Study On The Direct Effect Of WTO Law Of Its Application In The European Union

The application of WTO law(including WTO Agreements and DSB decisions) in the EU, compared to the case in other WTO members, is a complicatedissue. Because WTO law by itself is a sophisticated legal system, and the EU and its Member States both are WTO members which makes the situation more complex. Therefore, there are two relationships involved on this matter, namely, the relationship between EU law and international law, and the relationship between EU law and national law. The most important issue of the application of WTO law in the EU is whether WTO law has direct effect or not, that is, whether the rules contained in the WTO Agreements are capable of conferring upon individuals(including natural persons, legal persons and other economic organizations) a right to rely thereon before the national courts or the Union Courts for the purpose of having their rights protected. Thus the thesis mainly describes the issue of direct effect of the application of WTO law in the EU from the perspective of the Court of Justice of the European Union(hereinafter, the CJEU) with the analysis of the CJEU’s case law in the past decades and the latest development.Concerning the issue of direct effect of the application of WTO law in the European Union’s legal order, it is not easy to simply conclude that the CJEU denies the direct effect of WTO law for a defined conclusion would fail to reflect the status quo of the application of WTO law in the EU. Generally, the CJEU denies the direct effect of the WTO law in the EU’s legal order and is inclined to grant WTO law indirect effect through the principle of consistent interpretation. Nevertheless, the CJEU develops two exceptions to grant WTO law direct effect under certain circumstances, though in a restrictive manner.Part one briefly mentions the fundamental theories of the application of WTO law in the territories of WTO members, including the application of WTO law by the legislators and courts. Part two discusses the principle of direct effect in EU law, which has been established by the CJEU through case law in order to promote the implementation of EU law in its member states. Moreover, the requirement of the principle of direct effect is also applied to the assessment of direct effect of the specific provisions of the international agreements concluded by the EU. Part one and part two pave the way for part three, in which the author elaborates the case law of the CJEU regarding the issue of direct effect of WTO law in the EU. Specifically, the CJEU denied the direct effect of GATT1947 in case International Fruit Company and developed the Fediol exception and Nakajima exception. These exceptions provide direct effect where the EU intended to implement a particular obligation assumed in the context of GATT 1947(Nakajima) or where a Union measure refers expressly to precise provisions of GATT 1947(Fediol). In the WTO era, while the CJEU noticed that the WTO Agreements were significantly different from the provisions of GATT 1947, in particular by reason of the strengthening of the system of safeguards and the mechanism for resolving disputes, the CJEU emphasized that the system resulting from those agreements nevertheless accords considerable importance to negotiation between the parties and the lack of reciprocity would deprive the executive and legislative organs of the Union of their scope for manoeuvre in trade negotiations. As a result, the direct effect of the WTO Agreements and the rulings of DSB was denied. Part four is the most important part of the thesis, which is about the towering discussions of the CJEU’s denial of direct effect of WTO law, in which the author elaborates the Advocates General’s criticism on the CJEU’s conservative approach, the divergent perceptions and interpretations in the legal doctrine with regards to the CJEU’s arguments. At the end of this part, the author comments on the CJEU’s approach. Part five is about the inspiration to China which could be embodied in EU’s practice. After analyzing the current legislations of our country regarding the application of WTO law, the author puts forward two approaches, namely, to add one clause in China’s Constitution Law concerning the application of international treaties and Consistent Interpretation Principle should be properly adopted so as to apply WTO law indirectly.