CYIL vol. 8 (2017)

KRISTÝNA URBANOVÁ CYIL 8 ȍ2017Ȏ discriminatory basis, 54 but the others are open only to specific countries. 55 This differential treatment is allowed under Article XIII:2 of the GATT 1994 with respect to the states (or more precisely to the WTO contracting parties) having a substantial interest in supplying the product. Since the TRQs of EU member states are merged together in the EU’s current schedules, once the UK leaves, the UK’s TRQs share will have to be somehow extracted from the current EU schedule. Yet, the WTO Agreement lacks any rule for such division. Up to today, the only broader consensus among politicians and commentators on the mechanism of TRQ allocation has been that the quantities of the EU’s existing TRQs should be split between the UK and the rest of the EU. 56 One possible approach would be determining the UK TRQs via recourse to Article XIII of the GATT 1994, focusing on to the legitimate expectations of the third countries (the TRQs beneficiaries), and using the last three years as the relevant time period for defining the rights and obligations. 57 another would be a determination of a UK-EU ratio applicable across quotas, “for example, the UK pledging to set a quota that is 10% of the original, leaving the EU with 90%.” 58 The separation of the TRQs may not be an easy task, but it is a task which can be done whichever of the proposed formulae shall be chosen. But what really matters from the legal point of view is whether this separation of TRQs does require the consent of other WTO contracting parties or whether they have no say in this process. The process of schedules separation from the EU bundle The process of modification of the schedules is envisaged in Article XXVIII of the GATT 1994, which provides that in certain situations the schedules can be modified subject to consultation with (i) any contracting party with which such concession was initially negotiated, (ii) with any other contracting party with a principal supplying interest, and (iii) with any other contracting party with a substantial interest. 59 Clearly the process of schedule modification includes, again, a necessity of renegotiation of the schedule. Since the historical examples of these consultations show that negotiations over the modification of schedules with all these qualified parties to the consultations took easily around six years, 60 the danger is clear. The negotiation may be protracted and can even exceed the two year period envisaged in Article 50 of the TEU for the UK withdrawal from 7. 54 Article XIII:2 of the GATT 1994. 55 See for example 2011/767/EU: Council Decision of 27 October 2011 on the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and New Zealand pursuant to Article XXIV:6 and Article XXVIII of the General Agreement on Tariffs and Trade (GATT) 1994. 56 DOWNES, Chris, The Post-Brexit Management of EU Agricultural Tariff Rate Quotas , 25 November 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874371. 57 UNGPHAKORN, Peter, The Limits of ‘Possibility’: Splitting the Lamb-Mutton Quota for the UK and EU-27 . Trade β Blog, 6 January 2017. Available at: https://tradebetablog.wordpress.com/2017/01/06/limits-of-possibility/. 58 UNGPHAKORN, Peter, The Hilton beef quota: a taste of what post-Brexit UK faces in the WTO, supra note 52. 59 Article XXVIII:1 of the GATT 1994. 60 DOWNES, Chris, The Post-Brexit Management of EU Agricultural Tariff Rate Quotas, supra note 56.

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