\\jciprod01\productn\C\CIN\44-1\CIN109.txt unknown Seq: 1 25-FEB-11 15:38 The WTO in the EU: Unwinding the Knot John Errico† Introduction ..................................................... 179 R I. Direct Effect .............................................. 182 R II. Case Law ................................................ 183 R A. International Fruit .................................... 183 R B. Kupferberg ............................................ 184 R C. Portugal .............................................. 185 R D. Biret .................................................. 186 R E. Between Biret and FIAMM ............................. 188 R F. FIAMM ............................................... 189 R III. Analysis .................................................. 190 R A. Nakajima and Fediol .................................. 190 R B. Requirements for Non-Contractual Liability ............ 191 R 1. The First Requirement: A Breach of Community Law . 192 R 2. The Second Requirement: The Rule Breached Must Intend to Confer Rights on Individuals .............. 197 R 3. The Third and Fourth Requirements: The Breach Must be Sufficiently Serious and There Must Exist a Direct Causal Link ....................................... 201 R 4. Summary ......................................... 201 R C. Non-Contractual Liability Without a Violation of Law . 202 R D. “Pure” EC Law Principles: Fundamental Rights ........ 203 R E. Pragmatic Concerns and the Future ................... 203 R Conclusion ...................................................... 206 R Introduction The myriad expansion of treaties and organizations governing interna- tional trade in the second half of the twentieth century1 has doubtlessly contributed to increases in the volume of international trade. Despite these benefits, the creation of systems such as the World Trade Organization (WTO), formerly the General Agreement on Tariffs and Trade (GATT), † B.A., History, Yale University, 2008; Candidate for J.D. and L.L.M. in International and Comparative Law, Cornell Law School, 2011; Managing Editor, Cornell International Law Journal, Volume 44. I would like to thank Professor John J. Barcel´o III for his suggestion of this topic and his helpful critiques, Professors Mitchel Lasser and Clifford Jones for their illuminating teaching on international law topics, and all my ILJ colleagues for their friendship and continued hard work. 1. For example, European Union (EU) and the World Trade Organization (WTO) (formerly the General Agreement on Tariffs and Trade (GATT)), the North American Free Trade Association (NAFTA), and others. 44 CORNELL INT’L L.J. 179 (2011) \\jciprod01\productn\C\CIN\44-1\CIN109.txt unknown Seq: 2 25-FEB-11 15:38 180 Cornell International Law Journal Vol. 44 which contain rules by which the trade activity of signatory states can be judged, has added an additional layer of complexity to the trading regimes of signatory states. With the WTO’s recent creation of the Dispute Resolu- tion Body (DSB),2 signatory states and, importantly, private entities such as businesses within these states, can face real penalties for their govern- ment’s non-compliance with WTO provisions.3 For example, a signatory state that has received a favorable judgment against another signatory state at the DSB for violation of WTO law may ultimately be able to impose new tariffs or suspend tariff concessions granted as a result of membership in the WTO.4 Such a judgment could seriously harm businesses in the violat- ing member state that depend on open borders to conduct trade.5 As a result, the impact and use of WTO law within the legal orders of signatory states is a vitally important topic. The complexity and importance of this topic are best examined by investigating the role of WTO law within the legal order of the European Union (EU), which is itself an entity existing somewhere between a fully- fledged nation state and a “mere” international treaty.6 Private entities within the EU interested in changing the trading practices of the EU, or that have been damaged as a result of the authorized suspension of concessions by a trading partner under WTO law, have increasingly attempted to use WTO law as a means to declare the law or practices of the EU impermissi- ble or to obtain compensation for damages suffered. The EU’s relative openness7 to international law within the its legal order8 has led commen- tators to state that private litigants within the EU may be able to use WTO law to invalidate EU law9 or to obtain damages under the EU’s non-con- tractual liability provision, Article 340(2), formerly Article 288(2) TEC.10 This state of affairs stands in stark contrast to the United States, where 2. DAVID PALMETER & PETROS C. MAVROIDIS, DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION: PRACTICE AND PROCEDURE 14– 15 (Cambridge Univ. Press 2004) (1999). 3. See, e.g., Joined Cases C-120/06P & C-121/06P, Fabbrica Italiana Accumulatori Motocarri Montecchio SpA v. Council, 2008 E.C.R. I-6513, ¶ 23– 24, 30 [hereinafter FIAMM, ECJ] (noting that, as result of the EU’s non-compliance with WTO law regard- ing bananas, the US was authorized to levy a customs duty on products including batter- ies and spectacles, which were produced by FIAMM and Fedon. Both companies complained that the EU was liable for damages allegedly suffered by the imposition of the customs duty.). 4. Id. ¶ 23– 24. 5. Id. ¶ 30. 6. See J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2405– 07 (1991). 7. Compared to, for example, the United States. 8. E.g. Case C-104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie KG a.A., 1982 E.C.R. I-3641 [hereinafter Kupferberg]. 9. See PIET EECKHOUT, EXTERNAL RELATIONS OF THE EUROPEAN UNION: LEGAL AND CON- STITUTIONAL FOUNDATIONS 330 (2004) (noting that there exists a presumption of direct effect in international law, with the apparent notable exception of GATT/WTO law). 10. To allay confusion, when introducing a Treaty provision, this paper will parenthetically reference the older Treaty Establishing the European Community (TEC) numbering system (the renumbering system instituted by the Treaty of Amsterdam, effective 1999 until 2009) and, when applicable, the original Treaty number under the \\jciprod01\productn\C\CIN\44-1\CIN109.txt unknown Seq: 3 25-FEB-11 15:38 2011 The WTO in the EU: Unwinding the Knot 181 such claims are barred due to sovereign immunity.11 To the disappointment of litigants and scholars alike,12 the European Court of Justice (ECJ), the highest court in the European Union on matters of EU law, has continually denied review of the legality of EU law on the basis of WTO law and has correspondingly denied damages to private enti- ties even when the EU’s behavior has been explicitly declared inconsistent with WTO obligations by the DSB.13 In the terms frequently used by com- mentators and the ECJ (and utilized in this note), the ECJ has also contin- ued to deny the “direct effect” of WTO law within the EU legal order. Although this result may be unsurprising from a political perspective, par- ticularly considering that comparable actions are not available in the EU’s trading partners, the legal basis on which these actions have been denied in the EU has been unfulfilling and opaque. This Note will specifically focus on the claims of private litigants who have been damaged by the EU’s explicit noncompliance with WTO law as determined by the DSB. The DSB has determined that EU law is inconsis- tent with WTO law in the DSB in both the Bananas and Hormones dis- putes.14 Each dispute brought with it a flurry of litigation within the EU by litigants who claimed either that their business had been harmed by the EU’s non-compliant law,15 or that their business had been harmed when the EU’s trading partners authorized suspension of trade concessions in response to the EU’s non-implementation of DSB recommendations. In these situations, litigants attempt to use Article 340(2) of the EU Treaty to argue that they are justly entitled to damages under EU law. Treaty of Rome. At times, this may result in three separate numbers being listed for a Treaty provision. 11. See John H. Jackson, Direct Effect of Treaties in the US and the EU, the Case of the WTO: Some Perceptions and Proposals, in CONTINUITY AND CHANGE IN EU LAW: ESSAYS IN HONOUR OF SIR FRANCIS JACOBS 361, 373– 75 (Anthony Arnull, Piet Eeckhout & Takis Tridimas eds., Oxford Univ. Press 2008). 12. E.g. PIET EECKHOUT, EXTERNAL RELATIONS OF THE EUROPEAN UNION, LEGAL AND CONSTITUTIONAL FOUNDATIONS (Francis G. Jacobs, ed. Oxford Univ. Press 2004); Armin Von Bogdandy, Legal Effects of World Trade Organization Decisions within Europe Union Law: A Contribution to the Theory of the Legal Acts of International Organizations and the Action for Damages under Article 288(2) EC, 39 J. WORLD TRADE 45 (2005); Stefan Griller, Judicial Enforceability of WTO Law in the European Union: Annotation to Case C-149/96, Portugal v. Council, 3 J. INT’L ECON. L. 441 (2000); Alberto Alemanno, Recent Develop- ment: Judicial Enforcement of the WTO Hormones Ruling Within the European Community: Toward EC Liability for the Non-Implementation of WTO Dispute Settlement Decisions?, 45 HARV. INT’L L.J. 547, 560 (2004); Geert A. Zonnekeyn, EC Liability for the Non-Implemen- tation of WTO Dispute Settlement Decisions – Are the Dice Cast?, 7 J. INT’L ECON. L. 483 (2004). 13. Two important but rarely permitted exceptions to this general idea exist: the Nakajima and Fediol exceptions, to be explored later in this note. See infra Part III.A. 14. Appellate Body Report, European Communities— Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (Sept. 9, 1997); Appellate Body Report, European Communities— Measures Concerning Meat and Meat Products (Hormones), WT/ DS48/AB/R (Jan. 16, 1998). 15. E.g., Case C-94/02, Etablissements´ Biret et Cie SA v. Council, 2003 E.C.R. I- 10565 [hereinafter Biret, ECJ]. \\jciprod01\productn\C\CIN\44-1\CIN109.txt unknown Seq: 4 25-FEB-11 15:38 182 Cornell International Law Journal Vol.