The International Practice of the European Communities: Current Survey 1. Facts 2. The Judgment 3. Analysis A Survey of Principal Decisions of the European Court of Justice Pertaining to International Law in 1991-92 Barbara Brandtner1 and Hans-Peter Folz2 Full text available: PDF format * The following survey covers the period from 1 February 1991 to 31 December 1992.3 I. Nakajima Case C-69/89, Nakajima All Precision Co. Ltd. v. Council, [1991] ECR I-2069 The Court was required to assess the effects of GATT and the Anti-Dumping Code upon the Community legal order. It developed a new approach to the question. 1. Facts The plaintiff, Nakajima, is a Japanese company selling matrix printers on the Community market. At the request of the Committee of European Printer Manufacturers, the Commission initiated anti-dumping procedures under the rules of Regulations 2176/84/EEC and 2423/88/EEC respectively4 and the Council imposed a definitive anti-dumping duty of 12%.5 The plaintiff sought annulment of this Regulation under Articles 173(2) and 184 EEC, raising a plea of inapplicability with respect to Regulation 2423/88 because it allegedly conflicted with Article 2(4) and (6) of the GATT Anti-Dumping Code.6 The Council replied that, according to settled case-law, the plaintiff could not rely on GATT provisions, as these were devoid of direct effects. 2. The Judgment The Court first established that the plaintiff, without relying on direct effects of the GATT Anti-Dumping Code, had challenged Regulation 2423/88 incidentally, through Article 184 EEC, and claimed an infringement of the Treaty or of a rule of law relating to its application.7 Recalling its earlier jurisprudence in International Fruit,8 the Court held that the Community was bound not only by GATT, but also by the GATT Anti-Dumping Code which had been adopted for the purpose of its implementation. As it resulted from the second and third recitals in the preamble of Regulation 2423/88, the Community, when adopting this regulation, had acted in order to fulfil its international obligations as they resulted in particular from Article VI GATT. The Court therefore had to verify whether Article 2(3)(b)(ii) of the Anti-Dumping Regulation in fact violated Article 2(4) and (6) of the Anti-Dumping Code.9 The Court however found both provisions compatible and therefore rejected the plea of illegality. 3. Analysis The Court's constant jurisprudence has maintained that the Community - although not a formal member of GATT - is bound by its provisions.10 Nor is the capacity of international agreements of overriding secondary Community law a novel issue,11 as the Court has already held, albeit implicitly, that incompatibility of a regulation with such an agreement could invalidate a Community act. For such a claim to succeed before a Member State court, the provisions at stake must however be directly applicable.12 Since most GATT provisions were considered too vague and ambiguous to have direct effects, GATT related challenges have been thus far unsuccessful. The Court distinguished its earlier jurisprudence. In Nakajima, the claim had been raised in a direct action under Article 173(2) EEC. The Court, creating a different class of GATT cases, may thus have sought to alleviate the direct effects criterion in annulment actions under Article 173(2) EEC. But the Court put special emphasis on the fact that, by adopting Regulation 2423/88, the Community had acted to fulfil its obligations under the Anti-Dumping Code. This may suggest an alternative explanation. Whereas the Community is not as such a GATT Contracting Party, it is itself a signatory of the Anti-Dumping Code. Having thus deliberately assumed the Code's obligations and adopted Regulation 2423/88 for their implementation, the Community might be subject to a stronger discipline in this respect. This reading might be justified by Article 228(2) EEC, according to which agreements concluded by the Community bind its institutions. The Court, however, does not cite Article 228 EEC. Nakajima thus initiates a new development whose consequences cannot yet be fully assessed. The Court's approach was confirmed in subsequent judgments equally concerning alleged infringements of the GATT Anti-Dumping Code by Regulation 2423/88.13 * The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 Cleary, Gottlieb, Steen & Hamilton, Brussels. 2 University of Bielefeld. 3 The opinions expressed in this survey are strictly personal. 4 Council Regulation 2176/84/EEC on Protection Against Dumped or Subsidised Imports from Countries not Members of the European Economic Community OJ 1984 L 201/1 as substituted by Council Regulation 2423/88 OJ 1988 L 209/1. 5 Council Regulation 3651/88/EEC, OJ 1988 L 317/33. 6 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade in GATT, Basic Instruments and Selected Documents, 26th Supplement 1978/79, 171; OJ 1980 L 71/72. 7 Case C-69/89 Nakajima[1991] ECR I-2069, 2178 at recital 28. 8 Cases 21-24/72, International Fruit Company, [1972] ECR 1219. 9 Supra note 5 at recitals 29-32. 10 For earlier developments see Vedder, `A Survey of Principal Decisions of the European Court of Justice Pertaining to International Law', 1 EJIL (1990) 365, 375. 11 Cases 21-24/72, International Fruit Company, supra note 6. 12 Ibid., at recital 7/9. 13 Case C-188/88, NMB (Deutschland) GmbH v. Commission, Judgment of 10 March 1992, [1992] 3 CMLR 80, 111, at recital 23; Case C-175/87, Matsushita v. Council, Judgment of 10 March 1992, [1992] 3 CMLR 137, 163, at recitals 41-43. In another case, the Court abstained from interpreting Regulation 2176/84 in accordance with GATT or the GATT Anti-Dumping Code because the plaintiff had failed to substantiate its claim. See Case C-179/87, Sharp v. Council, Judgment of 10 March 1992, [1992] 2 CMLR 415, 424, at recitals 18 and 19.
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