The case-law of the court of justice of the european communities concerning the law of the world trade organization and the autonomy of the european community in the implementation of its common commercial policy

• Author: Miguel Ángel Cepillo Galvín
• Position: Associate Professor (Profesor Colaborador) Of Public International Law And International Relations University of cadiz (spain).
• Pages: 173-179

Page 173

1. Introduction

Since its creation in 1957, the European Community has carried out important activities internationally, which has consolidated its position as a vital player in the international field.

This role has particular significance in the economic and commercial sphere [1], which is unsurprising if we bear in mind that the European Union constitutes the main trading power on a world level.

This performance of the European Union on an international level becomes particularly important in the current climate, as we are witnessing the increasing globalization of the economy and a strengthening of the multilateral trading system following on from the strong boost that it received as a result of the creation of the World Trade Organization in 1995.

In fact, the European Community has shown itself to be particularly active bothPage 174on a multilateral level, taking on a leading role in the World Trade Organization (WTO), as well as on a bilateral or regional level, when it comes to finalizing trade agreements with non-member countries, thus acquiring numerous international agreements within the commercial sphere.

Although, in principle, one could maintain that a limited margin of discretion currently exists for the EU institutions as regards the management of the Common Commercial Policy, specifically due to the commitments agreed on in the World Trade Organization and those arising from the intense network of preferential agreements signed by the European Community with non-member countries, in our opinion this position is more than debatable.

There is no doubt that the compulsory fulfilment of the international commitments that link the European Community is a conditioning factor with regard to the implementation of its Common Commercial Policy, but that does not make its autonomy disappear in order to achieve its own model of commercial policy.

In this respect, it is necessary to underline the ample discretionary margin in the management of the Common Commercial Policy that the Court of Justice of the European Communities recognizes in favour of the EU institutions, despite the existence of such international engagements.

This recognition takes place within the framework of its case-law related to the denial of the direct effect of the General Agreement on Tariffs and Trade (GATT)[2], and subsequently of the World Trade Organization’s agreements[3], in which the Court specifically emphasizes the flexibility of such agreements. We will hereby proceed to briefly analyze the position of the Court of Justice of the European Communities on this matter.

2. The Case-Law of the Court of Justice of the European Communities Concerning the Direct Effect of the World Trade Organization Agreements within the European Union

As is well known, in accordance with the aforementioned case-law, the Court of Justice of the European Communities has made it clear that the international agreements that are legitimately signed by the European Community form an integral part of the EU legal system, and that the regulations included in such agreements that are sufficiently necessary and unconditional may produce direct effect. However, the Court of Justice of the European Communities denies this possibility in relation to the regulations included in the GATT, due to this agreement’s great flexibility when taken as a whole, in particular those regulations through which the possibility of repeals are conferred, as well as the possibility of adopting measures against situations of exceptional difficulty and the system considered for the resolution of conflicts between the contracting parties.

The Court of Justice of the European Communities equally denies the possibility that the regulations included in the WTO agreements produce direct effect, due to reasons similar to those mentioned in relation to the GATT, in other words the flexibility of such agreements. Indeed, the changes involved in the WTO’s new legal framework have not led to so many changes for the Court of Justice of the European Communities that it is necessary to adopt a different position to that held with respect to the GATT[4], despite recognising the notable differences that are included in the WTO agreements inPage 175relation to the regulations of the GATT of 1947[5].

Indeed, the flexible nature of the agreements can lead to a change in the duty of fulfilling the commitments that arise from them and...