WTO 태국-담배 사건의 법적 평가

A central feature of international trading system, national treatment obligation imposes the principle of nondiscrimination as between imported products and “like” domestic products. Article Ⅲ:2 requires national treatment in respect of internal taxation whereas Article Ⅲ:4 requires national treatment in respect of regulations affecting the sale and use of goods. In Thailand-Cigarettes case, the Philippines challenged a number of measures imposed on imported cigarettes under the Thai VAT regime, arguing that Thailand was in violation of Articles Ⅲ:2 and Ⅲ:4 of GATT 1994. It argued that Thailand violated the first sentence of Article Ⅲ:2 by determining the tax base for VAT on imported cigarettes in a way that the VAT on imported cigarettes is in excess of that imposed on like domestic cigarettes. The Philippines further claimed the Thailand was in violation of the same provision, as imported cigarettes are subject to excess VAT liability as a result of the VAT exemption only given to domestic resellers. According to the Philippines, imported cigarettes resellers also had additional administrative requirements due to the excessive tax liability imposed on these resellers, which ultimately resulted in violation of Article Ⅲ:4. The Panel found that certain aspects of the Thai VAT regime violated Thailand's obligations under Articles Ⅲ:2 and Ⅲ:4. The Appellate Body upheld the Panel's finding that Thailand subjected imported cigarettes to internal taxes in excess of those applied to like domestic cigarettes, which was inconsistent with the first sentence of Article Ⅲ:2. The Appellate Body also upheld the Panel's finding that Thailand accorded less favourable treatment to imported cigarettes acting inconsistently with Article Ⅲ:4, by imposing three sets of VAT related administrative requirements on imported cigarettes resellers while exempting domestic cigarettes resellers form these requirements. On the basis of the strict wording of the first sentence of Article Ⅲ:2, the GATT/WTO precedents have firmly adhered to the interpretation that there is no de minimis level below which differing levels of taxes operating to the disadvantage of imported products are allowed. And the Thailand-Cigarettes case seems to have confirmed this long standing interpretation. With respect to Ⅲ:4, WTO seems to give a broad reading to “no less favourable” treatment. GATT/WTO precedents concluded that identical treatment may not be required between imported products and like domestic products, but there is no established standard as to when is non-identical treatment less favorable. Its broad scope has been underscored by GATT/WTO precedents and this very recent case seems to have left the door open for broader scope as to what constitutes less favourable treatment to imported products.