We will now look briefly at two topical case studies, each of which exemplifies different aspects of the way in which WTO norms and provisions may affect EC decision-making, and at different stages of the decision-making process.
Our first case study examines the attempt by the Commission, in drafting the latest proposed amendment to Council Directive 76/768,9 to ensure that the measure is WTO-compliant, indeed arguably over-compliant.
Council Directive 76/768 set out to approximate Member States laws relating to the marketing and sale of cosmetics. Amongst other things it requires Member States to prohibit the marketing of cosmetics which contain any of the substances listed in the various annexes to the Directive.10 Article 4(1) of the Directive also provided for a ban on the marketing of cosmetics containing ingredients or combinations of ingredients tested on animals.11 The original date for the coming into force of the ban was after 1 January 1998, but this was postponed until after 30 June 2000 by the Commission.12 The basis for this postponement was the insufficiency of progress in developing satisfactory methods to replace animal testing which are scientifically validated as offering an equivalent level of protection for the consumer. By March 2000, at the time of the Commission's proposals for an amendment to the basic Directive, only three alternative methods had been validated, of which two are available.13 For this reason the Commission proposed a further postponement pending adoption and transposition of its additional far-reaching proposals for amendment of the Directive, amounting to a substantial modification of the original Directive.
The Commission explains in the explanatory memorandum to its proposal that the two overriding objectives of the proposed amendment are consumer safety and the reduction and the eventual elimination of animal suffering.14 It also highlights the WTO as a restrictive context within which these aims have to be pursued: "However, for any measures to be effective and enforceable it is also necessary to take account of the constraints arising from compliance with international trade rules, in particular those of the WTO."15 Four more precise objectives are then set out in the memorandum. The first is to introduce a definitive prohibition on the performance of experiments on animals for finished cosmetic products in territory of the Member States of the EU. The second is to replace the previously envisaged ban on the marketing of substances containing ingredients tested on animals by a combination of the proposed prohibition on the performance of such experiments, and a requirement making mandatory the use of validated alternative methods, when they become available, for testing chemicals used in cosmetics. The third aim is to revise the Directive so as to make it WTO-compliant. One stage in this process seems to be to again postpone the entry into force of the ban on the marketing of cosmetics containing ingredients tested on animals, and which would have applied to all products including those from third countries, and not just those originating within the EU. At the same time the Commission has declared its intention to seek the mutual recognition, in cooperation with third countries, of test data from in vitro/in vivo studies. The fourth and final aim is said to be the improvement of information provided to the consumer, to allow the use, subject to EC guidelines, of claims indicating that animal testing has not been performed. The bottom line of the proposed amendment is expressed by the Commission in the following terms:
To take account of the need to comply with international law, the proposed amendment prohibits the performance of tests on animals on the territory of the Member States for the purpose of complying with Directive 76/768/EEC, but not the marketing of products which have been tested on animals. This represents an advancement for animal protection in the European Union. Moreover, the prohibition in its revised form cannot be challenged under WTO rules.16
This sentiment has been reflected in answers which the Commission has given to Members of the European Parliament on this subject.17 The main concern expressed by the Commission in its current proposal in relation to the compatibility of the ban envisaged in the earlier Article 4(1)(i) of the Directive with WTO rules is that it is likely to contravene Article III.4 of the GATT, as constituting discriminatory treatment between like products originating within the EU and those originating outside. According to the Commission, since "the test method does not have any physical effect on the product, discrimination on this basis could be considered to be contrary to WTO rules".18 The assumption here is that products physically constituted in the same way remain `alike' regardless of differences in their method of production or harvesting. Consequently differences in treatment predicated upon differences in production or harvesting techniques, will represent discriminatory treatment under the GATT. Thus, to prohibit the importation of cosmetics from third countries which have been tested on animals while permitting the marketing and sale of EC-originating cosmetics which are alike, other than for the fact they were not tested on animals, would be unlawful under Article III.4. It was this kind of reasoning which underpinned the panel reports in the (in)famous Tuna/Dolphin `cases'.19
The Commission goes on to say that it is "doubtful whether Article XX of the GATT could provide sufficient justification of this measure",20 the implication being that it is unlikely that the measures in question could be justified as being necessary to protect animal life or health pursuant to Article XX(b).
This seems a cautious analysis on the Commission's part. Had it been committed to introducing a general ban on products which have been tested on animals, it could have pursued this more convincingly. It is, after all, far from settled that such a ban would contravene GATT (or other WTO agreements such as the Agreement on Technical Barriers to Trade). As regards the conclusion that non-animal tested and animal-tested products are necessarily `like products' within the meaning of Article III.4, it should be pointed out that the panel reports in the tuna/dolphin `cases' were never adopted, and that this issue has not been addressed by the more recently established Appellate Body. The case for treating certain process-based product bans of this kind as capable of being compliant with GATT, Article III has recently been made - both on doctrinal/jurisprudential grounds and on policy grounds - by Howse and Regan.21 In the subsequent Shrimps/Turtles `case' brought against the US in relation to a process ban on `turtle-unfriendly shrimp', no attempt was made to argue the `like' product point under GATT, Article III, and the case instead focussed upon the scope of the Article XX exceptions and the `chapeau' thereof.22
Equally, in the case of an EU cosmetics ban, there seems to be no clear reason to conclude at the outset that, even if Article III did catch the ban in the first instance, that it is "very doubtful" that it could be saved under the GATT, Article XX(b) exception, concerning the protection of the life and health of humans, animals and plants. The requirements of Article XX(b) and of the `chapeau' of Article XX do not seem insurmountable in a case such as this, and the EU's behaviour would not seem comparable to the impugned behaviour of the United States in tuna/dolphin or shrimp/turtle. Two points in particular point in the EU's favour. First, the ban would be on a `batch by batch' basis and not a country-wide basis. That is to say that only such cosmetic products tested on animals would be prohibited, regardless of the overall regulatory policy of the exporting state. Market access to the EU would not be contingent upon a change of policy on the part of the government/legislature of the state of export, but merely upon the practices of the manufacturer in question. Second, the EC's position could be strengthened by the fact that it has been working on the development of alternative methods of scientific testing, in particular through the European Centre for the Validation of Alternative Methods and the application of those methods by the Scientific Committee on Cosmetic Products and non-Food Products, and apparently `stepping up negotiations within the OECD' to have these accepted at on a more global scale.23 The circumstances are not necessarily comparable to those condemned in shrimp/turtle, where the US was held to have failed to negotiate adequately with the various countries involved, or to pursue more actively the attempt to agree international standards - behaviour which resulted ultimately in the non-fulfilment of the requirements of the `chapeau' to Article XX.24 The EU's apparent efforts to develop internationally acceptable alternatives to testing on animals, in addition to the fact that the coming into force of the ban was postponed pending the development of such methods, provides further evidence of caution before resorting to what the Appellate Body has called a `heavy weapon' of international trade.
There are a number of possible explanations for the Commission's retreat from a general ban in the EU on cosmetic products tested on animals. It is certainly possible that the Commission genuinely considers that such a ban could not be WTO compliant, and has been influenced to take a cautious view of the possibility for legally maintaining a process based restriction on trade under those agreements. In this case the fear of the WTO may loom larger than the WTO itself. In view of the context to the EU's proposed ban, and the more nuanced approach of the Appellate Body in shrimp/turtle, where it focuses upon the circumstances of application of specific measures rather than drawing crude distinctions between entire categories of measures which may or may not be allowed, it is not improbable that the EU could apply such a ban in a manner which is WTO-compliant. At the very least the EU has a strongly arguable case. In this respect it is interesting to note that the EU has on its books other examples of import bans which would be less readily justifiable before the WTO dispute settlement bodies. To take just one example, Council Directive 91/62925 provides that animals coming from outside of the EU must be accompanied by a certificate issued by the competent authority of that country, certifying that they have received treatment at least equivalent to that granted to animals of Community origin as provided for by the Directive.26 Thus, veal calves which have been raised in conditions which are not certified to be equivalent to those of the EU may not be imported into the EU; this regardless of whether the standard which has been breached could be said to be such to impinge upon the quality of the product itself, or merely upon the `quality' of the circumstances in which it is produced or reared. It is, however, perhaps significant from the point of view of the GATT/WTO that this equivalence is demanded only in the case of live calves being imported into the EU, and not in the case of dead calves (i.e. veal) being imported into the EU. In view of this and other examples, and their dubious but uncertain legality, and in view of the fact that the Community finds itself on both sides of the process/product distinction debate,27 it could be that ambiguity serves the Community well. It may be reluctant to seek clarification of the parameters of Articles III and XX in this respect for fear of the repercussions that might ensue beyond the sphere of animal testing in the cosmetics industry. On the other hand, attesting perhaps more to the fragmented or at least imperfectly coordinated institutional nature of the Commission rather than to a deliberate strategy of ambiguity or contradictoriness on the issue, the Commission's communication to the Council and Parliament on "Integrating environment and sustainable development into economic and development co-operation policy" indicates a bolder approach to the product/process distinction and, by implication, to the possible WTO-compatibility of a measure such as the cosmetics ban or related labelling requirements.28
One thing that is clear is that whatever the final outcome in terms of the construction of the relevant GATT norms, in the case of the cosmetics ban, this further (indefinite) delay, accompanied by a statement of intention to initiate bilateral talks with third countries on the mutual recognition of tests establishing alternative measures, would represent an additional important element in terms of likely WTO compatibility. Only time will tell, but it is not impossible that the Commission is preparing the ground for an eventual ban more carefully, in the light of the lessons of the shrimp/turtle dispute.
On the other hand, since there is room for argument on the legal point, it may be that the Commission's latest proposal reflects its own policy preferences (or at least the policy preferences of some of its directorates general), and that just as Member States often point to the constraints imposed by EC membership to justify an unpopular measure adopted at home, the Commission may choose to do so vis-à-vis the WTO. This is particularly relevant in view of the European Parliament's strong and vocal preference - most recently voiced during the committee debates on the Commission's proposal - for the adoption of a ban on cosmetics tested on animals.
Perhaps most interesting, however, is the possibility suggested by this case study that the effect of the WTO on EC decision-making will not always be obvious or clear-cut. The question of the direct applicability or effectiveness of GATT norms within EC law on the one hand, or the nature of the response of the EC to a ruling of a panel or the Appellate Body against it on the other, are very clear instances of the impact of the WTO on EC decision-making. But the more indirect forms of impact, whereby some of the general and ambiguous norms in the WTO agreements, and the complex or inconclusive decisions of the Dispute Resolution Bodies, are interpreted and applied by the EC political institutions in their formulation of legislative measures, are equally significant. It is very likely that those institutions will, as is arguably true of the Commission in its proposal to amend the cosmetics Directive, add their own gloss or dimension to the rules within that interpretative process, which may lead, if not necessarily to over-compliance, at least to results which do not seem to flow inexorably from the text or jurisprudence of the WTO
The second case study focuses upon a different stage of the decision-making process; not a pre-legislative attempt to "WTO-proof" the legislative measure, nor an ex post facto response to a finding of violation by the WTO dispute settlement bodies, but a challenge to an EC Regulation brought by a private party before a national court in the UK.29 The challenge was brought by Omega Air Ltd., a company trading in aircraft, to Council Regulation 925/1999 on re-certified civil subsonic jet aeroplanes,30 and the English High Court has referred a number of questions to the European Court under Article 234 TEC.31
In simplified terms, the Regulation provides that re-certified civil subsonic jet aeroplanes could no longer be registered or operated within the EU after a certain date.32 Effectively, planes of this kind which meet the noise standards of Chapter 2 of the Chicago Convention on International Civil Aviation, but not the higher standards of Chapter 3 of that Convention, would no longer be permitted to be registered or operated in the EU. However, certain planes of this kind which, although not initially compliant with Chapter 3 standards, but subsequently modified to meet those standards, would not be covered by the prohibition. According to Article 2 of the Regulation, "civil subsonic jet aeroplanes which have been modified to meet Chapter 3 standards by being completely re-engined with engines having a bypass ratio of three or more" would not be covered by the prohibition. Much of Omega's fleet of aeroplanes had been re-engined with a bypass ratio of less than three, and therefore would be caught by the Regulation. However, Omega's claim was that despite the lower bypass ratio, the re-engined aircraft nonetheless met the noise standards established by Chapter 3 of the Chicago Convention.33
The English High Court identified three grounds of invalidity of the Regulation, these being reflected in the question referred:
Is Article 2(2) of Council Regulation (EC) No 925/1999 invalid insofar as it defines "recertificated civil subsonic jet aeroplanes" so that re-engined aeroplanes "with engines having a by-pass ratio of three or more" are not subject to prohibitions imposed by the Regulation but aeroplanes wholly re-engined with engines having a by-pass ratio of less than three are subject to prohibitions, having regard in particular to:
the duty to give reasons under Article 253 of the EC Treaty;
the general principle of proportionality;
such rights as private parties may derive from the General Agreement on Tariffs and Trade and/or the Agreement on Technical Barriers to Trade?
The third ground for invalidity concerned Article 2 of the Agreement on Technical Barriers to Trade (TBT) which provides, amongst other things, that WTO members must ensure that technical regulations are not adopted or applied with the aim or effect of creating unnecessary obstacles to international trade. The Article provides also that such regulations should not be maintained if the objectives can be addressed in a less trade-restrictive manner, and further that where relevant international standards exist, members must use them as a basis for technical regulations, and that such regulations are where appropriate to be based on product requirements based on performance rather than design. The use of bypass ratio (BPR) as a criterion of noise is a design feature rather than a performance standard, as indicated in Article 2 TBT, and the accepted "international standards", as included in the Chicago Convention, were expressed in terms of decibel levels rather than BPR.
Significantly, Omega did not pursue this third head of invalidity in its submissions to the European Court. This is stated to be due to the judgment of the European Court in Portugal v. Council,34 albeit that Omega observes that were the European Court to take a different position in the future regarding to the status of the WTO Agreement (or specifically the TBT Agreement) in Community law, then Omega will rely on such a ground. Crucially, however, Omega contends that the TBT Agreement remains highly relevant to the first two grounds of invalidity.35
On the issue of reasoning Omega points to the failure in the Regulation to give reasons as to why a by-pass ratio criterion is used, and why this by-pass ratio was set at three. They argue that recourse to such criteria is arbitrary and unjustifiable, and incapable of rational justification, and that the criteria are not on any reasonable view relevant to achieving the declared objectives of the Regulation. In submitting that it was incumbent on the Community institutions to put forward reasons in respect of these criteria, Omega point to a number of factors. These include the fact that the Regulation departs from internationally agreed noise certification criteria under the Chicago Convention, and that they impose design (not performance) standards, allegedly in contravention of the TBT Agreement. Omega asserts that in the case of a departure from the accepted norm, it is necessary to have "a particularly thorough and convincing statement of reasons".36 This reflects their further contention that, "at least in the normal case", EC law requires the Community to adopt internationally recognized standards where they are available, and that it similarly imposes a requirement that technical standards be set by reference to performance and not design criteria, and hence that the TBT Agreement merely reflects Community law in this latter respect. On the issue of reasoning, Omega's arguments were resoundingly accepted by the High Court, which held that the Regulation "appears to be wholly defective in its reasons".37
The High Court's own provisional conclusion on the adequacy of the reasons was clearly directly influenced by the provisions of the TBT Agreement, in the sense that the need for the EC legislature to give more satisfactory reasons to explain the use of BPR as a criterion for determining acceptable noise levels seems to have been based precisely on the failure to follow the indications in Art 2 of the TBT. The move from the use of decibel level, which had been used in international agreements and established in the Chicago Convention on International Civil Aviation, to the use of BPR therefore needed explanation, and in the English court's view, had not adequately been explained. The implication of this part of the judgment is that whether or not the provisions of the TBT are directly effective, their existence imposes a procedural obligation on the EC institutions to provide an adequate explanation for the departure from the norms or guidelines laid down therein. This is evident from the judgment where the national judge began by accepting the respondent's presentation of the jurisprudence of the ECJ concerning the degree of specificity required when reasons are being given for the adoption of a Regulation - i.e. that where a Regulation is concerned, the reasons may be confined to indicating the general objectives and the general situation which led to its adoption, and that it is not necessary to require a specific statement of reasons for each of the technical choices made by the institution, and yet he goes on later to conclude that the Regulation is defective in its reasoning for not explaining why a BPR standard was used.
Another interesting feature of the case is the fact that whereas the judge rejected the attempt to make the standards in the Chicago Convention relevant by means of an argument based on Article 307 EC,38 he clearly treated them as being of indirect relevance via the combination of the provisions of the TBT Agreement on the one hand, and the Community requirement of giving reasons on the other hand:
It is the Chicago Convention and the International Civil Aviation Organisation ICAO which have set international standards based on decibel measurement....
The judgment then set out the relevant provisions of Article 2 of the TBT, including the stipulation that members shall use relevant international standards as a basis for technical regulations, and continued:
I am quite satisfied that the relevant international standards are the Chicago Convention. It seems to me that if it is decided to move from the decibel related method to a BPR method, some sort of explanation is required... the Regulation seems to be wholly inadequate in its reasons.39
While this clearly falls short of giving effect either to the aircraft noise standards contained in the Chicago Convention, or to the provisions of the TBT on technical regulations, the imposition, through the reasoning requirement, of an obligation on the EC institutions to explain why the standards established in the main international agreement on aircraft noise have not been used, when the TBT agreement by which the Community is bound actually specifies that appropriate international standards of this kind should be used, clearly makes the provisions of both agreements highly relevant for the Community's decision-making process, in particular if the English court's approach is followed by the ECJ.40
Omega's arguments in respect of breach of the general principle of proportionality are not entirely dissimilar from those outlined above in respect of the reasoning requirement. Their fundamental contention is that there is no rational relationship between the means deployed by the Regulation and the main aim which it pursues; namely the control of noise emissions at Community airports. They argue moreover in favour of a stricter standard of proportionality review in a case such as this where the Community has departed from internationally agreed standards and from the terms of the TBT Agreement. Thus, the TBT Agreement, although acknowledged not to be of direct effect nor to constitute a standard against which the European Court will assess the legality of Community acts, is invoked as a means of increasing the rigour with which established grounds of review will be applied, and of constraining the degree of discretion which these permit the Community institutions. In the event that the European Court accepts Omega's arguments, and indeed the conclusions of the English High Court, it will be apparent that an absence of direct effect on the part of the WTO Agreement should not necessarily be equated with an absence of relevance or effect within the European and national courts. Particularly important in this respect, as noted above, is the manner in which substantive obligations which inhere in the WTO package may be translated by courts and transformed into procedural requirements; notably but perhaps not only a duty to give reasons. It is with this issue of procedural requirements and the WTO Agreements that this next section is concerned.
9 OJ L 262
27.09.76 p.169. The Directive has so far been amended twenty-five times.
For a consolidated version see: http://europa.eu.int/eur-lex/en/lif/reg/en_register_133016.html.
10 It was one of the Commission's Directives adapting these annexes to technical progress which formed the subject matter of the well known case of Case 212/91, Angelopharm GmbH v. Freie Hansestadt Hamburg,  ECR I-0171, in which the European Court held that the listing of substances in the Annexes should have been justified by a report from the Scientific Committee on Cosmetic Products and Non-Food products.
11 This was introduced by Council Directive 93/35 OJ 1993 L 151 p. 32..
12 See Commission Directive 97/18 OJ 1997 L 114 , p. 43.
13 These relate to the assessment of skin corrosivity and to the assessment of phototoxicity. See COM(2000) 189 final, p. 2. At the stage of writing, the proposal is wending its way slowly through the legislative processes of the Community, with a common position not expected from the Council until summer 2001.
14 COM(2000) 189 final, p. 2.
15 Ibid p. 3.
16 Supra n. 14, p. 4.
17 See, for example, written question E-0949/98 by Mark Watts (PSE) to the Commission (30 March 1998) on the subject of animal protection in GATT/WTO. The answer was given by Sir Leon Brittan on behalf of the Commission (7 May 1998) in the following terms:
It is correct that the Community's obligations under the World Trade Organisation
(WTO) agreement are among the elements which must be taken into account when
developing any policies which may affect trade, including those mentioned by the
Honourable Member. However, as the Honourable Member indicates the General
agreement on tariffs and trade (GATT)/WTO does not prevent the introduction of
measures which are considered to be necessary for the protection of animals on the
territory of the Community.
It is the Commission's view that it cannot unilaterally impose the Community's
welfare-based production standards on third countries. For example, WTO rules do
not permit the Community to prohibit imports of cosmetic products on the sole
ground that they have been tested on animals, even if the Community imposes such
an animal-testing ban for marketing of Community products. Rather than proceeding
to an import ban of such products, the Community should focus on the creation of
multilateral standards for animal welfare. The Community should first try to convince
its trading partners to modify their policies in the direction it thinks appropriate.
Consumers in Europe should, moreover, be in a position to make an informed choice
about the animal welfare aspects of the products they buy, for example through
18 Supra, n. 14, p. 3.
19 United State Restrictions on Imports of Tuna 30 ILM (1992) 1598 (Tuna/Dolphin I), 33 ILM (1994) 839 (Tuna/Dolphin II).
20 Supra n. 14, pp. 3-4.
21 R. Howse & D. Regan, `The Product/Process Distinction: An Illusory Basis for Disciplining "Unilateralism" in Trade Policy' (2000) 11 EJIL 249.
22 United States - Import prohibition of certain shrimp and shrimp products (http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm) Shrimp/Turtle was concerned with Article XX(g) on the conservation of natural resources. But the outcome of the case focused upon the manner in which the trade-restrictive measures had been applied and their compatibility with the `chapeau' of Article XX which must be respected regardless of which of the exceptions is invoked.
23 See the Opinion of the Economic and Social Committee on the Commission's proposal, CES (2000) 998, OJ C 367/1 at paragraph 2.6.
24 Ibid, para. 166. For a full discussion of this, and more generally the due process requirements which are said to underpin the chapeau, see Part Three below.
25 Laying down minimum standards for the protection of calves. OJ 1991 L340 p. 28.
26 Article 8.
27 It is interesting to note that the EC intervened in the tuna/dolphin dispute in favour of the position of the complaining parties, against the United States.
28 In this Communication the Commission declares that the EC is seeking in the course of the next WTO Round to "clarify", amongst other things "the relationship between WTO rules and Non-Product Related Process and Production Methods requirements", including in the context of eco-labelling schemes. According to the Commission "the Round should reach a clear understanding that, subject to the necessary safeguards, there is scope within WTO rules to use market based, non-discriminatory, non-protectionist instruments to achieve environmental objectives and to allow consumers to make informed choices". See COM (2000) 264, para 4.2.1.
29 Case C-27/00 R v. Secretary of State for the Environment ex parte Omega Air Ltd QBD 25 November 1999.
30 OJ 1999 L262/23.
31 A preliminary reference in case C-122/00 has also been made in similar terms by the Irish High Court from legal proceedings brought by Omega concerning the same Regulation, and a direct action T-165/99 was also initiated by it before the Court of First Instance. On 7 March, 2000, the Court of First Instance ordered that the direct action be stayed pending the outcome of the preliminary reference proceedings before the Court of Justice.
32 The Regulation had not yet entered into force, and although technically speaking the High Court was being asked to give a declaration about the legal effectiveness of the Regulation in the UK, the main aim of the action brought by Omega was to obtain a reference to the ECJ seeking a declaration of its invalidity.
33 The primary aim of the EC Regulation, as set out in the preamble, was indeed to reduce noise emissions from aeroplanes. It is noteworthy that the Council did not include, in the preamble or recitals to the Regulation, the suggestion made by the Economic and Social Committee in its opinion on the measure, that the aim of the Regulation in prohibiting re-engined aircraft of the kind in question was not only that of reducing noise pollution, but also the likelihood that the use of new aircraft would increase passenger safety and public safety in general. See OJ 1998 C284
34 Case C-149/96  ECR I-8395 para. 47: "the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions".
35 Omega further sets out submissions that the Regulation is in breach of the general principle of non-discrimination, and notes that although the High Court rejected those submissions in making the reference, Omega draws them to the Court's attention so that the Court may consider them of its own motion. In addition this issue has been referred to the European Court by the Irish High Court in the parallel Case C-122/00, and Omega will be making full submissions on the issue to the European Court in those proceedings.
36 Here they are drawing upon Advocate General Capotorti in Case 158/80 Rewe-Handesgesellschaft Nord GmbH v. Hauptzollamt Kiel (Butterboats)  ECR 1805. They also point to the judgment of the Court in this case, observing that three features were cited by the Court there in explaining why the Regulation concerned was invalid; the regulation was a departure from the rules of the Common Customs Tariff, no reasons were given for that departure, and there was a contradiction in the recitals themselves. Omega argues that same or similar features are present in the case at hand, including departure from the Chicago Convention and the TBT Agreement.
37 Supra n. 29.
38 Article 307 EC effectively declares that the obligations deriving from agreements concluded before the date of accession to the EC between one or more Member States and one or more third country are not to be affected by the provisions of the EC Treaty. This Article has not given rise to much success before the ECJ when it has been invoked to establish the priority of the provisions of certain international agreements over EC law, including in the infamous banana litigation, and after the judge in this case dismissed it, it did not form part of the questions referred to the ECJ under Article 234.
39 Supra n. 29.
40 The rash of cases before the CFI and the ECJ in recent years which use a strong requirement of reasoning as a means of integrating other potentially more controversial norms into EC decision-making procedures (such as the principle of transparency and access to documents, before that was actually enshrined in the EC Treaty - see, for example, Case T-105/95, WWF v. Commission  ECR I-5721 and Case T-105/95, Svenska Journalistforbundet v. Council (Swedish Journalists case )  ECR II-2289, which suggests that it is quite likely to do so.