Judicial enforceability of WTO law in the European Union. Annotation to Case C-149/96, Portugal V. Council

Abstract

Until the entry into force of the WTO Agreements, the European Court of Justice (ECJ) continuously denied the direct effect of the GATT 1947 in the European Community's legal order, in particular arguing that the GATT dispute settlement provisions were characterized by a great degree of flexibility. This case law triggered much debate and criticism, as well as high expectations of the first judgment in which the Court would assess the legal effect of WTO law. In Portugal V. Council, the ECJ did not change its general rule whereby WTO law cannot be relied on to review the legality of acts of the European Community. Setting out a two-step test, the Court first denied that the WTO Dispute Settlement Understanding itself obliges the European Community to implement rulings by making them directly enforceable. Second, it denied the possibility of doing so autonomously. However, the Court upheld its case law regarding exceptions to this rule, including the possibility that WTO provisions can serve as a benchmark for reviewing Community acts taken to implement WTO Agreements. This annotation criticizes the ECJ's reasoning, in particular the underlying assumption that WTO law lacks unconditional mandatory force, and the notion of reciprocity. It argues that the judgment is misconceived. Yet, it concludes that, inter alia, the possibility of invoking WTO provisions when reviewing the large number of measures implementing WTO Agreements might open the door towards strengthening the legal effects of WTO law in the Community.