WTO협정상 수입 국경세조정에 관한 연구- 탄소세와 배출권에의 적용가능성 및 그 시사점 -

At the 21th session of the Conference of the Parties (COP) of the UNFCCC the Paris Agreement was adopted. Unlike the previous Kyoto regime, under the Paris Agreement all Parties will get to participate in greenhouse gas emission reduction efforts. However, the Paris Agreement does not provide for any legally binding obligations in terms of specific emission reduction targets or methods. Instead, each Party is free to decide upon its own reduction targets and methods through its Nationally Determined Contribution (NDC) submitted to the UNFCCC. As a result, it is expected that national climate policies of many countries will get increasingly diversified and complicated. The problem then lies in the fact there is a possibility of carbon leakage on account of this asymmetries between and amongst countries' greenhouse gas emission efforts. When carbon leakage occurs, carbon- and energy-intensive industries and enterprises which operate within the jurisdiction of higher emission costs will simply move its production abroad to other jurisdiction of lower emission costs, instead of seeking to cut down on carbon emissions within the former jurisdiction. Some nations and scholars have suggested carbon-related border tax adjustments (Carbon-related BTAs) on the import and export sides as a solution to prevent carbon leakage. BTAs aim to level the playing field between domestic and foreign producers, by allowing an importing country to impose an additional tax on imported products up to the equivalent amount of carbon costs that domestic producers bear under its national greenhouse gas reduction policy and by allowing an exporting country to rebate the previously collected carbon costs on domestic producers upon the exportation of products. In the meantime, to the extent that these measures directly or indirectly affect international trade in goods, they are also required to be in conformity with WTO law: for instance, if a WTO Member intends to apply BTAs to imported products equivalent to its domestic carbon tax, it needs to make sure that such BTAs are consistent with relevant provisions of GATT 1994, including Articles II:2(a) and III:2. Yet, these are measures that are applied to ‘carbon emissions'. Carbon is emitted during production process of goods, but it does not remain in the final products. That is, carbon is not an element “physically incorporated” into or “physically present” in the final products. Under WTO law, there still remains a range of controversies as regards the applicability of BTAs to taxes imposed on such non-product-related elements. If relevant WTO provisions are to be interpreted to prevent BTAs from applying to taxes on these elements, it would become highly likely that carbon tax imposition on imported products at the border and allowance requirements imposed under the ETS run afoul of WTO law. Against this backdrop, in this thesis the author mainly focuses on whether it is legally possible for WTO Members to utilize import- and export-side BTA system of WTO law in order to prevent carbon leakage and to maintain effectiveness of their carbon tax or emission trading systems. To achieve these objectives, in Chapter I this thesis discusses the necessity of carbon-related BTAs as a solution for carbon leakage. In Chapter II the author interprets import-side BTA provisions under the GATT and sheds light on academic opinions and relevant GATT/WTO panel and Appellate Body findings, particularly focusing on the material scope of such BTAs, and the author draws the conclusion that import-side BTAs can be imposed upon non physically incorporated elements (like emitted carbon) via the wording “applied [...] indirectly” of Article III:2 GATT. In Chapters III and IV, based on the conclusion in Chapter II the author discusses the possibility the carbon taxes and carbon emission allowances can be adjusted. In order for carbon emission allowances to be border tax adjustable it needs to be an indirect tax imposed directly or indirectly on products. While some scholars argue that carbon emission allowances de facto bear the identical or similar quality as a tax in terms of economic impacts or effects on producers and manufacturers, the author concludes that they cannot be seen as a tax stricto sensu; and even assuming arguendo, they cannot be considered to be “applied [...] to” products. Accordingly carbon emission allowances cannot be border adjusted under WTO Agreement. In contrast, since carbon taxes are calculated on a per-unit basis and imposed indirectly on the final products per se, they are eligible for BTAs provided that they are implemented consistently with the most-favoured nation treatment and national treatment obligations respectively provided for under Articles I:1 and III:2 GATT.