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Published online by Cambridge University Press: 06 March 2019
On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.
1 Case C-377/02 Van Parys v Belgische Interventie- en Restitutiebureau, Judgment of 1 March 2005, nyr.Google Scholar
2 Council Regulation (EEC) N° 404/93 of 13 February 1993 on the common organisation of the market in bananas, OJ 1993, L 47/1.Google Scholar
3 Articles I and XIII of GATT 1994 are an articulation of the most favourite nation principle and the principle of non-discriminatory administration of quantitative restrictions.Google Scholar
4 Council Regulation (EC) N°1637/98 of 20 July 1998 amending Regulation N°404/93, OJ 1998, L 210/28.Google Scholar
5 Commission Regulations N°2362/98 (OJ 1998 L 293/32), N°2806/98 (OJ 1998 L 349/32), N°102/1999 (OJ 1999 L 11/16) and N°608/1999 (OJ 1999 L 75/18).Google Scholar
6 After this decision of the DSB, the Community amended its regime again. However this last amendment is ratione temporis not relevant for the present case.Google Scholar
7 Regulation N°404/93, as amended, and regulations N°2362/98, 2806/98, 102/1999 and 608/1999.Google Scholar
8 C-377/02 Van Parys v Belgische Interventie- en Restitutiebureau, footnote 1, para. 39. See also Case C-149/96 Portugal v Council [1999] ECR I-8395; Order of 2 May 2001 in C-307/99 OGT Fruchthandelsgesellschaft [2001] ECR I-3159; Joined cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79 and Case C-93/02 P Biret International v Council [2003] ECR I-10497. On this point, it is useful to already mention the dissenting view expressed by AG Tizzano in his Opinion, delivered on 18 November 2004, in C-377/02 Van Parys v Belgische Interventie- en Restitutiebureau, footnote 1. According to him, DSB decisions, as those at stake in the present case, must be considered as a criterion of the legality of Community measures (see also infra).Google Scholar
9 Ibid., para. 40. See also, as regards GATT 1947, Case C-69/89 Nakajima v Council [1991] ECR I-2069 and Case 70/87 Fediol v Commission [1989] ECR 1781. The same exceptions have also been recognized under the WTO, see C-149/96 Portugal v Council, footnote 8 and C-93/02 P Biret International v Council, footnote 8.Google Scholar
10 Ibid., para. 42. See also C-149/96 Portugal v Council, footnote 8.Google Scholar
11 Ibid., paras. 43-45. Compensation and suspension are considered to be temporary measures.Google Scholar
12 Ibid., para. 51.Google Scholar
13 Ibid., para. 52.Google Scholar
14 Ibid., para. 52.Google Scholar
15 Ibid., para. 53Google Scholar
16 Ibid., para. 53.Google Scholar
17 Tizzano, AG, footnote 8 para. 63; AG Alber, Opinion delivered on 15 May 2003, in C-93/02 P Biret International v Council, footnote 8.Google Scholar
18 Alber, AG, footnote 17, paras. 85-88.Google Scholar
19 Tizzano, AG, footnote 8, paras. 68-73; AG Alber, footnote 17, paras. 97-103.Google Scholar
20 C-69/89 Nakajima v Council, footnote 9; Case C-352/96 Italy v Council [1998] ECR I-6937. The AG also made reference to the more recent OGT Fruchthandelsgesellschaft order (see footnote 8), in which the ECJ was reluctant to apply the Nakajima exception. In that order, concerning a preliminary ruling on the validity of the same Community regime as the one at stake in the present case, the ECJ did not even take into account the existence of a decision adopted by the DSB. It simply inferred the answer from the judgment in Portugal v Council where no DSB decision was at stake.Google Scholar
21 AG Tizzano, footnote 8, para. 100.Google Scholar
22 Ibid., para. 102. See other arguments used by AG Tizzano: paras. 99-102.Google Scholar
23 Due to its minor importance for the outcome of the case, the question concerning the Framework agreement of 23 April 1993 between the EEC and the Cartagena Group will not be discussed.Google Scholar
24 Keeping in mind the two exceptions recognized by the ECJ, footnote 9.Google Scholar
25 See i.e. Alber, AG, footnote 17; AG Tizzano in the case at hand, footnote 8.Google Scholar
26 According to the ECJ no damage could have been suffered after the expiry of the implementing period (1999) granted by the DSB, since Biret had already ceased business activities in 1995. See THIES, A., ‘Biret and beyond: The status of WTO rulings in EC law', CMLRev. 41 [2004] 1661-1682.Google Scholar
27 One has to stress however that in the Nakajima and the Italy v Council case, the Community measure in question intended to implement a particular obligation entered into within the framework of GATT. These cases did not deal with the implementation of decisions of the DSB. However in Biret the implementation of DSB decision was at stake but the ECJ could avoid giving a ruling on that issue.Google Scholar
28 Case T-19/01 Chiquita Brands International and others v Commission, Judgment of 3 February 2005, nyr., para. 118.Google Scholar
29 Ibid., para. 121.Google Scholar
30 Ibid., para. 124.Google Scholar
31 Article XIII GATT and Articles II and XVII GATS.Google Scholar
32 T-19/01 Chiquita Brands International, footnote 28, paras. 159-170.Google Scholar
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