Cover

Contents

Series editors’ preface

Preface

List of abbreviations

Table of cases

In chronological order

European Court of Justice

Court of First Instance (now the General Court)

World Trade Organization

Table of legislation

In chronological order

Introduction

1 Setting the scene: WTO disputes, retaliation and the EU courts’ reception of WTO law

1.1 Relevant international trade disputes so far: the Hormones and Bananas cases brought before the WTO

1.1.1 The Hormones case

1.1.2 The Bananas case

1.2 Overview of existing EU jurisprudence

1.2.1 Background: case law on the effect of WTO law as a benchmark for the validity of EU measures

1.2.1.1 The ECJ’s approach with regard to the GATT 1947

1.2.1.2 The ECJ’s approach with regard to the 1994 WTO Agreement

1.2.1.2.1 Review in the light of primary WTO law

1.2.1.2.2 Implementation principle

1.2.1.2.3 Review in the light of mixed agreements

1.2.1.2.4 Review in the light of DSB rulings

1.2.2 Liability cases

1.2.2.1 The Bananas case: Atlanta, Cordis et al.

1.2.2.2 The Hormones case: Biret

1.2.2.3 The Bananas case revisited: Chiquita

1.2.2.4 Liability cases brought by ‘retaliation victims’: FIAMM et al.

1.3 EU conduct under review

1.4 Conclusions

2 Liability for unlawful conduct: the role of the legal remedy and conditions of the right to compensation in the EU legal order

2.1 Background

2.2 Independence and complementarity of legal actions in the EU legal order

2.3 EU liability for unlawful conduct

2.3.1 Wording of the Article and leeway for the EU courts

2.3.2 Conditions for EU liability developed by the EU courts

2.3.2.1 Sufficiently serious breach of law

2.3.2.2 Conferral of rights

2.3.2.3 Damage and causal link

2.3.3 Compensation for breaches of international law: the current approach of the EU courts

2.3.3.1 Breach of international law

2.3.3.1.1 EU obligations under international law

2.3.3.1.2 EU courts and international law

2.3.3.2 Further conditions

2.3.3.2.1 Nature of the breach: ‘sufficiently serious’

a. Discretion and its limits: (insufficient) competence to breach international law

b. Limits to discretion: through the EU membership in international legal regimes

c. Summary

2.3.3.2.2 Nature of the infringed rule: ‘conferring rights’

2.3.3.2.3 Damage and causal link

2.3.3.3 Summary

2.3.4 Compensation for breaches of international law: suggesting a new approach

2.3.4.1 Need for full judicial protection

2.3.4.2 Different aims of the action

2.3.4.3 Consistency with the principle of Member State liability

2.3.4.3.1 Relevance of the Francovich decision

2.3.4.3.2 Relevance of the Köbler decision

2.4 EU liability in the absence of unlawfulness

2.5 Conclusions

3 Enforceability of the EU’s WTO law obligations in the EU legal order: EU liability due to WTO law infringement

3.1 Unlawfulness of EU conduct in breach of WTO law

3.1.1 Breach of primary WTO law

3.1.1.1 Current reasoning of the EU courts

3.1.1.2 Critical assessment

3.1.1.2.1 Breach of WTO law before the dispute is brought before the DSB

3.1.1.2.2 Breach of WTO law identified by the DSB

3.1.1.2.3 Breach of WTO law after the expiry of the grace period

3.1.1.2.4 Conclusion

3.1.2 Exceptional direct effect of WTO primary law: the implementation principle

3.1.2.1 Implementation principle in the Bananas case

3.1.2.2 Implementation principle in the Hormones case

3.1.3 Corollary breach of the competence norm under the EU treaties because of the principle of consistent interpretation?

3.2 Sufficiently serious breach

3.3 ‘Conferral of rights’: ‘right holders’ or ‘beneficiaries’?

3.4 Further conditions

3.4.1 Damage

3.4.2 Causal link

3.5 Conclusions

4 The impact of EU general principles on the EU’s liability regime I: liability due to infringement of EU general principles

4.1 Liability for breaches of general principles of EU law

4.2 Effect of the external dimension of EU conduct on the applicability of general principles of EU law

4.2.1 The approach of the EU courts in FIAMM et al.

4.2.2 The approach of the EU courts in Intertanko

4.2.3 The approach of the EU courts in Kadi et al.

4.2.4 The role of EU general principles in international trade disputes

4.2.4.1 Vertical relationship between the EU and traders

4.2.4.2 Is there any prevailing international legal obligation?

4.3 Effect of the external dimension of EU conduct on the scope of general principles of EU law

4.4 Scope of the general principles of EU law invoked by retaliation victims

4.4.1 The right to property and the principle of pursuit of an economic activity

4.4.2 The principle of legitimate expectations

4.4.3 The right to non-discrimination

4.5 Conclusions

5 The impact of EU general principles on the EU’s liability regime II: liability in the absence of (invokable) unlawfulness in international trade disputes or ‘no-fault liability’

5.1 Existence of the liability principle in the absence of unlawfulness under EU law

5.1.1 FIAMM et al.: the (now) GC

5.1.2 FIAMM et al. on appeal: Advocate General Maduro

5.1.3 FIAMM et al. on appeal: the ECJ

5.1.4 Critical evaluation

5.2 Application of the liability regime to the situation of retaliation victims

5.2.1 Actual and certain damage

5.2.2 Unusual damage

5.2.2.1 Sectoral versus market risk

5.2.2.2 Inherent versus exogenous risk

5.2.2.3 Gravity of damage

5.2.3 Special damage

5.2.4 Condition of ‘damage not being justified by a general economic interest’?

5.3 Conclusions

6 The current situation of retaliation victims and how to fill the gap in judicial protection while further respecting the EU institutions’ international scope for manoeuvre

6.1 WTO law and the position of individuals

6.1.1 What happened in the WTO?

6.1.2 EU law and the WTO: two separate legal orders and no right to compensation?

6.1.3 An international comparison: the USA, Japan and Canada

6.1.3.1 The USA

6.1.3.2 Canada

6.1.3.3 Japan

6.1.3.4 Outlook

6.2 EU constitutional law and retaliation victims

6.2.1 EU general principles and liability for their breaches: hope for compensation?

6.2.2 EU general principles and liability in the absence of unlawfulness: a missed opportunity?

6.2.2.1 The EU system of legal protection and judicial remedies

6.2.2.2 Effect of the principle on the political scope for manoeuvre

6.2.2.3 Good governance and the use of discretionary powers

6.3 Concluding remarks: the EU as a global actor, the international legal order and individual rights

Bibliography

Articles and book chapters

Editorial comments

Books

Other sources

Index