© 2001 by Oxford University Press
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Legal persuasion, political realism, and legitimacy: the European Court's recent treatment of the effect of WTO agreements in the EC legal order
Institute of International Economic Law, Georgetown University Law Center, Georgetown, USA
Within the scope of Community law, the European Court of Justice denies both Members States and private parties the right to rely directly on provisions of WTO agreements. Its reasoning, as formulated in Portugal/Council (November 1999) and now confirmed in Dior/Tuk (December 2000) rests on a distinction made between the WTO agreements, based on the principle of negotiations 'based on reciprocity and mutual advantages', and other international treaties.
This article argues that the nature and reciprocity of the WTO agreements do not distinguish them from other treaties in a way that justifies denial of direct effect. Compensation and suspension of obligations are temporary and unilateral rights, not legal options for the defendant. The WTO in fact codifies and restricts the role of negotiations.
It may, however, be wise to deny direct effect, because there is a conflict between the predominant realist approach to international relations and allowing private parties to invoke certain international rules. But it is not for the Court to take such a political decision. Also, denying Member States the possibility of invoking WTO provisions deprives Articles 230 and 300(7) EC of all meaning and the EC, the adolescent international leviathan, is left almost without judicial control in the area of international trade.