The Bed Linen case and its aftermath: Some comments on the European community's "World Trade Organization Enabling Regulation"

Journal of World Trade

Volumn 36, Issue 5, 2002, Pages 993-1003

  Zonnekeyn, Geert A ^a,b  

^a Belgian Competition Council   (Belgium)

^b GHENT UNIVERSITY   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

TEXTILE INDUSTRY; WORLD TRADE ORGANIZATION;

EASTERN HEMISPHERE; EURASIA; EUROPE; EUROPEAN UNION; WORLD;

EID: 26044482074     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1021289028592     Document Type: Review

References (78)

1. For a more in-depth analysis of the Bed Linen case, see J.B. Kim, Fair Price Comparison in the WTO Antidumping Agreement. Recent WTO Panel Decisions Against the "Zeroing" Method, 36 J.W.T. 1 (2002), 39.
2. WT/DS141/AB/R of 1 March 2001.
3. WT/DS141/R of 30 October 2000.
4. WT/DS141/10 of 1 May 2001.
5. Council Regulation (EC) No. 1515/2001 of 23 July 2001, OJ L 201/10 of 26 July 2001. For a comment, see J. Branton, The EC Washes its Dirty Bed Linen - Is the Saga Over Yet?, I.T.L.R. (2002), 64;
6. D. Horovitz, A Regulated Scope for EU Compliance with WTO Rulings, I.T.L.R. (2001), 153;
7. and G.A. Zonnekeyn Enkele kanttekeningen bij Verordening 1515/2001 inzake de temiotvoerlegging van besluiten van het Orgaan voor Geschillenbeslechting van de WTO, S.E.W (2002), 97.
8. Council Regulation (EC) No. 1644/2001 of 7 August 2001 amending Regulation (EC) No. 2398/97, imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan and suspending its application with regard to imports originating in India, OJ L 219/1 of 14 August 2001.
9. WT/DS141/11, para. 4.
10. Council Regulation (EC) No. 160/2002 of 28 January 2002 amending Regulation (EC) No. 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan and terminating the proceeding with regard to imports originating in Pakistan, OJ L 26/1 of 30 January 2002.
11. Notice of initiation of a partial interim review of the anti-dumping measures applicable to imports of cotton-type bed linen originating in India, OL C 39/17 of 13 February 2002.
12. Notice of the expiry of certain anti-dumping measures, OJ C 65/12 of 14 March 2002.
13. Council Regulation (EC) No. 696/2002 of 22 April 2002 confirming the definitive anti-dumping duty imposed on imports of cotton-type bed linen originating in India by Regulation (EC) No. 2398/97, as amended and suspended by Council Regulation (EC) No 1644/2001, OJ L 109/3 of 25 April 2002.
14. Notice regarding the anti-dumping measures in force following a ruling of the Dispute Settlement Body of the World Trade Organization adopted on 12 March 2001, OJ C 111/4 of 8 May 2002.
15. See Press Release IP/02/685 of 8 May 2002: "European Commission to review anti-dumping measures to confirm compliance with WTO recommendations".
16. WT/DS141/12 of 14 March 2002.
17. WT/DS141/14 of 2 July 2002.
18. Only the traditional newcomer, interim and sunset review options were available, all of which require new investigation periods and new calculations, rather than revisiting old investigation periods and re-calculating by way of different methods.
19. See Branton, as note 5, above, at 65.
20. COM(2001) 379 final of 5 July 2001 and OJ C 270 E/242 of 25 September 2001.
21. Para. 2 of the explanatory memorandum to the Commission proposal.
22. Para. 6 of the explanatory memorandum to the Commission proposal and para. 6 of the preamble to the WTO Enabling Regulation.
23. I refer in particular to the stimulating discussion between J.H. Bello, The WTO Dispute Settlement Understanding: Less is More, 90 A.J.I.L. (1996), 416-418, and
24. J.H. Jackson, The WTO Dispute Settlement Understanding-Misunderstandings on the Nature of Legal Obligation, 91 A.J.I.L. 1 (1997), 60
25. (reprinted in J. Cameron and K. Campbell (eds), Dispute Resolution in the World Trade Organization (London: Cameron & May, 1998), pp. 69-74).
26. Corroborating the view of Bello, see A.O. Sykes, "The Remedy for Breach of Obligations under the WTO Dispute Settlement Understanding: Damages or Specific Performance?", in M. Bronckers and R. Quick (eds), New Directions in International Economic Law (The Hague: Kluwer Law International, 2000), p. 349;
27. T.M. Reif and M. Florestal, Revenge of the Push-Me, Pull-You: The Implementation Process Under the WTO Dispute Settlement Understanding, 32 International Lawyer (1998), 755-788;
28. and P. Ruttley and M. Weisberger, "The WTO Agreement in European Community Law: Status, Effect and Enforcement", to be published in P. McRoy, A. Appleton and M. Plummer (eds), The Kluwer Companion to the WTO Agreement (The Hague, Kluwer Law International, publication forthcoming).
29. Corroborating the view of Jackson, see, e.g., S. Griller, Judicial Enforceability of WTO law in the European Union. Annotation to Case C-149/96, Portugal v. Council, 3 J.I.E.L. 3 (September 2000), 441-472;
30. R.E. Hudec, "Broadening the Scope of Remedies in WTO Dispute Settlement", in F. Weiss (ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From The Practice of Other International Courts and Tribunals (London: Cameron & May, 2000), p. 377;
31. P.C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 E.J.I.L. 4 (2000), 763;
32. J. Pauwelyn, Enforcement and Countermeasures in the WTO: Rules and Rules - Towards a More. Collective Approach, 94 A.J.I.L. 2 (April 2000), 335;
33. P.X. Pierros and M. Maciejewski, Specific Performance or Compensation and Countermeasures - Are These Alternative Means of Compliance Under the WTO Dispute Settlement System?, 7 I.T.L.R. 6 (October 2001) 167;
34. and F. Roessler, A. Ellard and R. Elliot, Performance of the System IV: Implementation, International Lawyer (1998), 789.
35. For an overview of these different views, see J. Waincymer, WTO Litigation. Procedural aspects of Formal Dispute Settlement (London: Cameron & May, 2002), pp. 659-664.
36. See Jackson, as note 21, above.
37. See Article 49 of the ILC's Final Draft Rules on State Responsibility. The Final draft articles were adopted in August 2001. See ILC Report on the work of its 53rd session (23 April-1 June 2001, and 2 July-10 August 2001), General Assembly, Official Records, 55th Session, Supplement No. 10 (A/56/10). The draft Articles are on pp. 43-59, at 〈http://www.un.org/law/ilc/reports/2001/2001report.htm〉. Article 49(1) provides that "[A]n injured State may only take countermeasures against a State which is responsible for an international wrongful act in order to induce that State to comply with its obligations ...".
38. Pauwelyn, however, argues that the "WTO enforcement regime lacks the remedy of reparation - at least in the traditional sense of compensation for damages in the past". He concludes that "[I]n this sense, the WTO offers less than the ICJ". See Pauwelyn, as note 21, above, at 359. One could also argue that, under WTO law, cessation and reparation are "compressed" in the withdrawal or the modification of the measure in question.
39. However, in December 2001 the US agreed to pay the EC $3 million in compensation in the context of settling US - Section 110(5) of the US Copyright Act (WT/DS160). The statute at issue in the case allows the broadcasting of music in certain US restaurants and bars without paying EC rights holders. This has been estimated to cost the EC roughly $1 million per year in lost royalties.
40. The settlement reached envisages an anticipated US payment of more than $3 million over three years into a fund for European musicians while the legislation remains in effect. See European Commission Press Release IP/01/1860 of 19 December 2001, "EU and US agree on temporary compensation in copyright dispute".
41. See Jackson, as note 21, above, at 63.
42. See Pierros and Maciejewski, as note 21, above, at 168; and Zonnekeyn, as note 5, above, at 99.
43. Sykes, as note 21, above, at 349.
44. See Pierros and Maciejewski, as note 21, above, at 168; and Zonnekeyn, as note 5, above, at 99.
45. Timmermans admits that compensation is seen as only a temporary solution but that it cannot in any way be excluded that compensation may ultimately be a provisoire qui dure, see C.WA. Timmermans, "The Implementation of the Uruguay Round by the EC", in J.H.J. Bourgeois et al. (eds), The Uruguay Round Results: A European Lawyers' Perspective (Brussels: European Interuniversity Press, 1995), pp. 501-509, at p. 504.
46. For a good example, see India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, report of the Panel of 5 September 1997, WT/DS50/R, at para. 8.2. For a comprehensive study of the non-binding character of the "suggestion" of the adjudicating bodies, see Mavroidis, as note 21, above, at 777-778.
47. Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexica, report of the Panel of 16 June 1998, WT/DS60/R, at para. 8.3.
48. Ibid., at para. 7.26.
49. See Article 21.5 DSU. For a recent analysis of the practice under Article 21.5 DSU, see J.E. Kearns and S. Charnovitz, Adjudicating Compliance in the WTO: A Review of DSU Article 21.5, J.I.E.L. (2002), 331.
50. Horovitz, as note 5, above, at 155.
51. Ibid., at 156.
52. See, e.g., P.J. Kuyper, "The Law of GATT as a Special Field of International Law", in Netherlands Yearbook of International Law, Vol. XXV (Dordrecht: Martinus Nijhoff, 1994), pp. 252-253;
53. A. Rosas, Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective, 4 J.I.E.L. 1 (March 2001), 140-141;
54. and P. Ruttley, "WTO Dispute Settlement and Private Sector Interests: A Slow but Gradual Improvement?", in P. Ruttley, I. MacVay and M. Weisberger (eds), Due Process in WTO Dispute Settlement (London: Cameron & May, 2001), pp. 177-179.
55. This article will only focus on the case-law with regard to anti-dumping duties. The case-law with regard to anti-subsidy measures will not be dealt with. For an overview also encompassing GATT and WTO practice with regard to anti-subsidy measures, see P. Grane, Remedies Under WTO Law, J.I.E.L. (2001), 763-769.
56. P.J. Kuyper, "Met GATT en het Volkenrecht", in Mededelingen van de Nederlandse Vereniging voor International Recht (The Hague: Kluwer, 1993), p. 52.
57. New Zealand - Imports of Electrical Transformers from Finland, report of the Panel of 18 July 1985, BISD, 32S/55, at para. 4.11.
58. United States - Imposition of Anti-dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden, report of the Panel of 20 August 1990, ADP/47, at para. 5.24.
59. United States - Anti-dumping Duties on Gray Portland Cement and Cement Clinker from Mexico, report of the Panel of 7 September 1992, ADP/82, at para. 6.2.
60. Brazil - Imposition of Provisional and Definitive Anti-dumping Duties on Milk Powder and Certain Types of Milk from the European Economic Community, report of the Panel of 27 December 1993, SCM/179, para. 200.
61. Article 19.1 DSU.
62. Contra: C. Charmody, Remedies and Conformity Under the WTO Agreement, J.I.E.L. (2002), 307.
63. D. Palmeter and P.C. Mavroidis, Dispute Settlement in the World Trade Organization (The Hague: Kluwer Law International, 1999), at p. 164.
64. Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico, report of the Panel of 16 June 1998, WT/DS60R.
65. For an analysis of this report and other related reports, see D.A. Yocis, Hardened Positions: Guatemala Cement and WTO Review of National Antidumping Determinations, N.Y.U. L. Rev. (2001), 1259.
66. Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico, report of the Panel of 16 June 1998, WT/DS60R, at para. 8.1.
67. Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico, report of the Appellate Body of 2 November 1998, WT/DS60/AB/R.
68. Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico (II), report of the Panel of 24 October 2000, WT/DS156/R, at paras 9.5-9.7.
69. See also Branton, as note 5, above, at 65.
70. Mavroidis reaches a similar conclusion in his comments on Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico. See Mavroidis, as note 21, above, at 388.
71. OJ C 127/10 of 29 May 2002.
72. See, e.g., Case 26/81 Oleifici Mediterranei v. EEC [1982] ECR 3057, at para. 16;
73. Case T-175/94 International Procurement Services v. Commission [1996] ECR II-729, at para. 44;
74. Case T-113/96 Edouard Dubais et Fils v. Council and Commission [1998] ECR II-125, at para. 54,
75. and Case T-178/98 Fresh Marine Company SA v. Commission [2000] ECR 11-3331, at para. 54.
76. Case C-352/98P, Laboratoires Pharmaceutiques Bergaderm SA and J.-J. Goupil v. Commission [2000] ECR I5291, at paras 41-42.
77. Case T-174/00, Biret International SA v. Council and Commission not yet published in the ECR, at para. 62.
78. See G.A. Zonnekeyn, The Status of Adopted Panel and Appellate Body Reports in the European Court of Justice and the European Court of First. Instance - file Banana Experience, 34 J.W.T. 2 (April 2000), 93.