European Community Law and WTO Regulations: The Direct Effect-Doctrine Revisited

According to Article XI(1) of the Agreement Establishing the World Trade Organization of 14 April 1994 (33 ILM 1144 [1994], hereinafter WTO agreement), the European Communities “shall become original Members of the WTO”. At the time of entry into force of the WTO agreement on 1 January 1995, it was hoped that the accession of the European Community — the European Atomic Energy Community does not bear any relevance with regard to the subject at hand — would constitute an end to decades of not only academic controversy on the status of the General Agreement on Tariffs and Trades concluded in 1947 (55 UNTS 187, hereinafter GATT 1947) within the European Community legal system and on the question whether and to what extent the European Community was bound to the provisions of international trade law. From now on, the Community would not only be the first international organization to become a founding member of the WTO, but would also be in the position to speak with one voice in the context of international trade issues. The expectations of those days, however, were not met in the following years. Whereas it was not surprising that the European Community, like any other WTO member, was (and still is) occasionally found guilty of being in breach of world trade rules by WTO panels — lastly in April 2005 regarding Community subsidies for sugar production (cf. WT/DS265/AB/R, WT/DS266/AB/R and WT/DS283/AB/R, Report of the Appellate Body of 28 April 2005; as of November 2005, proceedings initiated against the European Community are still pending in six cases; in four other cases, only consultations have been requested) — it was surprising at first sight that the European Court of Justice (hereinafter ECJ), being the competent organ under the Treaty Establishing the European Community (hereinafter EC) to “ensure that in the interpretation and application of this Treaty the law is observed” (Article 220[1] EC), did not change its negative approach in respect of the question of whether WTO regulations and panel reports have direct effect within the Community legal order. Against this background, suggesting that recent jurisprudence of the Court has not settled but rather re-raised the matter of EC compliance with WTO regulations does not seem to be completely implausible. It is the legal reasons for the frictions between European law on the one hand and international trade law on the other which will be dealt with in the following.