Jean Monnet Center at NYU School of Law

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1. Introduction

Whether the European Court of Justice should permit enforcement of provisions of the General Agreement on Tariffs and Trade within the European Community legal system is a difficult question to answer.[1] In his book, THE EUROPEAN COURT OF JUSTICE AND THE GATT DILEMMA, Kees Jan Kuilwijk concludes that the Court should do so by means of granting direct effect to the GATT.[2] While Kuilwijk's book contains a sophisticated legal, political, and economic analysis of the direct effect question and is a worthwhile addition to the prevailing academic view on this issue, its treatment of the relevant concerns does not always fully elucidate their complexity.

For that reason, this paper attempts to illustrate the competing considerations facing the ECJ in deciding whether to grant direct effect to the GATT. It will be shown that when one thoroughly examines the legal, political, and economic realities of the GATT it is no longer obvious, as Kuilwijk argues it is, that: 1) the ECJ's jurisprudence requires direct effect, 2) denying direct effect is detrimental to the Community's interests, and 3) direct effect is necessary to protect individual rights. After a brief introduction to the current ECJ doctrine and its critics, the paper will pursue the following distinct lines of analysis: 1) doctrinal, 2) motive, and 3) political economy. While the analysis is motivated by Kuilwijk's book, the discussion will often explore issues beyond the bounds of his critique.

1.1 Current State of the ECJ Doctrine

Four principles govern the domestic legal effect of international agreements. These principles are the following: 1) direct application, 2) direct effect, 3) supremacy, and 4) interpretation. The ECJ developed a common conception for each of these principles except direct effect.[3] Although the Court granted direct effect to other international agreements, it held in International Fruit Company, an Article 177b preliminary reference decision, that individuals could not enforce GATT 47 provisions because the agreement lacked direct effect.

The Court reached this conclusion based on a consideration of the "spirit, general scheme and the terms of the General Agreement."[4] The Court held that, because the GATT 47 "is based on principles of negotiations undertaken on the basis of `reciprocal and mutually advantageous arrangements,' [and] is characterized by the great flexibility of its provisions, in particular those conferring the possibility of derogation, the measures to be taken when confronted with exceptional difficulties, and the settlement of conflicts between the contracting parties," it did not provide individuals with rights which could be invoked in national courts.[5]

The ECJ also held that member states could not enforce the GATT 47 provisions in Article 173(1) actions before the Court.[6] The ECJ used International Fruit Company as a precedent in this decision to conclude that "those features of GATT, from which the Court concluded that an individual within the Community cannot invoke it in a court to challenge the lawfulness of a Community act, also preclude the Court from taking provisions of GATT into consideration to assess the lawfulness of a regulation in an action brought by a Member State."[7] Thus, the Court consistently held that the nature and structure of the GATT 47 precluded any of its provisions from having direct effect.

Although the ECJ denied direct effect to the GATT 47, it did allow some of the agreement's provisions to have legal significance within the Community. The Court held that GATT 47 provisions could be used to interpret the meaning of Community legislation which expressly referred to those provisions. For example, in FEDIOL III, the ECJ held that the GATT 47 Article III prohibition against discriminatory taxes could be used to interpret the meaning of "illicit commercial practices" under the Community's New Commercial Policy Instrument Regulation because this regulation required the Community to comply with its international obligations. The Court distinguished its previous direct effect holdings by stating that "the GATT provisions have an independent meaning which, for the purposes of their application in specific cases, is to be determined by way of interpretation."[8] In the end, however, the Court found that the contested measures did not constitute an illicit commercial practice.

The Court also held that GATT 47 provisions can be used to interpret Community legislation when that legislation implemented a specific GATT 47 provision.[9] For example, in Nakajima, the Court held that the GATT 47 Anti-Dumping Code could be used as grounds for reviewing the legality of an anti-dumping margin determined under the Community's Basic Anti-Dumping Regulation. In a manner similar to its decision in FEDIOL III, the Court held that this was possible because the regulation "was adopted in accordance with existing international obligations, in particular those arising from Article VI of the General Agreement and from the Anti-Dumping Code."[10] Again, however, the ECJ found that the substantive provisions of the Anti-Dumping Code had not been violated.

Because the ECJ has not addressed the direct effect question since the signing of the Uruguay Round Agreements, the above decisions constitute the Court's doctrine towards the new GATT. Therefore, the current ECJ doctrine continues to hold that the GATT lacks direct effect and only has legal significance when Community legislation expressly refers to, or is intended to implement, specific GATT provisions.

1.2 Current Criticisms of the ECJ Doctrine

The ECJ's GATT direct effect doctrine has been criticized on many grounds. In fact, Kuilwijk claims that it is "one of its [the ECJ's] most seriously criticized doctrines ever."[11] Kuilwijk's book provides one of the most sophisticated critiques to date. In the mode of the Court's other critics, Kuilwijk first argues that the GATT is not significantly different in nature and structure from the other international agreements to which the ECJ has granted direct effect. Thus, he concludes that it is inconsistent to deny direct effect to the GATT. Second, he argues that granting direct effect to the GATT would force the Community to adopt a rule-based liberal economic foreign trade policy which would maximize the economic welfare of the Community.[12] Thus, he concludes that the Court harms the Community by continuing to deny direct effect.

Kuilwijk arguments, however valid and informative, are often one dimensional and colored by a conspiratorial tone that ultimately weakens his critique. For example, he states that the ECJ denies direct effect to the GATT in order "to support a `secret bond' between the Commission and the Council, on the one hand, and import-competing Community producers, on the other."[13] He argues that the Court's concern over reciprocity in the GATT reflects a "persistent adherence to the traditionalist mercantilist, negative and defensive view of foreign trade policy."[14] Thus, he concludes that the Court should grant direct effect to the GATT in order to provide the "divine guidance...needed to attain economic paradise."[15] Given Kuilwijk's tendency to slip into such one sided advocacy, a more balanced treatment of the direct effect question may be useful.

[1] With the entry into force of the World Trade Organization Agreement, references to the GATT can be misleading. The term GATT now refers to the General Agreement on Tariffs and Trade only and not the entire world trading structure as it used to. Thus, the term "GATT 47" in this paper refers to the old GATT agreement and its practice. The new GATT 1994 Treaty, which consists largely of the GATT 47 as amended, and the related Uruguay Round Agreements will be referred to simply as the GATT or occasionally the new GATT.


[3] For example, the ECJ adopted a monist conception of direct application so that international agreements and Community law form part of a single legal system. See Case 181/73, R.&V. Haegeman v. Belgian State, 1974 E.C.R. 449, and, Joined Cases 21-24/72, International Fruit Company NV and Others v. Produktschap voor Groenten en Fruit, 1972 E.C.R. 1219. The ECJ also held that international agreements are supreme over all secondary Community law. See Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie. Kga.A., 1982 E.C.R. 3641, and, International Fruit Company. Finally, the ECJ held that similarly worded provisions contained in both the EC Treaties and international agreements do not have to be interpreted in the same manner. See Case 270/80, Polydor Limited and RSO Records Inc v. Harlequin Record Shops Limited and Simons Records Limited, 1982 E.C.R. 329, and, Case 70/87, EEC Seed Crushers' and Oil Processors' Federation (FEDIOL III) v. EC Commission, 1989 E.C.R. 1781.

[4] International Fruit Company, supra note 3, at 1227.

[5] Id.

[6] Case C-280/93, Federal Republic of Germany v. Council of the European Union, 1994 I E.C.R. 4973.

[7] Id. at 5073.

[8] FEDIOL III, supra note 3, at 1831.

[9] Case 69/89, Nakajima All Precision Co LTD v. Council of the European Communities, 1991 I E.C.R. 2069.

[10] Id. at 2178.

[11] See, e.g., the many writings of Ernst-Ulrich Petersmann. In "The EEC as a GATT Member - Legal Conflicts Between GATT Law and European Community Law," The European Community and GATT, Eds. Meinhard Hilf, Francis G. Jacobs, and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1986, Petersmann provides a broad critique of the ECJ's policy that stresses the failure of the Court to apply general principles of Community law to the GATT 47. "Strengthening the GATT Dispute Settlement System: On the Use of Arbitration in GATT," The New GATT Round of Multilateral Trade Negotiations, Eds. Meinhard Hilf and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1991, offers a balanced treatment of the political economy function of international trade rules and the need to allow individual enforcement. Finally, in "National Constitutions and International Economic Law," National Constitutions and International Economic Law, Eds. Meinhard Hilf and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1993, Petersmann argues that the GATT 47 protects individual economic rights and should be constitutionalized by means of direct effect.

For other critical perspectives, see, Tumlir, "GATT Rules and Community Law - A Comparison of Economic and Legal Functions," The European Community and GATT, Eds. Meinhard Hilf, Francis G. Jacobs, and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1986, who offers an analysis of the economic effects of trade protectionism, and, Bourgeious, "Trade Policy-Making Institutions and Procedures in the European Community," National Constitutions and International Economic Law, Eds. Meinhard Hilf and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1993, who provides a thorough examination of the application of general principles of Community law to foreign trade. See, also, Hilf, "The Application of GATT within the Member States of the European Community, with Special Reference to the Federal Republic of Germany," The European Community and GATT, Eds. Meinhard Hilf, Francis G. Jacobs, and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1986, for a succinct list of the arguments for and against direct effect.

With regard to the Uruguay Round Agreements, see, Komuro, "The WTO Dispute Settlement Mechanism: Coverage and Procedures of the WTO Understanding," 29 Journal of World Trade 5 (No. 4), 1995, for an analysis of the new Dispute Settlement Understanding. See, also, Kuijper, "The New WTO Dispute Settlement System - The Impact on the European Community," 29 Journal of World Trade 49 (No. 6), 1995, and, Philip Lee and Brian Kennedy, "The Potential Direct Effect of GATT 1994 in European Community Law," 30 Journal of World Trade 67 (No. 1), 1996, for analyses which caution against granting direct effect within the new GATT framework. In general, Kuilwijk's analysis of the GATT follows Petersmann's critiques.

[12] A third line of Kuilwijk's argument involves theories of political economy and legal rights. This argument, however, seems to collapse into the other two as it is used to provide philosophical support for the notion that the lack of enforcement of the GATT obligations allows the Community institutions to adopt protectionist trade policies which result in welfare losses for the Community as a whole and unjustly harm individuals.

[13] Kuilwijk, supra note 2, at 247.

[14] Id. at 340.

[15] Id. at 28.

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