The WTO treaty as a mixed agreement: Problems with the EC's and the EC Member States' membership of the WTO

European Journal of International Law

Volumn 17, Issue 4, 2006, Pages 837-862

  Steinberger, Eva ^a  

^a NONE

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EID: 33750207508     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl026     Document Type: Article

References (144)

1. Opinion 1/94 [1994] ECR I-5267.
2. See Art. 6 of the Understanding on Rules and Procedures governing the Settlement of Disputes (DSU), World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Text (2000), at 3 59.
3. See ibid., Art 16
4. for a detailed study of the issue see Cottier, 'Dispute Settlement in the World Trade Organization: Characteristics and Structural Implications for the European Union', 35 Common Market Law Review (1998) 325 ff.
5. 'LAN Case' - Customs Classifications of Certain Computer Equipment, Panel Report, WT/DS62/R, WT/D67/R and WT/D68/R, 5 Feb. 1998, paras. 8.15, 8.16, and 8.72.
6. In particular, J. Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001), 174-208;
7. Cottier, supra note 3, at 325 ff.;
8. G. Sacerdoti, A. Yanovich, and J. Bohanes (eds), The WTO at Ten: The Contribution of the Dispute Settlement System (2006).
9. Schermers, 'A Typology of Mixed Agreements', in D. O'Keeffe and H.G. Schermers, Mixed Agreements (1983), at 2 5-2 6;
10. M. Hirsch, The Responsibility of International Organizations Toward Third Parties - Some Basic Principles (1995), at 19;
11. H.G. Schermers and N.M. Blokker, International Institutional Law (3rd edn., 1995), para. 1756.
12. See, inter alia, Euro-Mediterranean Association Agreements with Egypt (1 June 2004), Israel (1 June 2000), Jordan (1 May 2002), Lebanon (1 Mar. 2000), Morocco (1 Mar. 2000), and Tunisia (1 Mar. 1998). All these Agreement are available at the official website of the European Commission, at: http://ec.europa.eu/comm/external_relations/euromed/ doc.htm. (last visited 24 July 2006).
13. For a survey see: Feenstra, 'A Survey of the Mixed Agreements and their Participation Clauses', in O'Keeffe and Schermers, supra note 6, at 207. Most of these competence clauses are not very precise, but at least they state that the term 'party' sometimes refers to the EC and sometimes to the EC Members, or clarify that the EC and its Members should be regarded as one single joint party.
14. (See, inter alia, Agreement on the European Economic Area, supra note 7, at Art. 2.) Therewith, they make it clear that the treaty in question is not meant to bind the EC and the EC Members on all provisions, but that membership is shared. Some other clauses (most prominently the United Nations Convention on the Law of the Sea (1982) (UNCLOS), Annex IX) even try to eliminate this problem by listing more specifically which part of the agreement falls under the competence of the EC and which under the competence of the EC Members. However, as the Sellafield case shows, the success of such precise listing is more than doubtful: Despite the UNCLOS competence clauses not even the EC and its Members themselves agreed on the exact partition of competences between themselves:
15. see Case C-459/03, Commission v. Ireland (Sellafield), 30 May 2006, especially at paras 86-121.
16. P. Eckhout, External Relations of the European Union (2004), at 205.
17. R. K. Gardiner, International Law (2003), at 212.
18. J. Klabbers, An Introduction to International Institutional Law (2002), at 42;
19. see also Lachmann, 'International Legal Personality of the EC: Capacity and Competence'; 10 Legal Issues of European Integration (1984), 5.
20. Note: Although the Treaty of Maastricht of 1992 established the European Union, this did not determine the independent legal personality of the European Community. See, inter alia, Pechstein, 'VölkerTechtspersönlichkeit der EG', in R. Streinz (ed.), EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (2003), at 2355, para. 2. Note also that, arguably with its enormous number of competences and its strong legal structure which is completely interwoven with the national legal systems of its Member States, it comes close to being a sovereign (federal) state. However, the last word on the fate of the EC still lies in the hands of its Members, which are still able to dissolve the EC as a whole. The EC is consequently not a sovereign state (yet).
21. See Pitschas, 'Die Vökerrechtliche Verantwortlichkeit der Europäischen Gemeinschaft und ihrer Mitgliedstaaten', 78 Schriften zurn Europäischen Recht (2001), at 11.
22. In the academic world, there is some dispute whether it is necessary for third parties to recognize the legal personality of an international organization, or whether it is enough that the founding treaty of an organization assigns legal personality to it, or whether the mere fact that an organization exists and acts is sufficient. Here this question does not have to be discussed any further, as the EC fulfils all possible requirements: Art. 281 EC Treaty bestows legal personality upon the Community; the EC actually acts under international law (signing international treaties, etc.) and it is recognized by the vast majority of states and other international organizations: See Akande, 'International Organisations', in M. D. Evans (ed.), International Law (2003), at 273-276.
23. See, iner alia, Pitschas, supra note 12, at 31-32;
24. Pitschas argues, however, that ultra vires performance is possible in the case of limited legal personality. See at 57-61.
25. Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174, at 179 (emphasis added).
26. R. Jennings and A. Watts, Oppenheim's International Law (9th edn., 1996), i, 16 (emphasis added);
27. see also at 17-19. See also Govaere, Capiau and Vermeersch, 'In-Between Seats: The Participation of the European Union in International Organisations', 9 European Foreign Affairs Review (2004) 158.
28. Lachmann, supra note 11, at 6-7;
29. Schermers and Blokker, supra note 6, at para. 1570, and at 981, note 19, take the same view.
30. black and white answer (yes or no)', whereas the question of competences is a relative one. Akande, supra note 13, at 273 is apparently ofthe same view. (He also separates the question of personality from that of competences.)
31. For a different view see Arnold, 'Der Abschluss gemischter Verträge durch die Europäische Gemeinschaft', 19 Archiv des Vökerrechts (1980-81) 432.
32. For a different view on the 1986 VCLT Art 46 see Pitschas, supra note 12, at 59-61.
33. Björklund, 'Responsibility in the EC for Mixed Agreements - Should Non-Member Parties Care?', 70 Nordic Journal of International Law (2001) 389.
34. Netrami, 'International Responsibility of the European Community and of the Member States under Mixed Agreements', in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (2002), at 199, also see note 19 of the same article
35. Gaja, 'The European Community's Rights and Obligations under Mixed Agreements', in O'Keeffe and Schermers, supra note 6, at 138.
36. In fact, during the whole process of negotiation of the Uruguay Round the EC had argued that the WTO Agreement was a 'single undertaking', meaning one single, indivisible treaty. See Bourgeois, 'The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession', 32 Common Market Law Review (1995) 763 ff.
37. especially at 785. The fac that the Commission on behalf of the EC in the end consented to the Agreement 'with regard to that portion ... which falls within the competence of the European Community' cannot alter this situation: Council Decision 94/800/EC of 22 December 1994 concerning the conclusion of the agreement reached in the Uruguay Round multilateral negotiations (1986-1994), 94/800/EC, OJ [1994] L336/1.
38. Art 46 VCLT 1986 states: '2. An international Organisation may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the Organisation regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance. 3. A violation is manifest if it would be objectively evident to any State or any international Organisation conducting itself in the matter in accordance with the normal practice of States and, where appropriate, of international Organisations and in good faith.'
39. Neframi, supra note 2 1, at 200;
40. see also Tomuschat, 'Liability for Mixed Agreements', in O'Keeffe and Schermers, supra note 6, at 130.
41. The negotiations for the WTO Agreement ended with the signature of the 'Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations', World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (2000), at 2, which embodies the WTO Agreement (see para. (1) [of what?]). It was signed in Marrakesh on 15 Apr. 1994, whereas the request for an Opinion of the ECJ was made by the EC Commission on 7 Mar. 1994.
42. See Hilf, 'The ECJ's Opinion 1/94 on the WTO - No Surprise but Wise?', 6 EJIL (1995) 247-248.
43. For a more detailed study of the background of the Council's opinion that the EC was competent alone to sign the WTO Treaty see, inter alia, Heliskoski, supra note 5, at 226-229.
44. Sack, 'The European Community's Membership of International Organizations', 32 Common Market Law Review (1995) 1236.
45. For a more detailed study of the legal and political background of Opinion 1/94 see: Bourgeois, supra note 22, at 763 ff., especially at 785-786;
46. Pescatore, 'Opinion 1/94 on "Conclusion" of the WTO Agreement: Is there an Escape from Programmed Disaster?', 36 Common Market Law Review (1999) 387.
47. The Council on behalf of the EC approved the Agreement on 22 Dec. 1994. See Council Decision 94/800/EC, supra note 22, at 1.
48. C. Chinkin, Third Parties in International Law (1993), at 25.
49. Note that para. (4) of the 'Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations', supra note 25, leaves the form of consent up to joining Members' discretion. Consent may be expressed 'by signature or otherwise' (emphasis added). So the moment of ratification of the WTO Agreement by the EC can be regarded as the moment of consent in the sense of VCLT Art. 14;
50. see also Fitzmaurice, 'Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental Treaties', in J. Klabbers and R. Lefeber (eds), Essays on the Law of Treaties - A Collection of Essays in Honour of Bert Vierdag (1998), at 61.
51. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) [2002] ICJ Rep 275, at para. 266.
52. See also L. Bartels, Human Rights Conditionality in the EU's International Agreements (2005), at 151.
53. Cameroon v. Nigeria, supra note 32, at para. 265;
54. see also M.N. Shaw, International Law (5th edn., 2003), at 846-847.
55. See, inter alia Hilf, supra note 25;
56. Neuwahl., 'Shared Powers or Combined lncompetence? More on Mixity', 33 Common Market Law Review (1996) 667.
57. In its response to questions from the panel Australia explicitly refers to Opinion 1/94 and roughly outlines that the EC's competence for TRIPS was in some way shared with its Members: See European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS290, - Australia's replies to questions posed by the panel to the parties following the second substantive meeting with the parties, Geneva, 26 Aug. 2004.
58. Rosas, 'Mixed Union - Mixed Agreement', in M. Koskenniemi (ed.), International Law Aspects of the European Union (1998), at 129-130.
59. Ibid., at 142.
60. Ibid., at 131.
61. Opinion 1/94, supra note 1, at 5398-5399, paras 33-34.
62. Ibid., at 4502, para. 47 and 5404, para. 53.
63. Ibid., at 5409, para. 71.
64. Case 22/70, Commission v Council (AETR) [1971] ECR 263, at 274-275, para. 16.
65. See also Dashwood, 'Implied External Competence of the EC', in Koskenniemi, supra note 37, at 117-118.
66. Opinion 1/76 [1977] ECR 741, at 755-756, paras 3-4.
67. See also Neframi., supra note 21, at 200.
68. Commentaries to the draft articles on Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its 53rd session (2001), Official Records of the General Assembly, 56th session, Supplement No. 10 (A/56/10), chap. IV.E.2; J. Crawford, The International Law Commission's Articles on State Responsibility- Introduction, Text and Commentaries (2002), commentary to Art. 57, at 360-361.
69. G. Gaja, Special Rapporteur, Second Report on Responsibility of International Organisations (A/CN.4/541), International Law Commission, 55th session, Geneva, 3 May-4 June and 5 july-6 Aug. 2004, at paras 5-6;
70. available at the official webside of the United Nations at: http://untreaty.un.org/ilc/guide/9_11.htm (last visited 24 July 2006)
71. G. Gaja, Third Report on Responsibility of International Organisations (A/CN.4/553), International Law Commission, 57th session, Geneva, 2 May-3 June and 5 July-5 Aug. 2005, paras 5-6, available at the official webside of the United Nations at: http://untreaty.un.org/ilc/guide/ 9_11.htm (last visited 24 July 2006).
72. Pauwelyn, 'The Role of Public International Law in the WTO, How Far can We Go?', 95 AJIL (2001) 538.
73. See on this topic Bleckmann, 'Zur Verbindlichkeit des allgememen Völkerrechts für Internationale Organisationen', 37 Zeitschrift für ausländisches Internationales Recht (1977) 107.
74. Pitschas, supra note 12, at 46-47.
75. Commentaries, supra note 47, at 361, para. (3): '[j]ust as a State may second officials to another State, putting them at its disposal so that they act for the purposes of and under the control of the latter, so the same could occur as between an international Organisation and a State. The former situation is covered by article 6. As to the latter situation, if a State seconds officials to an international Organisation so that they act as organs or officials of the Organisation, their conduct will be attributable to the Organisation, not the sending State, and will fall outside the scope of the Articles'.
76. Gaja, Second Report, supra note 48, at para. 40 ff.;
77. also see Hirsch, supra note 6, at 64.;
78. Military and Para-military Activities in and against Nicaragua (Nicaragua v. USA) [1986]ICJ Rep 14, at 64-65, para. 115;
79. in fact such responsibility is accepted by the UN for wrongful acts of national troops under UN command during peacekeeping missions: See Report ofthe Secretary-General on Financing of United Nations Peacekeeping Operations (A/51/389), paras 7-8.
80. Hirsch, supra note 6, at 65;
81. Crawford and Olleson, 'The Nature and Forms of International Responsibility', in M. Evans, International Law (2003), at 457;
82. see also Gala, Second Report, supra note 48, at paras 6-7.
83. Emphasis added.
84. Case C-13/00, Commission v Ireland [2002] ECR I-2943, at 2944, para. 2 and 2948-2949, paras 14-15;
85. see also Case C-239/03, Commission v France [2004] ECR I-9325, at 9338-9340, paras 22-31;
86. Sellafield Case supra note 8, especially at paras 80-85 and 126-127;
87. Case 12/86, Commission v. Germany (Demirel) [1987]ECR 3719, at 3751, paras 8-9.
88. Bartels, supra note 33, at 229.
89. See in fact the ECJ's decision in Case C-61/94, Commission v Germany [1996] ECR 1-3989, at 4011-4012, paras 14-15, where the ECJ allowed such proceeding.
90. The question whether the EC concluded this part of the Agreement ultra vires does not have to be decided here. Arnold argues that this part of the agreement was actually concluded ultra vires. See Arnold, supra note 18, at 436 ff.;
91. Gaja takes the opposite position. See Gaja, supra note 21, at 137.
92. Case 12/86, Commission v. Germany (DEmirel) [1987] ECR 3719, at 3751, paras 8-9.
93. Case C-13/00, Commission v. Ireland [2002] ECR I-2943, at 2944, para. 2, and 2948-2949, paras 14-15;
94. see also Case C-239/03, Commission v. France [2004] ECR I-9325, at 9338-9340, paras 22-31;
95. Sellafield Case, supra note 8, especially at paras 80-85, 126-127.
96. I. MacLeod, I. D. Hendry, and S. Hyett, The External Relations of the European Communities (1996), at 131-132.
97. Emphasis added.
98. See, for a more detailed argument, Bartels, supra note 33, at 229-231.
99. This conclusion may also be reached based on the duty of co-operation of EC Member States towards the EC codified under Art. 10 of the EC Treaty. See, in favour of this, Bartels, supra note 33, at 232-233;
100. Gaja, supra note 21, at 140;
101. Heliskoski, supra note 5, at 229.
102. On the issue of 'nor-mative control' see also Gaja, Third Report, supra note 48, at paras 35-36.
103. See G. Gaja, Third report, supra note 48, at para. 30/31.
104. G. Gaja, Second report, supra note 48 para. 11.: 'Responsibility of an Organisation does not necessarily have to rest on attribution of conduct to that Organisation. It may well be that an Organisation undertakes an obligation in circumstances in which compliance depends on the conduct of its Member States. Should Member States fail to conduct themselves in the expected manner, the obligation would be infringed and the Organisation would be responsible. However, attribution of conduct need not be implied. Although generally the Organisation's responsibility depends on attribution of conduct, a point which is reflected in draft article 3 this does not necessarily occur in all circumstances.';
105. also G. Gaja, Third report, supra note 48, at para. 36.
106. Ibid., at para. 36.
107. Akande, supra note 13, at 272.
108. Neframi, supra note 21, at 200.
109. The rules that transfer competence to the EC, and thereby indirectly limit the competences of the EC Members, can be regarded as 'provisions of internal law' of the EC Member States in the sense of VCLT Art. 46. These rules come from primary EC law or are developed through decisions of the ECJ. Hence, they are primarily rules of the EC as an international organization and not of the Members of the organization. However, here the speciality of the EC's legal system comes into effect: primary as well as secondary EC law is either directly effective or enforced by implementation (in the case of directives) in every EC Member's legal system and consequently part of the applicable law of every Member State. Likewise, ECJ judgments are directly binding on EC Members. Hence, EC competence rules can be regarded as 'provisions of internal law' of the EC Members in the sense of Art. 46. On this topic see M. Ahlt and T. Deisenhofer, Europarecht (3rd edn., 2003), at 48-49.
110. The relevant scenarios (1), (2), and (3) are developed above at 850.
111. For cases before 1985 see Petersmann, 'Annex: Article XXIII GATT Dispute Settlement Proceedings 1948-1985. Chronological and Country-wise Lists', in M. Hilf, F.G. Jacobs, and E.U. Petersmann (eds), Studies in Transnational Economic Law: The European Community and GATT (1986), iv, 353. For cases before 1994 see WorldTradeLaw.net Home, 'GATT Penal Reports/Working Party Reports/Other Rulings', available at http:// www.worldtradelaw.net/reports/gattpanels/, last visited 24 July 2006;
112. see also P. Pescatore, WTO/GATT Dispute Settlement, Digest with Key Words & Summaries (1997).
113. Opinion 1/94, supra note 1, at 5419, paras 106-109;
114. see also Hilf, supra note 25, at 11-12.
115. Emphasis added.
116. Crawford and Olleson, supra note 54, at 454-455;
117. Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum (A/56/10 and Corr. 1), ch. IV, sect. E.2, para. 11 of the commentary, at 90.
118. Gaja, Second Report, supra note 48, at paras 7-8.
119. See for this topic the 'LAN Case', supra note 4, especially at paras 3.1-3.3, 8.16, 8.72, and 9.1-9.2;
120. see also Customs Classifications of Certain Computer Equipment, Appellate Body Report, AB-1998-2.
121. In that case a secondary responsibility of the Member States is possibly debarred by the independent legal personality of the EC as an international organization. In favour of this view are Schermers and Blokker, supra note 6, at para. 1585;
122. Klabbers, supra note 11, at 311;
123. Pitschas, supra note 12, at 266, who approves liability of Members of an international organization only in cases of external ultra vires acts of the organization. This is, however, a result of his view that international organizations have limited legal personality:
124. see Akande, supra note 13, at 274.
125. For an opposite view see Hirsch, supra note 6, at 146-148.
126. Case C-280/93, Germany v. Council (Bananas) [1994] ECR I-4973, at 5072-5073, paras 105 and 109.
127. For critics see Wünschmann, 'Geltung und Gerichtliche Geltendmachung völkerrechtlicher Verträge im Europäischen Gemeinschaftsrecht', in S, 91 Schriften zum Europäischen Recht (2001) 188 and authors cited there at n. 278 of the same article.
128. See Pitschas, supra note 12, at 50-51 and 218.
129. This is explained in more detail above at 853-854.
130. Matthews v. UK, App. No. 24833/94, (1999) 28 EHRR 361, at 372, paras 26-35.
131. Ibid., especially at 374, para. 34.
132. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketiv. Ireland, App. No. 45036/98 (2005), at 43-45, paras 151-157.
133. 'LAN Case', supra note 4.
134. Ibid., at paras 1.1-1.11.
135. This reasons for a possible exception in this case are discussed in more detail above at 857 and at nn. 79 and 80.
136. 'LAN Case', supra note 4, at paras 8.15-8.16, and 8.72.
137. Monetary Gold Removed From Rome In 1943 (Italy v. France, United Kingdom and United States of America) [1954]ICJ rep. 19, at 32.
138. Certain Phosphate Lands in Nauru (Nauru v. Australia) [1992]ICJ rep. 240, at 260-262, paras 54-57.
139. Ilascu and others v. Moldova and Russia, 48787/99 (2005) 40 EHRR 46, at 110-112, paras 484-490.
140. Oil Platforms (Islamic Republic of Iran v. USA) [2005] ICJ rep. 802, Separate Opinion of judge Simma, at para. 65;
141. see also Bartels, supra note 33, at 160.
142. Ibid., at 160.
143. Gaja takes a similar view in his Second Report. See: Gaja, Second Report, supra note 48, at para. 8.
144. For a detailed study of this question see especially Heliskoski, supra note 5, at 174-208.