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?
[...] According to the ECJ, the failure to meet the deadlines for enforcement did not exhaust the possibilities to resolve the dispute[38], so that a review of the lawfulness of the legislation would strongly undermine the EU's position. As a result, in Van Parys, the Court of Justice once again dashed hopes for a wider enforceability of the WTO norms in the EC legal order. It would be dishonest, however, to interpret its attachment to the legacy of Portugal v. Council as inertia facing the developments of globalization. [...]
[...] Used by national courts and the ECJ, WTO law has found its role as a tool serving the Community's goals. From his study of the bananas saga, Tracthman concluded that « hard law is not necessary good law ».[63]One could add, reciprocally, that soft law is not necessary vain law. Article 300(5) of the Treaty of Rome Article 27 of the 1969 Vienna Convention on the Law of Treaties See the dualist/monist distinction in international law, I. Brownlie, Principles of Public International Law, 6th edition (Oxford University Press, 2003), pp. [...]
[...] Some observers have also regretted that the surprise in Biret did not trigger a new, DSB-related exception.[51] The first argument against that proposal would be the discrepancy between putting at stake Community law on the grounds of its initial aim (in Fediol as well as in Nakajima) and following the DSB rulings a posteriori, regardless of the EU action. In addition, one may wonder if the broadening of the field of exceptions[52] is foreseeable and desirable. Their accumulation, indeed, would endanger their primal goal to ensure the validity and the application of the general rule. B – Alternatives to direct effect Assuming that WTO law is not directly effective except under a limited number of conditions mentioned above, one could be tempted to overlook the other manifestations of its influence. [...]
[...] Partly because by principle, the Court precluded itself to interpret the texts unilaterally, neither the provisions of the GATT nor the WTO Agreements could be relied upon. But what if the violation of international trade law turned out to be signaled by its own source, namely a WTO body? [19]Would it finally create an obligation for EU and national courts? The birth of the Panel and the Appellate Body in the post-Uruguay Round period, as unprecedented interpreters of rulings inside the WTO system, paved the way for these thorny debates. [...]
[...] Like in the Biret case, the DSB had already questioned the Community legislation defied by the applicant. In 1997, the jurisdiction had thus expressed harsh criticism of the EU regime for the import of bananas from third countries[33] (in conflict with Articles I and XIII of GATT 1994), a warning renewed in 1999 after an unsatisfactory amendment of the regime. On these bases, and because of the expiry of the time limit for compliance[34], the Belgian importer Van Parys brought two national actions which led to the referral of several questions to the ECJ pursuant to Article 234 EC. [...]
APA Style reference
For your bibliographyOnline reading
with our online readerContent validated
by our reading committee
