176
Piet Eeckhout
Troisième séance de travail — Les perspectives
clear whether the more recent case-law maintains it.
Portugal
v
Council
, on
the WTO Agreement, was perhaps the first judgment in which the Court
took a different approach. What it did there was not to examine whether the
agreement’s nature and structure precluded direct effect; rather, it focused on
whether the agreement required such effect. This the WTO Agreement did not
do, of course, and the Court was broadly right to focus on the WTO dispute
settlement system which, by providing for certain remedies for non-compli-
ance, showed that direct application of WTO law was not required: if it was,
meaning that States would make WTO law part of their domestic law, there
would be no need for these international remedies.
This type of argument has its limits, though. Even an international agree-
ment which requires direct application could benefit from setting up a system
of dispute settlement with remedies for non-compliance. The EU Treaties do
this, of course: the Commission and the Member States may seek to have EU
law enforced. In fact, notwithstanding the direct effect of EU law, strong ‘su-
pranational’ remedies have been introduced in the form of the scope for a
financial penalty to be imposed pursuant to Article 260 TFEU. This has never
led the Court to revisit
Van Gend en Loos
, quite rightly. Indeed, the opposite
reasoning of that of the Court in the case-law on WTO law is perhaps more
persuasive: the fact that the WTOmembers have provided for a strong dispute
settlement system shows the importance they attach to ensuring compliance
with WTO law, and is an argument in favour of direct application as a further
tool of enforcement.
If the analysis is to be whether an international agreement requires direct
application, and if the relevant criterion is whether the agreement provides for
its own system of remedies, then there will be very few positives. In
Portugal
v
Council
, the Court did not leave it at that. It went on to pursue a more au-
tonomous analysis, by focusing on the room for manoeuvre, in the WTO, for
the EU’s political institutions. This constitutional argument, which focuses
on the respective roles of the EU’s legislature, executive and adjudicator, is not
however fully autonomous. The Court pointed out that the EU’s main trading
partners did not recognise the direct effect of WTO law, and that there would
be a risk of asymmetry in the application of the agreement if the Court were
to enforce EU compliance. In other words, the autonomous constitutional ar-
gument was linked to the practice in other jurisdictions, and to the overall
application of the agreement.
