EC Practice in the WTO: How Wide is the 'Scope for Manoeuvre'?

Abstract

Despite the doctrinal criticism raised as a result of the unbending positions taken by the European Community in Bananas and Beef Hormones, the EC’s implementation record in the WTO, though not exemplary, does not add up to a generally non-complying approach. On the other hand, the record seems to reflect an attitude that, in accordance with the view traditionally maintained by the European Court of Justice from International Fruit to Portugal, finds its cornerstone in the principle of negotiations with a view to achieving mutually satisfactory solutions, even beyond the limits set by the DSU. Following these premises, the purpose of this paper is to analyse the impact that has been exercised on the EC»s contentious practice by interpretations of the WTO system given by the EC courts, in fine tuning with the stand taken by the EC’s political bodies. After having considered the legal and political reasons behind the case-law of the Community’s courts on ‘direct effect’, the paper attempts to analyse to what extent the EC’s conduct in the framework of the WTO dispute settlement process has been influenced by the ‘scope for manoeuvre’ argument, devised by the ECJ in the Portugal ruling. It will become clear that an approach mainly aimed at preserving the balance of mutual advantages among the WTO Members queries the role played in the dispute settlement mechanism by the agreements between parties. An analysis is submitted of four different categories of agreements concluded by the EC in the framework of the dispute settlement mechanism, also in cases not expressly provided by the DSU. On a higher level of investigation, the ‘scope for manoeuvre’ approach is strictly connected with another widely discussed issue, namely the nature of the legal obligations entered into by WTO Member States. The study aims to demonstrate that WTO rules are a source of rights and obligations that are disposable in nature for Member Parties.