EC Liability for Non-compliance with Decisions of the WTO DSB: The Lack of Judicial Protection Persists

Abstract

In the past, the European Court of Justice (ECJ) has strongly favoured not intervening in any way in the international process of dispute resolution and has denied the direct effect of World Trade Organization (WTO) law at the expense of judicial enforcement of WTO rules. This article discusses the Court’s recent extension of this well-established case law in the context of an action for compensation brought by companies subjected to retaliatory measures authorized by the Dispute Settlement Body (DSB). The analysis focuses on the Court’s interpretation of the binding nature of the Dispute Settlement Understanding (DSU) and the implications for the particular function an action for damages fulfils in the context of judicial protection under EC law. The Court’s approach to considering the notion of direct effect as a criterion for an action for damages is questioned in light of the Court’s own jurisprudence. The article concludes that the Court’s well-established stance vis-à-vis WTO rules should not be upheld for the purposes of a claim for damages.