(Page 19 of 30) - Banana Splits: Nested and Competing Regimes in the Transatlantic Banana Trade Dispute authored by Alter, Karen.

national courts to do—accord supremacy to the more encompassing institution, the
WTO? Indeed in 2002 the ECJ’s advocat General Albert argued that while private
litigants should not be able to use the EU legal system to demand compliance, they
should be able to seek compensation for damages caused by the non-implementation of a
WTO ruling (just like they can claim damages for the non-implementation of EU law)
(Alemanno, 2004:556-57). Fourth, the ECJ’s jurisprudence regarding the relationship of
GATT law to EU law had been strongly criticized because the ECJ never justified why
GATT law was so different from other international agreements that the ECJ enforced
(Griller, 2003:252). Post 1994 there was a new WTO law that in many respects was more
binding and more enforceable, suggesting that the time was ripe to address the critics
concerns.

To refuse a role enforcing WTO rules required some creative legal interpretation.

Legal texts normally are interpreted on the basis of their plain language, and WTO law
quite clearly creates binding obligations. Furthermore, the EU’s banana protocol had
been condemned by the dispute resolution bodies, thus there was no ambiguity that the
EU’s banana protocol violated WTO rules. Yet the ECJ has consistently found reasons to
narrowly construe its legal obligation when it comes to reviewing EU policies and
Commission behavior vis-à-vis international political commitments (Bourgeois, 2000).
The nesting of the EU in the WTO helps explains the ECJ position. While the ECJ may
generally seek to enhance its influence and authority vis-à-vis European political bodies,
embracing a role enforcing EU compliance with international law is not a good way place
to do this. The banana policy was clearly the outcome of a complex political negotiation.
To reopen this negotiation could create more enemies than friends, and could insert the
ECJ into a political maelstrom that it would be poorly placed to weather. More
fundamentally, if courts enforce international legal obligations at home, they can put their
country in weaker position vis-à-vis other countries where compliance with international
rules is not given. They could open their domestic legal system up to foreign actors who
might use litigation to promote their interests (as Chiquita tried to do in the banana
dispute case). And national courts could eliminate their country’s uncertainty of
compliance that can be a source of bargaining leverage in international negotiations. The
ECJ seems to concede this. In its Portugal v. Council ruling

the ECJ found that “to

accept that the role of ensuring that [WTO] rules comply with Community law devolves
directly on the Community judicature would deprive the legislative or executive organs
of the Community of the scope for manoeuvre enjoyed by their counterparts in the
Community’s trading partners” (para 45).

Politically this position makes good sense. Doctrinally, the ECJ has to apply

separate methods of interpretation to the WTO agreement compared to European law,
and some other international legal agreements. The ECJ has had to in essence argue that
European Courts need not interpret international legal obligations the same way as they
interpret European obligations, even when the international legal obligations are worded

Case C-149/96 Portugal v. Council (Market Access for Textiles) [1999] ECR I-8395

Discussed in Stefan Griller, "Enforcement and Implementation of Wto Law in the

European Union," in The Banana Dispute: An Economic and Legal Analysis, ed. Fritz
Breuss, Stefan Griller, and Erich Vranes (New York: Springer, 2003).