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WTO Panel accepts environmental and health arguments in the Brazil-Retreaded Tyres case, in line with CIEL's amicus curiae brief

July 27, 2007

In a June 12, 2007 report, a WTO Panel, hearing a complaint by the European Communities (EC) against Brazil's ban on the import of used and retreaded tyres, acknowledged the clear linkage between the import of retreaded tyres and the public health and enviromental risks associated with the increased tyre waste resulting from such imports. The Panel's decision mirrors the analysis put forth by CIEL and partners in an amicus curiae brief submitted to the Panel on July 3, 2006.

While Brazil technically lost the case, it can bring itself into conformity with WTO law without changing its environmental and health measure (i.e., the import ban). Specifically, the Panel agreed with Brazil that waste tyres were breeding grounds for mosquitoes, and therefore the import ban was necessary to protect human and animal life and health from mosquito-borne illnesses such as malaria and dengue fever. As a consequence, the Panel agreed that the ban was "provisionally justified" under WTO rules. However, the Panel found that the ban was applied in a discriminatory way because some local courts issued injunctions allowing Brazilian retreaders to import used tyres for retreading. Thus, in order to come into compliance with the Panel's recommendations, Brazil will need to ensure that these injunctions cease, as they defeat the purpose of the import ban to minimize tyre waste.

The WTO Panel accepted Brazil's environmental and health defense. Central to the reasoning and decision of the Panel is the recognition of the linkages between the imports of retreaded tyres and the resulting tyre waste problems, both regarding the existence of risk and the necessity of the measure.

The WTO Panel's decision makes an important contribution to the WTO's trade & environment jurisprudence. The Panel approached the risk posed by tyre waste as it actually exists in Brazil and not as it might be managed in an ideal world. The Panel thus rejected the EC's arguments that the risks of mosquito-borne illnesses and toxic fires could be avoided if tyre waste was properly managed. The Panel also accepted that the product targeted by the measure (retreaded tyres) need not be the same as the product posing the risk (waste tyres). The Panel's analysis establishes the link between short-life retreaded tyres and the risk arisising from the accumulation of waste tyres, reflecting the life-cycle analysis presented by CIEL and partners in their amicus curiae submission.

In short, the Panel's approach allows governments to address a wide array of risks associated with the different stages in the life- cycle of a product, including with respect to production, marketing, use, and disposal. The Panel's approach thus recognizes the need for policy space for governments to effectively address the environmental and health impacts of products throughout their life-line.

For more information, please contact Marcos Orellana.

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