Because its creation was not a simple extension of the GATT, literature has shown a lively curiosity for the reception of WTO law within the Community legal order. Some concrete facts justify this infatuation. Unlike its predecessor, the WTO is a permanent institution with its own secretariat and a body of jurisprudence, much more susceptible to avoid blockages. In addition, the related Agreements cover broader areas than the mere exchange of merchandise goods, such as the trade-related aspects of intellectual property. Thus the foundation of the WTO tremendously changed both the structure and the substance of the GATT, towards a much more elaborate system. Needless to say so, in view of the discrepancy, that the legal force of WTO law is a question worth revisiting. Another factor accounts for the enthusiasm of the debate. From the founding principles of the organization to the assistance of developing countries in the integration processes, the EEC has been a shining example of activism within the WTO machinery. But reciprocally, to what extent does WTO law transform the Community?
[...] In its broader meaning, which will be used in this essay, direct effect refers to a legal provision offering rights to individuals in their national courts, and by extension defining a standard for legal review(in that case of secondary legislation because of the unquestionable primacy of the Treaties[1]). Owing to the silence of the Marrakech Agreements on direct effects, both sides of the notion have been subjected to the Court of Justice's appreciation. This essay will commence with a chronological analysis of this jurisprudence as the continuity of the GATT-related position, and then will moderate the supposed suspicion of the Community towards WTO law by emphasizing the consistence of its integration of the produced norms. [...]
[...] Rather, the Court showed some signs of receptiveness of the Advocate General's inclination to recognize some rights for individuals to enforce compliance, provided these operators have suffered damages after the end of the deadline.[29] Furthermore, it welcomed the idea of distinguishing the denial of direct effect of the WTO Agreements and the invocation of DSB findings: the former does not exclude the second.[30] To put if briefly, the Biret judgment was crucial for its potential. [31]Potentially revolutionary for the EU, because for the first time it contemplated the possibility of holding the Community liable for infringing the decisions of the DSB. [...]
[...] As a consequence, the Court accepted that its analysis of the measure should take into account the GATT source of inspiration[48], and confirmed this standpoint in Petrotub[49]: undertakings can rely on the GATT/WTO provisions if the contested legislation was adopted in order to comply with these international obligations. Interestingly, both of these exceptions suffered from a restrictive interpretation in their application, although their value was reminded by Portugal v. Council [50]. The Nakajima jurisprudence for instance, was never applied outside of the anti-dumping area even if this would be theoretically possible. [...]
[...] On the basis of the legislation on the subject, Regulation 40/94, it held that national courts applying both national and Community trademarks were “required to do so, as far as possible, in the light of the wording and purpose and article 50(6) of the TRIPs Agreement”.[54] Consequently, the doctrine of “consistent interpretation” inaugurates a duty for all Member States to interpret the Agreements uniformly. It was later clarified in Christian Dior[55] that assuming that in areas covered by the international agreements, a Community measure exists, domestic courts should consider the overlap and accordingly analyze the provisions of national law in the light of the WTO provisions. [...]
[...] Likewise, asymmetrical application was likely to destabilize the WTO system itself and the impact of the texts.[16] From a political perspective, it was also argued that a reversal of jurisprudence would compromise the internal balance of EU institutions[17]. Entitled to dismantle Community norms, the judiciary branch would in fact tie the Council and the Commission down to its judgments if it was invested with such a power.[18] Drawing this series of arguments together, the long-awaited jurisprudence of 1999 showed that direct effect was not an innocuous and self-justifying concept. [...]
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