Les principes de protection des intérêts diffus et des biens collectifs :. Quel ordre public pour les marchés globalisés ?

PRINCIPLES OF PROTECTING DIFFUSE INTERESTS AND COMMON GOODS : WHICH ORDRE PUBLIC FOR GLOBALIZED MARKETS ? Whereas in earlier times, it was for the national parliament to balance economic freedoms and protection of colliding values, nation-states nowadays, i.e., at times of globalisation, face serious problems in maintaining domestic levels of protection. Instead of giving in to the constraints of international competition or of engaging in a hopeless battle to reinforce national standards of protection, the only option seems to consist in raising the level of protection from the nation-state to a higher ? supranational or even global ? level of regulation. Since the WTO Ministerial Conference of Doha in 2001, trade lawyers and diplomats have also seemed to accept the necessity of reconciling free trade and intellectual property rights with public interests, human rights, interests of workers and consumers, the protection of the environment and health as well as the interest of developing countries in sustainable developments. This article looks for new approaches for such regulation by building on general concepts of diffuse interests and public goods and proposes a kind of « mixed regulation of balanced interests ». In a first analytical step the article defines the notions of « diffuse interests » and « public goods » and looks at the changing environment of their protection in the process of globalisation. With regard to diffuse interests of consumers, the law of the WTO proves to be clearly deficient for three reasons : (1.) Protection of trade interests under WTO law fails to protect competitive structures in increasingly global markets. (2.) WTO law focuses on the protection of trade interests and at the same time underestimates consumer interests in the provision of high-quality and healthy products. (3.) The existing system does not respond to the problem of insufficient access of poor consumers in the developing world to essential, often indispensable and life-saving products. Whereas the notion of « diffuse interests » stems from the theories of consumer protection, the economic theory of « public goods », in particular in the form of a « global public goods » theory, directly reacts to the current criticism on WTO law. This article critically looks, first, at laws protecting intellectual property as an instrument of solving the public goods problem by internalising the costs of production, and, second, international competition as a global public good as such as well as the capacity of such competition to guarantee the provision of other public goods. WTO law largely prefers the interests of traders to those of consumers and neglects the need for the provision of public goods. Since consumers in the developing world have to rely on the provision of public goods, which may be bought by rich consumers as private goods (e.g., clean water, education, health care, etc.), WTO law also broadens the social gap between richer and poorer countries. In order to solve the problems of protecting diffuse interests and public goods on a global level, the analysis then looks at traditional approaches of international law. However, even when developed into « International Economic Law » harmonising different fields of economic regulation, traditional approaches of negotiating new fields of regulation on a WTO level on the basis of mutual advantage, as was the case for the TRIPs Agreement, do not guarantee adequate consideration of the need for protecting diffuse interests of consumers and public goods. Therefore, a solution has to be pursued via constitutional approaches to international economic regulation, possibly claiming the establishment of « international policies » as known from existing Community law with its procedural guarantees of adequate representation of individuals. Since, however, such form of supranational integration does not seem politically acceptable, less ambitious approaches are considered. In light of the incompleteness of the WTO Constitution, in particular with regard to diffuse interests of consumers and public goods, the article supports the ECJ?s rejection of a constitutional interpretation of WTO law, which, as a matter of international law, would guarantee individual rights by making WTO rules directly applicable. Instead, the article argues in favour of concluding additional agreements for specific fields, like on the protection of genetic resources and international competition. In other fields, however, national sovereignty should be preserved. To this extent, the article advocates a system of « mixed regulation of balanced interests ». The major problem in a system of mixed regulation of balanced interests consists in solving conflicts between international rules on the one hand, WTO law, in particular, and national rules on the other hand. Here, alternative solutions have to be found in contrast to the model of Art. XX GATT. As one possible option and alternative, the article discusses a competition-oriented approach, which, for example in the field of intellectual property protection, would argue for giving more scope to national sovereignty in situations, in which markets are separated. In addition, rules on international competition law should guarantee that national policies, for instance as to the issue of exhaustion, are not undermined by agreement between undertakings trying to split up markets along national borders. In addition, international law may provide for exceptions from the application of WTO rules. For several reasons, States should even maintain, in principle, their sovereignty in defining additional interests. In its concluding remarks, the article rejects the over-stressed antagonism between liberal market principles and principles of protection, a conflict which can be bridged, at least partially, by the adoption of international competition rules as an instrument protecting both free trading and diffuse consumer interests. However, competition rules cannot solve all problems. More advanced forms of a constitutional approach need to be considered. As to these, in order to guarantee full participation of the stake-holders, and to simultaneously protect the democratic principle, large discretion for regulation has to be given to national legislatures.