국민건강·안전을 목적으로 하는 수출규제의 WTO 합치성 : EU의 역외국에 대한 개인의료용품 수출허가 조치를 중심으로

In response to the highly contagious COVID-19 that has posed a grave threat to public health, the EU announced Implementing Regulation 2020/402 which is a temporary measure requiring export authorization to ensure a constant supply of personal protective equipment(PPE) within the EU. The regulation indicates that only EU member states are exempted from the authorization requirement when listed PPE are exported to the other states, whereas non-EU members must follow restrictive administrative procedures such as a valid export authorization. By revising the regulation through Implementing Regulation 2020/426, it expands the exemption to include the four EFTA members and listed overseas countries and territories which have a special relation with the EU members on the exemption list. First of all, the regulation is likely inconsistent with the GATT Article XI which prohibits quantitative import and export restrictions, but it is also likely justified as a temporary measure applied to prevent or relieve critical shortages of essential products under the Article XI:2 (a). However, the regulatory measure is not similarly restricted to all third states, and it is also discriminatorily imposed upon the non-exempted states. It would constitute violation of the Article XIII, non‐discriminatory application of quantitative restrictions. Also, the violatory measure can be likely justified under Article XX(b), which provides an explicit exception to protect human health. Nevertheless, as the discriminatory measure constitutes a means of arbitrary or unjustifiable discrimination, it cannot meet the criteria of the Article XX, general exceptions. Therefore, the restrictive export control by the individual state or Customs Union implemented to prevent the transmission of pandemic disease is not compatible with the WTO law, when it is considered as a mean of uneven and "arbitrary or unjustifiable" discrimination against the other states. Lastly, on the analysis of whether the measure can be justified under the GATT Article 24 which establishes the exception, it should be scrutinized based on the EU's regional trade agreements with EFTA members and other states. However, as the measure is considered as a more limited discriminatory restriction after the formation of RTA, it cannot be justified. If the discriminatory and inconsistent measures under the WTO become more prevalent worldwide, it would deepen the fissures of the WTO system.