Assessing the WTO Consistency of 5G Security Legislation: A Case Study of Romania’s Law No. 163/2021

Peter Van den Bossche[1]              

1.       Executive Summary

Romania’s Law No. 163/2021, the constitutionality of which is currently being challenged in the Constitutional Court of Romania, offers an instructive case study of a broader and increasingly important question: how far may a State restrict access to its 5G and communications infrastructure in the name of national security while remaining within the boundaries of international trade rules? The Law No.163/2021 is particularly suitable for such an analysis because it bans certain technologies, equipment and software by reference primarily to the identity, ownership structure and corporate background of their manufacturer. Drawing on my experience in WTO adjudication and academic work in international economic law, this paper examines whether that form of manufacturer-based prohibition is consistent with Romania’s WTO obligations.

On that basis, this paper identifies several major distinct inconsistencies of Law No. 163/2021 with applicable WTO rules. The Law No.163/2021 treats like products differently depending on whether their manufacturers obtain authorization, thereby failing to provide imported products from unauthorized manufactures with equal competitive opportunities, as compared to like products from authorized manufacturers sourced domestically or from third countries. The Law is therefore inconsistent with the most-favoured-nation and national treatment obligations under the relevant WTO covered agreements, which are fundamental non-discrimination principles in the international trade order.  

Moreover, the blanket exclusion of all relevant products supplied by an unauthorized manufacturer under the Law No.163/2021 creates an unnecessary barrier to trade in violation of the WTO rules because more targeted and less restrictive measures are reasonably available. These could include product-specific security requirements, testing, certification, auditing and continuing monitoring, as well as differentiated treatment of core networks and network components of lower criticality.

The Law No.163/2021 also fails to use relevant international technical standards as the basis for its regulatory approach, as required by the WTO TBT Agreement to which Romania is a party.  Rather than assessing the security characteristics of particular technologies or products against objective technical benchmarks, it relies predominantly on broadly formulated criteria concerning their manufacturers. In addition, Romania did not notify the proposed measure through the applicable WTO transparency procedure or give other WTO Members an opportunity to comment before its adoption, which constitutes a violation of the applicable WTO transparency obligations.

Finally, the authorization system’s undefined criteria, the absence of reasons in the resulting decisions and the lack of transparency surrounding their factual basis also create a serious risk that the measure is not administered in the uniform, impartial and reasonable manner required by WTO law.

National security is unquestionably a legitimate and important objective. It does not, however, exempt a measure from WTO scrutiny merely because it is invoked as its purpose. The general exceptions under the GATT 1994 do not cover the security justification advanced for Law No. 163/2021. As for the GATT 1994 security exceptions, note that these exceptions do not confer unlimited discretion: their invocation remains subject to objective review and good-faith requirements. Law No. 163/2021 does not concern trade in arms or military supplies and was not adopted in time of an emergency in international relations. Also, the invocation of the national security exceptions to justify the Law is inconsistent with Romania’s obligation under international law to interpret and apply these exceptions in good faith.

The paper therefore concludes that the Law’s discriminatory, unnecessarily trade-restrictive, non-transparent and potentially arbitrary features amount to violations of Romania’s obligations under the relevant WTO covered agreements and cannot be justified under either the general or the security exceptions of the GATT 1994.

2.       Introduction

In July 2026, I made some preliminary observations on the WTO consistency of the European Commission proposal on the Cybersecurity Act 2.0 (CSA 2.0), which were posted on the IELP Blog and published as WTI Working Paper 4/2026.[2] While doing research on the draft CSA 2.0, I came across Law No. 163/2021[3], the 5G Security Law of Romania, which is currently being challenged before the Constitutional Court of Romania by a Chinese company.[4] I note that under Romanian constitutional law, international agreements, once ratified, are part of the domestic legal order and national courts directly apply these agreements.[5]  Therefore, one of the issues that could be addressed by the Court is the consistency of this Law with Romania’s obligations under the WTO Agreement,[6] because Romania is a party to this 1994 Agreement and, since 1995, a founding Member of the World Trade Organization.[7] In this article, I will first examine the relevant features of Law No. 163/2021, and subsequently assess the WTO consistency of this Law.

3.       Law No. 163/2021 on the Adoption of Measures Relating to Information and Communications Infrastructures of National Interest and Conditions for the Implementation of 5G Networks

The origins of Law No. 163/2021 must be traced back to a 2019 memorandum of understanding between Romania and the United States, and a 2020 European Union (EU) policy paper.  The Memorandum of Understanding signed in Washington, D.C., on 20 August 2019 by Romanian President Klaus Iohannis and US President Donald Trump laid down criteria for evaluating 5G vendors to ensure the security of 5G networks. [8] The criteria set out in the Memorandum were: first, whether the vendor is subject, without independent judicial review, to control by a foreign government; second, whether the vendor has a transparent ownership structure; and, third, whether the vendor has a history of ethical corporate behaviour and is subject to a legal regime that enforces transparent corporate practices. In the same vein, the EU policy paper of January 2020 on Cybersecurity of 5G networks: EU Toolbox of Risk Mitigating Measures recommended that: (a) EU Member States assess their national risk profiles of 5G network suppliers in light of the likelihood of interference by non-EU governments and the degree of control over their own supply chains; and (b) restrict or exclude ‘high-risk suppliers’ from participating in critical and sensitive assets, including core network functions, network management and orchestration functions, and access network functions. [9]

Romania’s 5G Security Law, Law No. 163/2021 on the Adoption of Measures Relating to Information and Communications Infrastructures of National Interest and Conditions for the Implementation of 5G Networks, was adopted by the Romanian Parliament on 7 June 2021 and published in the Official Gazette on 11 June 2021.[10] The Law entered into force on 14 June 2021.[11] Pursuant to Article 1, the Law aims ‘to prevent, counter and eliminate risks, threats and vulnerabilities to national security and defence of the country’. To this end, the Law adopts ‘measures concerning the authorization of manufacturers of technologies, equipment and software used in information and communications infrastructures of national interest, as well as in electronic communication networks through which 5G electronic communication services are provided, 5G networks’. The risks, threats and vulnerabilities referred to in Article 1 are defined in Article 2. Generally speaking, these risks, threats and vulnerabilities concern any action, fact, plan, event, situation, condition or deficiencies, which may impair Romania’s national security and defence.[12] The latter are understood to include national character, sovereignty, independence, unity and territorial integrity, functioning of state institutions, organization and communities of people, as well as life and bodily integrity of citizens.[13] The key feature of Law No. 163/2021 is that it allows only technologies, equipment and software of ‘authorized manufacturers’ to be used within: (i) information and communications infrastructures of national interest (hereinafter ‘communications infrastructures’); and (ii) 5G networks.[14] Manufacturers may be authorized by the Prime Minister of Romania when the Romanian Supreme Council for National Defence (‘CSAT’) gives its assent to such authorization.[15] However, if the CSAT identifies any risk, threat or vulnerability to Romania’s national security or defence, it will issue an adverse opinion and the application for authorization will be rejected by the Prime Minister.[16] In assessing whether there exists a risk, threat or vulnerability to Romania’s national security or defence, the Law sets out four criteria, namely: (1) whether the manufacturer is under the control of a foreign government, in the absence of an independent legal system; (2) whether the manufacturer has a transparent shareholding structure; (3) whether the manufacturer has a record of unethical corporate conduct; and (4) whether the manufacturer is subject to a legal system not requiring transparent corporate practices.[17] Note that the decision of the Prime Minister to grant or reject authorization, which is published in the Official Gazette, does not set out any reasons for the decision.[18] The opinion of the CSAT, on which the decision of the Prime Minister is based, is not made public and is not even shared with the manufacturer applying for authorization.[19] In addition to banning the use of technology, equipment or software of unauthorized manufacturers in the relevant infrastructures and networks, the Law requires that technology, equipment or software of these manufacturers which are already used in communications infrastructures and 5G networks are only to be used for 7 years (or in the case of core networks, 5 years).[20] Moreover, unauthorized manufacturers are excluded from any public procurement procedure for the supply of technologies, equipment or software for information and communications infrastructures of national interest.[21] Providers of electronic communications networks and services in Romania, which use (or, if they already use, continue to use longer than allowed) technologies, equipment or software of an unauthorized manufacturer, may be fined up to 1%-5% of their annual turnover.[22] While the Law does not explicitly single out the manufacturers of any particular country as ‘unauthorized’, Romania’s Minister stated in an interview with Free Europe at the time of the adoption of the Law that it is ‘very clear’ that technologies, equipment or software of Chinese manufacturers, and in particular of Huawei, are excluded from use in 5G networks in Romania.[23]

4.       WTO Consistency of Law No. 163/2021

According to public information, the consistency of Law No. 163/2021 with Romania’s Constitution, and in particular Article 11 thereof,[24] has been challenged before the Constitutional Court of Romania.[25] Relevant to this challenge could be claims that Law No. 163/2021 is in breach of Romania’s obligations under the WTO Agreement. The WTO Agreement is a short, 16-article agreement, with in the annex no less than 18 multilateral trade agreements, which are an integral part of the WTO Agreement and contain the specific substantive obligations imposed on all WTO Members, including Romania. Pursuant to Article XVI:4 of the WTO Agreement, a WTO Member must ‘ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the Annexed Agreements’.

In examining the WTO consistency of Law No. 163/2021, the most relevant obligations under WTO law are those contained in the GATT 1994 and the more specific TBT Agreement. Of particular interest are Articles I:1 and III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement, which prohibit discrimination; Article 2.2 of the TBT Agreement, which prohibits the creation of unnecessary barriers to trade; Article 2.4 of the TBT Agreement, which imposes an obligation to use international standards as a basis for technical regulations; Article X:3 of the GATT 1994, which requires the uniform, impartial and reasonable administration of trade measures; and Article 2.9 of the TBT Agreement, which imposes specific transparency obligations regarding technical regulations. As regards the inconsistency with any of the aforementioned GATT provisions, the question that could also be addressed is whether such inconsistency can be justified under Articles XX (General Exceptions) or XXI (National Security Exceptions) of the GATT 1994. Note that all the provisions of the GATT 1994 and the TBT Agreement referred to above have been the subject of interpretation and clarification by WTO dispute settlement panels, i.e., first instance, ad hoc arbitral tribunals, and by the WTO Appellate Body, i.e., the standing court of appeals of the WTO. Their interpretation and clarifications of WTO provisions should be given great weight.

As the panel in EC – Asbestos (2001) held that when a complainant challenges the WTO consistency of a measure under both the TBT Agreement, i.e., the WTO agreement specifically dealing with technical regulations, and the GATT 1994, i.e., the general agreement dealing with measures affecting trade in goods, an adjudicator must first examine whether the measure at issue is consistent with the TBT Agreement, since this agreement deals ‘specifically, and in detail’ with technical regulation.[26] However, should the adjudicator find a measure to be consistent with the TBT Agreement, it must still examine whether the measure is also consistent with the GATT 1994. There is no presumption of GATT-consistency when a technical regulation is found to be consistent with the TBT Agreement. In US – Tuna II (Mexico) (2012), the Appellate Body reversed the panel’s decision to exercise judicial economy regarding the complainant’s claim of inconsistency with Article III:4 of the GATT 1994 after it had found that the measure at issue was not inconsistent with Article 2.1 of the TBT Agreement.[27] Below, I therefore first address the consistency of Law No. 163/2021 with the TBT Agreement, before examining its consistency with the GATT 1994.

4.1.              Is Law No. 163/2021 in violation of the non-discrimination obligations under Article 2.1 of the TBT Agreement?

Article 2.1 of the TBT Agreement provides that:

Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

Pursuant to Article 2.1, technical regulations are thus subject to a national treatment obligation and a most-favoured-nation (MFN) treatment obligation. The Appellate Body first interpreted the national treatment obligation of Article 2.1 in US – Clove Cigarettes (2012) and further clarified this obligation in US – Tuna II (Mexico) (2012) and US – COOL (2012). In US – Tuna II (Mexico) (2012), the Appellate Body also addressed the MFN treatment obligation of Article 2.1. [28]

In US – Clove Cigarettes (2012), the Appellate Body ruled that Article 2.1 of the TBT Agreement sets out a three-tier test of consistency with the national treatment obligation. This test requires the examination of: (1) whether the measure at issue is a ‘technical regulation’ within the meaning of Annex 1.1; (2) whether the imported and domestic products at issue are ‘like products’; and (3) whether the imported products are accorded ‘treatment no less favourable’ than like domestic products.[29] As the Appellate Body found in US – Tuna II (Mexico) (2012), Article 2.1 sets out a largely similar test of consistency with the MFN treatment obligation. Under the third element of the test, however, instead of examining whether the imported products are accorded ‘treatment no less favourable’ than like domestic products, the adjudicator must examine whether products imported from one WTO Member are accorded ‘treatment no less favourable’ than like products originating in any other country.[30] Below, each element of the three-tier test of consistency with the national treatment and the MFN treatment obligations under Article 2.1 will be discussed in turn.

4.1.1.     Is Law No. 163/2021 a ‘technical regulation’?

In examining the consistency of Law No. 163/2021 with Article 2.1, the first question to be addressed is whether the Law is a ‘technical regulation’ within the meaning of Annex 1.1 of the TBT Agreement.

Annex 1.1 of the TBT Agreement defines a ‘technical regulation’ as a:

Document which lays down product characteristics or their related processes and production methods, including applicable administrative provisions, with which compliance is mandatory. This may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

In EC – Sardines, the Appellate Body set out three criteria that a document must meet to constitute a ‘technical regulation’: (1) the document must apply to an identifiable product or group of products; (2) the document must lay down one or more characteristics of the product or their related processes and production methods (PPMs); and (3) compliance with the product characteristics (or PPMs) must be mandatory.[31] 

There is no doubt that Law No. 163/2021 is a ‘document’ that applies to ‘an identifiable product or group of products’. The identifiable group of products to which Law No. 163/2021 applies is technologies, equipment and software used in information and communications infrastructures of national interest and 5G networks.

Law No. 163/2021 also lays down one or more characteristics of the products to which the Law applies. It is clear from Annex 1.1, quoted above, that the concept of ‘characteristics’ of a product is a broad concept, which refers to more than the physical characteristics (i.e., form, weight, size, colour, composition, …) of the product, but also includes, inter alia, terminology, symbols, packaging, marking or labelling requirements. The Appellate Body defined the term ‘characteristics’ in EC – Asbestos (2001) as ‘any objectively definable “features”, “qualities”, “attributes”, or other “distinguishing mark” of a product’. [32] Such ‘characteristics’ include not only features and qualities that are intrinsic to the product itself, but also related characteristics.[33] According to the Oxford English Dictionary, a ‘characteristic’ is ‘a typical feature, quality, or distinguishing attribute that someone or something has’. The identity of the manufacturer of a product may be such a distinguishing attribute. For example, the fact that a handbag is manufactured by Louis Vuitton definitely distinguishes this product from handbags produced by Fila.[34] I do not argue that the identity of the manufacturer of a product is always a distinguishing attribute, i.e., a ‘product characteristic’. Whether it is, depends on the extent to which the manufacturer’s identity is relevant to the product and its other characteristics. I note that in EC – Seal Products (2014), the Appellate Body rejected the proposition that the identity of the hunter could be viewed as a product characteristic.[35] However, this finding is inapposite here. The identity of the hunter of the seals in that case was clearly less relevant to the seal products concerned than the identity of the manufacturer of the technologies, equipment and software concerned in the present case. Law No. 163/2021 explicitly distinguishes between the products concerned on the basis of the manufacturer of these products. The identity of the manufacturer is a distinguishing attribute of these products and therefore a ‘product characteristic’ within the meaning of Annex 1.1. Excluding the identity of the manufacturer from the concept of ‘product characteristic’ would open the door to easy and frequent circumvention of the obligations under the TBT Agreement.

In EC – Asbestos (2001), the Appellate Body further noted that product characteristics may be prescribed or imposed in either a positive or a negative form. For example, the regulation may provide, positively, that products must possess certain characteristics, or the regulation may require, negatively, that products must not possess ‘certain characteristics’.[36] Law No. 163/2021 provides that the products concerned may not possess a certain characteristic, namely, they may not be produced by an unauthorized manufacturer.

As noted above, a technical regulation also includes documents laying down the processes and production methods (‘PPMs’) of the products concerned, i.e., the product-related processes and production methods. Law No. 163/2021 distinguishes between authorized and unauthorized manufacturers based on factors such as the ownership of, government control over, and corporate conduct of the manufacturers. It could be argued that each of these factors is a product-related PPM, as they determine, or at least affect, the manner in which, or the conditions under which, the products concerned are manufactured. In EC – Seal Products (2014), the Appellate Body stated that the concept of ‘related PPMs’ ‘is yet to be clarified in WTO law’, but it did indicate that there would need to be ‘a sufficient nexus to the characteristics of a product in order to be considered related to those characteristics’.[37] In the present case, the factors referred to above, i.e., ownership, government control and corporate conduct of the manufacturers, constitute ‘a sufficient nexus’ with the technologies, equipment and software concerned and are thus product-related PPMs.

Law No. 163/2021 also meets the third criterion that a document must meet to constitute a ‘technical regulation’, namely that compliance with it is ‘mandatory’. As the Appellate Body stated in EC – Asbestos (2001), ‘mandatory’ indicates that a technical regulation regulates the subject matter ‘in a binding or compulsory fashion’.[38] The Law requires the use in the communications infrastructures and 5G networks in Romania of technologies, equipment and software of authorized manufacturers, and prohibits, or requires phasing out, the use of technologies, equipment and software of unauthorized manufacturers. The requirements on the use of these technologies, equipment and software are mandatory for the providers and operators of the communications infrastructures and 5G networks concerned. The mandatory compliance with these requirements is enforced through hefty fines.

As it meets the criteria for a ‘technical regulation’ laid down by the Appellate Body in EC – Sardines (2002), it follows that Law No. 163/2021 constitutes a technical regulation within the meaning of the TBT Agreement, although it does not set out typical technical specifications related to communications infrastructures and networks. Note that similar measures, i.e., measures aiming to exclude telecommunications products of ‘high-risk vendors’ from domestic markets, have been notified by WTO Members to other Members and the WTO Secretariat as technical regulations under Article 2.9.2 of the TBT Agreement. For example, on 28 September 2022, Belgium submitted a TBT notification (G/TBT/N/BEL/47) concerning a draft royal decree seeking to implement an authorization system on electronic communications and to establish restrictions on the use of active 5G network elements manufactured by high-risk manufacturers. [39]

4.1.2.     Are the products concerned ‘like products’?

The second element of the three-tier test of consistency with Article 2.1 of the TBT relates to the question of whether the imported and domestic products concerned (for the national treatment obligation) or the imported products originating in different countries (for the MFN treatment obligation) are ‘like products’. The non-discrimination obligations of Article 2.1 only apply to ‘like products’.

In US – Clove Cigarettes (2012), the Appellate Body considered that the determination of ‘likeness’ under Article 2.1 of the TBT Agreement is, as under the non-discrimination obligations of the GATT 1994:

[A] determination about the nature and extent of a competitive relationship between and among the products at issue. [40]

It is well established in WTO case law on the determination of ‘likeness’ (both in the context of the GATT 1994 and the TBT Agreement) that in assessing the nature and the extent of the competitive relationship, an adjudicator must examine on a case-by-case basis all relevant factors, including: (1) the products’ properties, nature, and quality (i.e., their physical characteristics); (2) the products’ end uses (i.e., the extent to which products are capable of performing the same, or similar, functions); (3) consumers’ tastes and habits, also referred to as consumers’ perceptions and behaviour, in respect of the products (i.e., the extent to which consumers are willing to use the products to perform these functions or the extent to which consumers perceive products to be substitutable); and (4) the products’ tariff classification.[41]

Determining whether products are ‘like’ is often a complicated and controversial exercise. Note, however, that in the case law on ‘likeness’ under the non-discrimination obligations under the GATT 1994, it was determined that one may ‘presume’ that the products concerned are ‘like’ when the measure at issue distinguishes between products solely on the basis of their origin.[42] To date, this origin-based presumption of ‘likeness’ has not been made yet in cases relating to Article 2.1 of the TBT Agreement, but there is no reason why such presumption cannot be made regarding a technical regulation which distinguishes between products based on their origin.

As discussed above, the products concerned in Law No. 163/2021 are technologies, equipment and software used in communications infrastructures and 5G networks. The questions which arise are thus:

·       regarding the MFN treatment obligation under Article 2.1 of the TBT Agreement, whether the technologies, equipment and software imported from some WTO Members are ‘like’ the technologies, equipment and software from other WTO Members

·       regarding  the national treatment obligation under Article 2.1 of the TBT Agreement, whether the technologies, equipment and software imported from other WTO Members are ‘like’ the domestic, i.e., Romanian technologies, equipment and software.

Law No. 163/2021 distinguishes between products from authorized and products from unauthorized manufacturers. Pursuant to the Law, authorization is granted to manufacturers mainly based on whether they are controlled by a foreign government and the legal system of the country in which they operate in, as well as their ownership structure and corporate behaviour. Hence, the predominant, if perhaps not the sole, criterion for distinguishing between the products concerned is, directly or indirectly, their origin. Their likeness may thus be presumed. However, if one would consider that the products concerned cannot be ‘presumed’ to be ‘like’, the application of the four-factor ‘likeness’ test, discussed above, swiftly leads to the conclusion that the products are ‘like’. There is no difference at all in the physical characteristics, end uses and tariff classification of the products concerned from authorized manufacturers and those from unauthorized manufacturers. As to the consumers’ tastes, preferences and perceptions, note that the consumers of the products concerned are not private citizens, but providers of electronic communications services. While the tastes, preferences and perceptions of private citizens may be influenced, if not determined, by their positive or negative political perception of the country of origin of the products, the tastes, preferences and perceptions of providers of electronic communications services are typically determined by the performance and quality of the products concerned. Their perception of the products concerned would therefore not differ, at least not on the basis of whether the products are products of authorized or unauthorized manufacturers. On the basis of the above-mentioned factors, it is clear that the products concerned are in a strong competitive relationship and therefore ‘like products’ within the meaning of Article 2.1 of the TBT Agreement.

4.1.3.     Does Law No. 163/2021 accord ‘treatment no less favourable’?

The third element of the three-tier test of consistency with Article 2.1 of the TBT relates to the question of whether Law No. 163/2021 accords ‘treatment no less favourable':

·       to the products concerned imported from some WTO Members than to products from other Members, in which case Law No. 163/2021 would be inconsistent with the MFN treatment obligation; and/or

·       to the products concerned imported from WTO Members than to Romanian products, in which case Law No. 163/2021 would be inconsistent with the national treatment obligation.

In US – Clove Cigarettes (2012), the Appellate Body ruled that, in line with the well-established case law on the concept of ‘treatment no less favourable’ of Article III:4 of the GATT 1994, that:

[A] panel examining a claim of violation under Article 2.1 should seek to ascertain whether the technical regulation at issue modifies the conditions of competition in the market of the regulating Member to the detriment of the group of imported products vis-à-vis the group of like domestic products.[43]

However, while a detrimental impact on the competitive conditions in the relevant market may be sufficient to establish a violation of the national treatment obligation under Article III:4 of the GATT 1994, in US – Clove Cigarettes (2012), the Appellate Body considered that the existence of such detrimental impact is, in case of de facto discrimination, not sufficient to establish a violation of Article 2.1 of the TBT Agreement. The Appellate Body ruled that:

where the technical regulation at issue does not de jure discriminate against imports, the existence of a detrimental impact on competitive opportunities for the group of imported vis-à-vis the group of domestic like products is not dispositive of less favourable treatment under Article 2.1.[44]

According to the Appellate Body, a panel must in such cases of de facto discrimination:

further analyze whether the detrimental impact on imports stems exclusively from a legitimate regulatory distinction rather than reflecting discrimination against the group of imported products.[45]

To determine whether the detrimental impact stems exclusively from a legitimate regulatory distinction rather than reflecting discrimination, a panel must, according to the Appellate Body in US – Clove Cigarettes (2012):

[C]arefully scrutinize the particular circumstances of the case, that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue, and, in particular, whether that technical regulation is even-handed, in order to determine whether it discriminates against the group of imported products.[46]

The Appellate Body reached this understanding on the basis of the context of Article 2.1 and the object and purpose of the TBT Agreement. The Appellate Body emphasised, in particular, that, while the TBT Agreement does not contain a ‘general exceptions’ clause similar to Article XX of the GATT 1994,[47] the WTO Members recognise in the sixth recital of the Preamble to the TBT Agreement that ‘no country should be prevented from taking measures necessary’ to pursue policy objectives such as the protection of public health, the protection of the environment and the protection of the consumer. As the sixth recital of the Preamble states, countries should not be prevented from taking such measures ‘subject to the requirement that [these measures] are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade and are otherwise in accordance with the provisions of this Agreement’. Thus, the Appellate Body interpreted the ‘treatment no less favourable’ requirement of Article 2.1 as:

[P]rohibiting both de jure and de facto discrimination against imported products, while at the same time permitting detrimental impact on competitive opportunities for imports that stems exclusively from legitimate regulatory distinctions.[48]

The Appellate Body further refined and elaborated in later case law this ‘legitimate regulatory distinction’ test to determine whether a technical regulation accords ‘treatment no less favourable’.[49] In this regard, note that the Appellate Body in US – Tuna II (Mexico) (2012) introduced the ‘calibration’ analysis to assess whether the detrimental impact of a technical regulation stems exclusively from a legitimate regulatory distinction.[50]  This analysis examines whether there is a rational relationship between the regulatory distinction(s) and the objective of the measure to see if such distinction(s) is (are) ‘calibrated’ to the objective.

As discussed above, Law No. 163/2021 excludes the use in communications infrastructures and 5G networks in Romania of products of unauthorized manufacturers. The Law thus, quite obviously, modifies the conditions of competition of imported products of unauthorized manufacturers from certain WTO Members vis-à-vis products of authorized domestic manufacturers and authorized foreign manufacturers from other WTO Members. Law No. 163/2021 has a detrimental impact on the conditions of competition of some imported products. However, as Law No. 163/2021 does not explicitly identify the WTO Members of which the products may not be used in communications infrastructures and 5G networks and therefore does not constitute de jure discrimination, the Law can only be found to accord ‘treatment no less favourable’ when the detrimental impact on the conditions of competition of the products of unauthorized manufacturers exclusively stems from a legitimate regulatory distinction.

In assessing whether or not Law No. 163/2021 meets the ‘legitimate regulatory distinction’ test, an adjudicator should, in accordance with the case law discussed above, examine whether the Law is designed and implemented in a manner that constitutes arbitrary or unjustifiable discrimination and fails either the even-handedness requirement or the ‘calibration’ test. In this regard, note that the criteria for granting authorization are vague, subjective, and political, rather than technical, in nature. However, most importantly, the authorization is granted or denied without conducting any evidence-based and product-specific risk assessment and therefore is not ‘calibrated’ to the stated objective of protecting national security and defence.

This leads me to the conclusion that Law No. 163/2021 does not accord ‘treatment no less favourable’ and is inconsistent with both the MFN treatment obligation and the national treatment obligation of Article 2.1 of the TBT Agreement.

4.2.              Is Law No. 163/2021 an unnecessary obstacle to international trade in violation of Article 2.2 of the TBT Agreement?

Article 2.2, first sentence of the TBT Agreement, provides that:

Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade.

This sentence is followed by a sentence which qualifies the terms of the first sentence and elaborates on the scope and the meaning of the obligation contained therein. The second sentence of Article 2.2 states:

For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.

The third sentence of Article 2.2 lists several of the ‘legitimate objectives’ to which the second sentence refers: national security; the prevention of deceptive practices; the protection of human health and safety, animal or plant life or health; and the protection of the environment. Note, however, that this list is not exhaustive as it is introduced by the word ‘inter alia’. The last sentence of Article 2.2 refers back to the final clause of the second sentence, namely, ‘taking account of the risks non-fulfilment would create’ and states that in assessing such risks, it is relevant to consider, inter alia: available scientific information; related processing technology; or intended end uses of products.

Article 2.2 sets out a four-tier test of consistency. This test requires the examination of: (1) whether the measure at issue is a ‘technical regulation’ within the meaning of Annex 1.1; (2) whether the measure at issue is ‘trade-restrictive’; (3) whether the measure at issue fulfils a legitimate objective; and (4) whether the measure at issue is ‘not more trade-restrictive than necessary’ to fulfil that legitimate objective. The first element of this four-tier test has already been addressed above. Law No. 163/2021 is a technical regulation within the meaning of Annex 1.1. The second, third and fourth elements of the test will be discussed in turn below.

4.2.1.     Is Law No. 163/2021 ‘trade restrictive’?

The second element of the test of consistency with Article 2.2 relates to the question of whether the measure at issue is ‘trade-restrictive’. In US – Tuna II (Mexico) (2012), the Appellate Body defined ‘trade-restrictive’ to mean ‘having a limiting effect on trade’.[51] The Appellate Body elaborated on the notion of trade restrictiveness in Australia – Plain Packaging (2020) as follows:

Where a measure modifies the conditions of competition in the market, a panel must be satisfied that such modification will have a limiting effect on trade in order to conclude that the measure is trade-restrictive.[52]

Law No. 163/2021 clearly has a limiting effect on trade and is therefore ‘trade-restrictive’ within the meaning of Article 2.2. The Law prohibits technologies, equipment and software from unauthorized manufacturers from being  used in communications infrastructures and 5G networks in Romania. As a result, imports of such products are less than they would have been in the absence of Law No. 163/2021.

4.2.2.     Does Law No. 163/2021 fulfil a legitimate objective?

The third element of the test of consistency with Article 2.2 relates to the question of whether the measure at issue fulfils a legitimate objective. As noted above, the third sentence of Article 2.2 lists specific examples of legitimate objectives, including ‘national security’. With regard to the term ‘fulfil’, the Appellate Body considered in US – Tuna II (Mexico) (2012) that, in the context of Article 2.2, ‘fulfil’ an objective does not mean the complete achievement of something, but is to be understood as referring to ‘the degree of contribution that the technical regulation makes toward the achievement of the legitimate objective’.[53] In US – Tuna II (Mexico) (2012), the Appellate Body also stated that in the context of Article 2.2, an adjudicator must ‘assess the contribution to the legitimate objective actually achieved by the measure at issue, not the contribution that is intended to be achieved’.[54]

Article 1 of Law No. 163/2021 states that the Law aims ‘to prevent, counter and eliminate risks, threats and vulnerabilities to national security and defence of the country’. While an adjudicator is not bound by a country’s characterisation of the objective(s) it pursues through the measure at issue and must make an independent and objective assessment of the objective(s) pursued, it may take a country’s characterization of the objective(s) as a starting point.[55] As for Law No. 163/2021, it is clear that the objective pursued by the Law is ‘national security’ and that ‘national security’ is a legitimate objective within the meaning of Article 2.2. However, does Law No. 163/2021 ‘fulfil’, i.e., make a contribution to the achievement of, that legitimate objective? As noted above, what is important is the contribution ‘actually achieved’, not the contribution intended to be achieved. To assess the actual contribution of Law No. 163/2021 to the achievement of ‘national security’, an adjudicator must, as the Panel in Australia – Tobacco Plain Packaging (2020) did, review a plethora of evidence, including scientific studies, expert accounts and empirical evidence. It is important to note that it is for the complainant to show that Law No. 163/2021 does not contribute to the achievement of ‘national security’. While it might be challenging for a complainant to show that the Law does not make any contribution to the stated objective, I note, as will be addressed below, that the complainant may be successful in raising doubts as to the degree of contribution Law No. 163/2021 makes to the achievement of ‘national security’.

4.2.3.     Is Law No. 163/2021 more trade restrictive than necessary to protect national security?

The fourth and last element of the test of consistency with Article 2.2 relates to the question of whether the measure at issue is ‘more trade-restrictive than necessary’ to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. In US – Tuna II (Mexico) (2012), the Appellate Body found that in the assessment of whether a technical regulation is ‘more trade-restrictive than necessary’ within the meaning of Article 2.2 of the TBT Agreement an adjudicator should start by considering three factors, namely: (1) the degree of contribution made by the measure to the legitimate objective at issue; (2) the trade-restrictiveness of the measure; and (3) the nature of the risks at issue and the gravity of consequences that would arise from non-fulfilment of the objective(s) pursued by the Member through the measure.[56] The Appellate Body has referred to the consideration of these factors as the ‘relational analysis’. According to the Appellate Body, this relational analysis will, however, in most cases not allow to determine whether the trade-restrictiveness of the measure at issue is more than necessary. In most cases, a comparison of the challenged measure and possible alternative measures should be undertaken.[57] If there is an alternative measure that is: (1) less trade-restrictive; (2) makes an equivalent contribution to the relevant legitimate objective, taking account of the risks non-fulfilment would create; and (3) that is reasonably available, the trade restrictiveness of the measure at issue is more than necessary.[58] The Appellate Body referred to the comparison of the measure at issue and possible alternative measures as the ‘comparative analysis’. Note that with regard to the requirement that a proposed alternative measure is ‘reasonably available’, the Appellate Body stated, in US – COOL (Article 21.5 – Canada and Mexico) (2015), that, since the alternative measures is of a hypothetical nature (because it does not yet exist in the Member in question), a complainant cannot be expected to provide ‘complete and exhaustive’ description of the alternative measure it proposes.[59] The Appellate Body stated:

It would appear incongruous to expect a complainant, under Article 2.2 of the TBT Agreement, to provide detailed information on how a proposed alternative would be implemented by the respondent in practice, and precise and comprehensive estimates of the cost that such implementation would entail.[60]

Starting with the relational analysis of the necessity of the trade restrictiveness of Law No. 163/2021, it must be noted, regarding the first factor to be considered in this analysis, that the degree of contribution to the achievement of national security is rather low, if not zero. The Law prohibits the use in communications infrastructures and 5G networks of technologies, equipment and software from unauthorized manufacturers, i.e., manufacturers which: are under the control of a foreign government; do not have a transparent shareholding structure; have a record of unethical corporate conduct; and/or are subject to a legal system not requiring transparent corporate practices. However, in the absence of evidence that the technologies, equipment or software of these unauthorized manufacturers constitute a national security risk, it is difficult to sustain that Law No. 163/2021 makes a significant contribution to the achievement of national security. In this respect, focus placed on the identity and shareholding of a product manufacturer rather than the product itself bears little relevance to the security risks that the specific product may pose. Therefore, the contribution of Law No. 163/2021 is, if any, small and uncertain.

As to the trade restrictiveness of Law No. 163/2021, the second factor to be considered in the relational analysis, namely trade-restrictiveness of the measure, I note that there will be no trade in technologies, equipment and software of unauthorized manufacturers used in communications infrastructures or 5G networks. As Law No. 163/2021 bans these products, the Law is highly trade restrictive.

As to the nature of the risks at issue and the gravity of consequences that would arise from non-fulfilment of the objective of Law No. 163/2021, i.e., the third factor to be considered in the relational analysis, the possible risks to national security related to communications infrastructures and 5G networks are, in theory, significant and consequences arising from the non-fulfilment of the objective of national security are grave. However, in light of the first and second factors considered above, it is not possible to decide on the basis of the relational analysis whether Law No. 163/2021 is more trade restrictive than necessary.

Hence, I proceed to the comparative analysis. Is there a less trade-restrictive measure that is reasonably available and that makes an equivalent contribution to national security? I argue that there is. Rather than imposing a blanket ban on all technologies, equipment and software of unauthorized manufacturers to be used in communications infrastructures and networks, Romania could clearly distinguish between core networks and other networks of less criticality (for example, radio access network (RAN) and internetwork exchanges).[61] Moreover, Romania could demand that these technologies, equipment and software meet product-specific technical requirements which address possible national security risks that may arise with respect to these products. Together with imposing these technical requirements, it could introduce product-specific testing, auditing and monitoring to ensure compliance. For technologies, equipment and software used in 5G networks, for example, Romania can, in defining the relevant technical requirements, be inspired by the work of the International Telecommunication Union (ITU), which sets inter alia performance and design requirements for 5G networks. I discuss the relevant work of the ITU in more detail below in the context of Article 2.4 of the TBT Agreement. In defining alternative technical requirements to address possible national security risks, Romania could also fall back on EU research under the 5G Public Private Partnership (5G-PPP).[62] Under the 5G-PPP, a dedicated working group on security was set up. An alternative measure setting out product-specific technical requirements addressing national security risks is less trade restrictive (as it is not a blanket ban on all relevant products of unauthorized manufacturers, but is more selective), is reasonably available (as the implementation of this alternative measure would not give rise to excessive costs or major technical difficulties), and makes at least an equivalent contribution to national security. In fact, while Law No. 163/2021 may arguably make no or a small contribution to national security, this alternative measure would specifically focus on products posing actual national security risks and thus make a much more substantial contribution to national security.

This leads me to the conclusion that Law No. 163/2021 is more trade-restrictive than necessary to achieve Romania’s policy objective of national security and is therefore inconsistent with Article 2.2 of the TBT Agreement.

4.3.              Is Law No. 163/2021 in violation of the obligation to base technical regulations on international standards under Article 2.4 of the TBT Agreement?

Article 2.4, first sentence of the TBT Agreement provides:

Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations.

However, Article 2.4, second sentence of the TBT Agreement further states that Members do not have to use international standards as a basis when:

such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.

There are three main questions, which must be answered to determine whether or not a technical regulation is consistent with Article 2.4, namely: (1) whether there exists a relevant international standard; (2) whether the relevant international standard is ‘used as a basis’ for the technical regulation at issue; and (3) whether the relevant international standard is an effective and appropriate means for the fulfilment of the legitimate objectives pursued. Below, each element of this three-tier test of consistency is discussed in turn.

4.3.1.     Does a relevant international standard exist?

The first element of the test of consistency with Article 2.4 relates to the question of whether a ‘relevant international standard’ exists or its completion is imminent. A standard is an ‘international standard’ within the meaning of Article 2.4 if it is approved by an international standardising body[63], and an ‘international standardizing body’ is a body which has ‘recognized activities in standardization’[64] and of which the membership is ‘open to relevant bodies of at least all WTO Members’.[65] An international standard is ‘relevant’ when it concerns the same product as the technical regulation and addresses the same issue(s).[66]

The International Telecommunication Union (ITU), a recognized international standardizing body, approved on 2 September 2022, IMT-2020, the international standard for 5G networks. IMT-2020 explicitly addresses cybersecurity through dedicated international standards and security frameworks. The ITU established detailed recommendations – such as Recommendation ITU-T X.1814 – to define security requirements, threat identification, and guidelines for IMT-2020 (5G) communication systems.[67] Just as Law No. 163/2021, IMT-2020 concerns 5G networks and addresses the issue of cybersecurity. It is therefore a ‘relevant international standard’ within the meaning of Article 2.4. According to public record, before Law No. 163/2021 was adopted on 7 June 2021, the 5G security guidelines had been negotiated since 2019 and had gone through a number of draft versions. These circumstances demonstrate that completion of the standard was ‘imminent’.[68] Note that Romania has an active presence in the ITU,[69] and is therefore familiar with the ITU standardization work. Therefore, IMT-2020 is the ‘relevant international standard’ for Law No. 163/2021, the existence of which was imminent at the time of adoption of the Law.

4.3.2.     Is IMT-2020 used as a basis for Law No. 163/2021?

The second element of the test of consistency with Article 2.4 relates to the question of whether the relevant international standard is ‘used as a basis’ for the technical regulation at issue. The panel in EC – Sardines (2002) stated that the requirement to use, as a ‘basis’ imposes the obligation to ‘employ or apply’ the international standard as ‘the principal constituent or fundamental principle for the purpose of enacting the technical regulation’.[70]

IMT-2020 has clearly not been used as a basis for Law No. 163/2021. The Law takes a very different approach to regulating the use of technologies, equipment and software in 5G networks and, in particular, to addressing security issues such products may raise.

4.3.3.     Is IMT-2020 an effective and appropriate means for the fulfilment of the legitimate objective pursued by Law No. 163/2021?

The third, and last, element of the test of consistency with Article 2.4 relates to the question of whether the relevant international standard is an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued by the technical regulation at issue. The Appellate Body in EC – Sardines (2002) stated that an international standard is ‘effective’ if it has the capacity to accomplish the objective(s) pursued, and it is ‘appropriate’ if it is suitable for the fulfilment thereof.[71]

As discussed above, the policy objective pursued by Law No. 163/2021 is national security. This is obviously a legitimate objective and an objective which all countries pursue.  IMT-2020, the international standard for 5G networks, addresses security issues. As noted above, Recommendation ITU-T X.1814 defines security requirements, threat identification, and guidelines for IMT-2020 (5G) communication systems. IMT-2020 is effective since it has the capacity to address adequately national security issues, and it is appropriate since it is suitable for the fulfilment of national security. The fact that IMT-2020 is of a recent date and thus reflects all recent developments regarding cybersecurity strongly supports the conclusion that IMT-2020 is both effective and suitable for the fulfilment of national security.

On the basis of the above, I conclude that Law No. 163/2021 is in violation of Article 2.4 of the TBT Agreement.

4.4.              Is Law No. 163/2021 in violation of the transparency obligations under Article 2.9 of the TBT Agreement?

Article 2.9 of the TBT Agreement imposes on WTO Members detailed transparency and notification requirements. These requirements apply to proposed technical regulations whenever a relevant international standard does not exist, or the proposed regulation is not in accordance with the relevant international standard, and the proposed regulation may have a significant impact on the trade of other Members.  Under Article 2.9.2, Members are required to notify other Members, through the WTO Secretariat, of the proposed technical regulation.[72] Such notification must be done at an early appropriate stage of the process, when comments made by other Members can still be taken into account and amendments to the proposed technical regulation made.[73] In the same vein, Article 2.9.4 requires Members to allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

As discussed above, Law No. 163/2021 is not in accordance with the relevant international standard and has a significant impact on trade of other Members. The transparency obligations under Article 2.9 therefore apply to Law No. 163/2021. Romania was under an obligation to notify the draft of Law No. 163/2021 to other Members at an early stage of the legislative process that led to the adoption of the Law. It failed to do so in violation of its obligation under Article 2.9.2.[74] Moreover, in violation of its obligation under Article 2.9.4, it also failed to allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

4.5.              Is Law No. 163/2021 in violation of the most-favoured treatment obligation under Article I:1 of the GATT 1994?

Article I:1 states in relevant part:

With respect to … all matters referred to in paragraph […] 4 of Article III, any advantage, favour, privilege or immunity granted by any [Member] to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other [Members].

 As stated by the Appellate Body in EC – Seals Products (2014), there are four questions which must be answered to determine whether or not a measure affecting trade in goods is consistent with the MFN treatment obligation of Article I:1, namely: (1) whether the measure at issue is a measure covered by Article I:1; (2) whether that measure grants an ‘advantage’; (3) whether the products concerned are ‘like products’; and (4) whether the advantage at issue is accorded ‘immediately and unconditionally’ to all like products concerned, irrespective of their origin or destination.[75] Below, I will discuss each element of this four-tier test of consistency in turn.

4.5.1.     Is Law No. 163/2021 a measure covered by Article I:1?

The first element of the test of consistency with the MFN treatment obligation of Article I:1 relates to the question of whether the measure is a measure covered by this provision. Article I:1 covers a very broad range of measures, including measures regarding all matters referred to in Article III:4 of the GATT 1994. The latter measures are ‘laws, regulations and requirements affecting [the] internal sale, … and use’ of products.

Law No. 163/2021 is unmistakably a law affecting the sale and use of products and, in particular, technologies, equipment and software. The Law is thus a measure covered by Article I:1.

4.5.2.     Does Law No. 163/2021 grant an advantage?

The second element of the test of consistency with the MFN treatment obligation of Article I:1 relates to the question of whether the measure at issue grants an ‘advantage’. The text of Article I:1 of the GATT 1994 refers to ‘any advantage, favour, privilege or immunity granted by any [Member]’. In light of the use of the word ‘any’, it is not surprising that the term ‘advantage’ has been given a broad meaning in the case law. The panel in EC – Bananas III (1997) considered that a measure granting an ‘advantage’ within the meaning of Article I:1 is a measure that creates ‘more favourable competitive opportunities’ or affects the commercial relationship between products of different origins.[76] In Canada – Autos (2000), the Appellate Body further clarified the meaning of the term ‘advantage’, and thus the scope of the MFN treatment obligation, by ruling:

The words of Article I:1 refer not to some advantages granted ‘with respect to’ the subjects that fall within the defined scope of the Article, but to ‘any advantage’; not to some products, but to ‘any product’; and not to like products from some other Members, but to like products originating in or destined for ‘all other’ Members.[77]

As discussed above, Law No. 163/2021 prohibits the use in communications infrastructures and 5G networks of technologies, equipment and software of unauthorized manufacturers, while allowing the use of the products of authorized manufacturers. The Law therefore grants an advantage to the products of authorized manufacturers.

4.5.3.     Are the products at issue ‘like products’?

The third element of the test of consistency with the MFN treatment obligation of Article I:1 relates to the question of whether the products at issue are ‘like products’. In Section 4.1.2 above, I already addressed the question whether the products at issue in Law No. 163/2021, i.e., technologies, equipment and software of unauthorized manufacturers and technologies, equipment and software of authorized manufacturers, are ‘like products’ within the meaning of Article 2.1 of the TBT Agreement. As I noted in Section 4.1.2, in the case law on ‘likeness’ under the non-discrimination obligations of the GATT 1994, including Article I:1 thereof, it was determined that one may ‘presume’ that the products concerned are ‘like’ when the measure at issue distinguishes between products solely on the basis of their origin.[78] On examining Law No. 163/2021, I established in Section 4.1.2 that Law No. 163/2021 distinguished between products on the basis of their origin. I therefore come to the conclusion that it may be presumed that the products concerned are ‘like’ within the meaning of Article I:1 of the GATT 1994.

In the alternative and pursuant to well-established case law, I argue that the determination of ‘likeness’ under Article I:1 of the GATT 1994 is (as under Article 2.1 of the TBT Agreement) a determination of the nature and the extent of the competitive relationship between and among the products at issue. In assessing this relationship, an adjudicator must examine the same factors (physical characteristics, end use, consumer tastes, preferences and perceptions, and customs classification) as when establishing ‘likeness’ under Article 2.1 of the TBT Agreement. In Section 4.1.2 above, I concluded that the products at issue in Law No. 163/2021 are ‘like products’ within the meaning of Article 2.1 of the TBT Agreement. Since the same test of determining ‘likeness’ applies under Article I:1 of the GATT, I conclude – for the same reasons as spelt out in Section 4.1.2 – that the products at issue in Law No. 163/2021 are also ‘like products’ within the meaning of Article I:1 of the GATT 1994.

4.5.4.     Does Law No. 163/2021 accord immediately and unconditionally the advantage at issue to all like products?

The fourth and final element of the test of consistency with the MFN treatment obligation of Article I:1 relates to the question of whether the advantage granted by the measure at issue is accorded ‘immediately and unconditionally’ to all like products irrespective of their origin or destination. Article I:1 of the GATT 1994 requires that any advantage granted by a WTO Member to imports from, or exports to, any country must be granted ‘immediately and unconditionally’ to imports from, or exports to, all other WTO Members. There is no debate on what ‘immediately’ means. ‘Immediately’ means ‘without delay, at once, instantly’. More problematic has been the meaning of the requirement to accord an advantage ‘unconditionally’. ‘Unconditionally’ does not mean that no conditions can be attached to the granting of an advantage. It means that these conditions may not have a detrimental impact on the competitive opportunities of the like products imported from or exported to any Member.[79] As discussed above, the ‘advantage’ granted by Law No. 163/2021 is the permissible use of technologies, equipment and software in communication infrastructures and 5G networks in Romania. This ‘advantage’ is only granted to the products of authorized manufacturers. It is therefore not granted ‘immediately’ and ‘unconditionally’ to all like products imported from any Member.

On the basis of the above, I conclude that Law No. 163/2021 is in violation of the MFN treatment obligation under Article I:1 of the GATT 1994.

4.6.              Is Law No. 163/2021 in violation of the national treatment obligation under III:4 of the GATT 1994?

Article III:4 of the GATT 1994 states in relevant part:

The products of the territory of any [Member] imported into the territory of any other [Member] shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.

As stated by the Appellate Body in Korea – Various Measures on Beef (2001), there are three questions which must be answered to determine whether or not a measure affecting trade in goods is consistent with the national treatment obligation of Article III:4, namely: (1) whether the measure at issue is a ‘law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution, or use’ of the products concerned; (2) whether the imported and domestic products at issue are ‘like products’; and (3) whether the imported products are accorded ‘less favourable’ treatment than that accorded to like domestic products.

The Law meets the above three elements. First, as already discussed above in the context of Article I:1 of the GATT 1994, Law No. 163/2021 is a law affecting the international sale and use of technologies, equipment and software and is therefore covered by Article III:4. Second, as the ‘likeness’ of products under Article III:4 is, pursuant to well-established case law, assessed in the same way as likeness under Article I:1 of the GATT 1994 and Article 2.1 of the TBT Agreement, the products at issue in Law No. 163/2021 are also ‘like products’ within the meaning of Article III:4 of the GATT 1994. Third, by excluding the use in communications infrastructures and 5G networks in Romania of products of unauthorized manufacturers, the Law quite obviously modifies the conditions of competition to the detriment of imported products of unauthorized manufacturers.[80] Law No. 163/2021 therefore accords ‘treatment less favourable’ to imported products within the meaning of Article III:4.

On the basis of the above, I conclude that Law No. 163/2021 is in violation of the national treatment obligation under Article III:4 of the GATT 1994.

4.7.              Is Law No. 163/2021 in violation of the obligation under Article X:3(a) of the GATT 1994 to administer trade measures in a uniform, impartial and reasonable manner?

Article X:3(a) of the GATT 1994 states:

Each [Member] shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article.

The panel in Thailand – Cigarettes (Philippines) (2011) ruled that to establish a violation of Article X:3(a), a complainant must show that: (1) the measure at issue is a legal instrument of the kind referred to in Article X:1 of the GATT 1994; and (2) this measure is administered in a manner that is non-uniform, partial and/or unreasonable.[81] Below, I will discuss each element of this two-tier test of consistency in turn.

4.7.1.     Is Law No. 163/2021 a legal instrument referred to in Article X:1 of the GATT 1994?

The first element of the test of consistency with the obligation of Article X:3(a) relates to the question of whether the measure at issue is a legal instrument of the kind referred to in Article X:1 of the GATT 1994. Article X:1 refers to, and applies to, ‘laws, regulations, judicial decisions and administrative rulings of general application’ affecting, inter alia, the sale or use’ of products. As already noted above in Sections 4.5.1 and 4.6.1, Law No. 163/2021 is unmistakenly a ‘law’ affecting the sale and use of products.

4.7.2.     Is Law No. 163/2021 administered in a manner that is non-uniform, partial and/or unreasonable?

The second element of the test of consistency with the obligation of Article X:3(a) relates to the question of whether the measure at issue is administered in a manner that is non-uniform, partial and/or unreasonable.  Note that the administration of a measure in any of these three manners constitutes a violation of Article X:3(a).[82] Also, as Article X:3(a) clearly indicates, the requirements of ‘uniformity, impartiality and reasonableness’ do not apply to the laws, regulations, decisions, and rulings themselves, but rather to the administration of those legal instruments.[83] However, as the Appellate Body clarified in EC – Selected Customs Matters (2006), it is possible to challenge under Article X:3(a) the content of a legal instrument to the extent that it regulates the application or implementation of that instrument.[84] As the Appellate Body stated in US – Shrimp (1998), underlying Article X:3 is the due process requirement. Article X:3 sets out ‘certain minimum standards for transparency and procedural fairness’ in the administration of trade measures.[85] The requirements of ‘uniformity’, ‘impartiality’ and ‘reasonableness’ have been clarified in WTO case law as follows.  ‘Uniformity’ requires that a trade measure be applied consistently and predictably and accords uniform treatment to persons similarly situated[86]; ‘impartiality’ requires that a trade measure is applied or implemented in a fair, unbiased and unprejudiced manner[87]; and ‘reasonableness’ requires that the administration of a trade measure is equitable, appropriate for the circumstances and based on rationality. The assessment of ‘reasonableness’ entails ‘a consideration of the factual circumstances specific to each case, for which purpose it is necessary to examine the features of the administrative act at issue, in the light of its objective, cause or the rationale behind it’.[88]  Notably, in China – Raw Materials (2012), the panel found that the lack of definition, guidelines or standards may pose a very real risk of criteria being applied non-uniformly and unreasonably.[89]

The administration of Law No. 163/2021 raises multiple concerns. First, the decision-making process on the granting or denial of authorization lacks transparency. Applicants for authorisation are merely informed of the final decision of the Prime Minister, but not of the reasons for that decision. Second, the standards for assessing whether to grant authorization are characterised by – to use the words of the panel in China – Raw Materials (2012) – a ‘lack of definition, guidelines or standards’. The criteria applied pursuant to Law No. 163/2021 to decide on granting or denying authorization, namely ‘control by a foreign government’, or ‘an independent legal system’, are not defined. Also, and more generally, it is unclear what constitutes a risk, threat or vulnerability in relation to national security and defence within the meaning of Law No. 163/2021. As decisions to deny authorisation do not give any reasons, the lack of clarity of Law No. 163/2021 on these issues will not be remedied through subsequent application of the Law. Law No. 163/2021 is, and will continue to be applied, in a non-uniform, partial and/or unreasonable manner. This constitutes a blatant violation of the principle of due process which underlies Article X:3(a).

On the basis of the above, I conclude that Law No. 163/2021 is in violation of Article X:3(a) of the GATT 1994.

4.8.              Can the otherwise GATT-inconsistent Law No. 163/2021 be justified under the general exceptions of Article XX of the GATT 1994?

Above, I have argued and concluded that Law No. 163/2021 is inconsistent with Articles I:1, III:4 and X:3(a) of the GATT 1994. The question which now arises is whether Romania can justify these GATT inconsistencies under the general exceptions of Article XX of the GATT 1994, and/or under Article XXI thereof. In this Section, I will address whether justification under Article XX is possible.

Article XX of the GATT 1994, entitled ‘General Exceptions’, states:

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a)         necessary to protect public morals;

(b)         necessary to protect human, animal or plant life or health;

(c)         relating to the importations or exportations of gold or silver;

(d)         necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;

(e)         relating to the products of prison labour;

(f)          imposed for the protection of national treasures of artistic, historic or archaeological value;

(g)         relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

(h)         undertaken in pursuance of obligations under any intergovernmental commodity agreement …;

(i)           involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry …;

(j)           essential to the acquisition or distribution of products in general or local short supply …

In its very first case, US – Gasoline (1996), the Appellate Body stated:

In order that the justifying protection of Article XX may be extended to it, the measure at issue must not only come under one or another of the particular exceptions – paragraphs (a) to (j) – listed under Article XX; it must also satisfy the requirements imposed by the opening clauses of Article XX.[90]

Article XX thus sets out a two-tier test for determining whether a measure, which is otherwise inconsistent with GATT obligations, can be justified.  As regards the first element of this test, namely whether the measure at issue comes under one of the specific exceptions exhaustively listed in paragraphs (a)–(j). These exceptions relate to the protection of societal values and interests such as public morals, human, animal, or plant life or health, exhaustible natural resources, and national treasures of artistic, historic, or archaeological value. In EC – Seal Products (2014), the Appellate Body explained that provisional justification under one of the paragraphs of Article XX requires that a challenged measure ‘address the particular interest specified in that paragraph’, and that ‘there be a sufficient nexus between the measure and the interest protected’.[91] The nexus required between the measure and the interest protected differs between paragraphs, but a common nexus requirement is that the measure is ‘necessary’ to protect the interest concerned.[92] When a measure is found to be provisionally justified under one of the paragraphs of Article XX, an adjudicator must, subsequently, assess whether the application of that measure meets the requirements of the opening clauses, commonly referred to as the chapeau, of Article XX. The chapeau requires that a provisionally justified measure is:

not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.

As discussed above, Law No. 163/2021 explicitly states that it aims ‘to prevent, counter and eliminate risks, threats and vulnerabilities to national security and defence of the country’. The policy objective pursued by Law No. 163/2021 is thus, as also already discussed above, national security. The exceptions exhaustively listed in Article XX do not include ‘national security’, and none of the exceptions that are included can, even if interpreted broadly, be understood to cover ‘national security’. This is not surprising since ‘national security’, as a possible exception, is specifically dealt with in Article XXI of the GATT 1994, discussed below.  As noted above, the provisional justification under one of the paragraphs of Article XX requires that the measure at issue addresses the particular interest, i.e., policy objective, specified in that paragraph. Law No. 163/2021 does not address an interest specified in any of the paragraphs of Article XX and can therefore not be justified under Article XX. Any further exploration of the conditions for the invocation of Article XX to justify Law No. 163/2021 is therefore pointless.

4.9.              Can the otherwise GATT-inconsistent Law No. 163/2021 be justified under the national security exceptions of Article XXI(b) of the GATT 1994?

Apart from Article XX of the GATT 1994, WTO Members can, and increasingly do, invoke Article XXI thereof to justify otherwise GATT-inconsistent measures. As with Article XX, Article XXI may be invoked to justify an inconsistency with any obligation under the GATT 1994, but it is not available to justify inconsistencies with obligations under the TBT Agreement. Article XXI, entitled ‘Security Exceptions’, states:

               Nothing in this Agreement shall be construed

               (a)         to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests;  or

               (b)         to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests

(i)           relating to fissionable materials or the materials from which they are derived;

(ii)          relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii)     taken in time of war or other emergency in international relations;  or

                 (c)         to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

4.9.1.     Justiciability and legal standard of Article XXI(b) of the GATT 1994

Of possible relevance in the present case is Article XXI(b), and in particular subparagraphs (ii) and (iii) thereof.  A WTO Member may invoke Article XXI(b) (ii) to justify otherwise GATT-inconsistent measures relating to trade in arms or in other materials, directly or indirectly, for military use; and Article XXI(b)(iii) to justify measures taken in time of war or other emergency in international relations. In recent years, the invocation of, most notably, Article XXI(b)(iii) has escalated, and with it disputes relating to such invocation. Some WTO Members, and in particular, the United States, continue to argue that the question whether a Member correctly invokes Article XXI(b) is ‘non-justiciable’, i.e., cannot be decided by a WTO panel.[93] However, it is now well established in WTO case law that a WTO panel can examine, and decide on, whether a Member correctly invokes Article XXI(b) to justify an otherwise GATT-inconsistent measure.[94] The phrase in the chapeau of Article XXI(b), ‘which it considers necessary for the protection of its essential security interests’ (the ‘it’ referring to the Member invoking Article XXI(b)), does not give a Member unlimited discretion. As the panel in Russia – Traffic in Transit (2019) ruled, the words ‘which it considers’ referred to the ‘essential security interests’ and the necessity of the measure at issue to protect these interests. [95] The words ‘which it considers’ do not refer to the objective facts listed in the subparagraphs of Article XXI(b).[96] Whether the otherwise GATT-inconsistent measure is a measure ‘relating to the traffic in arms, …’; or a measure ‘taken in time of war or other emergency in international relations’, can, and must, be objectively established by a panel.

In old GATT and current WTO case law, there is very little guidance on which measures may be considered to be measures ‘relating to traffic in arms, …’ within the meaning of Article XXI(b)(ii).  While it is clear what traffic in ‘arms, ammunition and implements of war’ is, what is traffic in ‘other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment’? This is, potentially, traffic in a very broad category of goods and materials, but, as Article XXI(b)(ii) explicitly states, it is traffic to supply the military. Therefore, measures relating to traffic for supplying non-military entities are not measures ‘relating to traffic in arms …’ within the meaning of Article XXI(b)(ii).

In contrast to Article XXI(b)(ii), there is plenty of recent WTO case law on Article XXI(b)(iii) and the question what measures may be measures ‘taken in time of war or other emergency in international relations’. While the concept of ‘taken in time of war’ needs no explanation, the concept of ‘other emergency in international regulation’ has been more problematic. The panel in Russia – Traffic in Transit (2019) found that an ‘emergency in international relations’ refers to:

a situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state.[97]

The panel also noted in this regard that ‘political or economic differences between Members are not sufficient, of themselves, to constitute an emergency in international relations’, unless they affect defence and military interests, or the maintenance of law and public order interests.[98] Note that the panel in Saudi Arabia – IPRs found that ‘Saudi Arabia's severance of all diplomatic, consular and economic ties with Qatar … falls into the category of cases in which such action can be characterized in terms of an exceptional and serious crisis in the relations between two or more States’, i.e., an emergency in international relations.^[99] Most recently, the panel in US – Steel and Aluminium (China) held that :

an “emergency in international relations” … must be, if not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its impact on international relations.[100]

If a WTO Member invoking Article XXI(b) can successfully argue that an otherwise GATT-inconsistent measure is a measure ‘relating to traffic in arms, …’ or a measure ‘taken in time of war or other emergency in international relations’, that Member can justify this measure provided that ‘it considers’ the measure ‘necessary for the protection of its essential security interests’. It is now well-established caselaw that, while the words ‘it considers’ leave a Member wide discretion, this discretion – as already noted above – is not unlimited. The panel in Russia – Traffic in Transit (2019) noted, that ‘essential security interests’ may be understood to refer to:

those interests relating to the quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally.[101]

According to the panel, what specific interests are relevant to the protection of a state from external or internal threats ‘will depend on the particular situation and perceptions of the state in question and can be expected to vary with changing circumstances’.[102] The panel therefore concluded that:

[I]t is left, in general, to every Member to define what it considers to be its essential security interests.[103]

However, this does not mean that a Member may consider any concern to be an ‘essential security interest’. As the panel in Russia – Traffic in Transit (2019) stated:

[T]he discretion of a Member to designate particular concerns as ‘essential security interests’ is limited by its obligation to interpret and apply Article XXI(b)(iii) of the GATT 1994 in good faith.[104]

The panel noted that ‘the obligation of good faith is a general principle of law and a principle of general international law, which underlies all international treaties and binds all parties to such treaties. This obligation of good faith is codified in Article 31(1) of the Vienna Convention on the Law of Treaties regarding the interpretation of treaties, and in Article 26 thereof regarding the application of treaties. As the panel in Russia – Traffic in Transit (2019) observed, a ‘glaring example’ of a violation of the obligation to interpret and apply Article XXI(b) in ‘good faith’ is the relabelling of trade interests as ‘essential security interests’.[105] To avoid such and other violations of the obligation to interpret and apply Article XXI(b) in good faith, the panel in Russia – Traffic in Transit (2019) ruled that a Member must:

articulate the essential security interests said to arise from the emergency in international relations sufficiently enough to demonstrate their veracity.[106]

The obligation to interpret and apply Article XXI(b) in good faith applies not only to the designation of ‘essential security interests’, but also, and most importantly to the ‘connection’ between these interests and the measure at issue.[107] As noted above, the Member invoking Article XXI(b) must ‘consider’ this measure ‘necessary for the protection of its national security interests’. The panel in Russia – Traffic in Transit (2019) ruled that measures can only be regarded as ‘considered necessary’ by the Member invoking Article XXI(b) if these measures:

meet a minimum requirement of plausibility in relation to the proffered essential security interests, i.e. that they are not implausible as measures protective of these interests.[108]

A measure that would, for example, be very remote from, or unrelated to the essential security interests invoked, would not meet this minimum requirement of plausibility. If a Member would with regard to a measure that does not meet the minimum requirement of plausibility argue that it considers this measure necessary, this Member would not interpret and apply Article XXI(b) in good faith, and an adjudicator must reject the invocation of this provision.

4.9.2.     Can Law 163/2021 be justified under Article XXI(b) of the GATT 1994?

As repeatedly noted above, Law No. 163/2021 aims ‘to prevent, counter and eliminate risks, threats and vulnerabilities to national security and defence of the country’. However, Romania cannot successfully invoke Article XXI(b) to justify the otherwise GATT-inconsistent Law No. 163/2021.

Regarding Article XXI(b)(ii), I note that Law No. 163/2021 does not relate to the kind of trade covered by this subparagraph. The Law does not relate to ‘traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment’. The technologies, equipment and software used in communications infrastructures and 5G networks are not ‘arms’, ‘ammunition’ or ‘implements of war’. Also, the technologies, equipment and software are traded for use in communication infrastructures and 5G networks. They are not ‘other goods and materials’ traded ‘for the purpose of supplying a military establishment’. The possibility that the products concerned may occasionally be supplied to a military establishment does not alter the nature of Law No. 163/2021 as a measure relating to trade in the products concerned for use in communications infrastructures and 5G networks.

Regarding Article XXI(b)(iii), I note that Law No. 163/2021 is not a measure ‘taken in time of war or other emergency in international relations’. Romania is happily not at war with any country in which the products of unauthorized manufacturers originate. Law No. 163/2021 is therefore not a measure taken in time of war. The Law is also not a measure taken in time of emergency in international relations with any of the countries in which the products of unauthorized manufacturers originate. While Romania may have political and economic differences with these countries, such differences are not an emergency in international relations, defined by the panel in Russia – Traffic in Transit (2019) as ‘a situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state’[109], or defined by the panel in US – Steel and Aluminium (China) as a situation which ‘must be, if not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its impact on international relations’.[110] I also note that Romania has clearly not severed its diplomatic, consular and economic ties with the countries in which the products of unauthorized manufacturers originate.

I conclude that Law No. 163/2021 is not a measure that covered by either subparagraph (ii) or subparagraph (iii) of Article XXI(b), and can therefore not be justified under Article XXI(b). However, if Law No. 163/2021 would be covered by either of the subparagraphs (quod non), Romania could not successfully invoke Article XXI(b) to justify the otherwise GATT-inconsistent Law, because such invocation would constitute a violation of Romania’s obligation under international law to interpret and apply Article XXI(b) in good faith. This is so because Law No. 163/2021 only refers in the most general terms to the protection of ‘national security and defence of the country’ and fails thus to articulate (sufficiently to demonstrate their veracity) the ‘essential security interests’ at issue. Also, and even more importantly, Law No. 163/2021 is not a measure that Romania can – in good faith – consider to be ‘necessary’ because the Law fails to meet the minimum requirement of plausibility. The publicly available material does not establish that the technologies, equipment and software of unauthorized manufacturers constitute a risk to Romania’s ‘essential security interests’. In the absence of any evidence of a risk to Romania’s ‘essential security interests’, Law No. 163/2021 is so remote from, or unrelated to, the essential security interests invoked that Romania cannot – in good faith – consider the Law to be ‘necessary’.

On the basis of all the above, I conclude that the inconsistency of Law No. 163/2021 with Articles I:1, III:4 and X:3(a) of the GATT 1994 cannot be justified under the national security exceptions of Article XXI(b) thereof.

5.       Conclusion

Pursuant to Article 11 of Romania’s Constitution, international agreements concluded and duly ratified by Romania, such as the WTO Agreement, are part of its domestic legal order and can be directly applied by its domestic courts. On the basis of the factual information that is publicly available and the legal analysis undertaken above, I conclude that Law No. 163/2021 is inconsistent with:

·       the MFN treatment and national treatment obligations of Article 2.1 of the TBT Agreement;

·       the prohibition of creating unnecessary barriers to trade of Article 2.2 of the TBT Agreement;

·        the obligation to use international standards as a basis for technical regulations of Article 2.4 of the TBT Agreement;

·       the transparency obligations regarding technical regulations of Article 2.9 of the TBT Agreement;

·       the MFN treatment obligation of Article I:1 of the GATT 1994;

·       the national treatment obligation of Article III:4 of the GATT 1994; and

·       the obligation to administer trade measures in a uniform, impartial and reasonable manner of Article X:3(a) of the GATT 1994.

I also conclude that the inconsistency of Law No. 163/2021 with Articles I:1, III:4 and X:3(a) of the GATT 1994 cannot be justified under the ‘general exceptions’ of Article XX of the GATT 1994, or the ‘security exceptions’ of Article XXI(b) thereof.

Romania’s Law No. 163/2021 offers a case study of the broader questions arising at the intersection of 5G security regulation and WTO obligations. Drawing on my experience as a former Member and Chair of the WTO Appellate Body and my academic work in international economic law, I seek in this article to contribute to a balanced analysis of those questions, recognizing both the importance of national security objectives and the legal disciplines established by international trade agreements.

[1] Former Member and Chair of the WTO Appellate Body; Professor Emeritus of International Economic Law, World Trade Institute, University of Bern; and external legal advisor, King & Wood.

[2] See https://www.wti.org/research/publications/1499/preliminary-thoughts-on-the-european-commission-proposal-for-the-cybersecurity-act-20/.

[3] See https://legislatie.just.ro/public/DetaliiDocument/243213

[4] See e.g.  https://informat.ro/en/current-affairs/huawei-contests-the-exclusion-from-5g-networks-in-romania-at-the-constitutional-court-116111

[5] Constitution of Romania 1991 (rev. 2003), Article 11(2), see https://www.constituteproject.org/constitution/Romania_2003. 

[6] Marrakesh Agreement on the Establishment of the World Trade Organization (‘WTO Agreement’) signed on 15 April 1994 and entered into force on 1 January 1995, at https://www.wto.org/english/docs_e/legal_e/marag_e.htm.

[7] See https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. When Romania joined the European Union in 2007, it remained a full-fledged Member of the WTO with all the rights and obligations which Members have under the WTO Agreement. Note that the European Union as well as its 27 Member States are all WTO Members, albeit that within the WTO the European Commission will act on behalf of the European Union and its Member States.

[8] On file with the author.

[9] NIS Cooperation Group, CG Publication 01/2020, see https://digital-strategy.ec.europa.eu/en/library/cybersecurity-5g-networks-eu-toolbox-risk-mitigating-measures.

[10] Published in the Official Gazette, Part I, No 590 of 11 June 2021.  See: https://legislatie.just.ro/public/DetaliiDocument/243213

[11] Note that Article 9 and Articles 12 to 16 entered into force 30 days after the publication in the Official Gazette.

[12] See Article 2, paras. a, g, and i of Law 163/2021.

[13] Ibid.

[14] Note Article 2, para. d of Law 163/2021, which defines ‘information and communications infrastructures of national interest’ broadly.

[15] See Articles 3, 4 and 5 of Law 163/2021.

[16] See Article 6 of Law 163/2021. Note that a manufacturer can challenge such rejection within 30 days of its publication in the Official Gazette. See Article 8 of Law 163/2021.

[17] Article 4(3) and Article 5(2) of Law 163/2021. These criteria are virtually identical to the criteria set out in the 2019 Memorandum of Understanding between Romania and the United States referred to above.

[18] See: https://legislatie.just.ro/public/DetaliiDocument/279515

[19] Ibid.

[20] Article 10 of Law 163/2021. The same applies to products of manufacturers of which the authorization was withdrawn. See Article 7 of Law 163/2021.

[21] Article 11(2) of Law 163/2021.

[22] Article 14 of Law 163/2021. If the provider is newly established, a fine ranging from RON 10,000,000 to RON 50,000,000 may be imposed. See ibid. 

[23] See: https://romania.europalibera.org/a/interviu-100-de-minute-cu-premierul-alegeri-pensii-fmi-5g-fara-china/30923127.html

[24] See: https://www.profit.ro/povesti-cu-profit/it-c/ultima-ora-gigantul-huawei-reclama-in-romania-la-ccr-legea-in-baza-careia-i-a-fost-interzis-accesul-la-5g-ul-romanesc-precedent-recent-in-justitia-uniunii-europene-22410424

[25] See: https://dosare.ccr.ro/#/CautareDosare

[26] Panel Report, EC – Asbestos (2001), para. 8.16.

[27] Appellate Body Report, US – Tuna II (Mexico) (2012), para. 405.

[28] Most recently, the panels in EU and Certain Member States – Palm Oil (Malaysia) (2024) and EU – Palm Oil (Indonesia) (2025) interpreted and applied the non-discrimination obligations of Article 2.1.

[29] Appellate Body Report, US – Clove Cigarettes (2012), para. 87.

[30] Appellate Body Report, US – Tuna II (Mexico) (2012), para. 202.

[31] Appellate Body Report, EC – Sardines (2002), para. 176.

[32] Appellate Body Report, EC – Asbestos, para. 67.

[33] Ibid.

[34] For Louis Vuitton handbags, see https://de.louisvuitton.com/deu-de/homepage. For Fila handbags, see, https://www.fila.de/en/Women/Accessories/Backpacks-Waist-Bags/.

[35] Appellate Body Report, EC – Seal Products (2014), paras. 5.45 and 5.69.

[36] Appellate Body Report, EC - Asbestos, para. 69.

[37] Appellate Body Report, EC – Seal Products (2014), para. 5.12.

[38] Appellate Body Report, EC – Asbestos, para. 68.

[39] See https://www.epingalert.org/en/Search/Index?countryIds=C056&distributionDateFrom=2022-08-01&distributionDateTo=2022-09-30&viewData=G%2FTBT%2FN%2FBEL%2F47

[40] Appellate Body Report, US – Clove Cigarettes (2012), para. 120. See also, ibid, para. 156.

[41] For ‘likeness’ under the non-discrimination obligations of the GATT 1994, see Appellate Body Report, EC – Asbestos (2001), para. 101. The Appellate Body in US – Clove Cigarettes (2012) explicitly referred to its approach to ‘likeness’ its Report in EC – Asbestos (2001) and to determine ‘likeness’ under Article 2.1 of the TBT Agreement assessed the same factors. See Appellate Body Report, US – Clove Cigarettes (2012), para. 119. See also ibid., paras. 120 and 156.

[42] See e.g. Panel Report, Colombia – Port of Entry (2009), paras. 7.182 and 7.357.

[43] Appellate Body Report, US – Clove Cigarettes (2012), para. 180.

[44] Ibid., para. 182.

[45] Appellate Body Report, US – Clove Cigarettes (2012), para. 182.

[46] Ibid.

[47] Ibid., para. 101.

[48] Ibid., para. 175.

[49] See e.g., US – Tuna II (Mexico) and US – COOL.

^[50] Appellate Body Report, US – Tuna II (Mexico) (2012), para 297.

[51] Appellate Body Report, US – Tuna (Mexico) (2012), para. 319.

[52] Appellate Body Report, Australia – Plain Packaging (2020), para. 6.406.

[53] Appellate Body Report, US – Tuna II (Mexico) (2012), para. 315.

[54] Ibid., para. 317.

[55] Ibid., para. 314.

[56] Appellate Body Report, US – Tuna II (Mexico) (2012), para. 322.

[57] Ibid.

[58] Ibid.

[59] Appellate Body Report, US – COOL (Article 21.5 – Canada and Mexico) (2015), para. 5.334.

[60] Appellate Body Report, US – COOL (Article 21.5 – Canada and Mexico) (2015), para. 5.338. According to the Appellate Body, it would be more appropriate, for the respondent, once the complainant made a prima facie case, to establish that a proposed alternative measure is not reasonably available. See ibid., para. 5.339.

[61] Note that according to the EU 5G Toolbox, core networks functions are generally considered as critical, while radio access networks, transport and transmission functions, and internetwork exchanges are rated with lower criticality. See: https://digital-strategy.ec.europa.eu/en/library/cybersecurity-5g-networks-eu-toolbox-risk-mitigating-measures (pp. 39-40).

[62] Available at: https://digital-strategy.ec.europa.eu/en/policies/5g-research-standards.

[63] Appellate Body Report, US – Tuna II (Mexico) (2012), para. 356.

[64] Ibid., para. 363.

[65] See TBT Committee Decision on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5, and Annex 3 to the Agreement, in WTO document G/TBT/1/ Rev.10, dated 9 June 2011, pp. 46–8, para. 6.

[66] Panel Report, EC – Sardines (2002), paras. 7.69 – 7.70, as upheld by the Appellate Body in Appellate Body Report, EC – Sardines (2002), para. 233.

[67] See https://www.itu.int/ITU-T/recommendations/rec.aspx?rec=14992&lang=en

[68] See https://www.itu.int/ITU-T/workprog/wp_item.aspx?isn=15006

[69] See https://www.ancom.ro/en/about-us/media-en/press-releases/romania-chairs-the-council-of-the-international-telecommunication-union/#:~:text=Romania%20became%20a%20member%20of%20the%20organization%20in%201866,%20just%20one%20year%20after%20the%20establishment%20of%20the%20Union

[70] Panel Report, EC – Sardines (2002), para. 7.110.

[71] Appellate Body Report, EC – Sardines (2002), para. 288.

[72] Article 2.9 of the TBT Agreement. The WTO Secretariat maintains the Technical Barriers to Trade Information Management System (TBT IMS), a publicly available database of all information provided by WTO Members in relation to technical regulations and other measures covered by the TBT Agreement standards. See https://eping.wto.org. Members submit over 3,000 to 4,000 new TBT notifications every year.

[73] Ibid.

[74] There is no entry in the TBT IMS relating Romania’s proposed Law 163/2021.

[75] Appellate Body Reports, EC – Seal Products (2014), para. 5.86.

[76] Panel Report, EC – Bananas III (Guatemala and Honduras) (1997), para. 7.239. See also Panel Report, Colombia – Ports of Entry (2009), para. 7.341; and Panel Report, US – Poultry (China) (2010), para. 7.415.

[77] Appellate Body Report, Canada – Autos (2000), para. 79. See also Appellate Body Reports, EC – Seal Products (2014), para. 5.86.

[78] Panel Report, Colombia – Port of Entry (2009), paras. 7.182 and 7.357; and Panel Report, US – Poultry (China) (2010), paras. 7.431–7.432.

[79] Appellate Body Reports, EC – Seal Products (2014), para. 5.88.

[80] Appellate Body Report, Korea – Various Measures on Beef (2001), para. 137. ‘Treatment no less favourable’ is assessed by examining whether a measure modifies the conditions of competition in the relevant market to the detriment of imported products.

[81] Panel Report, Thailand – Cigarettes (Philippines) (2011), para. 7.866.

[82] Ibid., para. 7.867.

[83] Appellate Body Report, EC – Bananas III (1997), para. 200.

[84] Appellate Body Report, EC – Selected Customs Matters (2006), para. 200.

[85] Appellate Body Report, US – Shrimp (1998), paras. 182-183; see also, Panel Report, US – COOL (2012), para. 7.861.

[86] Panel Reports, US – COOL (2012), para. 7.876.

[87] Panel Report, Colombia – Textiles (Article 21.5 – Colombia) / Colombia – Textiles (Article 21.5 – Panama) (2016), para. 7.361 (referring to Panel Report, Thailand – Cigarettes (Philippines) (2011), para. 7.899).

[88] Panel Reports, Colombia – Textiles (Article 21.5 – Colombia) / Colombia – Textiles (Article 21.5 – Panama) (2016), para. 7.362 (referring to Panel Reports, China – Raw Materials (2012), para. 7.696; Panel Report, US – COOL (2012), para. 7.851).

[89] Panel Report, China – Raw Materials (2012), paras. 7.751-7.752; 7.745-7.746.

[90] Appellate Body Report, US – Gasoline (1996), p. 22.

[91] Appellate Body Reports, EC – Seal Products (2014), para. 5.169

[92] This is the nexus required under paragraphs (a), (b) and (d) of Article XX of the GATT 1994.

[93] Panel Report, US – Steel and Aluminium Products (China), para. 7.128.

[94] Ibid. In this report, circulated in 2022 but subsequently appealed into the void by the United States, the panel sets out in detail the interpretative analysis leading to its conclusion that Article XXI(b) is not ‘self-judging’ or ‘non-justiciable’. See ibid, paras. 7.104 – 7.128.

[95] Panel Report, Russia – Traffic in Transit (2019), para. 7.82.

[96] Ibid.

[97] Ibid., paras. 7.76 and 7.111.

[98] Ibid., para. 7.75.

[99] Panel Report, Saudi Arabia – IPRs, para. 7.262.

[100] Panel Report, US – Steel and Aluminium Products (China), para. 7.139.

[101] Panel Report, Russia – Traffic in Transit (2019), para. 7.130.

[102] Ibid., para. 7.131.

[103] Ibid., paras. 7.119 and 7.131.

[104] Ibid., para. 7.132.

[105] Panel Report, Russia – Traffic in Transit (2019), para. 7.133.

[106] Ibid., para. 7.134.

[107] Ibid., para. 7.138.

[108] Ibid.

[109] Panel Report, Russia – Traffic in Transit (2019), paras. 7.76 and 7.111. Also, the political and economic differences, which may well be present, do presently not affect directly the defence and military interests of Romania, or the maintenance of law and public order in Romania.

[110] Panel Report, US – Steel and Aluminium Products (China), para. 7.139.