Does the application operate as a ‘disguised restriction on trade’?
Again, this test is technical – except that the purity of the non-trade motivation behind the measure (the ‘disguised’ criterion) may be looked at. Panels and the Appellate Body, however, are not keen on rejecting a Member’s claimed motivation and accuse it of hidden trade interests, absent a smoking gun. Trade protection benefits that happen to arise out of health and/or environment measures are not a problem per se – in Brazil-Tyres they were even part and parcel of the mechanism. All in all, there is very significant policy space within Article XX. Importantly, the ‘necessity’ test at issue here is supposed to be the strictest of all tests under that provision. Brazil-Tyres, however, was also about obviously rather nasty risks to human health that everyone can sympathise with. This may have helped to shape the legal conclusions. No sympathy (and no flexibility) can be expected for discriminations – an important point to remember for policymakers who are tempted to settle other accou
