The European Court of Justice and Direct Effect for the Gatt: A Question Worth Revisiting

5 Conclusion

The question of whether the GATT 94 should have direct effect is complex. The GATT 94 is a constitutional agreement like the EC Treaty. However, it adopts a different set of economic goals than the EC Treaty does. The GATT 94 is also an international agreement of the Community. However, it establishes a regulatory structure which is different from that established by the other international agreements into which the Community has entered.

It is also far from obvious that the GATT 94 is intended to protect individual rights. The agreement is specifically designed to manage trade relations between sovereign entities. Thus, perhaps the concept of direct effect which exists for the EC Treaty and the other international agreements should not apply to the GATT 94. After all, one may still respect the rule of GATT 94 law and individual rights domestically without granting direct effect to the agreement.

On the other hand, it must be acknowledged that the agreement does contain clear and precise obligations to which all the members have agreed. The GATT 94 has introduced a dispute resolution system which mandates the resolution of conflicts between members in a rule-based manner. And, in the end, it is true that the effects of the world trade rules are felt by individuals. However, the fact that individuals are ultimately affected by seemingly clear rules should not be enough, by itself, to conclude that there should be individual rights of enforcement. As argued, there are numerous doctrinal, pragmatic and philosophical reasons to refuse direct effect until the members explicitly agree on such a right. Until that time, it certainly is possible, and perhaps logical, to grant a limited form of direct effect which would allow for individual enforcement of any final panel or Appeals Body rulings. But in the end, while the principle of direct effect has made significant contributions to the development of the Community legal system, it may not be appropriate for the GATT 94 and the world trading system.

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