Volume 42 (2015) / Issue 1
Katherine Connolly, 'Finding Space for Regulatory Autonomy in GATS Article XVII after EC Seals: Public Services and the Likeness of Public and Private Service Providers' (2015) 42 Legal Issues of Economic Integration, Issue 1, pp. 57–83
The GATS may prohibit government regulation ensuring access to and quality of essential public services. Specifically, government subsidies, favourable tax regimes for public entities, and the targeted regulation of private entities may violate national treatment obligations, despite the apparent protection of the governmental authority exception, scheduling flexibility and the general exceptions. This paper's driving question is how a Member State wishing to distinguish between public and private entities in its regulatory regime might defend itself against such charges. It is submitted that public and private providers of public services are not 'like' service providers. 'Likeness' in national treatment obligations continues to be crucial in balancing trade liberalization against regulatory autonomy. This is particularly so following EC - Seals, in which a resurgent 'aims and effects' test was rejected; 'flexible or imaginative' use of the likeness criteria is one of the only remaining safety valves for regulatory autonomy within national treatment obligations.
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