Common Commercial Policy of the European Union: Legal Position and Effects of the WTO Agreement within the Legal Order of the European Union

Abstract

The dissertation formulated two fundamental hypotheses. First of them related to the formulation of the real scope of the CCP and the formation of the relation EU-MS and the definition of the CCP taking into account these elements. Second one related to the relation between two legal orders, the EU and the WTO one, including the interaction with their predecessors and especially focalized on the issue of direct effect of the GATT/WTO Agreement in the EEC/EC/EU legal order, including also the comparison to the MERCOSUR law. In order to come to the relevant outcome in regard to the first question, there were analyzed the aspects of the EEC/EC/EU in regard to their legal personality and competences. The CCP, as one of the original EU policies, belong principally among the policies, having exclusive competences. This fact was on various occasions confirmed by the ECJ/CJ EU, basically extending the CCP, not only in regard to its subject-matter, but also in regard to the tools at disposal of the EEC/EC/EU institutions which covers actually almost all fields related to the trade – trade in goods, services, trade-related aspects of intellectual property and lastly also foreign direct investment treaties. EU, as an international organization sui generis was based on the economic grounds, reflecting thus primarily economic objectives. Therefore, as an economic entity needed to find own modus vivendi with another important economic players on the world trade playground. One of those was/is without any doubts the GATT/WTO. The fact is that the GATT Agreement came into life as an historical accident, meaning that it represented only partial tariff and trade agreement within the intended organization of ITO. However, over the time, GATT Agreement developed by the way of practice into rather functional system regulating world trade. Nonetheless, the EEC/EC looked on the GATT Agreement rather skeptically and considered it as special kind of the international agreement, based on ‘reciprocal and mutually advantageous arrangements’ and ‘great flexibility of its provisions, in particular those conferring the possibility of derogation.’ Thus, the ECJ did not want to recognize the direct effect to such kind of international agreement. The Court admitted only limited direct applicability when the EC granted the individuals to challenge the practice of the third states contradictory to the GATT rules and, if the EU law imposed a specific obligation arising from the GATT law. Negative stance to the GATT/WTO law persisted even upon conclusion of the WTO Agreement which was concluded by the EC itself on the basis of Council decision. The Court presented its reluctant stance to the WTO law. Moreover, it rejected any liability for the violation of the WTO rules in regard to the decision of the DSM and also in regard to the legislation of the EU found inconsistent with the WTO obligations. The same negative stance towards the WTO law, presented also the MERCOSUR Tribunal. Going out from the very nature of the MERCOSUR Agreement and the nature of MERCOSUR as international organization, the direct effect was equally rejected. However, the case - law of the MERCOSUR Tribunal is not numerous, therefore, for real stance of the WTO it is needed to wait for further judgments examining this issue further and in profundity.