase an emissions certificate would be triggered by the act of importing that product and would not accrue due to an internal event—such as the distribution, sale, use, or transportation of the imported product—argues against an EU contention that the CBAM would be an internal regulation. The WTO Appellate Body has ruled that the question of whether there is an import measure or an internal regulation turns on what triggers the obligation to pay. If the obligation to pay accrues at the moment of and “by virtue of the event of importation,” then it is an import measure. As it has been proposed, this would seem to be the case with the CBAM.

欧盟可能会抗辩说，这一规则在这里并不适用，因为CBAM不是一项边境措施。欧盟可能会坚持CBAM只是一项内部法规的要求。根据这一推理，它将受另一项WTO规则规制，该规则对此类要求的影响没有规定数量限制。因此，就算排放证书的价格逐渐上涨，并超过了欧盟承诺的关税上限，也不违反法律[18]。但是，要求购买排放证书的CBAM命令将由进口该产品的行为触发，而不是由于内部事件而产生，如进口产品的分销、销售、使用或运输，这一事实构成对欧盟关于CBAM是一个内部法规的主张的反对。WTO上诉机构已经裁定，是否存在进口措施或内部规定的问题取决于触发支付义务的因素。如果支付义务是在进口时、并且“因进口事件”而产生，那么它就是一项进口措施[19]。正如前文所述，这似乎就是CBAM的情况。

Third, even if the CBAM were deemed a requirement of an internal regulation, it could be inconsistent with the national treatment rule that requires that imported products be given no less favorable treatment than that given to like domestic products. One reason would be, in recent years, 43 percent of the available ETS emissions allowances have been allocated for free to European firms. Under the CBAM as proposed, the number of free emissions allowances for all sectors would decline over time and eventually be phased out, but they would continue for some years after the CBAM entered into effect.

第三，即使CBAM被认定为一个内部法规的要求，它也可能违反国民待遇规则，该规则要求给予进口产品的待遇不低于给予同类国内产品的待遇[20]。该项违反是因为在最近几年，43%的可用ETS排放配额被免费分配给欧洲公司[21]。根据CBAM提案，所有部门的免费排放配额数量将逐渐减少，并最终被取消，但它们将在CBAM生效后的几年里继续存在[22]。

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Some of the affected European industries are protesting that the CBAM, as proposed, would not provide them sufficient protection from the “carbon leakage” of EU jobs and production offshore that they fear. So, they are fighting hard to keep the free emissions allowances as part of the expanded ETS. Keeping free emissions allowances for European products, while also requiring the purchase of CBAM certificates for like imported products, would unquestionably be a violation of the national treatment rule. In effect, it would provide double protection for the European products. 

一些受影响的欧洲产业抗议说，CBAM不会充分保护他们免受其其所担心的欧盟就业和生产向海外“碳泄漏”[23]的影响。因此，他们正在努力争取保留免费排放配额，作为扩大的ETS的一部分。保留欧洲产品的免费排放配额，同时要求同类进口产品购买CBAM证书，无疑是对国民待遇规则的违反。实际上，这将为欧洲产品提供双重保护。

This is because domestic products will have lower costs than will like imported products, so long as European producers continue to receive free emissions allowances, thus placing the imported products at a competitive disadvantage. For this reason, the EU would be acting inconsistently with the national treatment rule if it continued to provide free allowances because imported products would be denied an equality of competitive opportunities with like domestic products in the European market.

这是因为只要欧洲生产商继续获得免费的排放配额，国内产品的成本将低于同类进口产品，从而使进口产品处于竞争劣势。如果欧盟继续提供免费配额，它的行为将不符合国民待遇规则，因为进口产品在欧洲市场上将被剥夺与同类国内产品平等的竞争机会[24]。

The free emissions allowances currently granted to domestic producers by the EU through the ETS are arguably already illegal under WTO rules that limit the grant of governmental subsidies where they distort global trade. To date, no other WTO member has challenged this vulnerable aspect of the ETS in WTO dispute settlement. With the CBAM, though, the potential legal inconsistency with the national treatment rule could be meliorated—although not necessarily eliminated—if the EU offsets the full amount of the free emissions allowances it currently gives to producers of domestic products on the prices of the emission certificates required for the importation of like products.

根据WTO规则，欧盟目前通过ETS给予国内生产商的免费排放配额可以说已经是非法的了，因为WTO限制发放会扭曲全球贸易的政府补贴[25]。迄今为止，没有其他WTO成员在WTO争端解决中对ETS的这一缺陷提出挑战。不过，如果欧盟将其目前给予国内产品生产商的免费排放配额全部抵消在进口同类产品所需的排放证书的价格上，那么就可以改善但不一定能消除CBAM与国民待遇规则的潜在法律不一致。

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Could the Carbon Border Adjustment Mechanism Be Excused by the General WTO Exceptions for Health and Environmental Measures?

碳边境调节机制能否以WTO健康和环境措施的一般例外豁免？

Assuming the EU violates one or more of the these three WTO rules, the legal question then becomes: Will the EU violations be excused by one of the general exceptions permitted under WTO rules for health and environmental measures? To be entitled to the benefit of a general exception, the CBAM must be imposed for health or environmental reasons. The EU has been careful in saying that the CBAM would be a climate measure motivated solely by climate concerns relating to health and the environment. But these EU statements, in and of themselves, have no legal significance. What matters is the structure of the measure itself and how it is applied. Upon scrutiny by WTO jurists in the settlement of a trade dispute, what would the design, architecture, and revealing structure of the measure say about whether it is truly a climate measure?

假设欧盟违反了这三条WTO规则中的一条或多条，那么就会产生以下法律问题：欧盟的违规行为能否因符合WTO规则允许的健康和环境措施的一般例外情况而得到豁免？[ General Agreement on Tariffs and Trade, Article XX.]一般例外的适格性要求CBAM必须是出于健康或环境原因实施的。欧盟一直谨慎表示，CBAM是一项只因健康和环境问题产生的气候行动。但欧盟的这些声明本身并没有法律意义。重要的是该措施本身的结构和它的应用。在WTO法学家解决贸易争端的审查中，CBAM的设计、体系和所揭示的结构是怎么说明它是否真的是一项气候措施？

Exceptions are available under the rules for measures necessary to protect human, animal, or plant life or health, and for measures relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. The EU is unlikely to be able to prove that the CBAM is necessary, in part because there is at least one reasonably available alternative that would be consistent with WTO obligations, less restrictive of trade, and achieve the EU’s desired level of protection from climate change: a carbon tax.

对于保护人类、动物或植物的生命或健康的必要措施[ 27]，以及与保护可耗尽的自然资源有关的措施，如果这些措施与对国内生产或消费的限制一起生效，则根据规则可有例外[28]。欧盟不太可能证明CBAM是必要的，部分原因是至少有一个合理可用的替代方案，即碳税，该方案符合WTO的义务，对贸易的限制较少，并实现欧盟所期望的保护气候变化的水平[29]。

However, the EU may well be able to demonstrate that the CBAM is a measure relating to the conservation of exhaustible natural resources—in this case, air at a livable temperature in a climate fit for human habitation. The EU can do so if it can prove that there is a “close and genuine relationship” between the means used in the CBAM and the end it seeks, and also prove that the restrictions on imported products are evenhanded in how the design of the measure imposes them. Toward this end, importantly, the CBAM will be made effective in conjunction with comparable domestic measures.

但是，欧盟很大概率能够证明，CBAM是一项与保护可耗尽的自然资源有关的措施，具体而言，是指使空气在适合人类居住的气候中保持宜居温度。如果欧盟能证明在CBAM所使用的手段和它所追求的目标之间存在着“密切和真实的关系”，并且证明对进口产品的限制在措施的设计上是公平的，那么欧盟就可以这样做[30]。为此，重要的是，CBAM将与可比的国内措施一起生效。

Must a measure of the type that is potentially entitled to a general exception be one that relates to the territorial jurisdiction of the WTO member applying that measure? Could the EU apply a unilateral measure to remedy a perceived health or environmental problem that is unrelated to the territory of the EU? The WTO Appellate Body has not ruled on the question of whether there is an implied jurisdictional limit to the application of unilateral measures affecting trade in furtherance of the policy goals contained in the general exceptions of what would otherwise be trade obligations. However, just as endangered sea turtles swim across national territorial borders (as noted in a previous WTO dispute), so too does air circulate across national borders.

潜在构成享有一般例外的措施是否必须与实施该措施的WTO成员的领土管辖权有关？欧盟是否可以采取单边措施来纠正与欧盟领土无关的预期的健康或环境问题？WTO上诉机构还没有对以下问题作出裁决：为促进本来属于贸易义务的、一般例外所包含的政策目标，适用影响贸易的单边措施是否有隐含的管辖权限制[31]。然而，正如濒临灭绝的海龟游过国家领土边界一样（如之前的一个WTO争端所述），空气也是跨越国家边界流通的[32]。

The extraterritorial application of the EU CBAM would likely prove less significant in a WTO dispute than the question of how it is applied. For the EU will also have to prove that CBAM has been applied in a manner justifying its entitlement to one of the general exceptions. The CBAM must not be “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail,” and it must not be “a disguised restriction on international trade.” The CBAM inspires a number of questions about whether it will satisfy these additional legal requirements.

（图片源于网络）

在WTO争端中，如何适用CBAM的问题可能比CBAM的域外适用更重要。因为欧盟还必须证明，CBAM的适用方式证明其有资格享受一般例外。CBAM不能“以一种在同等条件下的国家之间构成任意或不合理的歧视的方式来应用”，并且它不能是“对国际贸易的变相限制”[33]。CBAM引发了一些关于它是否能满足这些额外法律要求的问题。

As to whether the CBAM will be “arbitrary or unjustifiable discrimination,” a long string of WTO jurisprudence dating back decades shows that a measure must be evenhanded in its application to be entitled to one of the general exceptions. Will the CBAM be evenhanded if the EU imposes its own climate standard on its trading partners without giving them a chance to suggest changes in that standard or to appeal the application of that standard to their products? It will not be enough for the EU simply to explain its chosen standard to these affected countries; the EU must engage in the due process of a mutual dialogue with them before setting and applying the standard in a way that takes the views of its trading partners into account.

至于CBAM是否会构成“任意或不合理的歧视”，一长串可追溯到几十年前的WTO判例表明，一项措施的应用必须是公平的，才有资格享受一般例外[34]。如果欧盟将自己的气候标准强加给其贸易伙伴，而不给他们机会对该标准提出修改建议或对该标准适用于其产品提出上诉，那么CBAM公平吗？欧盟仅仅向这些受影响的国家解释它所选择的标准是不够的；欧盟必须在制定和应用标准之前，考虑其贸易伙伴的意见，与他们进行相互对话。

Also, if the EU grants exceptions to the CBAM emissions certificate requirements to some WTO members solely based on what the EU perceives as the sufficiency of their carbon pricing and their other climate actions, will that discrimination be arbitrary or unjustifiable? What is the proper measure of such sufficiency? Is it whether another WTO member has enacted carbon pricing, whether it is keeping its promises of emissions-cutting under the Paris climate agreement, whether it has pledged to increase those promised emissions cuts, or something else? So far, the climate negotiators have been unable to agree on a single global standard for calculating carbon and other greenhouse gas emissions. Is it arbitrary or unjustifiable discrimination if the EU imposes its own standard on other countries?

另外，如果欧盟仅仅根据其认为的碳定价和其他气候行动的充分性，对一些WTO成员的CBAM排放证书要求给予例外，这种歧视是否是任意的或不合理的？衡量这种充分性的正确标准是什么？是另一个WTO成员是否制定了碳定价，是否履行了巴黎气候协议中的减排承诺，是否承诺增加承诺的减排量，还是其他什么？截止目前，气候谈判者一直无法就计算碳和其他温室气体排放量的单一全球标准达成一致。如果欧盟将自己的标准强加给其他国家，这是否是任意或不合理的歧视？

（图片源于网络）

The EU could grant exemptions from certificate payments for the least-developed countries that are WTO members. If enacted, this discrimination would not seem to be either arbitrary or unjustifiable. The least-developed countries are the poorest countries in the world. They have made the fewest carbon and other greenhouse gas emissions and yet are, in many cases, suffering the most from the consequences of the global extent of those emissions.

欧盟可以对属于WTO成员的最不发达国家给予证书支付的豁免。如果实施，这种歧视似乎既不是任意的，也不是不合理的。最不发达国家是世界上最贫穷的国家。他们的碳排放和其他温室气体排放最少，但在许多情况下，他们在这些排放的全球范围内遭受的后果最严重。

But what if the EU also decides to exempt products originating in the United States from the requirement to purchase emissions certificates? The United States has not adopted carbon pricing; President Joe Biden’s proposed climate policies are not law yet, and the polluter import fee suggested by the Democrats is also not law. Based on the extent of its climate actions so far, is the United States more deserving of an exemption by the EU than, say, China?

但如果欧盟也决定免除原产于美国的产品购买排放证书的要求呢？美国还没有采用碳定价；拜登总统提议的气候政策还不是法律，民主党人建议的污染者进口费也不是法律。基于其迄今为止采取的气候行动的程度，美国是否比中国等国更应该得到欧盟的豁免？

And why is it not arbitrary or unjustifiable discrimination for the EU to be the sole judge of the sufficiency of the climate actions of other WTO members? Can the EU reach so far under the WTO rules as to impose its standard on the production processes of products made in other countries? Certainly, multilateralism has already been tried by the EU and the rest of the world on climate change, through three long decades of tortuous global negotiations. WTO jurists have also acknowledged that a WTO member can condition access of the products of other WTO members to its domestic market on whether those other members adopt or comply with a policy unilaterally prescribed by the importing member. But would not WTO approval of the CBAM leave other WTO members free to impose their own standards, and perhaps their own similar fees, on imported products from the EU based on global concerns other than carbon emissions?

而且欧盟作为其他WTO成员的气候行动充分性的唯一评判者，为什么这不是任意或不合理的歧视？欧盟是否可以在WTO规则下，将其标准强加于其他国家产品的生产过程？当然，通过长达30年的、曲折的全球谈判，欧盟和其他国家在气候变化问题上已经尝试了多边主义。WTO的法学家也承认，一个WTO成员可以将其他WTO成员的产品进入其国内市场的条件认定为这些其他成员是否采用或遵守进口成员的单边政策上。但是，WTO对CBAM的批准是否会让其他WTO成员基于对碳排放以外的全球关注，自由地对来自欧盟的进口产品施加他们自己的标准，以及类似的费用？

It must be remembered that WTO obligations are not obligations to other countries or to individual traders; they are obligations with respect to the treatment of individual traded products. Thus, to prevent discrimination in the CBAM from being arbitrary or unjustifiable, it must be founded on an assessment of the carbon emissions that result from the production of individual products, and not on a judgment about the adequacy of the overall emissions cuts that have been made or promised by the countries from which those products originated. Emissions certificates must not be required for a product that was produced in a climate-friendly way just because it originated in a WTO member country that has taken no meaningful action to reduce emissions. 

必须记住，WTO的义务不是对其他国家或个别商人的义务；它们是关于处理个别贸易产品的义务。因此，为了防止CBAM中的歧视是任意的或不合理的，它必须建立在对生产个别产品所产生的碳排放的评估上，而不是建立在对这些产品的来源国所做的或所承诺的总体减排是否充分的判断上。对于以气候友好方式生产的产品，不能仅仅因为它来自一个没有采取有意义的减排行动的WTO成员国，就要求其购买排放证书。

Lastly, as to any “disguised restriction on international trade,” here, too, the legal answer will be found in the structure and the design of the measure itself. As on the national treatment issue, the greatest vulnerability for the EU would be if it continued to grant free emissions allowances for select domestic producers. To fulfill its WTO obligations, the best course for the EU would be to resist domestic industry pressures and abolish these allowances. Keeping them as they are would be a fatal legal mistake. Phasing them out over time—even with the addition of purportedly equivalent price offsets for certificates required of like imported products—may, in the end, not be enough to survive legal scrutiny in WTO dispute settlement.

最后，关于任何“对国际贸易的变相限制”，法律答案也将在措施本身的结构和设计中找到。与国民待遇问题一样，如果欧盟继续有选择地为国内生产商提供免费的排放配额，这将是其最大的缺陷。为了履行其WTO义务，欧盟最好的做法是抵制国内产业的压力，并取消这些配额。保持它们的现状将是一个致命的法律错误。逐步取消这些配额，因为即使加上所谓的同等价格，以抵消对类似进口产品要求的证书，最终也可能不足以在WTO争端解决中经受住法律的审查。

（图片源于网络）

Conclusion 

结论

The EU’s CBAM would be the first climate-related trade restriction. This proposed new European restriction will, however, not be the last. Thus, these and other questions about the lawfulness of such measures under the WTO treaty must be asked and answered. And far better to ask and answer them in negotiations between the EU and its trading partners now—before the CBAM is applied—than to wait and try to answer them amidst a global flurry of similar actions and counteractions that will have severe trade consequences. Without revision and without careful application, the EU’s proposed CBAM may turn out to be inconsistent with fundamental WTO rules, and it may not qualify for one of the general health or environmental exceptions permitted under the WTO treaty.