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The European Court of Justice and Direct Effect for the Gatt: A Question Worth Revisiting
Judson Osterhoudt Berkey1
Full text available: PDF format *
Abstract
The European Court of Justice has long been criticized for consistently holding that the General Agreement on Tariffs and Trade (GATT) does not have direct effect. The end of the GATT Uruguay Round prompted a renewed analysis of direct effect by Kees Jan Kuilwijk. In his book, The European Court of Justice and the GATT Dilemma, Kuilwijk argues that the continued denial of direct effect to the GATT 94 not only proves that the ECJ has protectionist motives but also that it is unconcerned with individual rights. In addition to updating the traditional critique of the Court's doctrine, Kuilwijk's book illustrates the tendency of that critique to fail to acknowledge the full complexity of the direct effect question. Thus, a more measured and thorough exploration of the legal, political and economic issues involved in analysing the issue of direct effect may prove useful. This paper attempts such an analysis. Its purpose is not to advocate a particular position but merely to illustrate the gaps in the traditional critique.
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1 Arent, Fox, Kintner, Plotkin & Kahn, Washington,
D.C. I would like to thank two individuals who provided invaluable assistance
in the preparation of this article: first, Professor Robert Z. Lawrence who
taught me concepts of international trade theory and provided useful comments
on this paper during its progress; second, Professor Joseph H. H. Weiler who
not only helped me develop many of the ideas contained in this paper but also
taught me to think like a lawyer and a scholar.
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Tuesday, October 14, 2003 01:02PM