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The WTO Treaty as a Mixed Agreement: Problems with the EC's and the EC Member States' Membership of the WTO
Eva Steinberger 1
Abstract
The article deals with the problems the joint membership of the EC and the EC Member States of the WTO causes with regard to their responsibility for breaches of the WTO Agreement. As a necessary preliminary question it first considers the problem whether both – the EC and the EC Members – are bound by the whole Agreement despite the fact that each of them has inner competences with regard to only parts of the Treaty. It concludes that both are fully bound by all Treaty provisions and cannot invoke lack of inner competences as an excuse for failures of treaty performance via other members of the WTO. Bearing this conclusion in mind, the article focuses on the real problem of responsibility of the EC and the EC Members, especially on the question of attribution of the failures of treaty performance of EC Members to the EC and vice versa. Here it reasons that the EC and EC Members are both at the same time fully responsible for each breach of the contract – no matter whether it was committed by an organ of the EC or of an EC Member. Finally this article looks at the consequences of these results for damages and litigation. It concludes that this is a case of joint and several responsibility and that the EC and the EC Members can at the choice of the complainant be sued either together or individually for the entire amount of the damages.
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