The EU and its Member States in WTO Dispute Settlement: A ‘Competence Model’ or a Case Apart for Managing International Responsibility?

Abstract

The aim of this paper is to examine and assess the participation of the European Union (EU) and its Member States (MS) in the dispute settlement system of the World Trade Organisation (WTO), with a focus on one legally and politically important question: how their unique position as full WTO members has affected their respective responsibility for the performance of WTO obligations. While generally upholding the prevailing view that the EU’s participation in the WTO dispute settlement system has been a ‘success story’, the paper will offer a more nuanced assessment of the Union’s eagerness to assume lead responsibility for breaches of WTO law, in terms of both the degree of third-party acceptance and the relative impact of EU own rules. Drawing upon an in-depth analysis of practice, two main arguments will be advanced. First, the extent to which the EU’s assertion of exclusive participation and responsibility has been accepted by other WTO members and dispute settlement organs ought to be qualified, particularly in light of more recent, post-Lisbon, WTO disputes. Second, the approach to EU/MS international responsibility we have witnessed in the WTO dispute settlement system has not just been determined by the EU internal rules –i.e., a pure ‘competence model’, whereby the exclusive (external) competence of the EU for virtually all WTO matters will implicate its exclusive responsibility in all instances. Rather, the specificity of the WTO dispute settlement system has exercised considerable influence on whether and how such internal rules are relevant to the determination of EU (sole or joint) responsibility for breaches of WTO law, and most significantly the WTO rules on remedies which embody the very purpose of assigning responsibility for an internationally wrongful act in this specific treaty context. Accordingly, it is suggested that this ‘competence/remedy’ model for managing EU/MS international responsibility in the WTO, which combines both internal and external legal factors, may remain a case apart, unique to that dispute settlement regime.