EC liability for non-implementation of WTO dispute settlement decisions - Are the dice cast?

Abstract

The judgments of the ECJ in Biret seem to open the door for further discussions on the liability of the EC for non-implementation of WTO dispute settlement decisions. The ECJ refused to grant compensation to the applicants due the fact that the damages occurred before the adoption of the DSB decision and before the reasonable period of time accorded to the EC to implement this decision had lapsed. Since the ECJ did not explicitly pronounce itself on the question whether compensation could have been awarded if the damages had arisen after the reasonable period of time, it seems to have left the door half open. It is important that the ECJ does so without insisting - as it has done in its previous judgments concerning the effect of WTO law in the EC legal order - on reciprocity, that is without requiring whether any other of the EC's major trading partners would allow such damage claims. In addition, a recent judgment of the ECJ seems to indicate that the Nakajima line of case law, according to which the ECJ or the CFI may review the legality of an EC act in cases where the EC intends to implement a particular obligation entered into within the framework of the WTO, will play an essential role in the cases which are currently pending before the ECJ and CFI.