WTO law in the European court of justice

Common Market Law Review

Volumn 42, Issue 5, 2005, Pages 1313-1355

  Kuijper, Pieter Jan ^c,d   Bronckers, Marco ^a,b  

^a WILMER CUTLER PICKERING HALE AND DORR LLP   (United States)

^b LEIDEN UNIVERSITY   (Netherlands)

^c EUROPEAN COMMISSION   (Belgium)

^d VU University in Amsterdam   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33747373524     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (202)

1. See Kuijlwijk, The European Court of Justice and the GATT dilemma. Public Interest versus Individual Rights (Beuningen, 1996),
2. and the literature reviewed there. The more recent debate and literature that plays a part therein, can be found in the articles of Griller and Eeckhout in the Journal of International Economic Law: Griller, "Judicial Enforceability of WTO Law in the European Union: Annotation to Case C-149/96 Portugal v. Council", 3 JIEL (2000), 441,
3. and Eeckhout, "Judicial Enforcement of WTO Law in the European Union: Some further reflections", 5 JIEL (2002), 91-110.
4. A further major contribution comes from Mengozzi in his Hague Academy course: "Private International Law and the WTO Law", 292 RCADI (2001), 251-385.
5. Another good and richly annotated article is Peers, "Fundamental right or political whim? WTO Law and the European Court of Justice", in de Burea and Scott (Eds.), The EU and the WTO Legal and Constitutional Issues (Oxford/Portland, 2001), pp. 111-130.
6. See also Klabbers, "International Law in Community Law: The Law and Politics of Direct Effect", 21 YEL (2002), 263
7. and Snyder, "The Gatekeepers: the European Courts and WTO Law", 39 CML Rev. 313-67.
8. Uruguay Round Implementation Act, Sec. 102(a)(I); Decision 800/94, O.J. 1994, L 336, last paragraph of the preamble.
9. Art. VI, Clause 2 of the US Constitution.
10. See Case 181/3, Haegeman v. Belgium, [1974] ECR 449.
11. See also Vanhamme, "Inroepbaarheid van verdragen en volkenrechtelijke beginselen voor de Europese Rechter: stand van zaken", (2001) SEW, 247.
12. In the US, the locus classicus is Foster v. Neilson 27 US (E Pet) 253, 314 (1829);
13. in the EC it is Case 104/81, Kupferberg, [1982] ECR 3659.
14. Eeckhout, External Relations of the European Union, Legal and Constitutional Foundations (Oxford, 2004), p. 302 et seq.
15. See also Eeckhout, supra, note 1, 98. Furthermore Antoniadis, "WTO law and the EU: a nexus of reactive, coactive and preactive approaches", paper 423 ECPR/SAIS Second Pan European Conference, Bologna 24-26 June 2004, p. 39.
16. See the Uruguay Round Agreements Act, 19 USC 3501, and the implementation legislation published in O.J. 1994, L 349.
17. Such clauses can be found e.g. in Art. 9 Agreement on Pre-shipment Inspection, Art. 22 Customs Valuation Agreement, Arts. 32.5 and 32.6 Agreement on Subsidies and Countervailing Measures, Arts. 18.4 and 18.5 Anti-dumping Agreement, and of course the well-known provision of Art. XVI:4 of the WTO Agreement itself.
18. Henkin, Foreign Affairs and the US Constitution (Oxford, 1996), p. 202. Such statements are attached to treaties by the President as well as the Senate; in particular treaties on human rights have suffered as a result of this treatment.
19. Henkin, op. cit. p. 202 (footnote) and 217. How exactly this may be reconciled with the fact that so-called executive agreements generally can have direct effect, is not explained by Henkin.
20. See Sec. 102(b) Uruguay Round Agreements Act.
21. Cf. Shaefer, in Jackson, Davey, Sykes (Eds.), International Economic Relations (2002), pp. 137-139.
22. Milliken, Incorporating Principles of Domestic Federation within the Framework of the World Trade Organization, ASIL Proceedings of the 89th Annual Meeting, pp. 327-334.
23. Case C-280/93, Germany v. Council, [1994] ECR 1-4973;
24. Case C-149/96, Portugal v. Council, [1999] ECR 1-8395, para 47. See further below Part 2 of this contribution by Bronckers.
25. Case 70/87, Fediol IV, [1989] ECR 1781;
26. Case 69/89, Nakajima All v. Council, [1991] ECR 1-2069.
27. See Case C-61/94, Commission v. Germany, [1996] ECR I-3989, para 52.
28. That Courts can place the State in a position of being responsible internationally for a Court decision that implies a breach of the international obligations of that State is generally recognized, see Art.4.1 of the Draft Articles on State Responsibility, endorsed by the General Assembly of the UN in A/Res/56/83.
29. See Murray v. Schooner "Charming Betsy " 6 US (2 Cranch), 64, 118 (1804).
30. Kupferberg, supra note 5.
31. Kupferberg, para 13, with a reference to Case 181/73, Haegeman, [1974] ECR 449.
32. See Kupferberg paras. 26-27.
33. Kupferberg, para 23. Text, context, object and purpose of an agreement also play a part in the more general interpretation of treaty provisions (either with direct effect or without).
34. See Kupferberg, para 30,
35. and Case 270/80, Polydor, [1982] ECR 326, para 16 et seq.
36. Kupferberg, para 17.
37. Kupferberg, para 18. In the US, reciprocity in the matter of direct effect has been considered of importance in at least one Appeals Court,
38. see US v. Postal 589 F 2d 862, p.878 (5th Circuit 1979).
39. Yet this notion has been heavily criticized in Restatement (3rd) Foreign Relations Law, § III, Reporter's note 5.
40. Kupferberg, para 20.
41. On this subject, the first reaction was from Rosas, annotation to Case C-149/96, Portugal v. Council, 37 CML Rev., 797.
42. Eeckhout, op. cit. supra note 1, 93.
43. Jackson, "Status of treaties in domestic legal systems: a policy analysis", in Jackson, The Jurisprudence of GATT and the WTO (Cambridge University Press, 2000), pp. 328, 343-344.
44. This is the case in the Netherlands and the EC, see Jackson, op. cit. ibid., who even speculates about whether in this way monistic States will not be restrained in their willingness to adopt treaties.
45. The question was discussed briefly during the Uruguay round negotiations following a Swiss initiative. Of this, all that remains (at least indirectly) is the provision in the headnote of the schedule of commitments regarding services, that nothing in this schedule creates rights for private individuals.
46. See note 8 supra and accompanying text.
47. Except in the rare State that in certain cases places treaties above the constitution, like the Netherlands.
48. See Carlos Vazquez, "The Four Doctrines of Self-executing Treaties". 89 AJIL (1995), 695.
49. Art. III-227 of the Constitution (version of 18 July 2004), which gives the European Parliament the right to approve also trade agreements.
50. See Portugal v. Council, supra note 13; for the tributes see paras. 34, 35, 42 and 44.
51. For the adjustments, Portugal v. Council, supra note 13, paras. 40-41, 43, 45-47. It will be clear that for the writer of this part of the paper these adjustments deserve a wider application than just for the WTO.
52. For a different view see Bronckers, "The Effect of the WTO in European Court Litigation" 40 Tex. Int'l L.J. (2005), 443.
53. One can also in this context think of Art. 8.3 WTO Agreement on Safeguards.
54. The necessity was all the greater because a couple of months earlier in the Poly dor case the Court had become fascinated by the question of identical interpretation of identical provisions in a different context (should the exhaustion theory of intellectual property within a freetrade area be applied in the same way as within the Community?) and had not examined the fundamental preceding questions, see Polydor, supra note 21, p. 329.
55. Both the US and the Netherlands in the 19th century, when they were both relatively weak, attached their colours to international law. Even the rhetoric was the same: according to T.M.C. Asser, the Netherlands was "een lichttoren in een duistere wereld" (a beacon in a dark world), and the US was often characterized as the "beacon on the hill " because of its propagation of international law. The changed power position of the US has also brought with it a change regarding international law.
56. Dean Acheson, Present at the Creation, My years in the State Department (W.W. Norton, 1970).
57. See Art. IX:I WTO agreement.
58. Case C-377/02, Léon Van Parijs v. Belgisch Intervenue- en Restitutie Bureau, judgment of 1 March 2005, nyr.
59. Ibid., paras 49 and 51.
60. Ibid., para 52.
61. Fediol v. Commission (Fediol IV), supra note 14, p. 1781.
62. See Nakajima, supra note 14, I-2069.
63. Portugal v. Council, supra note 13, para 49.
64. Fediol IV, supra note 14, especially paras. 18-22.
65. Regulation 3286/94, O.J. 1994, L 349/71.
66. See Bronckers and McNelis, "The EU Trade Barriers Regulation Comes of Age", 35 JWT (2001), 427-483.
67. Also to this effect, Eeckhout, op. cit. supra note 6, p. 318.
68. See Nakajima, supra note 14, paras. 30-32.
69. See note 6 supra and accompanying text.
70. See note 8 supra and accompanying text.
71. Case C-352/96, Italy v. Council, [1998] ECR 1-6937.
72. Ibid., para 20, at least this seems to follow from the formulation: that the Community by adopting the contested regulation after it had concluded agreements for the implementation of Art. XXIV:6 GATT with third countries, has sought to fulfil a specific obligation entered into within the framework of the GATT.
73. Italy v. Council, supra note 53, paras. 22-24.
74. Case C-76/00 P, Petrotub, [2003] ECR 79.
75. See Zonnekeyn, "The ECJ's Petrotub Judgment: towards a Revival of the Nakajima Doctrine?", 30 LIEI (2003), 249.
76. Id., paras. 54-56.
77. Id., para 57 et seq. with reference to case C-341/95, Bettati, [1998] ECR1-4355, para 20 et seq.
78. Id., paras. 58-62.
79. Case C-53/96, Hermès,[1998] ECR 1-3603;
80. Case C-89/99, Schieving-Nystad, [2001] ECR I-5851.
81. Case T-19/01, Chiquita Brands International et al. v. Commission, judgment of 3 Feb. 2005, nyr, see in particular paras. 159-170.
82. In Case C/93/02 P, Biret, judgment of 30 Sept. 2003, nyr, this question is discussed in para 57.
83. See furthermore Zonnekeyn, "The Status of Adopted and Appellate Body Reports in the European Court of Justice and the European Court of First Instance. The Banana Experience", 34 JWT (2000), 93;
84. Lavranos, "Die EG darf WTO-Recht weiterhin ignorieren", (2004) EWS 293.
85. See "Appellate Body Report", Japanese Liquor Taxes, 4 Oct. 1996, pp. 12-15.
86. This problem is solved in the same way in Dutch Foreign Relations Law, see Besselink, Staatsrecht en buitenlands beleid (Ars Aequi cahiers Staats- en Bestuursrecht, 1995), pp. 53-54.
87. Case C-93/02, Biret, para 57.
88. Case T-19/01, Chiquita, paras. 164-166.
89. Ibid, para 168. Case T-30/99, Bocchi, [2001] ECR II-943.
90. Case C-61/94, Commission v. Germany, [1996]ECR I-3989, para 52.
91. Case C-53/96, Hermès, [1998] ECRI 3609, para
92. Case C-89/99, Schieving-Nijstad, [2001] ECR 1-5851.
93. Murray v. Schooner "Charming Betsy", note 17 supra.
94. This method consists of computing the average dumping margin by setting the transactions where no dumping was found at zero instead of at their actual value, thus reducing the final dumping margin less than would otherwise be the case. This method was first condemned by the Appellate Body in EC-Bed-Linen, WT/DS 141, and recently also in US-Softwood Lumber III, WT/DS 236.
95. Corus Staal v. Department of Commerce, US Court of Appeals for the Federal District, Case 04-1107, 21 Jan. 2005, 395 F.3d 1343 (Fed. Cir. 2005). Yet the same Court seemed to give more weight to the "Charming Betsy" doctrine in a recent countervailing duty case, when approvingly citing a WTO Appellate Body ruling in support of its findings.
96. See Allegheny Ludlum Corp. v. United States, 367 F.3d 1339, 1348 (Fed. Cir. 2004).
97. The argument of Corus had been that, since US law did not specifically prescribe zeroing (it was an administrative practice), it should be interpreted in conformity with WTO law (here Arts. 2.4 and 2.4.2 of the ADA) as interpreted by panels and the Appellate Body.
98. In the period between the invitation to co-write this paper and the actual writing of it, the responsible author has unexpectedly become involved in a number of matters before the European Court, which regard this section and the following one. This means that the opinions here are less pronounced than in the sections 2 and 3 above.
99. See Kapteyn-VerLoren van Themaat, Het Recht van de Europese Unie en van de Europese Gemeenschap (2003), p. 390 et seq. (Kapteyn).
100. For these criteria, see Case C-352/98P, Bergaderm, [2000] ECR1-5291, para 41 et seq.
101. See also Zonnekeyn, "EC Liability for Non-Implementation of Adopted WTO Panel and Appellate Body Reports. The example of the 'innocent exporters' in the banana case", in Kronenberger (Ed.), The EU and the International Legal Order: Discord or Harmony? (Den Haag 2001), pp. 251-272.
102. See supra, note 44 and accompanying text.
103. See also in this sense, Eeckhout, op. cit. supra, note 6.
104. This point is discussed at some length by the CFI in case T-317/02, Federation des industries condimentaires de France v. Commission, judgment of 14 Dec. 2004, paras 154-158, nyr, where the CFI rightly points out that not only could the Commission not be sure to win the case, but that, even if it won, it could not be certain that precisely the practice complained of would be withdrawn.
105. See Panel Report United States - Taxes on Automobiles DS 31/R.
106. See the dialogue between Judith Bello and John Jackson: Bello, "The WTO Dispute Settlement Understanding: Less is More", 90 AJIL (1996), 416;
107. Jackson, "Editorial Comment: the WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligation", 91 AJIL (1997), 60;
108. see also Opinion A.G. Alber in Case C-93/02 P, Biret, supra note 62, para 81.
109. Art. 22.1 DSU.
110. See also Art. XVI:4 WTO agreement.
111. See the Bananas and the Hormones cases.
112. See FSC, the Byrd amendment, the 1916 Anti-Dumping Act.
113. See A.G. Alber in Biret and among others Zonnekeyn, "EC Liability for the Non-Implementation of WTO Dispute Settlement Decisions - Advocate General Albers proposes a Copernican Revolution in the Case Law of the ECJ", 6 JIEL (2003), 761-769.
114. Again A.G. Alber in Biret, paras. 82-85.
115. Ultimately a "tariff only" system must be established.
116. Case C-377/02, Van Parijs,
117. see note 41 supra and accompanying text.
118. The only case that comes somewhat close is case 112/80, Dürbeck, [1981] ECR 1095, paras. 42-46, in which the Commission and the Court gave an incorrect interpretation of a GATT panel decision. It is highly unlikely that something like that would still happen today, now that the Commission and the Court are much better informed as to the WTO and its law than in 1980.
119. See Cases T-30/99, Bocchi, ECR 2004, p. II-943,
120. and T-18/99, Cordis, ECR 2001, p. II-913.
121. See Kapteyn-VerLoren, op. cit. supra note 76, p. 391, with reference to Case 5/71, Schóppenstedt, [1971] ECR 975.
122. See Case C-352/98, Bergaderm, [2000] ECR I-5291.
123. Cf. Thies, annotation to Case C-93/02, Biret International SA v. Council, 41 CML Rev., 1661.
124. Based on information given by Alan Boyle, professor of Public International Law in Edinburgh.
125. See the cases mentioned in Schmidt-Bleibtreu and Klein, Kommentar zum Grundgesetz (1999), p. 622.1 am grateful for Frank Hoffmeister's pointers on this issue in German law.
126. I owe many thanks to Leonard Besselink for his help with this section.
127. See LJN:AE8804, Centrale Raad van Beroep, 96/8243 AAW and 96/8241 AAW, 24-12-1997.
128. LJN:AE5164, Hoge Raad, C01/027HR.
129. LJN:AM1885, Hof 's-Hertogenbosch, 01/02688, 22-08-2003.
130. 28 USC §§1346(b) and 2671-2680.
131. See recently the ruling of the Supreme Court in Sosa v. Alvarez Machain et al. 542 US 692, 124 S.Ct. 2739 U.S., 2003. (29 June 2004).
132. A summary of the case law was recently given by the CFI and the ECJ in Cases T-184/95 and C-237/98 P, Dorsch Consult v. Council, [1998] ECR II-997, and [2000] ECR 1-4549.
133. Case T-184/95, para 59.
134. Case T-184/95, para 72.
135. Id., para 74.
136. This is an idea that can be found in French law, but it should be noted that the risks are mainly medical ones (vaccination, biomedical research) and that the solution comes from the legislature and not the courts, see Dailler, La responsabilité administrative (Dalloz 1996), pp. 173-174.
137. See T-184/95, para 80.
138. See Dailler, supra note 109, pp. 164-167. See in the Netherlands Art. 3:41(2) of the AWB (General Administrative Law Act), that sees such situations more as a violation of the principle of proportionality than of the principle of equality. Not providing compensation for losses in such cases leads to an unlawful situation.
139. See Van Buuren and Polak, Algemene Wet Bestuursrecht, Tekst en Commentaar, p. 31.
140. In Case T-184/95, Dorsch Consult, supra note 105 this was held to be the case for economic sanctions ordered by the Security Council, para 87.
141. The same applied to general monetary-economic measures in older case law, see Joined Cases 9 & 11/71, Compagnie d'Approvisionnement et Grands Moulins de Paris, [ 1972] ECR 391, paras. 45-46.
142. See Cases T-69/00, FIAMM, T-151/00, Laboratoires du Bain, T-301/00, Groupe Frémaux et Palais Royal Inc., T-320/00, Cartondruck, T-383/00, Beamglow Ltd and T-135/01, Giorgio Fedon, pending.
143. See in this sense also Anne Thies, supra, note 96.
144. In the Netherlands the question of application of the principle of "Égalité devant les charges publiques" was been discussed at great length during the realization of the Sanctiewet 1980, see Kuijper, "De nieuwe Sanctiewet", (1980) SEW, 319-342.
145. This contribution builds on Bronckers, "Editorial: La Jurisprudence des Jurisdictions Communautaires relatives à l'OMC Demande Réparation: Plaidoyer pour les Droits des Etats Membres", 37 CDE (2001), 3-14.
146. See Portugal v. Council, supra note 13. The Court earlier rejected the possibility for Member States to review Community measures within the framework of the GATT.
147. See Case C-280/93, Germany v. Council, [1994] ECR 1-4973.
148. To distinguish earlier case law on this matter, the Court suggests in Portugal v. Council, id., para 42, that reciprocity can be a criterion in the internal evaluation of a treaty like the WTO that is based on reciprocal and mutually advantageous commitments, or that does not create special relations of integration with the Community.
149. This judgment was recently criticized, partly in the light of the traditions of monistic EU Member States, by Uerpmann, International Law as an Element of European Constitutional Law: International Supplementary Consitutions, Jean Monnet Paper 9/03, 19-22 (2003): www.jeanmonnetprogram. org/ papers/03/030901-02.pdf (he notes among other things that only Art. 55 of the French Constitution recognizes a reciprocity criterion for the internal binding force of treaties, which is however interpreted restrictively in French case law).
150. For a more positive discussion of the reciprocity criterion regarding the direct effect of WTO provisions for the benefit of individuals see Eeckhout, op. cit. supra note 1, 94-96.
151. The reverse is not necessarily true: if a Treaty provision has direct effect, it would normally be clear that Member States can review the lawfulness of Community measures also within this framework.
152. Cf. e.g. the dispute settlement system of the Lomé convention laid down in Art. 352 Convention, O.J. 1991, L 229/3. Compared to the WTO system the Lomé system can be called elementary; nor has the Lomé system ever been applied. Nevertheless the Court recognized the direct effect of the provisions of the Lomé Convention.
153. See Case C-469/93, Chiquita Italia, [1995] ECR 1-4533, paras. 31-36 (in which the Court contrasted the Lomé Convention with the GATT, in paras. 26-29, for which it again did not recognize direct effect).
154. For an overview of dispute settlement systems in various treaties see the "Project on International Courts and Tribunals ": www.pict-pcti.org/.
155. Some authors have deduced from this that solutions negotiated under WTO law are to be preferred to the fulfilling of treaty obligations. See e.g. Rosas, annotation of Portugal v. Council, op. cit. supra note 25 at 809. A variation of this is the premise that a party which has lost a WTO dispute is authorized to leave the illegal measure in force, and can oblige the complaining party to accept a different solution.
156. See Sykes, "The remedy for breaches of obligations under the WTO Dispute Settlement Understanding: Damages or specific performance?", in Bronckers and Quick (Ed.), New Directions in International Economic Law: Essays in Honour of John H. Jackson (2001), pp. 347-357.
157. These ideas are, according to me, not legally tenable, and are undesirable from a policy perspective: Bronckers, "More Power to the WTO?", 4 JIEL (2001), 60-61.
158. In the same sense recently Jackson, "Editorial Comment International law status of WTO Dispute Settlement Reports: Obligation to comply or option to 'Buy Out'?", 98 AJIL (2004), pp. 109-125. See in particular Art. XVI.4 WTO agreement; Art. 22.1 WTO Dispute Settlement Understanding.
159. One may wonder whether the measures which were chosen in the WTO to encourage treaty compliance were the best choice. I myself would prefer a system of financial compensation in cases of breach of WTO agreements, first of all from the point of view of developing countries. See Bronckers and van den Broek, "Financial Compensation in the WTO: Improving the Remedies of WTO Dispute Settlement", 8 JIEL (2005), 101-126. This debate however does not question the legal status of WTO obligations, nor the primary objective to respect these obligations.
160. See also, infra, text at notes 129-133.
161. This expression was used by A.G. Saggio in another context in his Opinion in Portugal v. Council, supra, note 13, para 18.
162. The consideration in the preamble recalls Section 102(c) of the American Uruguay Round Agreements Act according to which "No person other than the United States" can challenge the legality of federal laws and decisions based on WTO rules. Direct effect of WTO law for the benefit of individuals is thus explicitly ruled out.
163. On this see Mavroidis, "Remedies in the WTO Legal System: Between a rock and a hard place", 11 EJIL (2000), 763-813.
164. See Art. 21(3) WTO DSU. In case the opposing parties cannot agree on such a reasonable period for implementation, this period will be determined by means of an - again compulsory - arbitration.
165. See e.g. Case C-163/90, Leopold Legros, [1992] ECR 1-4625 (also limiting in time the legal effects of a violation of a provision of the Agreement of free trade between the then EEC and Sweden); Case C-262/88, Barber, [1990] ECR1-1889.
166. See Art. 231 EC, as applied in e.g. Case C-65/90, Parliament v. Council, [1992] ECR 1-4593;
167. Case 264/82, Timex v. Council, [1985] ECR 849.
168. As is known, the Court is in some cases willing to review legality in light of WTO rules when requested by individuals provided that the relevant Community legislation explicitly refers to WTO obligations. This is the so-called Nakajima doctrine, derived from Nakajima, supra note 14.
169. See Petrotub, supra note 56, on anti-dumping duties on import of tubes and pipes from e.g. Romania (member of the WTO since 1995).
170. See the notice published on 8 Feb. 2003, O.J. 2003, C 30/14. This reimbursement could only be claimed with regards to imports of pipes and tubes produced by the two companies (Petrotub and Republica) that had lodged a complaint against the anti-dumping regulation.
171. This does not mean that Petrotub was completely out of its troubles. The Council decided at the beginning of 2004 to impose anti-dumping duties on Petrotub's exports after all, of the same amount as the annulled duties, based on an adjusted line of reasoning.
172. See Regulation 235/2004, O.J. 2004, L 40/11. In the opinion of Petrotub this measure constituted an incorrect implementation of the earlier judgment of the Court and was also in violation of the basic anti-dumping regulation. Petrotub brought an action before the CFI in May 2004, see announcement in O.J. 2004, C 179/16.
173. Then, in July 2004 the Commission cancelled all antidumping duties on the import of pipes and tubes from Romania and Russia, in light of breaches of competition law by some complaining European producers, see Regulation 1322/2004, O.J. 2004, L 246/10. At the same time it announced that it was still busy with a review regarding anti-dumping duties. Most recently, the Commission has initiated a new proceeding against the products from, inter alia, Romania, together with a new initiation of an interim review of the existing, but suspended measures.
174. See Notice of initiation, O.J. 2005 C 77/2.
175. See WTO Appellate Body, European Communities - Antidumping Duties on Imports ofCotton-Type Bed Linen from India (WT7DS141/AB/R, 1 March 2001; accepted by the WTO Dispute Settlement Body on 12 March 2001). With this report a complaint by India against the EU anti-dumping regulation was honoured.
176. The anti-dumping duties on bed linen from India, found to constitute a breach by the WTO in March 2001, were re-examined and lowered, and at first suspended, by the EU in August 2001. Subsequently the EU confirmed the newly calculated duties, maintaining the suspension, in April 2002. A new WTO dispute arose over this, which this time India lost. See WTO Appellate Body, European Communities - Antidumping Duties on Imports of Cottontype Bed Linen from India - Recourse to Article 21.5 of the DSU by India (WT/DS141/AB/ RW, 8 April 2003; accepted by the WTO Dispute Settlement Body on 28 April 2003).
177. The duties were in the end cancelled in December 2003. See in summary Regulation 2239/2003, O.J. 2003 L 333/3. In these cases there was no question of reimbursement of duties levied in the past. This bed linen saga has been recounted by Hart, India-EU Dispute Re: Trade in Cottontype Bed Linen (first web publication 24 Jan. 2003): www.commercialdiplomacy.org/pdf/ case_studies/bed_linen.pdf.
178. See in this context also the enabling regulation, in which the Council took further measures in order to enable the Community institutions to adjust existing anti-dumping regulations to a judgment of the WTO (Regulation 1515/2001, O.J. 2001 L 201/10). On this, McNelis, "What obligations are created by World Trade Organization Dispute Settlement Reports?", 37 JWT (2003), 647, 649, 659-661.
179. This does not alter the possibility that the Court, in the execution of a review of legality, as appropriate, could take into account the legal effect of a WTO decision in the determining of the Community legal effects of an annulment of a Community measure based on WTO law.
180. See Biret, supra note 62, paras. 35 and 55.
181. Case C-61/94, Commission v. Federal Republic of Germany, [1996] ECR 1-3989, paras. 1 and 15 (the case concerned a violation of the GATT Milk Agreement of 1979).
182. See Art. 211(ex 155) EC, to which the Court referred in conjunction with Art. 300 (ex 228) EC.
183. See Commission v. Germany, id., para 15.
184. In other words, Art. 211 EC, in which the Commission is given a supervisory role in regard to Treaty implementation, does not diminish the role and competence that Member States have pursuant to Art. 230 EC in the review of legality of Community acts.
185. Bourgeois also considers the unequal treatment of the Commission and Member States in a request for a review of legality based on WTO law by the European Court to be, on balance, unsatisfactory, although he does observe a possibility to distinguish the position of these two categories of "supervisors". See Bourgeois, "The European Court of Justice and the WTO: Problems and Challenges", in Weiler (Ed.), The EU, the WTO and NAFTA: Towards a Common Law of International Trade? (2000), pp. 71, 112-113 (if one holds the opinion that the Commission, with the action against a Member State such as Germany for incorrect implementation of GATT obligations, is mainly focused on a breach of the obligations under Community law ofthat Member State, while an action of a Member State such as Germany against a Community measure based on the GATT, is said mainly to examine the obligations of the EC under the GATT).
186. This view was recently supported by Antoniadis, WTO Law and the EU: a nexus of reactive, coactive and proactive approaches, paper presented at the ECPR/SAIS Standing Group on EU Politics (Bologna, June 24-26 2004): www.jhubc.it/ecpr-bologna. I do not see this nuance. Member States and Community institutions are equal before the law, this is the way I read Art. 300(7) EC.
187. This unusual situation is expressed in the rule stating that the Community and the Member States together cannot cast more votes in the WTO than the number of Member States (so the Community does not get an extra vote). See Art. IX, footnote 2, WTO Agreement.
188. See Everling, "Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts", 33 CML Rev 401, 423. Everling made the point of State responsibility at the time of the GATT, of which only the Member States (and not the EC as such) were Contracting Parties. Interestingly, the Court more recently paid attention to this point. While still not allowing a Member State to claim that the Community had breached its obligations under the WTO, the Court did review at the request of a Member State (the Netherlands) whether an EC directive forced the Member States to breach their own obligations under the WTO's TRIPS and TBT Agreements.
189. See Case C-377/98, Netherlands v. Parliament and Council (Biotechnology), [2001] ECR 1-7079, at para 55.
190. On this von Bogdany, "Legal effects of World Trade Organization decisions within European law: A contribution to the theory of legal acts of International Organizations and the action for damages under Article 288(2) EC", 39 JWT (2005) 45, 63.
191. See Opinionl/94, [1994] ECR 1-5267, and subsequent amendments in Art. 133 EC. In practice, thus far, it has always been the Community that has assumed responsibility before panels and the Appellate Body,
192. see Kuijper and Paasivirta, "Furtehr exploring international responsibility: The EC and the ILCs project on international responsibility of international organizations", (2005) International Organizations Law Review, 111.
193. That would in all probability constitute a breach of their duty of cooperation in the WTO, which the Court established in Opinion 1/94 (paras. 108-109), and of Arts. 10 and 292 EC.
194. See, supra note 145.
195. See Eeckhout, supra, note 1, 96 (Eeckhout defends the choice of the Court to rule out direct effect for the benefit of individuals; in the article he does not take a point of view on the position of Member States).
196. See Portugal v. Council, supra note 13, para 47.
197. See Agence Europe, UE/Bananes: l'Equateur souhaite une solution négociée, mais n'hésitera pas à recourir à la procédure d'arbitrage de l'OMC, 27 avril 2001, p. 14.
198. See the current version of Art. 133(4) EC (Nice version), which is identical to Art. 113 of the original Treaty of Rome.
199. See Art. 133(5) EC (Nice version), and compare Art. III-217(4) CT.
200. I make this reservation because at some time in the future the institutional relations within the Community may have developed so far that the position of Member States in the WTO and the EU is no longer privileged. Then the policy consideration regarding whether to give Member States a supervisory role would be different. At that point, it might be acceptable that only the Community Institutions - and possibly citizens - supervise the compliance with international (e.g.,WTO) obligations. The supervisory role of the Institutions is then no longer comparable to that of the Member States. It would then, for instance, no longer be unsatisfactory for the Commission to be empowered to start infringement proceedings against a Member State for infringement of a WTO obligation, while vice versa a Member State may no longer bring an action against a Community institution for infringement of WTO obligations. Cf. text supra at notes 117-121.
201. Cf. recently e.g. Lamy, La démocratie-monde: Pour une autre gouvernance globale (Seuil, 2004), pp. 79-80;
202. Lamy and Laïdi, "A European Approach to Global Governance", 1 Progressive Politics 56-63 (nr. 1, 2002).