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The holding of the Court relating to the direct effect of Article 50(6) of TRIPs offers an interesting opportunity to analyze the impact of direct effect in Community law.
Since the first declaration of direct effect by the ECJ, in Van Gend en Loos,91 it has been made clear that it was rooted in the very nature and structure of the EC Treaty, a new legal order of international law, and that it was capable of conferring upon individuals rights which become part of their legal heritage.92 The same concepts were used to deny the direct effect of the GATT 1947 provisions within Community law.93 The ECJ had traditionally held, ever since International Fruit,94 given the spirit, general scheme and the terms of the GATT, which is based on the principle of negotiations undertaken on `the basis of reciprocal and mutually advantageous arrangements', and taking special account of the great flexibility its provisions95 that it was not capable of conferring on citizens of the Community, as matter of Community law, rights which they can invoke before the courts. However, this principle was subsequently tempered by the ECJ, when it held that the absence of direct effect as such did not prevent citizens, in proceedings before the Court, to rely on the provisions of GATT in order to obtain a ruling on the legality of the act of an institution of the Community, when the Community intended to implement a particular obligation entered into within the framework of GATT,96 or if the Community act expressly referred to specific provisions of GATT.97
According to the Appellate Body of the WTO in Desiccated Coconut98 "the WTO Agreement is fundamentally different from the GATT system." The position was thus taken that in respect of this arguable change of nature, the ECJ's case-law refusing direct effect to GATT should be reconsidered.99 However, the Court refused to amend its case-law despite being offered several opportunities to do so.100 The ECJ was first able to avoid the issue, as in Hermès, where the question of the direct effect of TRIPs was referred directly to the ECJ, but where it could hold that "although the issue of direct effect of Article 50 of the TRIPs Agreement has been argued, the Court is not required to give a ruling on that question, but only to answer the question of interpretation submitted to it...".101 It could not ignore the question anymore in Portugal v. Council.102 The Court confirmed its previous GATT 1947 case-law, maintaining that "having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions."103 The Court recognized the existence of a significant difference between the WTO Agreements and GATT 1947, but noted the still considerable importance of the negotiations between the parties.104 If national courts, through the recognition of direct effect, were refrained from applying rules of law inconsistent with the WTO Agreements, it would deprive the legislative or executive organs of the Contracting Parties of the possibility of entering into negotiated arrangements even on a temporary basis.105 Moreover, "the most important commercial partners of the Community" have concluded from the subject-matter and purpose of the WTO Agreements that they are not among the rules applicable by their judicial organs when reviewing the legality of their rules of domestic law.106 The Court considered that the lack of reciprocity in that regard, in relation to the WTO Agreements which are based on reciprocal and mutually advantageous arrangements, may lead to disuniform application of the WTO rules. The adoption by the Community judicatures of the role to ensure that those rules comply with Community law would deprive the legislative or executive organs of the Community of the scope for maneuver enjoyed by their counterparts in the Community's trading partners.107 The changes from the GATT 1947 to the WTO structure were not considered sufficient by the Court to warrant a reversal of its case-law denying their direct effect.108
As far as TRIPs is concerned, the ECJ reaffirmed substantially the same case-law in Parfums Dior, where it referred to paragraphs 42-46 of the judgment in Portugal v Council, and applied them to the provisions of TRIPs. They "are not such as to create rights upon which individuals may rely directly before the courts by virtue of Community law."109 However, the Court found that the absence of direct effect in that sense of the TRIPs provisions could "not fully resolve the problem raised by the national courts". It then recalled Hermès and the requirement, by virtue of Community law, for the judicial authorities of the Member States, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights falling in a field to which TRIPs applies and in respect of which the Community has already legislated, to do so as far as possible in the light of the wording and purpose of Article 50 of TRIPs. The Court then added: "[o]n the other hand, in a field in respect of which the Community has not yet legislated and which consequently falls within the competence of the Member States, the protection of intellectual property rights, and measures adopted for that purpose by the judicial authorities, do not fall within the scope of Community law. Accordingly, Community law neither requires nor forbids that the legal order of a Member State should accord to individuals the right to rely directly on the rule laid down by Article 50(6) of TRIPs or that it should oblige the courts to apply that rule of their own motion.".110
The first part of the holding of the Court - the interpretation in the light of the wording and purpose of Article 50 of TRIPs - seems quite classical, only confirming what had already been held in Hermès. The second part of the statement of the Court is more controversial, even if at first sight it seems trivial, as a simple declaration of a principle similar to the principle of "judicial subsidiarity", which implies that the procedural autonomy of the national courts implementing Community law has to be respected.111 It has historically been stated by the Court that Community law "does not restrict the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting individual rights conferred by Community law."112
It seems that the granting of direct effect to a particular provision can be such a procedure available for the purpose of protecting individual rights. It seems obvious that this principle of procedural autonomy of the Member States must all the more be respected in fields in which the Community has not yet legislated. The Court might just have made this point explicit, illustrating its statement in Kupferberg113 that "Community institutions which have the power to negotiate and conclude an international agreement with a non-member country are free to agree with that country what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. Only if that question has not been settled by the agreement does it fall for a [d]ecision by the courts having jurisdiction in the matter, and in particular the Court of Justice within the framework of its jurisdiction under the Treaty, in the same manner as any question of interpretation relating to the application of the agreement in the Community."114
However, it seems possible to argue that the attitude of the Court in Parfums Dior has a subtle but significant difference from its classical position. We have seen above that the Court recognized its jurisdiction to interpret the provisions of TRIPs in any circumstances, whether they are to be applied under national law or under Community law, for reasons that seem to be valid for generally all provisions of TRIPs. As a consequence the Court might thus have recognized the necessity for it to interpret all provisions of TRIPs. It is then difficult to see how the reference to Hermès can be conclusive.115
Also, it has been considered that the question of direct effect is legally not different from any other question of interpretation.116 However, the Court refuses here to take a general position as regards the direct effect of the TRIPs provisions, leaving it to the Member States when the provisions fall under their field of competences. Thus, the attitude of the Court seems to be in contradiction with its previous recognition of its jurisdiction, and with the following part of the case, in which the Court gave an interpretation of the substance of the provision.117
Moreover, it seems that the ECJ is sending mixed signals to the national courts when it holds that they are free to grant direct effect to Article 50(6) of TRIPs, if their national law entitles them to do so. The reasons for the Court to refuse to grant direct effect to the provisions of the WTO Agreements, i.e. the still important place for negotiations between Contracting Parties, the possibility to grant compensation in case the withdrawal of an illegal measure is not immediate, the necessity not to deprive legislative or executive organs of the Contracting Parties of the possibility to enter into negotiated arrangements, the fact that some Community's trading partners do not recognize the direct effect of the WTO Agreements, are all reasons that can apply mutatis mutandis in the national legal orders of the Member States. They appear to be objective reasons applicable to all TRIPs provisions. The statement of the Court could generate confusion among the national courts as to what attitude they should adopt.118
Finally, the attitude of the Court is even more provocative if we refer to the opinion of the Advocate General, who had tried to remind the Court of the reasons why the Court had refused to give direct effect to the provisions of the WTO Agreements in the first place. They related to general characteristics of these Agreements and he argued that it would be very difficult for national courts to opt for another solution.119 Advocate General Cosmas also warned the Court about the dangers of the ECJ and the national courts adopting different conclusions as regards the direct effect of the provisions of TRIPs.120 Indeed, "the whole implementation of the WTO law within the European Union would come under extreme strain, if some national courts directly applied it whereas other courts and particularly the Court of Justice maintained" its refusal of the direct effect. For this very reason the ECJ earlier asked Italian courts which applied the GATT directly to change their position,121 even if then the provisions at stake where falling under Community law. Nevertheless, the dangers of conflicting positions of national courts as regards direct effect even when TRIPs is to be applied as national law are evident. It is easy to imagine that different positions by the ECJ and among the national courts as regards direct effect of TRIPs could result in a different level of protection of different intellectual property rights throughout the Community, which could lead to distortions of traffic of goods and services and potentially damaging forum shopping. For example, if TRIPs was given direct effect by a national court, then holders of intellectual property rights might prefer to locate their products or resources in that particular country. In turn, they would be more inclined to secure the protection of their intellectual property in that country in the first instance. The ramifications of such variations in direct effect on a national basis could range from jeopardizing the free movement freedoms to the worst case scenario, whereby certain Member States may become intellectual property havens, which could segment the emerging common intellectual property market.
Moreover, the consequences of the dicta of the Court could become even wider, were a national Court to grant direct effect to a provision of TRIPs, when the Treaty of Nice will enter into force and the provisions of TRIPs fall under the exclusive competence of the Community. It is beyond the scope of this paper to analyze what position each of the Member State may take as regards the direct effect of TRIPs. It is sufficient to note that there appears to be a serious potential for detrimental conflict already. Germany has declared in its ratifying enactments that TRIPs will have direct effect.122 A judgment of the United Kingdom Patent Office Examiner held that TRIPs could not have direct effect.123 It seems difficult to imagine that the Court was not aware of these possible diverging national interpretations. It must be wondered what the Court was trying to achieve, by using such dicta, which recalled the national courts of their possibility to do what it had refused to do itself, i.e. recognize direct effect of certain TRIPs provisions.
Below, we will analyze the eventual consequences of diverging national positions once the provisions of TRIPs will fall under exclusive Community competence, since the question of direct effect has to be answered according to the constitutional rules of the entity that has been accorded external competence under the provisions of the Treaty.124
Had the Court desired to prevent the Member States' courts to grant direct effect to provisions of TRIPs, it could have easily ruled in favor of the absence of direct effect of the WTO Agreements in general, whether its provisions are to be applied in a national or a Community context. This ruling could have relied on the reasons basing the refusal of direct effect in the previous case-law of the ECJ, and the `necessity of uniform interpretation' of the WTO Agreements. It is thus acceptable to think that the Court does not completely rule out the possibility of direct effect of TRIPs. This part of the paper will consider whether a convincing argument in favor of the direct effect of certain provisions of TRIPs could be made. It will then analyze what consequences such a national attitude could create when the provisions of TRIPs will fall under Community law, which as the case stands at present, does not recognize its direct effect.
It is beyond the object of this case note to make an overall assessment of the arguments in favor and against the direct effect of the WTO Agreements in general, or TRIPs in particular. The present analysis will be limited to trying to determine whether a convincing argumentation can be elaborated to lead a national court to grant direct effect to TRIPs. This would help show that the Court might eventually be faced with the question of the possible withdrawing of the direct effect, once the `directly effective' provision of TRIPs under national law will fall under Community law.
The recognition of the direct effect of certain provisions of the WTO Agreements is a very controversial subject.125 The arguments in favor of the non-recognition of direct effect seem compelling.126 However, it seems that some peculiarities of TRIPs could argue in favor of the recognition of direct effect. In his opinion in Hermès, Advocate General Tesauro presented convincing arguments in favor of the direct effect of Article 50(6) of TRIPs,127 relying mainly on the changes in scale and scope of the system as well as the nature and effectiveness of the dispute settlement mechanism.128 More specifically, TRIPs can also be considered as substantially different from GATT 1994, in that GATT addresses rules on international trade between nations, whereas TRIPs addresses private rights of individuals, as stated in the Preamble to TRIPs,129 rather than goods.130 Also, certain obligations of TRIPs mirror the provisions of other international conventions on intellectual property rights which can be relied upon directly before national courts.131 A sampling of TRIPs provisions which might have direct effect has even been established.132 These specificities could allow the initial limitation of the recognition of direct effect to certain TRIPs provisions. Such a limitation could facilitate the recognition of direct effect by national courts, which might be more inclined to recognize direct effect if it can be confined to TRIPs and if they can avoid a generalization to other WTO Agreements, such as GATT 1994.
However, the arguments in favor of recognizing the direct effect of, at the very least, certain TRIPs provisions should be counterbalanced. Even if rights protected by TRIPs are individuals rights, so are the ones ultimately protected by the GATT: private businesses are the ones mostly penalized when a Contracting Party decides not to abide by its WTO obligations. It is true however that the relationship between the individual and the provisions of TRIPs seems more intimate than between the individuals and the provisions of GATT. Still, the main argument used by the ECJ to refuse direct effect to provisions of the WTO agreement is the flexible dispute resolution system, which is unrelated to the more or less private nature of the rights concerned. In spite of this objection, there might be a possibility to recognize a certain direct effect to TRIPs.
It has been argued that the legal status of judicial decisions within the framework of an international agreement such as the WTO cannot as such be assimilated with the legal status of the agreement itself.133 Thus, the fact that the TRIPs Agreement as such has no direct effect does not necessarily mean that an adopted report of the Appellate Body of the WTO cannot have direct effect. The ECJ has already recognized that there were certain conditions under which it would be bound by the decisions of another court, independently of whether the agreement creating this Court would have direct effect or not.134 Also, since the WTO dispute settlement can be considered to be far more `juridified' than the previous dispute settlement system under GATT 1947, it has been argued that the ECJ should consider itself bound by WTO panels or Appellate Body reports adopted by the WTO Dispute Settlement Body. They could be invoked before the ECJ in cases where it has been established that certain Community rules or practices are not in conformity with the WTO law and where the Community has been required to bring them into conformity.135 A `certain' direct effect of certain TRIPs provisions could be recognized by some national courts in such a specific context, i.e. once they have been the object of a definite report by a WTO panel or the Appellate Body.
However, there are some controversies about the exact meaning of the Dispute Settlement Understanding136 rules in the WTO. On the one hand, they have been interpreted as giving a choice to conform or not to a final report of a panel or the Appellate Body. Even more, the mere fact that there is a dispute settlement should signal that there is no direct effect.137 Still, this conclusion seems to be a hasty one. For every rule there is, to a certain extent, a choice of respecting/implementing it or not, and more often than not there will be a dispute settlement procedure that will be engaged in case of non compliance. If this was a sufficient argument to prevent direct effect, then direct effect would not have been `discovered' in the first place. For instance, in the European Union, a Member State can decide not to respect a rule, upon which the Commission might initiate a direct enforcement action against that Member State, as provided for in Article 226 EC. The EC Treaty also provides for the possibility of a Member State not complying with the ruling of the Court.138 However, the existence of such a mechanism did not prevent the recognition of the direct effect of some Treaty provisions.139
On the other hand, it has been argued that the obligation to comply with WTO rules actually follows from the language of the DSU itself. Jackson is of the opinion that an adopted dispute settlement report establishes an international law obligation upon the member in question to change its practice in order to make it consistent with the rules of the WTO Agreement and its annexes. The compensation or retaliation approach is only a fallback in the event of non compliance, while the DSU establishes a preference for an obligation to perform the recommendation.140 The compensation mechanism could even be perceived as a simple recognition of the binding effect of the report, an acknowledgement of the breach of WTO law.141 The eventual prevalence of this view could play a determinative role in the recognition of a certain direct effect of certain provisions of TRIPs. For instance, once such provisions have been interpreted in an adopted Appellate Body report and once a national provision has thus been definitely declared incompatible with TRIPs rules. Such a solution would have the advantage of avoiding the main problem raised by a simple and direct recognition of direct effect, which is the need to operate specific performance in order to remedy the breach of the rule. If direct effect is recognized only after a final decision of the Appellate Body has been adopted, it is likely that all flexible remedies have already been exhausted. The order of specific performance, as a remedy by a national court, would in such circumstances not infringe on the margin of maneuver of the non-complying State. Hence one of the essential reasons put forward by the ECJ to refuse direct effect would not be present anymore.
In such a context, and while remembering the specificities of TRIPs for the compliance of which individuals have a greater interest as compared to GATT, it seems that some national courts might recognize the direct effect of certain provisions of TRIPs. In support of this conclusion, we can refer to the Report of the Panel on Sections 301-310 of the US Trade Act of 1974, which states that "whether there are circumstances where obligations in any of the WTO agreements addressed to Members would create rights for individuals which national courts must protect, remains an open question, in particular in respect of obligations following the exhaustion of DSU procedures in a specific dispute [...] The fact that WTO institutions have not to date construed any obligations as producing direct effect does not necessarily preclude that in the legal system of any given Member, following internal constitutional principles, some obligations will be found to give rights to individuals. Our statement of fact does not prejudge any decisions by national courts on this issue."142
In such circumstances, when the TRIPs provisions will fall under Court competence and be subject to Community law, the ECJ will be faced with the issue of whether to `take back' the direct effect that might have been awarded by some national courts to certain TRIPs provisions.
It is realistic to consider, when we remember the reasons put forward by the ECJ to refuse direct effect to WTO Agreements, that by the time of the entry into force of the Nice Treaty, the Court will not have changed its position on the absence of direct effect of TRIPs. Given that national courts will most probably grant direct effect to certain TRIPs provisions under national law - as can already be perceived from the attitude of the Dutch courts in Parfums Dior, as well as in Hermès, which show themselves eager to recognize the direct effect of certain TRIPs provisions - the Court might be faced with a situation in which it will have to consider whether it can `take' this direct effect back..
The eventual `taking back' of the direct effect, with a consequent withdrawal of certain rights that were granted to individuals through the recognition of direct effect, as recognized by the Court in Van Gend en Loos,143 might at first sight be considered as a regressive step in the case-law of the Court, which has developed from the simple recognition of direct effect and primacy of Community law to the affirmation of their tangible consequences that can be found in what came to be known as the "second generation" case-law,144 granting individuals the right of access to a judge, equality in access to judicial protection, right to interim measures, possibility for a national court to apply on its own motion a provision of Community law, recovery of sums paid but not due, liability of the Member States for violation of Community law.145 The development of the case-law thus seems to have evolved towards always greater `rights' that could derive from the EC Treaty and that were granted by the courts in order to protect the rights of the individuals. The withdrawal of direct effect could thus be interpreted negatively: as soon as the provisions of TRIPs will fall under Community competence, individuals will no longer be able to rely on them in front of their national courts in order to protect the rights they could derive form these provisions.
However, this a priori opinion seems to result from an initial false impression. A closer study of the case-law and its evolution demonstrates that its does not differentiate so abruptly between norms that have direct effect and norms that do not, in order to `protect the rights of the individuals'. Most of the progressive case-law of the Court relies on the principle of primacy146 and the notion of `obligatory' effect of the law.147 It is on this obligatory effect that the Court has based its case-law relating to the necessity of interpretation of national provisions "in the light of the wording and purpose"148 of the Community norm at stake, as well as the principle of liability of the Member States for violation of Community law,149 both crucially important means of protection for individual rights. Direct effect proved to be necessary only in cases in which the previous tools were not allowing to reach a satisfactory result, i.e. where only the substitution of the Community norm to the contrary norm of national law was necessary, for instance in a case in which the two norms were so diametrically different that an interpretation `in the light of the word and purpose' did not allow to reach the result that the Community norm purported to impose.150 In such circumstances, the `taking back' of the direct effect would not create a massive difference in the protection of individual rights by the ECJ, compared to the remedies that might have been available in front of a national court, since the supremacy of international norms over Community law has been recognized.
The ECJ has consistently held that the GATT 1947, and now the WTO provisions, are among the norms which have to be respected by the institutions in the exercise of their powers.151 Even if their invocability in order to control the validity of the act of an institution has not yet been recognized by the Court,152 it has been argued that, as Hermès has shown, and Parfums Dior confirms, the principle of consistent interpretation is a valuable substitute for direct effect.153 Moreover, the Court already substantially admitted to control the legality of the act of a Member State in regard of a provision of one of the GATT's Agreements.154 It thus seems that the case-law might evolve towards an "interpretation in conformity" with the TRIPs provisions, and not only "as far as possible in light of its wording and purpose". The taking back of the direct effect would thus be of no dramatic consequence, as `indirect effect' already exists for TRIPs provisions.155
Then again, in order not to blur the difference between direct effect of TRIPs, which is denied by the ECJ, and `indirect application' of TRIPs provisions, there is a need for some basis `to be interpreted' in the national/European provisions.156 Hence, the principle of consistent interpretation has its limits,157 which could only be overcome by the recognition of direct effect. In the case of non-existent internal provisions relating to a right guaranteed by TRIPs, or in case of a manifest conflict between the norm to be interpreted and the provisions of TRIPs, consistent interpretation will not lead to a satisfying result. However, regarding the consistent and persistent opposition of the ECJ to the direct effect of WTO Agreements, and the possibilities offered by indirect effect, it is highly probable that the mere possibility of being confronted with such a case will not be enough to prevent the Court from `taking back' the direct effect that might have been granted by a national court. Therefore, whilst Parfums Dior appears to take two steps forward regarding Community recognition of the possibility for direct effect of TRIPs under national law, it may signal three steps back for the doctrine of Community direct effect.
91 Judgment of the Court of 5 February 1993, NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v Netherlands Inland Revenue Administration, Case 26/62, [1963] ECR 3.
92 Id. at para. 10.
93 On the inadequacy of the use of the case-law referring to the direct effect of associations agreements or other bilateral treaties entered into by the Community to solve GATT-WTO issues, see supra note 52.
94 Judgment of the Court of 12 December 1972, International Fruit Company NV and other v Produktschap voor Groenten en Fruit, Joined Cases 21-24/72, [1972] ECR 1219. More recently: Judgment of the Court of 5 October 1994, Federal Republic of Germany v Council of the European Union, Case C-280/93, [1994] ECR I-4973 at para. 106ff.
95 Conferring a possibility of derogation, providing for measures to be taken when confronted with exceptional difficulties, and the settlement of conflicts to be given `sympathetic consideration' by the Parties.
96 Judgment of the Court of 22 June 1989, Federation de l'industrie de l'huilerie de la CEE (Fediol) v Commission of the European Communities, Case 70/87, [1989] ECR 1781 at para. 19.
97 Judgment of the Court of 7 May 1991, Nakajima All Precision Co. Ltd v Council of the European Communities, Case C-69/89, [1991] ECR I-2069.
98 Report of the Appellate Body of 21 February 1997, Brazil - Measures affecting Desiccated Coconut, AB-1996-4, WT/DS22/AB/R, available at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm, also stating that "unlike the previous GATT system, the WTO Agreement is a single treaty instrument." Italic of the author.
99 See e.g. Frank Romano, International Conventions and Treaties, Global Trademark and Copyright 1998: Protecting intellectual property rights in the International Marketplace, [1998] PLI/Pat 547, 591-592; Josef Drexl supra note 19 at 47.
100 See e.g. Judgment of the Court of 10 March 1998, T. Port GmbH & Co. v Hauptzollamt Hamburg-Jonas, Joined Cases C-364 and 365/95, [1998] ECR I-1023; Hermès supra note 15 ; Judgment of the Court of 14 October 1999, Atlanta AG and others v Commission of the European Communities and Council of the European Union, Case C-104/97 P, [1999] ECR I-6983; see also Pending Case C-89/99, V.O.F. Schieving-Nijstad and others v Robert Groeneveld, supra note 61.
101 Hermès, supra note 15 at para. 35.
102 Judgment of the Court of 23 November 1999, Portuguese Republic v Council of the European Union, Case C-149/96, [1999] ECR I-8395.
103 Id. at para. 47.
104 Id. at para. 36.
105 Id. at para. 40.
106 Id. at para. 43.
107 Id. at para. 46.
108 For an detailed analysis of this case, see Geert A. Zonnekeyn, The Status of WTO Law in the EC Legal Order, The Final Curtain?, [2000] JWT 34(3) 111.
109 Portugal v Council, supra note 102 at para. 44.
110 Parfums Dior, supra note 2 at para. 43-48.
111 Denys Simon, supra note 22 at 297. See also Gil Carlos Rodriguez Iglesias, Le pouvoir judiciaire de la Communauté Européenne au stade actuel de l'évolution de l'Union, Winston Churchill Conference, 7th Session of the Academy of European Law, European University Institute, Florence, 1 July 1996, Jean Monnet Chair Paper RSC 96/41, available at http://www.iue.it/RSC/WP-Texts/rodrig.html.
112 Judgment of the Court of 3 April 1968, Firma Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn, Case 28/67, [1968] ECR 211.
113 Judgment of the Court of 26 October 1982, Hauptzollamt Mainz v C.A. Kupferberg & Cie KF a.A., Case 104/81 [1982] ECR 3641.
114 At para. 17. Italic from the author.
115 Opinion of Advocate General Jacobs in V.O.F. Schieving-Nijstad, supra note 61 at 40.
116 See opinion of Advocate General Cosmas, supra note 23 at para. 60. See also supra, Kupferberg.
117 Remember however that the holding of the Court also has for a result that the Member States are free to determine what is an `intellectual property right' within the meaning of Article 50 of TRIPs. See supra note 88.
118 The confusion of the national courts might be enhanced if they recall the holding of the Court in Chiquita that the features of GATT 1947 - which the Court seems to consider not so different from the current WTO Agreements, "preclude an individual from invoking provisions of the GATT before the national courts of a Member State in order to challenge the application of national provisions." Judgment of the Court of 12 December 1995, Amministrazione delle Finanze dello Stato v Chiquita Italia SpA, Case C-469/93, [1995] ECR I-4533 at para. 29.
119 Opinion of Advocate General Cosmas, supra note 23 at para. 82.
120 Id. at para.60. The same position was adopted by the Commission in Hermès; see Geert A. Zonnekeyn, supra note 89 at 22.
121 Armin von Bogdandy, supra note 62 at 669, referring to Judgment of the Court of 16 March 1983, Società Italiana per l'Odeotto Transalpino (SIOT) v Ministero dello Finanze, Case 266/81, [1983] ECR 731.
122 Mark Miller, The TRIPs Agreement and Direct Effect in European Community law: You Can Look... But Can You Touch?, [1999] Notre Dame L.Rev. (74) 59, at 614.
123 Id. at 618. On the British position, see William Cook, Judicial Review of the EPO and the Direct Effect of TRIPs in the European Community, [1997] Eur. Intel. Propert. Rev. 19(7) 367.
124 Josef Drexl, supra note 19 at 23.
125 Armin von Bogdandy, supra note 62 at 670, who recalls that "there are strong arguments for and against direct applicability", and further recognizes that there is "almost unanimous political opposition to the direct application of the WTO law."
126 For a more detailed analysis of the question of direct effect and the WTO Agreements, see e.g. Kees Jan Kuilwijk, supra note 5; Judson Osterhoudt Berkey, The European Court of Justice and Direct Effect for the GATT: A Question Worth Revisiting, Jean Monnet Working Paper 3/98, available at http://www.jeanmonnetprogram.org/papers/98/98-3-.html; Carlos D. Esposito, supra note 5.
127 Opinion of Advocate General Tesauro in Hermès, supra note 51. He first considered that the fact that the last recital in the preamble to Decision 94/800 by which the Community approved the agreements reached in the Uruguay Round, stating that they are not susceptible to being directly invoked in Community or Member States courts, is not susceptible from preventing the Court from coming to a different conclusion. See para. 23-25.
128 Id. at para. 28ff.
129 At recital 4: "Recognizing that intellectual property rights are private rights", TRIPs Agreement, supra note 6.
130 Frank Romano, supra note 99 at 591.
131 Alexander A. Caviedes, International Copyright Law: Should the European Union Dictate its Development?, [1998] B. U. Int'l L.J. (16) 165 at 224.
132 Mark Miller, supra note 122 at 615-617.
133 Geert A. Zonnekeyn, supra note 108 at 97.
134 Id. at 99-100, referring to Opinion 1/91, Draft Agreement relating to the creation of the European Economic Area, [1991] ECR I-6079 at para. 21, 27, 39-40.
135 Geert A. Zonnekeyn supra note 108 at 101.
136 Hereinafter, the "DSU".
137 Alexander A. Caviedes, supra note 131 at 227.
138 See Article 228 EC.
139 See Van Gend en Loos¸supra note 91.
140 John H. Jackson, The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligations, [1997] Amer. J. Int'l L. (91) 60, at 60-61; in response to Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less is More, [1996] Amer. J. Int'l L. (90) 416, who argued that "the WTO has no jailhouse, no bail bondsmen, no blue helmets, no truncheons or tear gas" and that "[t]he only truly binding WTO obligation is to maintain the balance of concessions negotiated among members."
141 Geert A. Zonnekeyn, supra note 108 at 103.
142 Report of the Panel of 22 December 1999, United States - Sections 301-310 of the Trade Act of 1974, 99/5454, WT/DS152/R, available at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm.
143 See supra note 91 and the corresponding developments.
144 Denys Simon, supra note 22 at 291.
145 For developments and examples of the case-law, see Denys Simon, supra note 22 at 292-306.
146 As established by the ECJ in Judgment of the Court of 15 July 1964, Flaminio Costa v E.N.E.L, Case 6/64, [1964] ECR 1141.
147 See Denys Simon, supra note 22 at 307.
148 Judgment of the Court of 10 April 1984, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen, Case 14/83, [1984] ECR 1891 at para. 26.
149 Judgment of the Court of 16 December 1993, Teodoro Wagner Miret v Fondo de Garantia Salarial, Case C-334/92, [1993] ECR I-6911.
150 In general, on these developments, see Denys Simon, supra note 22 at 308-314. Also see Philippe Manin, A propos de l'accord instituant l'Organisation mondiale du commerce et de l'accord sur les marchés publics: la question de l'invocabilité des accords internationaux conclus par la Communauté Européenne, [1997] R.T.D.Eur. 33(3), 399, at 412-415.
151 Poulsen, supra note 39 at para. 9. This obligation is imposed by Article 300 EC, pursuant to which international agreements concluded by the Community are binding both on the Community institutions and the Member States.
152 See for instance Portugal v Council, supra note 102.
153 Geert A. Zonnekeyn, supra note 108 at 47.
154 Frédérique Berrod, supra note 51 at 437, commenting on Judgment of the Court of 10 September 1996, Commission of the European Communities v Federal Republic of Germany (International Dairy Arrangement), Case C-61/94, [1996] ECR I-3989.
155 For instance, see Geert A. Zonnekeyn, supra note 89, at 24. Recall also the Fediol and Nakajima case-law, supra notes 96 and 97.
156 Armin von Bogdandy, supra note 62 at 670.
157 Frédérique Berrod, supra note 51 at 448-450.