Same Same But Different? Fiscal Discrimination in WTO Law and EU Law: What are Like Products?

Legal Issues of Economic Integration, Vol. No. 4 (2005)

47 Pages Posted: 9 Apr 2007

Abstract

The laws of the World Trade Organization (WTO) and the European Union (EU) prohibit tax discrimination between imported and domestic products that show a sufficient degree of similarity.

This article examines how similar two products have to be in order to fall under this prohibition. In this endeavour, the abundant case law by the WTO's Appellate Body and the European Court of Justice (ECJ) on Article III:2 GATT and Article 90 EC is thoroughly analysed.

The article's main proposition is to follow a market-based approach. The assessment of likeness must focus on the economic relationship between products as viewed from the consumer's perspective. The criterion of consumers' tastes and habits should be the decisive factor in that assessment. Other criteria should only be taken into account as supplementary evidence for the determination of likeness.

The article further finds that the like product analysis resembles the inquiry made for determining the relevant market in competition law, and proposes to resort more frequently to the use of tools and techniques used in that field of law.

Suggested Citation

Emch, Adrian, Same Same But Different? Fiscal Discrimination in WTO Law and EU Law: What are Like Products?. Legal Issues of Economic Integration, Vol. No. 4 (2005), Available at SSRN: https://ssrn.com/abstract=978842

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