A Truly “Common” Commercial Policy? – A Legal Assessment of the Ban on Ukrainian Grain in the Interplay of WTO and EU Law

Abstract

On 18 September 2023, Ukraine initiated proceedings against Poland, Hungary and the Slovak Republic under the WTO Dispute Settlement Understanding. This came in response to bans on Ukrainian grain imports which the three EU Member States had previously introduced. This unilateral conduct puts the common nature of the EU’s commercial policy, an exclusive Union competence, seriously into question. This article elaborates on that jeopardization of the common commercial policy by showing that the grain ban is violating WTO law and may result in retaliations affecting the EU at large. It then assesses whether nevertheless the commonality of the Union’s policy can be maintained both externally and internally. To this end, it elaborates on the practice of the Union in WTO dispute settlement and argues that the conduct of Member State organs is attributable to the EU. Furthermore, it analyses whether and on what basis infringement proceedings against the Member States may be successful. In this, it takes account of norms regarding the common commercial policy, the duty of cooperation, and the WTO Agreements as integral parts of EU law. To this end, special attention is paid to the CJEU’s jurisprudence on the legal value of WTO law and DSB Reports.