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The direct effect of GATT/WTO law in the EC legal order

Nordeman, Rikard (2008)
Department of Law
Abstract
This thesis handles the direct effect of GATT and WTO law in the Community legal order, an intricate matter that is characterised by political considerations and a delicate mix of internal and external community competences. The current stance of international trade law in the EU can largely be attributed to the evaluations and considerations made by the Community Courts in their voluminous jurisprudence on the subject. These Courts have consistently upheld the denial of direct effect of GATT provisions, a position that has later carried over to cover also WTO law. There are however, certain exceptions to this approach, either concerning provisions of mixed agreements or within the sphere of 'indirect effect'. It seems rather logic that... (More)
This thesis handles the direct effect of GATT and WTO law in the Community legal order, an intricate matter that is characterised by political considerations and a delicate mix of internal and external community competences. The current stance of international trade law in the EU can largely be attributed to the evaluations and considerations made by the Community Courts in their voluminous jurisprudence on the subject. These Courts have consistently upheld the denial of direct effect of GATT provisions, a position that has later carried over to cover also WTO law. There are however, certain exceptions to this approach, either concerning provisions of mixed agreements or within the sphere of 'indirect effect'. It seems rather logic that the Court cannot deny direct effect to provisions in mixed agreements such as the TRIPS since they partly fall outside the Community competences and thereby is an issue under the member states jurisdiction. The 'indirect effect' case is less clear cut, but can be considered to flow from the principle of consistent interpretation and the principle of implementation as developed by the Court in the Fediol and Nakajima case law. The importance of this indirect effect has however not been as influential as first envisaged by many authors, since the Court has been very reluctant to make use of the doctrine in any large extent. The criticism of the Court's continuous denial of direct effect has been harsh. Several Advocate Generals, many authors, as well as I, have found the Court's position to be inconsistent and truly unfortunate. The Court has reached its conclusion by employing their own general direct effect test, finding that the 'nature and structure' of the GATT/WTO does not have the characteristics of an agreement that can be given direct effect. The main reasons put forward for this conclusion have been the GATT/WTO Agreements reciprocal nature and flexible dispute settlement mechanism. This reasoning does however fail to take note of the increasing compulsory elements of the WTO's dispute settlement and it is contradicted by the Court's granting of direct effect to other international agreements. Agreement which 'nature and structure' does not seem to differ to much for the ones of the GATT/WTO, opening up for speculation concerning the 'real' motifs behind the Court's reasoning. This unconvincing reasoning is generally consider to be tainted by political consideration, that the Court has deemed necessary for balancing the Community institutions' interests in regards to the international trade regime. This approach has then meant that the protection of the rights of individuals has had to take the backseat, which is especially regrettable in the case of decisions from the DSB. In regards to which the Court has taken the position that, individuals may not rely on the Community's non-compliance with DSB decisions in claims for damages This criticism is clearly justified, but one must not neglect the constitutional considerations embedded in the issue. It is otherwise an apparent risk that the democratic legitimacy could be undermined if the judicial institution of the EU would determine such a sensitive issue as the direct effect of GATT/WTO law. This question should instead be left to the discretion of the political branch, and the Council and European Parliament. The granting of direct effect could however be extended to DSB decisions without distorting the trias politica, since the question would merely fall under the general pacta sunt servanda principle. A stance yet to be taken by the Courts, but one strongly needed in order to give the rights of individuals a stronger position in the external relations of the EU. (Less)
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author
Nordeman, Rikard
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EG-rätt
language
English
id
1560697
date added to LUP
2010-03-08 15:55:27
date last changed
2010-03-08 15:55:27
@misc{1560697,
  abstract     = {This thesis handles the direct effect of GATT and WTO law in the Community legal order, an intricate matter that is characterised by political considerations and a delicate mix of internal and external community competences. The current stance of international trade law in the EU can largely be attributed to the evaluations and considerations made by the Community Courts in their voluminous jurisprudence on the subject. These Courts have consistently upheld the denial of direct effect of GATT provisions, a position that has later carried over to cover also WTO law. There are however, certain exceptions to this approach, either concerning provisions of mixed agreements or within the sphere of 'indirect effect'. It seems rather logic that the Court cannot deny direct effect to provisions in mixed agreements such as the TRIPS since they partly fall outside the Community competences and thereby is an issue under the member states jurisdiction. The 'indirect effect' case is less clear cut, but can be considered to flow from the principle of consistent interpretation and the principle of implementation as developed by the Court in the Fediol and Nakajima case law. The importance of this indirect effect has however not been as influential as first envisaged by many authors, since the Court has been very reluctant to make use of the doctrine in any large extent. The criticism of the Court's continuous denial of direct effect has been harsh. Several Advocate Generals, many authors, as well as I, have found the Court's position to be inconsistent and truly unfortunate. The Court has reached its conclusion by employing their own general direct effect test, finding that the 'nature and structure' of the GATT/WTO does not have the characteristics of an agreement that can be given direct effect. The main reasons put forward for this conclusion have been the GATT/WTO Agreements reciprocal nature and flexible dispute settlement mechanism. This reasoning does however fail to take note of the increasing compulsory elements of the WTO's dispute settlement and it is contradicted by the Court's granting of direct effect to other international agreements. Agreement which 'nature and structure' does not seem to differ to much for the ones of the GATT/WTO, opening up for speculation concerning the 'real' motifs behind the Court's reasoning. This unconvincing reasoning is generally consider to be tainted by political consideration, that the Court has deemed necessary for balancing the Community institutions' interests in regards to the international trade regime. This approach has then meant that the protection of the rights of individuals has had to take the backseat, which is especially regrettable in the case of decisions from the DSB. In regards to which the Court has taken the position that, individuals may not rely on the Community's non-compliance with DSB decisions in claims for damages This criticism is clearly justified, but one must not neglect the constitutional considerations embedded in the issue. It is otherwise an apparent risk that the democratic legitimacy could be undermined if the judicial institution of the EU would determine such a sensitive issue as the direct effect of GATT/WTO law. This question should instead be left to the discretion of the political branch, and the Council and European Parliament. The granting of direct effect could however be extended to DSB decisions without distorting the trias politica, since the question would merely fall under the general pacta sunt servanda principle. A stance yet to be taken by the Courts, but one strongly needed in order to give the rights of individuals a stronger position in the external relations of the EU.},
  author       = {Nordeman, Rikard},
  keyword      = {EG-rätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {The direct effect of GATT/WTO law in the EC legal order},
  year         = {2008},
}