The European Court of Justice and the EC External Trade Relations : A Legal Analysis of the Court's Problems with Regard to International Agreements

This article explains why the WTO and the various agreements that form an integral part of the Agreement establishing the WTO raise problems and challenges for the Court of Justice of the European Communities (ECJ). It focuses on the role of the ECJ in relation to exclusive and shared competence. The European Community's (EC) specific problems and challenges for the ECJ are partly related to the EC's position in the WTO. In this sense, the opinion of Advocate General Tesauro in Hermès International v. FHT Marketing Choice is helpful for understanding the unitary character of the EC's external trade relations. This article includes a discussion of Hermès v. FHT Marketing concerning the interpretation of Article 50 of the Agreement on TRIPS annexed to the 1994 Agreement establishing the WTO. The new mechanisms introduced by the WTO Dispute Settlement Understanding are perhaps not comparable to the full judicial system within the EU, but they have changed both the rules and the legal culture concerning the adjudication and enforcement obligations. Although the WTO is still an intergovernmental organization, powerful private actors have already learned to manipulate the system to reach legal adjudication under the guise of intergovernmental disputes. This paper concludes that the EC wants to deny "direct effect" to the WTO. This article offers the conclusion that we must aim at the creation of new standards to judge the applicability of international agreements. Otherwise, by allowing policy makers to decide rather than ECJ, the EC legal order may be at risk