L’ ajustement fiscal à la frontière, qualification et interactions avec le système commercial international

The question of border tax adjustments (BTA) in international trade is of much interest, particularly in the current context of the development of regulations addressing climate change. Indeed, the recent initiative of the European Commission to adopt a carbon border adjustment mechanism, as a key measure of the European Green Deal adopted in December 2019, brought to light the opportunities and hope in levelling the playing field in terms of environmental taxation. However, the popularity of border adjustments for climate change policies among authors should not lead us to ignore the regular uses of border adjustments in internal tax systems. The most common example is the valued added tax, that is, a border-adjustable VAT. It was clearly stated by the GATT panels that the environmental purpose of a fiscal measure is not relevant for its qualification as a border tax adjustment. This paper draws on the work of both the OECD working party and the GATT working party, whose reports were published respectively in 1968 and 1970. The definition of border tax adjustments applied by the former refers to ?any fiscal measures which put into effect, in whole or in part, the destination principle (i.e. which enable exported products to be relieved of some or all of the tax charged in the exporting country in respect of similar domestic products sold to consumers on the home market and which enable imported products sold to consumers to be charged with some or all of the tax charged in the importing country in respect of similar domestic products).? In addition, examples of taxes that are eligible for tax adjustment were given: specific excise duties, sales taxes and cascade taxes, and the tax on value added. By contrast, several taxes were specifically excluded: security charges?whether on employers or employees?and payroll taxes. However, the established definition needs to be explained and clarified. Only taxes directly levied on products are eligible for tax adjustment, independent of the purpose they serve, meaning it does not matter whether a tax is levied on a product for general revenue purposes or to encourage the rational use of environmental resources. Nevertheless, the tax, to be eligible for a border adjustment mechanism, must refer to the internal fiscal system. This reference is of great importance in order to distinguish a BTA from a customs duty. Indeed, even if levied on imported products, the BTA is an internal charge under WTO law, whereas the panel on ?China ? Measures Affecting Imports of Automobile Parts? stated that for a charge to constitute an ordinary customs duty, the obligation to pay it must accrue at the moment of and by virtue of importation. The two duties have a different chargeable event. Thus, this paper explains the difference in nature and qualification under WTO law between BTA and customs duties. By doing so, it also prompts scholars to reflect on the proximity of internal fiscal systems and the international trade system. Additionally, it emphasizes the difficulty in asserting the nature of the proposed European carbon border adjustment mechanism, as the GATT Committee on Trade and Environment expressed that several stands can be adopted with regard to the application of BTA to environmental taxes. The paper argues that it is not possible to assert the legality under WTO law of a carbon border tax adjustment. Based on these findings, the paper argues that BTA and customs duties are ancillary instruments. This means that policy makers can understand them as instruments that can complement each other. While environmental policies are currently based on regulatory measures or fiscal charges, the question of border adjustment or specific duties will be further debated. Recently, the WTO General Council proposed a draft ministerial decision stating that the failure of a government to adopt laws and regulations that ensure environmental protections at or above a threshold of fundamental standards shall constitute an actionable subsidy under the Agreement on Subsidies and Countervailing Measures and that an importing country may adopt countervailing duty against an industry benefiting in its production costs from the so-called lower standards.