The Relations Between International Trade Agreements and Domestic Courts in the European Union

Abstract

The rational choice theory approach has consistently marked the relations between WTO agreements and domestic courts in the European Union, despite that traditionalism has been accorded on the role of domestic judges regarding other areas of international law. The ECJ has a mixed position on international trade agreements in general and does not grant WTO agreements direct effect, as opposed to association agreements. This Chapter examines significant cases through which the ECJ has construed its case law with regards to WTO rules, focusing on the GATT and the Antidumping Agreement to check how the rational choice theory approach works in the real world and to examine its impact in domestic litigation. Due to the unique features of the European Union legal order, this Chapter also assesses the degree of cooperation of national courts of the European Union member states with the ECJ case law in relation to the WTO Agreements, with particular attention to German and Italian courts case law. As constitutional courts of European member states may occasionally be offered the opportunity to confront ECJ case law in domestic litigation, their responses to confirm or not the ECJ decisions in relation to the WTO Agreements are therefore relevant.