The Status and Effect of WTO Law Before EU Courts

Abstract

The legal status and effect of World Trade Organization (WTO) law before European Community (EC)/European Union (EU) Courts has been a contentious issue right from the very beginning. Although there have been a number of cases in which the Court of Justice of the European Union (CJEU) has addressed the issue, the rulings have left practitioners guessing as to the applicability and effect of WTO provisions in specific cases. This problem most recently came to a head when the General Court (GC) annulled a regulation imposing definitive anti-dumping duties on certain aluminium foil products from Rusal Armenal, an Armenian company. The GC found that the regulation was inconsistent with the applicable WTO law (in particular the Anti-Dumping Agreement [ADA]) and therefore invalid. On appeal the CJEU set aside the GC’s judgment on the grounds that WTO law can be relied on before the EU Courts only where the EU intends to implement a particular obligation and/or where the EU act at issue refers explicitly to specific provisions of a WTO agreement. When even the GC has difficulty in correctly applying the rules concerning the applicability and effect of WTO law, it’s time to step back and take stock. In this article we analyse the judicature concerning the principles governing the application and treatment of WTO law by Union Courts and develop an analytical framework to explain when and how WTO law can have an effect before these Courts.