¹ Hereafter “the WTO Agreement”, reproduced in The Results of the Uruguay Round of Multilateral Trade Negotiations—The Legal Texts (GATT Secretariat, 1994).

² Appendix 2 to the WTO Agreement, hereafter “the Dispute Settlement Understanding” or “DSU”.

³ For a classic account, see Hudec, R.E. Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Butterworth Legal Publishers, 1993)Google Scholar.

⁴ See, e.g., Davey, W. “The GATT/WTO World Trading System: an Overview” Pescatore, P. et al. (eds.) Handbook of WTO/GATT Dispute Settlement, Vol. 1 (Transnational Juris Publications, 1995, release No. 6), 77 Google Scholar. This is without prejudice to the fact that the DSU either introduced or maintained, parallel with the strengthening of the adjudicative procedure, “non-judicial” aspects of the procedures, see Komuro, N. “The WTO Dispute Settlement Mechanism—Coverage and Procedures of the WTO Understanding” 29 Journal of World Trade (1995) No. 4 42Google Scholar.

⁵ See Arts. 6(1), 16(4), 17(14) and 22(7) of the DSU respectively. Under GATT 1947, it had become the standard practice of the CONTRACTING PARTIES and the Council to take decisions, including the ones relating to the establishment of panels and the adoption of their reports under Art. XXIII:2, only by consensus. See GATT, Basic Instruments and Selected Documents, 29th Supplement, 13 (para X) and 36th Supplement, 61 (paras F(a) and G(3)).

⁶ Kuijper, P.J. “The New WTO Dispute Settlement System—The Impact on the European Community” 29 Journal of World Trade (1995) 6 52Google Scholar.

⁷ Annex 1A to the WTO Agreement.

⁸ General Agreement on Trade in Services, Annex 1B to the WTO Agreement.

⁹ Agreement on Trade-related Aspects of Intellectual Property Rights, Annex 1C to the WTO Agreement.

¹⁰ See Art. 1(1) of and Appendix 1 to the DSU. Trade Policy Review Mechanism (Annex 3 to the WTO Agreement) is not covered and the applicability of the Understanding to the Plurilateral Trade Agreements (Annex 4) is subject to the adoption of a decision to this effect by the parties to each agreement.

¹¹ See Berrisch, G.M. Der völkerrechtliche Status der Europäischen Wirtschaftsgemeinschaft im GATT—Eine Untersuchung der Sukzession der EWG in die Stellung ihrer Mitgliedstaaten als Vertragspartei einer internationalen Organisation am Beispiel des GATT (Verlag V. Florentz, 1992), 227 et seq.

¹² Berrisch above n 11 at 209 and Petersmann, E.U. “The EEC as a GATT Member—Legal Conflicts between GATT Law and European Community Law” Hilf, M. et al. (eds.) The European Community and GATT (Kluwer, 1986), 39 Google Scholar.

¹³ Opinion 1/94 [1994] ECR I–5267, esp. para 108. For analysis, see Dashwood, A. “Implied External Competence of the EC” Koskenniemi, M. (ed.) International Law Aspects of the European Union (Kluwer, 1998), 120–122 Google Scholar.

¹⁴ Council Decision (94/800/EC) of 22 December 1994 OJ 1994 L 336/1.

¹⁵ This interpretation is endorsed in the opinion of Advocate General Tesauro in Case C–53/96 Hèrmes International v FHT Marketing Choice BV [1998] ECR I–3603, paras 12–13. See also Garzón Clariana, G. “La mixité: le droit et les problèmes pratiques” Bourgeois, J.H.J. et al. (eds.) La Communauté européenne et les accords mixtes—Quelles perspectives? (Presses interuniversitaires européennes, 1998), 17 Google Scholar and Piris, J.-C. & Torrent, R. “Les problèmes juridiques posés à la Communauté européenne par la conclusion des accords de Marrakech” Société Française pour le Droit International Colloque de Nice—La réorganisation mondiale des échanges (problèmes juridiques) (Pedone, 1996), 270–271 Google Scholar. In this respect, it should be observed that on reading Opinion 1/94 (esp. paras. 90 to 95) it may not have been legally possible for the Community to conclude the WTO Agreement on its own, without the participation of the Member States, even if the latter had been willing to allow the Community’s competence to exercised to its full extent. See Dashwood, A. “Why Continue to Have Mixed Agreements at All?” Bourgeois et al., at 95. Cf., however, Eeckhout, P. “The Domestic Legal Status of the WTO Agreement: Interconnecting Legal Systems” 34 CMLRev (1997) 17 Google Scholar.

¹⁶ The approach under GATT had been distinctly pragmatic and avoided any general and precise definition of the status of the Community, Petersmann, E.-U., “Participation of the European Communities in the GATT” O’Keeffe, D. and Schermers, H.G. (eds.) Mixed Agreements (Kluwer, 1983), 174 Google Scholar.

¹⁷ For the initial reaction (mainly critical) to Opinion 1/94 from this point of view, see Bourgeois, J.H.J. “The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession” 32 CMLRev (1995) 786 Google Scholar; Editorial Comments, “The Aftermath of Opinion 1/94 or How to Ensure the Unity of Representation for Joint Competences” 32 CMLRev (1995) 385 Google Scholar; Kuijper, P.J., “The Conclusion and Implementation of the Uruguay Round Agreements by the European Community” 6 EJIL (1995) 242 CrossRefGoogle Scholar; Footer, M.E. “Participation of the European Communities in the World Trade Organization” Konstadinidis, S.V. (ed.) The Legal Regulation of the European Community’s External Relations after the Completion of the Internal Market (Dartmouth, 1996), 82, 88–89Google Scholar. See also, Heliskoski, J. “The ‘Duty of Cooperation’ between the European Community and Its Member States within the World Trade Organization” VII Finnish Yearbook of International Law (1996) 82–84 Google Scholar; Cottier, T. “Dispute Settlement in the World Trade Organization: Characteristics and Structural Implications for the European Union” 35 CMLRev (1998) 325, 354–357Google Scholar and Pescatore, P. “Opinion 1/94 on ‘Conclusion’ of the WTO Agreement: Is There an Escape from a Programmed Disaster?” 36 CMLRev (1999) 387 Google Scholar.

¹⁸ The Agreement establishing the WTO, the Marrakesh Final Act and the subsequent practice of the Organization all refer to the “European Communities” rather than the European Community. The reason for this is that, at the time of the drafting, it was thought that the Agreement concerned matters falling within the competence of not only the EC but also the Euratom and the ECSC respectively. However, the Court of Justice having held that Euratom and ECSC products were both covered by Art. 113 of the EC Treaty, the WTO Agreement was concluded by the EC only. See Opinion 1/94 [1994] ECR I–5267, paras 24 and 27, and Council Decision 94/800/EC above n 14 and Van den Bossche, P.L.H. “The European Community and the Uruguay Round Agreements” Jackson, J.H. and Sykes, A.O. (eds.) Implementing the Uruguay Round (Clarendon Press, 1997), 23–24 Google Scholar, footnote 1. Accordingly, the term “European Community” is used here in respect of the Community’s participation in the WTO.

¹⁹ See Art. XI of the WTO Agreement.

²⁰ But see Art. XI:1 of the WTO Agreement which (erroneously) provides that “[w]here the European Commission exercise their right to vote, they shall have a number of votes equal to the number of their Member States which are Members of the WTO.” (footnote omitted). Cf., in this respect, e.g., the detailed arrangements in Annex IX to the United Nations Convention on the Law of Sea, 1833 U.N.T.S. 3.

²¹ Opinion 1/94 [1994] ECR I–5267, paras 106 to 109. See also Heliskoski above n 17 at 59.

²² Any proposals designed to incorporate the requirement of unity and duty of cooperation into the EC Treaty were rejected by the 1996–97 Intergovernmental Conference. In June 1996 the Italian Presidency had proposed a Draft Article on common positions in international fora, requiring “[t]he Community and the Member States [to] speak with one voice in international organizations and at international conferences in all areas of external economic relations, particularly the fields of services, industrial property and intellectual property.” See Progress Report on the Intergovernmental Conference—Draft Texts Council doc. CONF 3860/1/96 Add. 1 (13 June 1996), 21. The matter was included in the Introductory note by the Irish Presidency on external economic relations Council doc. CONF 3870/96 (16 July 1996), 3 but came to be dropped by December 1996: see the Presidency’s General Outline for a Draft Revision of the Treaties Council doc. CONF 2500/96 (5 December 1996). Cf., however, the new para 5 of Art. 133 EC inserted by the Amsterdam Treaty, providing that “[t]he Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 [of Art. 133] to international negotiations and agreements on services and intellectual property insofar as they are not covered by these paragraphs.” On the limitations of this amendment, see Dashwood, A. “External Relations Provisions of the Amsterdam Treaty” 35 CMLRev (1998) 1020–1023 Google Scholar.

²³ The present study does not deal with the problem of “cross-retaliation” under Art. 22 of the DSU of which there is no practice to date and which, in all probability, seems to remain an exceptional eventuality, see the decision by the Arbitrators under Art. 22(6) DSU in European Communities—Regime for the Importation, Sale and Distribution of Bananas WTO doc. WT/DS27/ARB (9 April 1999), 6–8. For useful analysis, see Wuorinen, M. “The Cross-retaliation in the WTO Dispute Settlement System: Can the European Communities Benefit from It?” VIII Finnish Yearbook of International Law (1997-9) 340 Google Scholar.

²⁴ For complaints initiated from 1 January 1995 to 31 August 1999, see the Addendum to the Annual Report of the Dispute Settlement Body (1999), WTO doc. WT/DSB/16/Add.1 (22 October 1999) which does not however indicate the specific WTO legal bases under which claims have been pursued.

²⁵ Of the Plurilateral Trade Agreements (Annex 4 to the WTO Agreement), the Member States are, alongside the Community, all parties to the Agreement on Government Procurement, Report (1999) of the Committee on Government Procurement WTO doc. GPA/30 (21 October 1999), para 3. So far, there have however been no complaints against either the Community or the Member States under this Agreement. In both of the two cases brought by the Community side the complaining party has been the Community in its own right, see Japan—Procurement of a Navigation Satellite WTO docs. WT/DS73/1 (1 April 1997) and WT/DS73/4/Rev.1 (14 August 1997) (mutually agreed solution) and United States—Measure Affecting Government Procurement WTO docs. WT/DS88/1 (26 June 1997) and WT/DS88/5 (12 February 1999) (suspension of the work of the panel at the request of the parties under Art. 12(12) DSU).

²⁶ Customs Classification of Certain Computer Equipment, WTO doc. series WT/DS62, WT/DS67 and WT/DS68, hereinafter referred to as “the LAN dispute”.

²⁷ WTO doc. WT/DS62/1 (14 November 1996). GATT 1994 is one of the Multilateral Agreements on Trade in Goods, see Annex 1A to the WTO Agreement.

²⁸ WTO doc. WT/DS62/4 (13 February 1997).

²⁹ Moreover, the request for a panel, unlike the one for consultations, expressly contemplated a breach of the obligations “… of the European Communities and its Member States under Article II of the GATT 1994.” WTO doc. WT/DS62/4 (13 February 1997, emphasis added). The formula was criticized by the Community at the meeting of the Dispute Settlement Body of 25 February 1997 where the panel was established, WTO doc. WT/DSB/M/29 (25 February 1997), item 8.

³⁰ See WTO docs. WT/DS67/1 (20 February 1997) and WT/DS68/1 (19 February 1997) respectively and Shoyer, A.W. “The First Three Years of WTO Dispute Settlement” Journal of International Economic Law (1998) 290–291.

³¹ The letter is referred to in WTO docs. WT/DS67/3 and WT/DS68/2 (both 10 March 1997).

³² See Inside U.S. Trade, 21 February and 14 March 1997.

³³ WTO docs. WT/DS67/3 and WT/DS68/2 (10 March 1997) respectively.

³⁴ Minutes of the DSB meeting of 20 March 1997, WTO doc. WT/DSB/M/30 (28 April 1997), items 6 and 7. See also Rosas, A., “The European Community and WTO Dispute Settlement: Some Reflections on Doctrine and Practice” A paper presented at the London-Leyden Meeting, University of Leyden (27 June 1998), 3–4 Google Scholar.

³⁵ WTO doc. WT/DSB/M/30, items 6 and 7. It had been pointed out on the US side that some of the disputed tariff classifications had been determined by individual Member States—in this case, the UK and Ireland—who were also WTO Members in their own right, see Inside U.S. Trade, 14 March 1997.

³⁶ See WTO doc. WT/DSB/M/30, items 6 and 7 and Inside U.S. Trade, 28 March 1997.

³⁷ See the panel’s report, WTO doc. WT/DS62/R, WT/DS67/R and WT/DS68/R (5 February 1998), paras 4.12 to 4.14.

³⁸ Nor could they have nullified or impaired the concessions accruing to the United States under the GATT 1994, ibid., para 3.3. (The United States’ panel requests had also included this non-violation complaint under Art. XXIII:1(b) GATT, see WTO docs. WT/DS62/4, WT/DS67/3 and WT/DS68/2.)

³⁹ WTO doc. WT/DS62/R, WT/DS67/R and WT/DS68/R, para 4.15.

⁴⁰ Ibid., paras 3.3, 4.9 to 4.11 and 4.15.

⁴¹ The United States had “… requested that the Panel specify which of [the] parties was responsible to the United States for [the] nullification or impairment …” Ibid., para 3.2.

⁴² Ibid., paras 8.16 and 8.71.

⁴³ The panel said: “[S]ince we find a violation of Article II by the European Communities, it is unnecessary to rule on the US claims under item (d) and (f) of paragraph 8.5.” Ibid., para 8.71. (The panel’s finding as to the violation of Art. II:1 GATT was reversed by the Appellate Body, WTO doc. WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R (5 June 1998)).

⁴⁴ In the panel’s words: “With respect to multimedia PCs, we did not find any evidence of a violation (US claims under (c) and (e) of paragraph 8.5).” Ibid. See also Pescatore above n 17 at 390, footnote 12, who takes the view that the actions against the United Kingdom and Ireland were rejected “… only on contingent reasons.”

⁴⁵ Ibid., e.g., paras 8.18 and 8.28.

⁴⁶ WTO doc. WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R (5 June 1998), para 96. This point has been emphasized by Allan Rosas, above n 34 at 3–4 and “Les relations internationales commerciales de l’Union européenne—un aperçu juridique” A paper given at the International Conference on Community and Mercosur Law, Salta, Argentina (3–5 September 1998), footnote 36.

⁴⁷ Cf., Stein, E. “External Relations of the European Community: Structure and Process” Academy of European Law Collected Courses of the Academy of European Law Vol. I, book 1 (1991) 161 Google Scholar.

⁴⁸ See Opinion 1/91 [1991] ECR I–6079, paras 30 to 36.

⁴⁹ See WTO doc. WT/DS62/R, WT/DS67/R and WT/DS68/R (5 February 1998), para 4.14.

⁵⁰ A number of writers adhere to the position that mixed agreements, in principle, create joint obligations for the Community and the Member States unless otherwise is provided. As regards the WTO Agreement, in particular, see Cottier above n 17 at 354 and Footer above n 17 at 82. For earlier works, see, e.g., Tomuschat, C. “Liability for Mixed Agreements” O’Keeffe, D. and Schermers, H.G. (eds.) Mixed Agreements (Kluwer, 1983), 125 Google Scholar; Bleckmann, A. “The Mixed Agreements of the EEC in Public International Law” O’Keeffe and Schermers above at 163; Hilf, M. “Europäische Gemeinschaften und internationale Streitbeilegung”, Bernhard, R. et al. (eds.) Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte—Festschrift für Hermann Mosler (Springer-Verlag, 1983), 424–425 Google Scholar; Groux, J. & Manin, Ph. The European Communities in the International Legal Order (Office for Official Publications of the European Communities, 1985), 128 Google Scholar; Toth, A.G. The Oxford Encyclopaedia of European Community Law, (Clarendon Press, 1990), vol. 1, 377 and Stein above n 47 at 162Google Scholar.

⁵¹ Cf., Cottier above n 17 at 356. See also Pescatore above n 17 at 390, footnote 12 in whose view, “[the LAN] case shows that the effect of any ambiguity in the definition of the external status of the EC means remitting the defense of the Community’s interests to the arbitration of third states.” (ibid.).

⁵² E.g., within (the great majority) of service sectors in which no harmonization has taken place and which, apart from so-called “cross-frontier” supplies (see Art. I:2(a) GATS), are therefore deemed to fall within the national competence of the Member States or, at any rate, outside the exclusive competence of the Community, Opinion 1/94 [1994] ECR I–5267, paras 53, 77 and 95 to 97.

⁵³ Tomuschat above n 50 at 131. See also Case C–53/96 Hèrmes International v FHT Marketing Choice BV [1998] ECR I–3603, para 20 of the Opinion of Advocate-General Tesauro where the prospect of joint responsibility of the Community and the Member States under the WTO Agreement is used as an argument for the Court’s jurisdiction to give a preliminary ruling on the interpretation of TRIPS in a matter within Member States competence.

⁵⁴ See, e.g., Arnold, D. “Der Abschluß gemischter Verträge durch die Europäischen Gemeinschaften” Arch VR (1980/1981) 451, referring to the possibility of the agreement not coming into existence pursuant to a “… Vertragsengebot ‘an den, den es angeht.”

⁵⁵ Lauterpacht, H. Function of Law in the International Community (Clarendon Press, 1933), 189 Google Scholar.

⁵⁶ See WTO doc. WT/DSB/M/30 (28 April 1997), items 6 and 7.

⁵⁷ At the DSB meeting of 20 March 1997, the representative of the Commission explained that “… the Communities would be acting on behalf of the Member States, including in particular Ireland and the United Kingdom.” WTO doc. WT/DSB/M/30, items 6 and 7. In the report of the panel, no submissions are attributed to the two Member States, and it was only the Community who appealed to the Appellate Body, WTO doc. WT/DS62/8, WT/DS67/6 and WT/DS68/5 (24 March 1998).

⁵⁸ See the Addendum to the Annual Report of the Dispute Settlement Body (1999), above n 24, in conjunction with the relevant requests for consultations or for the establishment of panels which indicate the specific provisions of the agreements under which the claims have been brought. The only exception is European Communities—Regime for the Importation, Sale and Distribution of Bananas which, alongside matters within the scope of the Multilateral Agreements on Trade in Goods (mainly GATT 1994), also involved GATS issues. However, no problems as to the identification of the correct party arose in the context of the dispute concerned which only related to Council Regulation (EEC) 404/93 of 13 February 1993 on the Common Organization of the Market in Bananas OJ 1993 L 47/1 and related Community measures, and where only the Community in its own right was the respondent. For the reports of the panel and the Appellate Body, see WTO docs. WT/DS27/R/ECU, WT/DS27/R/GTM and HND, WT/DS27/R/MEX, WT/DS27/R/USA (all 22 May 1997) and WT/DS27/ABR (9 September 1997), respectively.

⁵⁹ Ireland—Measures Affecting the Grant of Copyright and Neighbouring Rights WTO doc. WT/DS82/2 (12 January 1998).

⁶⁰ European Communities—Measures Affecting the Grant of Copyright and Neighbouring Rights WTO doc. WT/DS115/2 (12 January 1998).

⁶¹ WTO doc. WT/DSB/M/41 (26 February 1998), item 4. See also Inside U.S. Trade, 16 January 1998.

⁶² The requests alleged non-compliance by the “legal regime in Ireland” with no less than fifteen TRIPS provisions, both substantive and procedural, WTO docs. WT/DS82/2 and WT/DS115/2.

⁶³ See opinion of Advocate-General Tesauro in Case C–53/96 Hèrmes International v FHT Marketing Choice BV [1998] ECR I–3603, para 11.

⁶⁴ See, e.g., EU Bulletin 12 (1994), point 1.7.23 and opinion of Advocate-General Tesauro in Case C–53/96 Hèrmes International v FHT Marketing Choice BV [1998] ECR I–3603, para 16. See also Rosas, A. “Mixed Union—Mixed Agreements” Koskenniemi, M. (ed.) International Law Aspects of the European Union (Kluwer, 19989), 132 (footnote 35) and 140Google Scholar and, critically, Torrent, R. Derecho y Práctica de las Relaciones Exteriores en la Unión Europea (Ed. CEDECS, 1998), 142–145 (a French version of the book is freely accessible on the internet at http://www.ub.es/dpecp/livreTorrent.html) Google Scholar.

⁶⁵ It is to be noted that in practice it is the Commission which decides pursuant to Art. 211 (ex Art. 155) of the EC Treaty how the Community’s defence in the WTO dispute settlement proceedings ought to be conducted, unless the Council should decide otherwise on specific occasions.

⁶⁶ For this view, see esp. Rosas above n 34 at 4 and “The External Relations of the European Union: Problems and Challenges” The Mentor Group The Forum for US-EU Legal-Economic Affairs A paper presented at a meeting of the Mentor Group, Helsinki (16 to 19 September 1998), 66. See also Cottier above n 17 at 355–356.

⁶⁷ As a result of an understanding between the parties on the required changes to Irish law the US agreed to not proceed with the request for the establishment of a panel, see WTO doc. WT/DSB/M/42 (16 March 1998) and, in particular, Inside U.S. Trade, 20 February 1998. It should however be pointed out that the complaint has not been withdrawn, only the second request for a panel has not been made.

⁶⁸ European Communities—Enforcement of Intellectual Property Rights for Motion Pictures and Television Programs WTO doc. WT/DS124/1 (7 May 1998) and Greece—Enforcement of Intellectual Property Rights for Motion Pictures and Television Rights WTO doc. WT/DS125/1 (7 May 1998). The United States complains that US owned motions pictures and television programs are being broadcast by Greek TV stations without authorization and without payment to American copyright holders. See also Inside U.S. Trade, 8 May 1998.

⁶⁹ European Communities—Patent Protection for Pharmaceutical and Agricultural and Chemical Products WTO doc. WT/DS153/1 (7 December 1998). This case is however different from both Measures Affecting the Grant of Copyright and Neighbouring Rights and Enforcement of Intellectual Property Rights for Motion Pictures and Television Programs since it concerns the compatibility with the TRIPS of Community rather than national measures. Somewhat oddly, Canada has requested consultations with “… the European Communities on behalf of themselves and their Member States …” In this context, see also the identically worded requests for consultations by the United States in European Communities—Measures Relating to the Development of a Flight Management System and France—Measures Relating to the Development of a Flight Management System WTO docs. WT/DS172/1 and WT/DS173/1 (both 31 May 1999), relating to a loan granted by the French Government a French company for the development of a flight management system and allegedly violating the Agreement on Subsidies and Countervailing Measures, i.e., one of the Multilateral Agreements on Trade in Goods (Annex 1A to the WTO Agreement).

⁷⁰ See Portugal—Patent Protection under the Industrial Property Act WTO docs. WT/DS37/1 (6 May 1996) and WT/DS37/2 and Corr. 1 (8 October 1996) (mutually agreed solution); Belgium—Measures Affecting Commercial Telephone Directory Services WTO doc. WT/DS80/1 (13 May 1997); Denmark—Measures Affecting the Enforcement of Intellectual Property Rights WTO doc. WT/DS83/1 (21 May 1997) and Sweden—Measures Affecting the Enforcement of Intellectual Property Rights WTO docs. WT/DS86/1 (2 June 1997) and WT/DS86/2 (11 December 1998) (mutually agreed solution).

⁷¹ Certain Income Tax Measures Constituting Subsidies. For the requests to Belgium, the Netherlands, Greece, Ireland and France, see WTO docs. WT/DS127/1, WT/DS128/1, WT/DS129/1, WT/DS130/1 and WT/DS131/1 (all 11 May 1998), respectively.

⁷² Rosas above n 34 at 4 and Cottier above n 17 at 355.

⁷³ All requests under Art. 4(11) DSU are indicated in the Addendum to the Annual Report of the Dispute Settlement Body (1999) above n 24.

⁷⁴ See Opinion 1/94 [1994] ECR I–5267, para 108 and Rosas above n 34 at 4.

⁷⁵ See Berrisch above n 11 at 208 who refers to EEC—Import Restrictive Measures on Video Tape Recorders GATT doc. L/5427 (21 December 1982) and EEC—Prohibition on Imports of Almonds by Greece GATT doc. L/6327 (22 April 1988) as examples: in the first instance, the French restrictive measures also applied to imports from other Member States and were thus contested within the Community; in the second, the Commission had expressed doubts about the Greek import ban and sought to have it lifted. As these disputes go to demonstrate, the argument applies not only to joint proceedings against the Community and the Member States but is also equally valid in the case of proceedings brought solely against the Community with regard to national measures of the Member States.

⁷⁶ See Cottier above n 17 at 355–356.

⁷⁷ See n 69 above and Inside U.S. Trade, 8 May 1998.

⁷⁸ In this sense, Cottier above n 17 at 356 and Berrisch above n 11 at 208.

⁷⁹ In actual practice, the decisions to request for consultations or for the establishment of panel on behalf of the Community are taken by the Commission, with the “approval” of the so-called Art. 113 Committee, i.e., a special committee appointed by the Council pursuant to Art. 133 (ex Art. 113) of the EC Treaty. The Art. 113 Committee integrates the civil servants of the Member States in charge of external economic relations and functions in different compositions, either general (so-called “titulaires” or “suppleants”) or sectoral (“services”, “mutual recognition”, “ECSC” and so on). The above practice related to the requesting for consultations or for the establishment of panels might be criticised on the ground that whereas the Committee, like any working group of the Council, plays a role in preparing the decisions of the Council, it has no decision-making powers of its own. As the Court of Justice has said, “[i]ts role is purely advisory.” Case C–61/94 Commission v Germany ECR [1996] I–3989, para 14. See Torrent above n 64 at 120–171, footnote 116.

⁸⁰ Public Law 104–114 (12 March 1996), 110 Stat. 785, reproduced in 35 I.L.M. 357.

⁸¹ The request for the establishment of a panel refers to Arts. V, XI and XIII of GATT 1994, WTO doc. WT/DS38/2 and Corr. 1 (4 October 1996).

⁸² The panel request refers to Arts. II, III, VI, XVI and XVII of GATS and to paras 3 and 4 of the GATS Annex on the Movement of Natural Persons, ibid.

⁸³ In this respect, see, e.g., Stern, B. “Vers la mondialisation juridique? Les lois Helms-Burton et D’Amato-Kennedy” 100 R.G.D.I.P. (1996) 976 Google Scholar; Lowenfeld, A.F. “Congress and Cuba: the Helms-Burton Act” 90 AJIL (1996) 419 CrossRefGoogle Scholar and Scott Fairley, H. “Exceeding the Limits of Territorial Bounds: The Helms-Burton Act” XXXIV The Canadian Yearbook of International Law (1996) 161 Google Scholar which however all focus on the issue of the exercise of extraterritorial jurisdiction rather than on the question of the compatibility of the US measures with WTO law. The latter question also escaped the authoritative scrutiny by the WTO panel when the Community and the Member States, in the light of an arrangement reached between the two sides in April 1997, requested the proceedings to be suspended pursuant to Art. 12(12) of the DSU, WTO doc. WT/DS38/5 (25 April 1997). In accordance with Art. 12(12), the authority for the establishment of the panel lapsed on 22 April 1998, WTO doc. WT/DS38/6 (24 April 1998). Subsequently, on 18 May 1998, the parties reached a more comprehensive political arrangement on the matter, involving joint strategies to enhance international investment protection. See EU Bulletin 4 (1997), pt. 1.4.90 and 5 (1998), pt. 1.3.93, and Smis, S. & van der Borght, K. “The EU-U.S. Compromise on the Helms-Burton and D’Amato Acts” 93 AJIL (1999) 227 CrossRefGoogle Scholar.

⁸⁴ See Opinion 1/94 [1994] ECR I–5267, paras 34 and 53 respectively.

⁸⁵ Ie, the supply of service 1) in the territory of one WTO Member to the service consumer of any other WTO Member; 2) by a service supplier of one Member, through commercial presence in the territory of any other WTO Member and 3) by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member (Art. I:2 GATS).

⁸⁶ See Opinion 1/94 [1994] ECR I–5267, paras 81 et seq. and Dashwood above n 13 at 120–121 and, above n 15 at 94–95. See also Torrent above n 64 at 88–90. Exceptionally, the Community may however acquire external competence through the so-called AETR effect when 1) provisions relating to the treatment of nationals of non-member countries have been included in the Community’s internal legislative acts; 2) powers to negotiate with non-member countries have been expressly conferred upon the institutions or 3) the Community has achieved complete harmonization of the rules governing access to a self-employed activity, Opinion 1/94, paras 95 to 96.

⁸⁷ Brigitte Stern refers to the Italian company STET which participates in the capital of Etecsa, the Cuban national telecommunications company, and which was on the “black list” of the State Department for the purposes of Titles III and IV of the Act, above n 83 at 986–987.

⁸⁸ This division in the legal authority is reflected by the form of the legislative action within the EU to neutralize the effects of the Helms-Burton Act: on the one hand, a Council Regulation ((EC) No. 2271/96, OJ 1996 L 309/1) protecting the interests of the persons referred to in Art. 11 thereof and “… engaging in international trade and/or the movement of capital and related commercial activities between the Community and third countries.” (Art. 1, emphasis added); on the other, a Joint Action ((96/668/CFSP), ibid. at 7) protecting the interests concerned insofar as they are not protected by the Regulation (Art. 1 of the Joint Action). In other words, the provision of services under modes 2, 3 and 4 (Art. I:2 GATS) would normally only have been covered by the Regulation should it have been closely linked to an investment or other movement of capital or to an activity in international trade. See Huber, J. “The Helms-Burton Blocking Statute of the European Union” 20 Fordham Int’l L.J. (1997) 714 Google Scholar.

⁸⁹ WTO doc. WT/DS38/1 (13 May 1996).

⁹⁰ WTO doc. WT/DS38/2 and Corr. 1 (4 October 1996). Thereafter, the communication referred to the complainant as the “EC”.

⁹¹ WTO doc. WT/DS38/3 (20 February).

⁹² See also the terms of reference in India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, authorizing the panel to examine the matter referred to the DSB by the “European Communities”, WTO doc. WT/DS79/3 (27 November 1997). The requests for consultations and for the establishment of a panel had been made by the “the European Communities and their Member States”, WTO docs. WT/DS79/1 (6 May 1997) and WT/DS79/2 (15 September 1997) respectively.

⁹³ As regards the Helms-Burton in this respect, see Lefeber, R. “Frontiers of International Law: Counteracting the Exercise of Extraterritorial Jurisdiction” 10 Leiden Journal of International Law (1997) 7 CrossRefGoogle Scholar and Lower, V. “Helms-Burton and EC Regulation 2271/96” 56 Cambridge L.J. (1997) 250 Google Scholar.

⁹⁴ Rosas above n 34 at 5 and above n 66 at 66.

⁹⁵ On the other hand, the 1987 Canadian Policy Decision on film distribution on which the prohibition was based, exempted United States’ film companies which had been in the market before 1987, such as Disney and Universal. The different treatment, it was argued, violated the most-favoured-nation treatment obligation of Art. II GATS of which Canada had made no exemption in this respect, see Canada—Final List of Article II (MFN) Exemptions GATT doc. GATS/EL/16 (15 April 1994). On the other hand, no market access (Art. XVI GATS) or national treatment (Art. XVII) commitments had been made by Canada in the sector concerned. Referring, among other things, to film distribution services, the Canadian Schedule of Specific Commitments provides that “[t]he acquisition of control of a Canadian business, or establishment of a new business related to Canada’s cultural heritage or national identity by a non-Canadian is subject to approval.” GATT doc. GATS/SC/16 (15 April 1994), 3.

⁹⁶ The case concerned the treatment of a service supplier of an EC Member State in the territory of another Member (ie, Canada) (see Art. I:2(c)) and fell thus outside Art. 133 (ex Art. 113) EC. On the other hand, the Community’s internal legislation included no provisions concerning the treatment of film distribution of companies of non-member States and the other grounds for so-called implied external competence did not seem to be present, either. See Opinion 1/94 [1994] ECR I–5267, paras 95 to 96.

⁹⁷ See Wuorinen, above n 23 at 348 who refers to doc. 463/97 of the Art. 113 Committee.

⁹⁸ Rosas above n 34 at 5 and above n 66 at 66. Cf., the Resolution of the French National Assembly on the conclusion and mise en œuvre of the Marrakesh Agreement establishing the WTO, adopted on 14 December 1994, where it is provided that “… la légitime exigence d’unité de représentation internationale de la Communauté … ne doit avoir pour conséquence d’interdire à un Etat membre, dans les domaines de compétences partageés, d’exercer personnellement ses compétences nationales au sein de l’OMC, dans le cas où aucun accord n’aurait pu être trouvé entre les Etats membres et s’il estime que ses intérêts nationaux sont en cause;” Journal officiel de la République française, Débats, National Assembly, First Ordinary Session 1994–1995, 9110 (para 5). The same position was also endorsed by the French Government, ibid. at 9070. For criticism of the Resolution, see Pescatore above n 17 at 390, footnote 12.

⁹⁹ Canada—Measures Affecting Film Distribution Services WTO doc. WT/DS117/1 (22 January 1998).

¹⁰⁰ Ie, Canada—Certain Measures Affecting the Automotive Industry which involves, alongside issues concerning the Multilateral Agreements on Trade in Goods (Annex 1A to the WTO Agreement), measures relating to GATS but where only the Community in its own right is the claimant, see WTO docs. WT/DS142/1 (21 August 1998) and WT/DS142/2 (14 January 1999). In this connexion, reference might also be made to the two complaints brought by the Community under the Government Procurement Agreement (see above n 25) and to United States—Sections 301–310 of the Trade Act of 1974 WTO docs. WT/DS152/1 (30 November 1998) and WT/DS152/11 (2 February 1999) where the Community alleges violations by the United States of not only GATT 1994 but also the WTO Agreement and the DSU.

¹⁰¹ In addition to United States—the Cuban Liberty and Democratic Solidarity Act (n 90 to 91 above) and Canada—Measures Affecting Film Distribution Services (above n 99), see Japan—Measures Concerning Sound Recordings WTO docs. WT/DS42/1 (4 June 1996) and WT/DS42/4 (17 November 1997) (mutually agreed solution); India—Patent Protection for Pharmaceutical and Agricultural Chemical Products WTO doc. WT/DS79/1 (6 May 1997) (for the report of the panel, see WTO doc. WT/DS79/R (24 August 1998) and for the joint statement of India and the Community on its implementation at the meeting of the Dispute Settlement Body of 25 November 1998 WTO doc. WT/DSB/M/51 (22 January 1999); Canada—Patent Protection of Pharmaceutical Products WTO docs. WT/DS114/1 (12 January 1998) and WT/DS114/5 (12 November 1998); United States—Section 110(5) of US Copyright Act WTO docs. WT/DS160/1 (4 February 1999) and WT/DS160/4 (16 April 1999) and United States—Section 211 Omnibus Appropriations Act of 1998 WTO doc. WT/DS176/1 (15 July 1999).

¹⁰² Japan—Measures Concerning Sound Recordings WTO doc. WT/DS28/2 (28 February 1996); Pakistan—Patent Protection for Pharmaceutical and Agricultural Chemical Products WTO doc. WT/DS36/2 (28 May 1996); India—Patent Protection for Pharmaceutical and Agricultural Chemical Products WTO doc. WT/DS50/2 (22 July 1996) and Indonesia—Certain Measures Affecting the Automobile Industry WT/DS59/3 (30 October 1996).

¹⁰³ Cf., Opinion 1/94 [1994] ECR I–5267, para 108 and see Rosas above n 34 at 5.

¹⁰⁴ Case C–53/96 Hèrmes International v FHT Marketing Choice BV [1998] ECR I–3603, paras 20 to 21 of the Opinion of the Advocate-General.

¹⁰⁵ Ibid., para 13.

¹⁰⁶ Torrent above n 64 at 165. This implication is also recognized by Rosas above n 34 at 5.

¹⁰⁷ Financial Times, 22 June 1998.

¹⁰⁸ See n 86 above.

¹⁰⁹ See esp. Case 22/70 Commission v Council [1971] ECR 263, paras 17 to 22 and Opinion 1/94 [1994] ECR I–5267, para 95.

¹¹⁰ Cf., Kuijper above n 17 at 242.

¹¹¹ Cf., Bourgeois above n 17 at 784.

¹¹² Cf., Pescatore above n 17 at 387.

¹¹³ Cf., Bourgeois, J.H.J. “The Uruguay Round Results from a European Lawyers’ Perspective: an Introduction” Bourgeois, J.H.J. et al. (eds.) The Uruguay Round Results—a European Lawyers’ Perspective (European Interuniversity Press, 1995), 19 Google Scholar.

¹¹⁴ See already Seidl-Hohenveldern, I. “Contribution to the Discussion” Timmermans, C.W.A. and Völker, E.L.M. (eds.) Division of Powers between the European Communities and their Member States in the Field of External Relations (Kluwer, 1981), 68 Google Scholar.

¹¹⁵ See, e.g., Art. 18(3) of the Convention on the Conservation of European Wildlife and Natural Habitats OJ 1982 L 38/3. See also the proposal for a “Procedural REIO clause” to the OECD draft multilateral agreement on investment (MAI), submitted during informal consultations on dispute settlement on 23–24 February 1998 OECD doc. DAFFE/MAI/DS(98)1 (4 March 1998). The provision would have applied to both State-State and Investor-State procedures.

¹¹⁶ See Dashwood above n 22 at 1021 and Torrent above n 64, at 153–156.