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WTO Influence on EU Law: Too Close for Comfort?

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Abstract

This contribution analyses the influence of WTO primary and secondary law on the primary and secondary law of the European Union. Moreover, the influence of WTO panel and Appellate Body reports on EU secondary law and administrative decisions is evaluated. As a principal example the article takes the interaction between WTO and EU anti-dumping law. However, also other selected examples of the influence of WTO law on EU law are subjected to scrutiny. It turns out that WTO primary and secondary law have had a considerable influence on EU primary and secondary law and their interpretation. This is true in particular where the scope and the technical aspects of classical trade policy are concerned, ranging from the scope of the EU’s trade policy powers to the details of EU anti-dumping law. However, in respect of the EU’s internal regulatory policies, the WTO has had much less influence and the EU has been less law-abiding.

Kuijper—Professor of the Law of International Organisations.

Hoffmeister—Deputy Head of Cabinet of EU Trade Commissioner de Gucht and Professor (part-time) at the Vrije Universiteit

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Notes

  1. 1.

    Ten years ago a first attempt was made to compare various aspects of the WTO and the EU, see de Búrca and Scott 2001. Shortly a new and somewhat different attempt at such a comparative approach will appear, Gaines et al. 2012.

  2. 2.

    For a comparative study of the functioning of the WTO Appellate Body and of the European Court of Justice, see Kuijper 2012.

  3. 3.

    See Sect. 7.3.1.

  4. 4.

    Decision of the General Council of 6 December 2005, WTO/L/641 of 8 December 2005 and the Protocol thereto, introducing a new Article 31 bis to the TRIPS Agreement.

  5. 5.

    On the controversy on how to count the EU notice of approval see Hoffmeister 2012.

  6. 6.

    Kuijper 2009, 79–128: Contra, see Holmes 2001, p 66.

  7. 7.

    Panel Report, WT/DS392/R US-Poultry (China) (2010), para 7.136.

  8. 8.

    See Feichtner 2010, 620–621.

  9. 9.

    General Council Decision of 30 August 2003, Implementation of para 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO/L/540. For a succinct overview of the political battles surrounding this decision see Abbott 2005.

  10. 10.

    General Council, Decision of 15 May 2003, WTO/L/518, subsequently prolonged.

  11. 11.

    CONTRACTING PARTIES, Decision L/4903 (1979) GATT BISD 26S, 203.

  12. 12.

    General Council, Decision of 15 June 1999, Preferential Tariff Treatment for Least Developed Countries, WTO/L/304. The General Council prolonged its decision on 12 May 1999 for another 10 years.

  13. 13.

    This is a category that is defined by the UN Committee for Development Policy (CDP) on the basis of objective criteria, available at http://www.un.org/en/development/desa/policy/cdp/index.shtml (last accessed on 18 April 2012).

  14. 14.

    This situation was already criticised at a rather early stage of the development of the WTO, see Ehlermann 2002.

  15. 15.

    See Article 17.14 of the WTO Dispute Settlement Understanding: “An Appellate Body Report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute…” (emphasis added).

  16. 16.

    See for instance the recent WT/DS343/AB/R US—Shrimp (Thailand) (2008), and case WT/DS406/R US—Clove Cigarettes (2011).

  17. 17.

    See Kuijper 1996, 129–144.

  18. 18.

    See Slotboom 2005, in particular Chapter II.

  19. 19.

    ECJ, Case C-120/94 Commission v. Hellenic Republic [1994] ECR I-3037.

  20. 20.

    There was, however, a case involving the interpretation of Article 22(3)(b) and (c) of the DSU, which contains a similarly worded self-judging clause as Article XXI GATT, which seems to imply that the good faith aspect of the self-judging clause can be subject to judicial scrutiny, see Case WT/DS27/ARB/ECU EC- Bananas (Ecuador) (2000), Recourse to Arbitration under Article 22.6 DSU, para 52.

  21. 21.

    Important EU cases on such “measures having equivalent effect”: ECJ, Case 8/74 Dassonville [1974] ECR 837; ECJ, Case 120/78 Rewe-Zentrale (Cassis de Dijon) [1979] ECR 649; ECJ, Case C-110/05 Commission v. Italy [2009] ECR I-519. Also see European Commission 2010, Section 3.1.9.

  22. 22.

    The classical case is ECJ, Case 270/80 Polydor [1982] ECR 329.

  23. 23.

    See ECJ, Opinion 1/78 Natural Rubber [1979] ECR 2871, point 38.

  24. 24.

    See Commission Communication to the Council and the European Parliament, COM (87) 462 final, “Completing the internal market by 1992: current situation regarding the monitoring of foodstuffs in the Member States and Action programme for cooperation at Community level in this area”, Brussels, 13 October 1987.

  25. 25.

    ECJ, Opinion 1/94 Commission v. Council [1994] ECR I-05267.

  26. 26.

    See ECJ, Case 22/70 Commission v. Council [1971] ECR 263 (ERTA).

  27. 27.

    ECJ, Opinion 1/94 Commission v. Council [1994] ECR I-05267 and later more particularly Opinion 1/2008 Consolidated Services Schedule, [2009] ECR I-11129.

  28. 28.

    Now called the “Trade Policy Committee” or TPC and grounded in Article 207 TFEU.

  29. 29.

    For a first interpretation of the new trade article see Bungenberg 2010, 123.

  30. 30.

    The WTO treaty package, (1994) OJ L 336 was accompanied by a corresponding package of EC implementing legislation OJ 1994 L 349.

  31. 31.

    Council Regulation (EC) No. 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the EC OJ 1994 L 349/1.

  32. 32.

    World Trade Organization (2011) Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.

  33. 33.

    For some other examples, see Articles 2(1) ADA and 1(2) Council Regulation (EC) No. 3283/94 of 22 December 1994 OJ 1994 L 349/1 (BR); Articles 2(4) ADA and 2(10) BR; Articles 2(4)(1) ADA and 2(10)(j) BR; Articles 2(4)(2) ADA and 2(11) BR; Articles 2(6) ADA and 1(4) BR; Articles 6(5) ADA and 19 BR; Articles 7(1) ADA and 7(1) BR; Articles 8(1), (3), (4), and (5) ADA and 8(1), (3), (5), and (2) BR respectively.

  34. 34.

    See Article 18.4 ADA. Note that this provision, which dates back to the Tokyo Round Anti-Dumping Code, has served as an example for Article XVI:4 of the WTO Agreement itself. Other WTO Agreements contained similar provisions, see e.g. Article 22.1 Customs Valuation Agreement; Article 8.2.a of the Agreement on Import Licensing Procedures; Article 32.5 Subsidies and Countervailing Measures Agreement, etc.

  35. 35.

    Based on the personal experience of the authors. See also Analytical Index §675–678, available at http://www.wto.org/english/res_e/booksp_e/analytic_index_e/anti_dumping_05_e.htm (last accessed on 18 April 2012).

  36. 36.

    It is interesting to note that this policy of the WTO Secretariat shows a certain parallelism with the Commission’s policy in EU infringement cases to insist on the full transposition of directives and rejecting the reliance of Member States on the direct effect of certain provisions of directives.

  37. 37.

    See Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations OJ 1994 L 336/1-2.

  38. 38.

    See paras 2, 3 and 5 in fine of Council Regulation (EC) No. 384/96 of 22 December 1995 on the protection against dumped imports from countries not members of the European Community OJ 1996 L 56/1. This regulation succeeded and repealed Regulation (EC) No. 3283/94 of 22 December 1994 OJ 1994 L 349/1, which had been part of the Uruguay Round Implementation Package, but the text of which had been marred by errors and linguistic problems.

  39. 39.

    See Sect. 7.5.2 on the Nakajima case, ECJ, Case C-69/89.

  40. 40.

    See Article 33 of the Standard Rules of Procedure for Committees, as inserted unmodified into the Rules of Procedure of the Committee on Anti-Dumping Practices, G/L/143.

  41. 41.

    This is based on a WTO documents search in the documents of the Committee on Anti-Dumping Practices, in which the terms Guidelines, Decision and Recommendation were used successively as search terms.

  42. 42.

    Committee on Anti-Dumping Practices, Recommendation Regarding annual reviews of the Anti-Dumping Agreement G/ADP/9 (2002) (02-6596) World Trade Organization.

  43. 43.

    Recommendation on the timing of the notification of Article 5.5 ADA, adopted by the Committee on 29 October 1998, G/ADP/5. The crucial passage from that document reads: “[i]n light of the above considerations, the Committee recommends that the notification required by the second sentence of Article 5.5 should be made as soon as possible after the receipt by the investigating authorities of a properly documented application, and as early as possible before the decision is taken regarding initiation of an investigation on the basis of that properly documented application.” The italicized words attempt to give greater precision to Article 5.5 ADA.

  44. 44.

    See Article 5.5 of Council Regulation No. 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community OJ 2009 L 343/51, which remained unchanged and quasi-identical to Article 5.5 ADA without the words italicised. The information on administrative practice is from the European Commission’s anti-dumping division.

  45. 45.

    Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations, Adopted by the Committee on 5 May 2000, G/ADP/6.

  46. 46.

    Recommendation on the extension of time to comply, adopted by the Committee on 1 May 2001, G/ADP/7.

  47. 47.

    Recommendation concerning the time period to be considered in making a determination of negligible import volumes for the purpose of Article 5.8, adopted by the Committee on 27 November 2002, G/ADP/10.

  48. 48.

    Committee on Anti-Dumping Practices (2003) Notification concerning the time-period for Determination of negligible import volumes under Article 5.8 of the Agreement, European Communities (G/ADP/N/100/EEC).

  49. 49.

    Council Regulation (EC) No. 2368/2002 of 20 December 2002 OJ 2002 L 358/28.

  50. 50.

    Commission Communication, COM (2010) 522 final, “Proposal for a COUNCIL REGULATION (EU) No …/… amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure”, Brussels, 29 September 2010. For more background see Hoffmeister 2011, 88.

  51. 51.

    Council Regulation (EC) No. 416/2001 of 28 February 2001. The EBA Regulation was later incorporated into the general GSP Council Regulation (EC) No. 2501/2001 of 10 December 2001 OJ 2001 L 364/1.

  52. 52.

    See WT/DS246/R EC- Tariff Preferences (2003). The Appellate Body ruled that the EC GSP system was discriminatory and contrary to the Enabling Clause as well as to Article I:1 GATT. Its report was adopted on 20 April 2004, WT/DS246/AB/R.

  53. 53.

    Council Regulation (EC) No. 980/2005 of 27 June 2005 applying a scheme of generalised preferences OJ 2005 L 169/1. For an analysis of the EU's adaptation to the AB report see Williams 2006, 262–272.

  54. 54.

    Commission Communication, COM (2011) 241 final, “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL applying a scheme of generalised tariff preferences”, Brussels, 10 May 2011.

  55. 55.

    See also Chap. 5 of this volume.

  56. 56.

    WT/DS141/AB/R EC-Bed-Linen (2001).

  57. 57.

    See WT/DS141/AB/R EC-Bed-Linen (2001) and/or WT/DS219/AB/R EC-Tube or Pipe Fittings (2003) and WT/DS402/R US-Zeroing (Korea) (2011).

  58. 58.

    See WT/DS141/AB/R EC-Bed-Linen (2001).

  59. 59.

    At the time of writing, the EU and the US are about to conclude a friendly settlement according to which the US abolishes zeroing under Section 129 of the Uruguay Round Act for future cases and revises pending cases under Section 123 of the same Act by using the new methodology by the end of March 2012 at the latest.

  60. 60.

    Council Regulation (EC) No. 1515/2001 of 23 July 2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters OJ 2001 L 201/10.

  61. 61.

    Ibid. recital 4 and Article 1(1)(a).

  62. 62.

    Ibid. Article 1(1)(b).

  63. 63.

    Ibid. recital 5 and Article 2.

  64. 64.

    Ibid. Articles 1(2) and (3) and Articles 2(2) and (3).

  65. 65.

    See Council Regulation (EC) No. 1644/2001 of 7 August 2001 amending Council 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 2001 L 219/1-11.

  66. 66.

    See Council Regulation (EC) No. 160/2002 of 28 January 2001 amending Council 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 2002 L 26/1.

  67. 67.

    For the consequences of the existence and application of Council Regulation (EC) No. 1515/2001 of 23 July 2001 OJ 2001 L 201, see Case C-351/04 Ikea (2007) ECR I-7723, at fn. 77 below and the accompanying text.

  68. 68.

    See Council Regulation (EC) No. 320/2003 of 18 February 2003 OJ 2003 L 305, terminating the review of the anti-dumping measures applicable to imports of threaded malleable cast-iron tube or pipe fittings from Brazil, the Czech Republic, Japan, the People’s Republic of China, the Republic of Korea and Thailand OJ 2003 L 47/1.

  69. 69.

    See WT/DS219/10/AB/R EC-Anti-dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil (2003).

  70. 70.

    Council Regulation (EC) No. 436/2004 of 8 March 2004 amending Council Regulation (EC) No. 1784/2000 imposing a definitive anti-dumping duty and collecting definitively the provisional duty etc. OJ 2004 L 72/5.

  71. 71.

    Council Regulation (EC) No. 584/2006 of 10 April 2006 amending Council Regulation (EC) No. 1480/2003 imposing a definitive countervailing duty and collecting the provisional duty imposed on imports of certain electronic microcircuits known as DRAMs (dynamic random access memories) originating in the Republic of Korea OJ 2006 L 103/1.

  72. 72.

    See two notices from the Commission in OJ 2008, C127/16 and in OJ 2008, C298/7.

  73. 73.

    Council Regulation (EC) No. 404/93 of 19 December 1993 OJ 1993 L 47/1.

  74. 74.

    European Communities, Regime for the Importation, Sale and Distribution of Bananas, DS27, AB/R, (9 September 1997).

  75. 75.

    Council Regulation (EC) No. 1637/98 of 20 July 1998 amending Regulation (EEC) No. 404/93 on the common organisation of the market in bananas OJ 1998 L 210/28.

  76. 76.

    WT/DS27/RW/EEC Regime for the Importation, Sale and Distribution of Bananas, 21.5 Panel—Ecuador (1999).

  77. 77.

    Council Regulation (EC) No. 216/2001 of 29 January 2001 amending Regulation (EEC) 404/93 on the common organisation of the market in bananas OJ 2001 L 31/2.

  78. 78.

    Arbitrator’s Decisions, WT/L/616 and WT/L/625.

  79. 79.

    For the last panels, see WT/DS361/1 (2007), WT/DS361/2 (2009), WT/DS361/2/Corr. 1 (2010)—Colombia, WT/DS364/2 (2009), and WT/DS364/2/Corr. 1(2010)—Panama.

  80. 80.

    WT/L/784.

  81. 81.

    Regulation (EU) No. 1341/2011 of the European Parliament and of the Council of 13 December 2011 amending Regulation (EC) No. 1905/2006 establishing a financing instrument for development cooperation OJ 2011 L 347.

  82. 82.

    WT/DS26/R and WT/DS48/R EC—Measures concerning Meat and Meat products (Hormones), (1997), WT/DS26/AB/R and WT/DS48/AB/R EC—Measures concerning Meat and Meat products (Hormones), (1998).

  83. 83.

    Already in May 2000, the EC claimed to have new evidence which justified the continuation of the directive. See Mavroidis 2003, 236.

  84. 84.

    Directive 2003/74/EC of 22 September 2003 amending Council Directive 96/22/EC concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta-agonists OJ 2003 L 262/17.

  85. 85.

    WT/DS320/R US—Continued Suspension of Obligations in the EC-Hormones Dispute (2008); WT/DS320/AB/R (2008) and the parallel case against Canada (WT/DS321/R).

  86. 86.

    European Commission, EU and US reach provisional agreement in beef dispute, Press release IP/09/707, 6 May 2009.

  87. 87.

    Press release by the European Commission of 17 March 2011, available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=685 (last accessed on 18 April 2012).

  88. 88.

    Directive 2001/18/EC of 12 March 2001 on the deliberate release into the environment of genetically modified organisms OJ 2001 L 106/1. For more background to the EU scheme see Wirth 2006, 177–180.

  89. 89.

    WT/DS291/R, WT/DS292/R and WT/DS293/R, EC—Measures Affecting the Approval and Marketing of Biotech Products, Panel Report (29 September 2006).

  90. 90.

    See Commission Communication, COM (2010) 375 final, “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory”, Brussels, 13 July 2010.

  91. 91.

    WT/DS316/R, EC—Measures Affecting Trade in Large Civil Aircraft (Airbus), (2010) and WT/DS316/AB/R (2011).

  92. 92.

    EU Compliance Report of 1 December 2011 in the Airbus Case, available at http://trade.ec.europa.eu/doclib/docs/2011/december/tradoc_148389.12.2011%20EU%20Compliance%20Report.pdf (last accessed on 18 April 2012).

  93. 93.

    See the summary of the DSB meeting of 19 December 2011, available at http://www.wto.org/english/news_e/news11_e/dsb_19dec11_e.htm (last accessed on 18 April 2012).

  94. 94.

    WT/DS316/21.

  95. 95.

    WT/DS353/AB/R, US—Measures Affecting Trade in Large Civil Aircraft (Boeing) (2012).

  96. 96.

    Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers OJ 2011 L55/13.

  97. 97.

    See the Commission proposal to adapt Regulation 1515/2001 to the Lisbon Treaty as part of the Omnibus I proposal, Commission Communication, COM (2011) 82 final, “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures”, Brussels, 7 March 2011, Annex, Point 7, pp. 25–26.

  98. 98.

    There are those, however, who take the formal view that these reports that are officially still adopted by the Dispute Settlement Body of the WTO, are indeed binding decisions of an international organisation. See Lavranos 2004. This is a needlessly formalistic view, see Kuijper 2012. See also Tsymbrivska 2010, 185–202.

  99. 99.

    See ECJ, Opinion 1/92 [1992] ECR I-2821, point IV, para 35. A position that does not seem to have been shared by the Commission and the Council in a procedure on the implementation of the Bed-Linen Case, see ECJ, Case C-351/04 Ikea [2007] ECR I-7723, point 28.

  100. 100.

    The rejection of the direct effect of GATT started with Joined Cases 21-24/72, International Fruit [1972] ECR 1219 and found its provisional culmination in ECJ, Case C-377/02 Van Parijs [2005] ECR I-1465 and in joined Cases C-300/98 and C-392/98 Parfums Dior and Assco Gerüste [2000] ECR I-11307 (a case which sought direct effect for TRIPS only).

  101. 101.

    See Sect. 7.3.1.

  102. 102.

    A good example of such a situation could be found at the time in the bananas case. See ECJ Case C-377/2002 Van Parijs [2005] ECR, I-1465, points 49–51.

  103. 103.

    See ECJ, Case C-149/96 Portugal v. Council [1999] ECR I-8425, points 43–46.

  104. 104.

    See ECJ, Case C-351/04 Ikea [2007] ECR I-7723, point 34–35.

  105. 105.

    It all started, of course, with an anti-dumping case, namely ECJ, Case 21-24/72 International Fruit [1972] ECR 1219, see fn. 98 above.

  106. 106.

    From the French exception d’ illégalité, i.e. the plea laid down in Article 277 TFEU.

  107. 107.

    See ECJ, Case C-69/89 Nakajima All Precision v. Council [1991] ECR 2069, point 27 ff. The same logic of keeping the Union authorities to their word can be recognised in the other “exception” to the absence of the direct effect of GATT and WTO provisions, which the Court granted in cases of the application of the so-called Trade Barriers Regulation (on which more below) and its predecessor, the so-called New Instrument. In those cases the Commission was constrained by the Regulation, on complaint of an industry or company, to test laws, regulations or practices of third countries, to review such laws, regulations or practices for their conformity with WTO law. If the Commission then rejected such complaint and that rejection was challenged before the Court, the latter had no other option than to review the rejection in the light of the interpretation of the relevant GATT or WTO provisions. See Case 70/87 Fediol v Commission (1989) ECR 1781.

  108. 108.

    This was the case of the CFI’s (now the General Court’s) judgment in Case T-274/02 Ritek [2006] ECR II-4305, in which the CFI took the view that the case before it was distinguishable from the EC-Bed-Linen case. This judgment was not appealed.

  109. 109.

    ECJ, Case C-351/04 Ikea [2007] ECR I-7723, points 53–57. It is clear that this reasoning corresponded entirely to that of the Panel and Appellate Body in EC-Bed-Linen. However, this seems of no concern to the Court. One can only say that this result was probably a consequence of the close correspondence between the text of the ADA and the EU Anti-Dumping Regulation signalled earlier in Sect. 7.3.

  110. 110.

    See also Chaps. 5 and 6 of this volume.

  111. 111.

    ECJ, Case C-53/96 Hermès [1998] ECR I-3603.

  112. 112.

    ECJ, Case C-300/98 and ECJ, C-392/98 Dior and others [2000] ECR I-11307.

  113. 113.

    ECJ, Case C-431/05 Merck Genéricos [2007] ECR I-7026.

  114. 114.

    For a discussion of these cases in the context of mixity see Hoffmeister 2010, 265–266.

  115. 115.

    Ibid., paras 47–48.

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Authors and Affiliations

  1. Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands

    Pieter Jan Kuijper

  2. Cabinet of EU Trade Commissioner De Gucht, European Commission, Brussels, Belgium

    Frank Hoffmeister

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  1. Pieter Jan Kuijper
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Correspondence to Pieter Jan Kuijper .

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  1. , Centre for European Studies, University of Twente, Drienerlolaan 5, Enschede, 7522 NB, Netherlands

    Ramses A. Wessel

  2. , Unit on EU Foreign Policy, Centre for European Policy Studies, Place du Congres 1, Brussels, 1000, Brussels Hoofdst.ge., Belgium

    Steven Blockmans

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© 2013 T.M.C. Asser Press and the author(s)

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Kuijper, P.J., Hoffmeister, F. (2013). WTO Influence on EU Law: Too Close for Comfort?. In: Wessel, R., Blockmans, S. (eds) Between Autonomy and Dependence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-903-0_7

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