The FIAMM judgment or "going bananas" ! A missed opportunity to distribute the costs of European Community's non-compliance with WTO rulings across society

This chapter discusses, in the aftermath of the long-awaited FIAMM judgment by the European Court of Justice, the controversial issue of a possible non-contractual liability of the Community stemming from its breach of WTO obligations. As exemplary illustrated by the Hormones and Bananas disputes, when the EC fails to comply with a ruling by the WTO Dispute Settlement Body, even though it does so in pursuit of a greater public interest, it opens the door for countermeasures against it. In particular, by deciding not to bring its measures into conformity with WTO law, the EC offers protection to those categories of operators active in the sector in which the trade conflict has arisen from external competition, while at the same time it exposes other categories of traders, which have nothing to do with the original dispute, to countermeasures. By doing so, the Community de facto give rise to a redistribution of income across segment of society , without being in control though of which category of Community economic operators will bear the cost of its decision not to comply. By offering an in-depth review of the FIAMM judgment, this chapter aims at clarifying where the ECJ case law stands on the controversial EC liability for non-compliance with WTO law.