61996CC0053_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The reference for a preliminary ruling from the Arrondissementsrechtbank (District Court), Amsterdam, that is the subject of these proceedings concerns the interpretation of Article 50(6) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter `the TRIPs Agreement') contained in Annex 1C to the Agreement establishing the World Trade Organisation (hereinafter `the WTO Agreement').
To be more precise, the national court asks whether an interim measure adopted in accordance with the relevant national provisions is covered by the expression `provisional measures' within the meaning of Article 50 of the TRIPs Agreement.
The relevant provisions
2 As far as the Community is concerned, the WTO Agreement and the other agreements concluded in this connection, including the TRIPs Agreement, were approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). (1) Those agreements are published as annexes to the Decision. (2)
3 Part III of the TRIPs Agreement contains provisions for the `enforcement of intellectual property rights'.
To that end, it states that: `Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse' (Article 41(1)).
It also provides that: `The judicial authorities shall have the authority to order a party to desist from an infringement inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods.
Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right' (Article 44(1)).
Lastly, it should be noted that the relevant provisions of Article 50 of the TRIPs Agreement, on which the national court is seeking an interpretation, are as follows:
`1. The judicial authorities shall have the authority to order prompt and effective provisional measures:
(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods, immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.
...
4. Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest.
A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.
...
6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member's law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
8. To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.'
4 As regards the relevant national provisions, it should be noted first that Article 289 of the Netherlands Code of Civil Procedure provides that: `In all cases in which, having regard to the interests of the parties, an immediate provisional measure is necessary on grounds of urgency, the application may be made at a hearing which the President shall hold for that purpose on working days which he shall fix' (paragraph (1)).
In these circumstances, as stated in Article 290(2), the parties may also appear before the President under his voluntary jurisdiction and in that case the applicant must be represented by counsel at the hearing, while the defendant may appear in person or may be represented by counsel.
The parties are thus assured of a hearing.
The interim measure adopted by the President, which must be reasoned and delivered in writing, may be challenged before the Gerechtshof (Regional Court of Appeal) within two weeks of its enactment, even if it is not enforceable (Article 295(1), (2) and (3)).
Any application for a review of the Gerechtshof's decision must be made within six weeks of the date on which the judgment is handed down (Article 295(4)). Lastly, it should be noted that Article 292 of the said Code states the principle that provisional decisions are without prejudice to the examination of the merits. However, the effectiveness of the interim measure is not conditional upon proceedings on the merits and no time-limit is set for initiating such proceedings.
It is not inapposite to point out here that, as the national court has remarked in the order for reference, although it is possible for the parties subsequently to initiate proceedings on the merits, `in practice, in cases to which TRIPs relates, they generally abide by the interim decision'.
The facts and the question submitted by the national court
5 I come now to the facts.
Hermès International, a limited partnership with a share capital incorporated under French law (hereinafter `Hermès'), is the proprietor of the trade mark consisting of the word `Hermès' and of the trade mark consisting of the `Hermès' name and device, by virtue of international registrations entered in Benelux under numbers R 196 756 and R 199 735.
Hermès is an undertaking engaged in the design and manufacture of and trade in, among other things, neckties bearing the Hermès trade mark. These neckties are sold in the Netherlands, under a system of selective distribution, by Galerie & Faïence BV at Scheveningen and by Boutique le Duc at Zeist.
On 21 December 1995, after obtaining leave from the President of the court, Hermès seized two lots of neckties bearing the Hermès trade mark and offered for sale by FHT Marketing Choice BV (hereinafter `FHT'), one from FHT itself and the other from a third party, consisting of 10 and 453 neckties respectively. Hermès then applied to the President of the court on 2 January 1996 for interim measures requiring FHT to desist from infringing Hermès copyright and trade mark rights and, in particular, to state the total number of neckties bought and already sold and to keep the neckties in stock until they were recovered.
In addition, Hermès sought an injunction ordering FHT to pay damages for the injury caused. In the same application for interim measures, Hermès also asked that a time-limit of 14 days should be set for initiating proceedings on the merits as prescribed by Article 50(6) of the TRIPs Agreement, to run from the date of any application FHT might make for the measures adopted as a result of the interim proceedings to be revoked, or else three months from the date on which the President of the court delivered his decision, after which FHT should be precluded from making any such application.
6 Considering, first, that a sufficient case had been made out that the neckties were forgeries and, second, that FHT could not reasonably maintain that it had acted in good faith, the national court accepted Hermès' application apart from its request for advance payment of damages.
As regards time-limits, however, the court held that its request could not be accepted, as Article 50(6) of the TRIPs Agreement sets no time-limit for submitting an application for the annulment of provisional measures that have been adopted. This means that the determination of a period within which proceedings on the merits are to be initiated cannot in any case be made to turn on a time-limit of three months set, in this instance for FHT, to make such an application.
The national court nevertheless wondered whether, even so, it might not be necessary to set a time-limit for initiating proceedings on the merits, adding that this would certainly be the case if it were to be concluded that a measure adopted pursuant to Article 289 of the Netherlands Code of Civil Procedure is to be regarded as a provisional measure within the meaning of Article 50 of the TRIPs Agreement.
7 In order to decide whether or not to set a time-limit for Hermès to initiate proceedings on the merits, the national court therefore referred to the Court for a preliminary ruling on the following question:
`Does an interim measure, as, for example, provided for in Article 289 et seq. of the Code of Civil Procedure, whereby an immediate, enforceable measure may be sought, fall within the scope of the expression "provisional measures" within the meaning of Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights?'
Preliminary observations
8 The terms in which the question is put show that the national court has no doubt as to whether the Court has jurisdiction to interpret Article 50 of the TRIPs Agreement or as to whether individuals may rely on that provision in proceedings before the national courts. Moreover, it states explicitly (and succinctly) in the order for reference, first, that
the TRIPs Agreement, having also been ratified by the Community as such, `forms part of European Community law and the question may be referred to the Court of Justice pursuant to Article 177 of the EC Treaty' and, second, that Article 50 of that Agreement `has direct effect'.
It must, however, be observed in this connection that, contrary to what the national court appears to suppose, the Court's jurisdiction to interpret Article 50 of the TRIPs Agreement and the direct effect of that provision are by no means established and cannot be taken for granted.
In fact, as the Court held in Opinion 1/94 (3) that the Community and its Member States are jointly competent to conclude TRIPs, it is necessary to ascertain whether the provision at issue in the present case falls within the competence of the Community or the Member States and, if the latter, whether the Court nevertheless has jurisdiction to give the national court an interpretation of the provision in question.
As to the assumption that this provision has direct effect, it should not be forgotten that the Court has consistently held that the provisions of GATT (1947) are not directly applicable, (4) so it must at least be ascertained up to what point and to what extent the situation has changed as regards the provisions of the WTO agreements, including the TRIPs Agreement.
9 These are the two issues that must therefore be addressed before we proceed, if necessary, to examine the substance of the question referred by the national court.
And it is no accident that these are also the issues on which the Member States and the institutions have concentrated in the observations they have submitted in the course of these proceedings.
The jurisdiction of the Court
10 The starting point for investigation into these issues must of necessity be Opinion 1/94.
Having been asked to establish inter alia whether the European Community has the competence to conclude all parts of the WTO Agreement concerning the trade-related aspects of intellectual property rights, including trade in counterfeit goods, on the basis of Article 113 of the Treaty alone, or in combination with Article 100a and/or Article 235 of the Treaty, the Court held that `the Community and its Member States are jointly competent to conclude TRIPs'. (5)
The Court came to that conclusion after finding that, despite the link with the trade in products, intellectual property does not fall within the scope of the common commercial policy.
To be more precise, the Court considered in particular the case of measures to prevent counterfeit goods entering the Community, which are already the subject of Community regulations based on Article 113 and consequently fall within the exclusive external competence of the Community.
For the rest, while recognising the connection between intellectual property and trade in goods, and the effects intellectual property rights may have on such trade, the Court held that that was not enough to bring them within the specific scope of Article 113 and, consequently, within the exclusive external competence of the Community. (6) Nor did the Court consider that such competence could be founded on other legal bases, such as Article 100a and/or Article 235 of the Treaty, or on the parallelism of internal and external competence.
In this connection, the Court held, first, that those articles cannot in themselves confer exclusive competence on the Community and, second, that internal competence can give rise to exclusive external competence only if it is exercised, for the whole of the sector concerned and when such parallelism is necessary for internal competence to be exercised effectively. (7)
11 For the purposes of the present case, it should also be noted that in the observations submitted in connection with Opinion 1/94 some Member States argued that `the provisions of TRIPs relating to the measures to be adopted to secure the effective protection of intellectual property rights, such as those ensuring a fair and just procedure, the rules regarding the submission of evidence, the right to be heard, the giving of reasons for decisions, the right of appeal, interim measures and the award of damages, fall within the competence of the Member States'.
Replying to that argument, the Court stated that the `Community is certainly competent to harmonise national rules on those matters, in so far as, in the words of Article 100 of the Treaty, they "directly affect the establishment or functioning of the common market".
But the fact remains that the Community institutions have not hitherto exercised their powers in the field of the "enforcement of intellectual property rights", except in Regulation No 3842/86 ... laying down measures to prohibit the release for free circulation of counterfeit goods'. (8)
In other words, the Court did not consider that the sector relating to instruments for the protection of intellectual property rights could be reserved for the Member States, since the Community is certainly competent to harmonise that sector too if the functioning of the common market is affected; but it also recognised that that power had not hitherto been exercised at internal level, except to a marginal extent, and that the requisite condition for establishing exclusive external Community competence had consequently not yet been fulfilled.
In short, with respect to the essential core provisions on the protection of intellectual property rights, there was only a potential exclusive external Community competence when the Opinion was delivered and it has become clear in the course of the present proceedings that the situation has not changed to this day.
The terms of the problem are therefore unaltered, in that the competence to conclude an agreement such as TRIPs is still held jointly by the Member States and the Community (9) and, more particularly, in cases where the Community's competence is (still and only) potential, the competence to conclude agreements remains vested in the Member States.
12 It is scarcely necessary to point out that, in the present case, the provision of the TRIPs Agreement that the Court has been asked to interpret concerns provisional measures, an area in which the Community has not yet (effectively) exercised its (potential) competence at internal level and thus an area which is still in principle within the competence of the Member States.
In the light of these considerations, the inevitable conclusion appears to be that the Community should not be regarded as a contracting party as far as measures of this kind are concerned.
This view is supported, moreover, by Articles 1 and 2 of Decision 94/800, cited above, which approve the agreements on behalf of the Community `as regards matters within its competence', a phrase which also appears in the title of the decision.
A different conclusion could be reached only if the expression `joint competence' were to be interpreted as meaning that the competence belonged equally and concurrently to the Community and the Member States, so that any decision in an area of joint competence would have to be adopted by mutual agreement between Community and States. (10)
13 Apart from the fact that it already appears to conflict with the expression `as regards matters within its competence', such an interpretation seems to me to be misleading and in any case inappropriate for the purpose of solving the problem.
In view of the absence of instruments enabling action to be taken should a joint decision not be reached, the proposed interpretation would mean that, in matters where competence is shared, the Community and every Member State would have separate and effective powers of veto, with the inevitable consequence that the decision-making process would be completely blocked, quite possibly leading to a deadlock and a `non-vote' by the Community and its Member States. (11) I therefore consider that, particularly as Opinion 1/94 is so clear on this point, it must be recognised that the competence to conclude an agreement is vested in the Community as regards matters on which a Community regulation has already been implemented - and not only in a partial or marginal manner - but that it continues to be vested in the Member States in the absence of such a regulation.
This view is confirmed in the final part of Opinion 1/94. Replying to the Commission's complaints about the practical difficulties associated with the allocation of competence that is shared with the Member States, the Court emphasised that close cooperation is essential, both in the process of negotiation and conclusion of such agreements and in their implementation. (12) This would clearly have no sense if the joint competence of the Community and the Member States were to be understood as referring to the conclusion of a single measure and not, on the contrary, to different parts of a single agreement.
In short, the expression `joint competence' must, in my view, mean that Member States and Community have the last word in their respective areas of competence, at least in cases where the required cooperation does not produce agreement.
14 This is how matters stand on the Community side but it must not be forgotten that both the Community and the Member States signed all the WTO agreements and are therefore contracting parties vis-à-vis contracting non-member States.
And while it is true that the approval of those agreements on behalf of the Community is restricted to `matters within its competence', it is also true that the Final Act and the WTO Agreement contain no provisions on competence (13) and the Community and its Member States are cited as original members of equal standing. (14)
In these circumstances, it should be recognised that the Member States and the Community constitute, vis-à-vis contracting non-member States, a single contracting party or at least contracting parties bearing equal responsibility in the event of failure to implement the agreement.
This clearly means that, in that event, the division of competence is a purely internal matter. (15) This conclusion, as we shall see, may not be without bearing on the answer to the question with which we are concerned in the present case.
15 That being so, it is now necessary to consider the status of the TRIPs Agreement in the Community legal order, particularly with respect to the substantive aspects of binding force and jurisdiction to interpret and apply the provisions in question.
At first sight, I should be inclined to take the view that the Community is required to comply with the provisions of the TRIPs Agreement only `as regards matters within its competence', that is to say solely and exclusively as regards the parts falling within its competence to conclude an agreement, and that its obligation in that connection should consequently end there.
Such a conclusion would also suggest that, contrary to the view taken by the national court in the present case, only those parts of the agreement or sets of provisions that the Community has competence to conclude are an `integral part of Community law' and that the Court consequently has jurisdiction to interpret only those provisions, the intention being that the national courts should retain their independent right of interpretation in relation to the sectors and the provisions for which the Member States still have competence (at least for the time being).
16 This view is taken by all the States that have submitted observations in the course of the present proceedings, as well as by the Council, and they have effectively invited the Court to rule that it has no jurisdiction to interpret Article 50 of the TRIPs Agreement.
Only the Commission differed, holding that there was no absolute parallelism between the competence to conclude an act and the interpretative jurisdiction of the Court, and laying particular emphasis on the need for uniform interpretation and application throughout the Community.
It is true that the Commission - realising that, in the light of the Opinion and of the Council's decision to limit approval of the WTO agreements to `matters within its competence', a negative response from the Court on the subject of its jurisdiction would come as no surprise - argued that the Court should have jurisdiction for reasons of expediency as well.
To be more precise, it maintained that: (a) there is no necessary absolute parallelism between the Community's competence to conclude agreements and the Court's interpretative jurisdiction, as the former must be based on present and effective Community powers, while the latter may be based on `potential' Community powers; (b) a mixed agreement is a single agreement between the Community and the Member States, on the one side, and non-member States, on the other, and the interpretation and application must therefore be uniform; (c) the interpretation of Community provisions which have harmonised the sector, albeit to a limited extent, must be consistent with the interpretation of the protection measures; (d) the WTO agreements form a whole that requires interpretation based on the same criteria, avoiding the risk of divergent interpretations by the Court and the national courts on questions of major importance, such as direct effect.
17 The points raised by the Commission have been addressed and answered, as regards the more general subject of mixed agreements, in a wide variety of ways in the legal literature. (16) The Court, for its part, has not so far made a clear statement of principle.
It has interpreted provisions of mixed agreements on a number of occasions, but without stating whether it had jurisdiction because the provisions in question undoubtedly fell within the area of Community competence or because its jurisdiction extended to all the provisions of a mixed agreement. (17)
The premiss has often been that this type of agreement must be regarded, `in so far as concerns the Community' of course, as an act of one of the institutions within the meaning of Article 177, with the result that its provisions `form an integral part of Community law' and the Court accordingly has jurisdiction to give preliminary rulings concerning their interpretation. (18)
The Court's jurisdiction to interpret mixed agreements - independently of any investigation to determine whether competence for concluding the provision at issue is vested in the Community or the Member States - was expressly challenged for the first time in Demirel. (19) On that occasion, certain governments called in question the jurisdiction of the Court to interpret the provisions on freedom of movement for workers, stating that, in their view, such provisions fell within the exclusive jurisdiction of the Member States.
18 The Court's reply is based on two separate arguments. In the first place, noting the particular nature and type of the agreement at issue in that case, it argued that the competence to conclude association agreements pursuant to Article 238 concerns all the fields covered by the Treaty, clearly including freedom of movement for workers, and that thus the question whether the Court has jurisdiction to rule on the interpretation of a provision in a mixed agreement within the exclusive competence of the Member States does not arise. (20) In the second place, the Court also observed that `in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement', (21) thus emphasising the Community scope of the Member States' obligation to comply with a mixed agreement in its entirety.
It appears to follow from these statements, which are, of course, not decisive for the purpose of solving the problem with which we are concerned, first, that the Court itself considers that the only matters on which it has no interpretative jurisdiction pursuant to Article 177 are matters within the exclusive competence of the Member States (22) and, second, that in the case of an agreement (even a mixed agreement) concluded by the Community institutions the Community is competent with respect to the agreement in its entirety. (23) I should add that I do not think these considerations can be confined solely to association agreements, where the Community's exclusive competence to conclude the agreement is based on the Treaty itself, in this case Article 238.
While it must be recognised that mixed agreements vary considerably in nature and type, depending on the degree of participation by States, (24) the fact remains that the problem with which we are concerned in the present case inevitably arises in the same terms in the case of an association agreement, when it is concluded in the form of a mixed agreement, and in the case of agreements (also mixed) which have no ad hoc legal basis in the Treaty.
19 Returning to the present case, the first point I should like to make is that, if it were to be accepted that there are sectors for which the Member States have sole competence (or which are reserved solely for them), it would certainly follow that it need not be necessary to have perfect harmony in the application, and consequently in the interpretation of the various provisions of a mixed agreement.
There would be no need for a centralised interpretation by the Court of Justice for all the areas of the subject-matter in question, especially in view of the trouble it would cause if the Court were to be given the last word on the interpretation of all the provisions of mixed agreements.
For example, it would naturally be asked why - in applying agreements to which, in effect, the State alone (not the Community) is a party - the national courts or authorities should be obliged to follow the interpretation handed down by the Court in preference, let us suppose, to their own interpretation or that of a WTO panel, under the mechanism for the settlement of disputes, bearing in mind the inevitable implications with respect to responsibility. (25)
However, the situation here is very different or at least not so obvious.
It is true that the Court's response to the concern expressed by the Commission about the adverse effects shared competence would be likely to have on obtaining a consensus and consequently on the application of the WTO agreements was quite clear:
`... resolution of the issue of the allocation of competence cannot depend on problems which may possibly arise in administration of the agreements'. (26)
However, it is equally true that in the same Opinion the Court also stated that sectors in which competence is shared are not the `private preserve' of the Member States and are consequently outside the scope of Community law.
20 In these circumstances, it must be recognised that the application of the above-mentioned principle that the Court has jurisdiction to interpret only the provisions that are within the Community's competence to conclude an agreement and not those that remain within the competence of the States, is only superficially clear and simple.
In fact, it proves to be fraught with problems, if only because provisions of one and the same agreement may be interconnected, in the sense that it may not be easy to establish precisely whether a given provision falls within the Community preserve (too) or solely within the domestic preserve. (27) Nor can the possibility be ruled out that a given national interpretation may affect the application of Community provisions and/or the functioning of the system as a whole. (28) The requirement of uniformity in the interpretation and application of all the provisions of the agreements in question could therefore quite properly be regarded as fundamental. (29)
Moreover, further difficulties could arise from the possible consequences for the Community as regards international responsibility, irrespective of who has infringed the provisions of the agreement in question. (30) The fact that the Community is a party vis-à-vis the contracting non-member States and that, under Article 228 of the Treaty, an international agreement (also) concluded by the Community is binding on the institutions of the Community and on the Member States, inevitably means that the Community is responsible vis-à-vis every party to the agreement in question.
This in turn means that the Court of Justice has jurisdiction to give preliminary rulings, in order to ensure uniformity in the interpretation and application of the provisions of the agreement in question throughout the Community and also to protect the Community's interest in not being obliged to assume responsibility for infringements committed by one or more Member States. (31)
21 But there is more.
To fulfil the obligation of cooperation and the requirement of unity in the international representation of the Community, as the Court has shown in Opinion 1/94, (32) it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion of the agreements on the subject and, even more important, in the fulfilment of the commitments entered into.
In short, they must endeavour to adopt a common position. (33)
If this is the case, it must also be recognised that the absence of centralised interpretation could completely undo the results achieved by the obligation to cooperate in the negotiation and conclusion of the provisions in question. The possibility cannot be ruled out that, on the very points on which a consensus had been reached, the national courts might suddenly produce 15 different interpretations, making an absolute nonsense of cooperation when it came to applying the provisions in question.
From this point of view, it could be held that the interpretation the Court is called upon to give represents its contribution to the fulfilment of the duty of cooperation between institutions and Member States, as it emphasised in Opinion 1/94.
Lastly, I should like to make a comment of a more general nature.
The Community legal system is characterised by the simultaneous application of provisions of various origins, international, Community and national; but it nevertheless seeks to function and to represent itself to the outside world as a unified system.
That is, one might say, the inherent nature of the system which, while guaranteeing the maintenance of the realities of States and of individual interests of all kinds, also seeks to achieve a unified modus operandi. Its steadfast adherence to that aim, which the Court itself has described as an obligation of solidarity, is certainly lent considerable weight by the judicial review mechanism which is defined in the Treaty and relies on the simultaneous support of the Community court and the national courts.
The direct effect of Article 50 of the TRIPs Agreement
22 Once established that the Court has jurisdiction to give preliminary rulings on all the provisions of the TRIPs Agreement, it is necessary to consider - before addressing the substance of the question referred by the national court - whether or not Article 50(6) of that Agreement, on which it has requested an interpretation, has direct effect.
It should be noted that the national court has not put any question to the Court on this subject, since - as it appears from the order for reference - it considers that the provision in question undoubtedly has direct effect. That view - which is hotly disputed both by the States that have submitted observations in the course of these proceedings, except for the Kingdom of the Netherlands, and by the Council and the Commission - should not cause us to lose sight of the fact that, if it were to be found that Article 50(6) of the TRIPs Agreement was not directly effective, it would follow that Hermès could not rely on it before the national court to support its claim that the relevant national rules in question are incompatible and may therefore be inapplicable to the facts at issue in the present case.
Clearly, the question of the direct effect of the said provision is of undoubted relevance to the outcome of the main proceedings and must be considered before the substance of the question submitted to the Court.
I should add that the Court has consistently held that it is for the national court to decide whether a decision on a particular question is necessary to enable it to give judgment and consequently whether it should request the Court to rule on that question (34) and the view that the Community court may rule on the question at issue cannot be held to be contrary to the case-law. I note in this connection that, in the spirit of cooperation underlying the Article 177 procedure, the Court has repeatedly stated that it has a duty to ensure `that the [national] court is given all the necessary criteria for interpretation'. (35) I therefore take the view that the Court may rule on the direct effect of the provision of the TRIPs Agreement at issue, even in the absence of any specific question on the subject, precisely in order to provide a useful answer to the national court which, as I have already said, has assumed that the provision on which it has requested an interpretation has direct effect.
23 I should like to say, first, that the doubts as to the direct effect of the provisions of the TRIPs Agreement, and of the WTO agreements in general, are justified on a number of grounds.
I refer in particular to the case-law of the Court, which has held that the provisions of GATT 1947 have no direct effect, and to the fact that the last recital in the preamble to Decision 94/800, cited above, by which the Community approved the agreements reached in the Uruguay Round multilateral negotiations, states in so many words that `the Agreement establishing the World Trade Organisation, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State courts'.
To solve the problem with which we are concerned in the present case, I therefore consider it essential to determine first whether such a `declaration', which expressly rules out the possibility of individuals relying on the provisions of the WTO agreements before courts having jurisdiction in the matter, may, or even must, be held to prevent the Court from coming to a different conclusion.
Allow me to say at once that the answer must be that it does not.
24 In the first place, the statement in question appears only in the preamble to the Council Decision approving the WTO Agreements, not in the operative part of the Decision, and this significantly reduces its effect, in legal terms of course.
A second, and more important, point to be borne in mind is that the Court has already had occasion to remark that in conformity with international law Community institutions are free to agree with a non-member country what effect the provisions of an agreement concluded with that country are to have in the internal legal order of the contracting parties, adding however that `only if that question has not been settled by the agreement does it fall for decision by the courts having jurisdiction in the matter, and in particular by 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'. (36)
This is enough, in my opinion, to justify the view that, as there is no provision for the purpose agreed by all the contracting parties, the recital in question cannot in any case be held to be susceptible of preventing the Court from coming to a different conclusion. (37) Moreover, even those who contend that the provision has no direct effect have not attached decisive importance to the recital in question.
The Commission, for example, merely claimed that the Community legislature's intention in this recital was to indicate that the reasons that had led the Court to rule that the provisions of GATT 1947 have no direct effect still obtained in the changed context of the WTO and that, in any case, the recital in question responded to the concerns inevitably associated with the fact that other contracting parties (the United States and Canada, for example) had also declared that they did not recognise that the provisions of the WTO agreements may have direct effect, a fact that was already known when Decision 94/800 was adopted.
25 It is, I think, scarcely necessary to point out that the Commission's arguments are not in themselves such as to alter the terms of the problem.
The fact remains that it is for the Court alone, in the light of its previous case-law on the subject and bearing in mind that there may be an absence of reciprocity on this point, to decide whether or not the provisions of the WTO agreements have direct effect; similarly, it is also for the Court to determine whether the question of direct effect is to be answered in the same way or in a different way in view of the changes that have occurred during the transition from GATT 1947 to the WTO Agreement. (38)
I think it will be useful for this purpose to review the judgments in which the Court has held that the provisions of GATT 1947 have no direct effect.
I shall then consider whether the reasons on which those decisions were based are still equally valid as regards the provisions of the WTO agreements.
26 In its judgment in International Fruit, on the premiss that to determine whether a provision of GATT has direct effect `the spirit, the general scheme and the terms of the General Agreement must be considered', (39) the Court stated that `this agreement which, according to its preamble, is based on the principle of negotiations undertaken on the basis of "reciprocal and mutually advantageous arrangements" is characterised by the great flexibility of its provisions, in particular those conferring the possibility of derogation, the measures to be taken when confronted with exceptional difficulties and the settlement of conflicts between the contracting parties'. (40) Those factors were held by the Court to be sufficient to show that, when examined in such a context, the provision at issue in that case, namely Article XI of the General Agreement, was not capable of conferring on Community litigants rights which they can invoke before the courts. (41) And, more generally, those factors led the Court to state that the rules of GATT 1947 `are not unconditional and that an obligation to recognise them as rules of international law which are directly applicable in the domestic legal systems of the contracting parties cannot be based on the spirit, general scheme or terms of GATT'. (42)
These arguments, which have been strongly criticised in the legal literature, (43) are consistently adduced in all the case-law on the subject. (44)
27 It is quite clear from this case-law that the Court considers that direct effect depends upon two factors, namely the characteristics of the GATT system (objectives, structure, nature of the provisions, remedies in the event of infringement) and the content of the provision.
The fact is that, as the case-law itself shows, the content of the provision has never been investigated, in that the Court has not taken steps to ascertain whether the provision at issue was clear, precise and unconditional, in accordance with the traditional criteria the Court has used in deciding whether or not to attribute direct effect to Community measures or to provisions contained in other agreements concluded by the Community.
This is because the Court has never gone beyond its initial investigation, which was concerned with the principal features of the GATT system, with the result that it has always come down against direct effect. (45)
I cannot refrain from observing in this connection that it does not seem to me that the characteristics of GATT were very different from those of other agreements, with regard to which the Court has ruled, without much explanation and despite the flexibility of some of their provisions and the element of negotiation involved in the mechanism for the settlement of disputes, that individuals could rely on them directly in proceedings before the national courts, as their provisions were sufficiently clear, precise and unconditional. (46)
Nor do I find the provisions of GATT that have been brought to the Court's attention less clear, precise and unconditional than other provisions of agreements to which the Court has, with deliberate generosity, attributed direct effect.
It is therefore scarcely necessary to point out that in that regard no difference should be made between the provisions of GATT 1947 and the provisions of the WTO agreements, in that there is no perceptible difference between the latter provisions and all the other provisions of agreements to which the Court has attributed direct effect.
28 That being so, it must now be ascertained whether the changes associated with the transition from GATT to the WTO Agreement - particularly the changes in the scale and scope of the system, and in the nature and effectiveness of the mechanism for the settlement of disputes, that is in the factors on which the Court based its decision that the GATT provisions are not directly effective - are such as to make it reasonable to expect that the case-law on the provisions of the WTO agreements may take a different direction.
In other words, it must be determined whether the characteristics attributed to the GATT system as a whole, which have led to the conclusion that it is not directly effective, namely the flexibility of its provisions and the excessively loose, negotiated, mechanism for the settlement of disputes, can be considered obsolete in the context of the WTO.
There can be no doubt that the WTO system is very different from GATT 1947 and that there have been profound changes in the factors on which the case-law has been based.
The WTO has the structure of an international organisation, the relationship between rules and exceptions appears to be functional and not very far removed from that of more reputed experiments, and the mechanism for the settlement of disputes shows a great improvement in that the results have more binding force. (47)
29 To be more precise, as to the great flexibility supposedly characterising all the provisions of GATT, a flexibility attributable largely to the `loopholes' in the system: waivers, exceptional measures and other measures of a similar sort, it must be recognised that one of the principal changes has been to reverse the relationship between rules and exceptions.
The system of waivers and exceptional measures, authorised with great liberality under the previous system, has undergone a radical change. (48) Also, the substantive and procedural conditions governing the granting of waivers are now quite strict. (49)
An equally important change has occurred, in both form and substance, in the area of the settlement of disputes, always regarded as one of the weakest points in the GATT system. The fundamental trouble with the old system was that the mechanism could be blocked by `resistance' from the unsuccessful party, since the panel could only suggest a solution to the Council, that is to say to all the contracting parties, and the Council could then approve it if there were no objections.
The new Understanding on Rules and Procedures Governing the Settlement of Disputes has changed the situation significantly. (50) In particular, it must be pointed out for the purposes of the present case that panel reports, which formerly required a consensus in favour in order to be approved by the Council, now require a consensus against acceptance in order to be rejected by that body.
This is a truly Copernican innovation: previously, the unsuccessful party could block the adoption, now it no longer can. (51) It is of no avail, though it has been done in the course of these proceedings, to maintain stoutly that the results of the procedure can be replaced by a system of compensatory measures and that the mechanism in question cannot therefore be regarded as capable of overriding the reasons that have led the Court to rule that the provisions of GATT do not have direct effect.
Compensation is a purely provisional measure and is consequently not a method of settling disputes but simply a temporary instrument to ensure that any benefits accruing to the other contracting parties are not nullified or impaired as a result of the failure to comply within the reasonable period of time set in the particular case and that the defaulting party is not encouraged to persist indefinitely in its failure to comply. (52)
30 On the basis of the characteristics of the WTO system, as explained above, it must now be determined whether the changes that have occurred vis-à-vis the GATT system are such as to cause the Court to alter its view on the question of direct effect.
My own opinion is that logically they may, or rather should, be capable of doing so, (53) particularly in the light of the case-law on other agreements concluded by the Community, whose characteristics, it can scarcely be denied, are not very different from those of the WTO in respect of flexibility and the element of negotiation in the settlement of disputes. (54)
In short, I consider that the situation has changed vis-à-vis GATT 1947 and that the Court's objections hitherto must be considered obsolete in the context of the WTO. (55) It should therefore be possible in future for individuals to invoke compliance with the appropriate provisions of the WTO agreements, including the TRIPs Agreement, before the courts.
31 However, it remains to be seen whether there is any way round the fact that some other contracting parties (notably the United States, Canada and Japan) do not recognise that these provisions may have direct effect and, first, whether it makes any difference to the terms of the problem.
This fact - which the Commission tells us was the reason for including in Decision 94/800 the recital stating that the provisions of the WTO agreements cannot be directly invoked before the courts - is used to support the argument that the Court cannot attribute direct effect to those provisions in the absence of reciprocity among the other contracting parties.
This circumstance is clearly not without serious consequences, since it must be admitted that, in the absence of reciprocity, to recognise that the provisions in question have direct effect would place Community traders at a disadvantage compared with their foreign competitors. While the latter would be able to invoke provisions in their favour directly before the courts of the Member States, Community traders would be unable to do likewise in the States that refused to recognise that the provisions of the WTO agreements may have direct effect. (56)
32 These considerations, it is scarcely necessary to add, ought not logically to have any effect on the answer which the Court has been requested to give.
The situation would be different only if, as learned writers have agreed, recognition of direct effect was conditional upon reciprocity. (57)
In this connection, I note first that the Court has already referred to the principle of reciprocity and the consequences it may have for the recognition of direct effect in its judgment in Bresciani.
In that case, on the assumption that the Yaoundé Convention `was not concluded in order to ensure equality in the obligations which the Community assumed with regard to the Associated States, but in order to promote their development', the Court held that `this imbalance between the obligations assumed by the Community towards the Associated States, which is inherent in the special nature of the Convention, does not prevent recognition by the Community that some of its provisions have a direct effect'. (58) I also note that the Court came to a similar conclusion in its more recent judgment in Chiquita Italia after expressly considering whether `a quite appreciable imbalance in the level of obligations undertaken by the contracting parties' precluded the provisions of the Fourth ACP-EEC Convention from having direct effect. (59)
33 It appears to follow from those judgments, a contrario, that recognition of the direct effect of provisions contained in an international agreement concluded by the Community could well depend upon reciprocity in cases where the agreement in question imposes equal obligations on the contracting parties and therefore, ultimately, requires reciprocity in its implementation.
In its judgment in Kupferberg, however, the Court - ruling on the interpretation of an agreement on free trade, that is an agreement based on the principle of reciprocity (60) - held that such a conclusion was by no means automatically correct.
In that case, on the assumption that each contracting party is responsible for executing fully, in good faith, the commitments which it has undertaken and consequently for determining the legal means appropriate for attaining that end in its legal system, the Court held that `... the fact that the courts of one of the parties consider that certain of the stipulations in the agreement are of direct application whereas the courts of the other do not recognise such direct application is not in itself such as to constitute a lack of reciprocity in the implementation of the agreement'. (61)
Thus, in the Court's view, the mere fact that the question of direct effect was resolved in different ways by the courts of the various contracting parties does not in itself necessarily mean that there is no reciprocity in the implementation of the agreement.
It follows, on the one hand, that an absence of reciprocity in the recognition of direct effect could well be a decisive factor if it led to an absence of reciprocity in the implementation of the agreement as a whole and, on the other, that what is important is that the commitments undertaken should be fulfilled and it scarcely matters what legal means are used so long as they are appropriate for attaining that end.
34 The case-law cited so far therefore appears to imply, when applied to the WTO agreements, that the decision as to whether or not they have direct effect cannot, in the absence of an express provision to that effect, (62) depend on the attitude of the other parties on the subject.
In view of the fact that, as far as GATT 1947 is concerned, the case-law since the judgment in International Fruit has consistently emphasised that the agreement is based on the principle of negotiations undertaken on the basis of `reciprocal and mutually advantageous arrangements', (63) I consider that it nevertheless still remains to be seen whether the absence of reciprocity in the recognition of direct effect may be regarded, in relation to the WTO agreements, as being such as to lead to an absence of reciprocity in their implementation.
In this connection, I must first say that, in view of the aim and object of the WTO Agreement, I do not think there can be any doubt that reciprocity is required not only in the negotiation of the agreement but also in its performance. (64) I should add that the absence of recognition of direct effect by some other contracting parties cannot but lead, at the very least, to an imbalance in the fulfilment of the respective and reciprocal commitments undertaken.
The fact remains, of course, that it is by no means easy to establish a priori up to what point and to what extent such an imbalance leads to an absence of reciprocity in the implementation of the agreement as a whole.
35 In these circumstances, it is clear that the Court can only undertake an abstract evaluation, taking into account in particular the impact any absence of reciprocity in ensuring direct effect may have on the (reciprocal) fulfilment of the obligations assumed.
In the light of the nature and (above all) the effects of the agreements in question, I think it must be recognised that any such impact would be of the greatest importance.
That said, I am aware of the difficulties of adapting the concept of reciprocity to meet the particular requirements of a multilateral agreement.
Nevertheless, I consider that it would certainly be more correct to link recognition of direct effect with the principle of reciprocity in the implementation of the agreement than to repeat formulas that were perfectly acceptable in the context of GATT 1947 but are no longer relevant in the context of the WTO Agreement and would merely lend weight to the already widespread view that this is a political, not a legal, solution.
I therefore suggest that the Court - if it intends to leave to the `political' institutions, that is to say the Commission and the Council, the interpretation and, more generally, the `management' of the provisions at issue in this case (65) - should opt for reciprocity.
The practical outcome would probably be the same but the reasoning would gain in consistency and be more open to judicial control.
36 Lastly, should the Court decide, as I have suggested, to abandon the case-law relating to GATT 1947 and the view that direct effect may depend on similar recognition by the courts of the other contracting parties, it only remains to be ascertained whether the specific provision invoked in the present case, that is to say Article 50(6) of the TRIPs Agreement, has direct effect.
I must say at once that there can be no reasonable doubt here, as this provision is obviously sufficiently clear and precise, and does not depend on the adoption of any subsequent act.
However, a different view has been taken by the Commission and the French Government which - although not disputing, at least not explicitly, the fact that Article 50(6) has the characteristics specified by the Court as prerequisites for recognising direct effect - have emphasised that the wording of certain provisions in Part III of the TRIPs Agreement, including the provision in question, is too general and that they are clearly addressed only to the contracting parties.
In particular, they claim that the fact that certain provisions provide that `Members shall ensure that enforcement procedures ... are available under their law' (Article 41(1)) or that `this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general' (Article 41(5)) (66) means that Part II of the Agreement and, more generally, the whole of the TRIPs Agreement cannot be invoked directly in proceedings before the national courts. (67)
37 In the light of the foregoing observations on the possibility of attributing direct effect to the provisions of the WTO Agreement, observations which apply equally to the provisions of the TRIPs Agreement, I consider it sufficient to remark at this point that it would be at the very least risky to draw from expressions forming a regular feature of international agreements conclusions about the nature of the provisions they contain.
What is important, I need hardly say, is to decide whether the provision in question lends itself to application and this is the case whenever it requires no further act to enable it to produce its effects.
Article 50(6) is without doubt sufficiently clear and detailed, and does not require the adoption of any other act.
The substance of the question submitted by the national court
38 I should point out first that, even if the Court were to conclude that Article 50(6) of the TRIPs Agreement does not have direct effect, the answer to the question submitted by the national court would not be altogether without interest.
It is sufficient to observe here that the Court has long held that applications relating to provisions of secondary legislation which are not directly effective may be admissible. (68) With regard, more particularly, to the interpretation of agreements concluded by the Community, I recall that the Court stated in connection with GATT 1947 that `it is important that the provisions of GATT should, like the provisions of all other agreements binding the Community, receive uniform application throughout the Community' and that those provisions are amongst those `which the Court of Justice has jurisdiction, by virtue of Article 177 of the EEC Treaty, to interpret by way of a preliminary ruling, regardless of the purpose of such interpretation'. (69) The Court has also had occasion to state in a recent judgment that `the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as possible, be interpreted in a manner that is consistent with those agreements'. (70) Needless to say, that statement must also apply to national provisions.
In these circumstances, it is perfectly clear that the interpretation supplied by the Court, in some cases explaining that the provision in question is not directly effective, can nevertheless be very useful to the national court in determining whether the relevant national provision can be interpreted in conformity with the provision of the agreement concerned. It should be noted that, in any case, the agreement in question binds the Community and the Member States. (71)
39 That being so, I note that the national court is asking the Court whether the expression `provisional measures' in Article 50(6) of the TRIPs Agreement covers measures such as those provided for in Article 289 et seq. of the Netherlands Code of Civil Procedure, that is to say interim measures adopted after hearing the parties, in written form, duly reasoned and open to challenge.
Another characteristic of such measures, to which the parties have attached great importance, is that, although an action may be brought on the merits, in most cases such measures are accepted by the parties as definitive and in fact provide the basis for a compromise.
On the basis of these very characteristics, though for somewhat different reasons, Hermès, the Netherlands Government and the Commission suggest that the Court should answer the question submitted by the national court in the negative.
To be precise, Hermès emphasises the practical advantages of the Netherlands procedure and argues that Article 50 of the TRIPs Agreement only covers measures adopted by the public prosecutor's office or the customs authorities.
The Netherlands Government, while emphasising the advantages of the Netherlands procedure, argues that Article 50 only covers the measures referred to in Article 700 of the Code of Civil Procedure, that is to say interim protective measures granted on the authority of the president of the court inaudita altera parte.
Lastly, the Commission observes, first, that the Netherlands procedure, inasmuch as it results in the adoption of a measure that is almost always definitive, could be regarded as accelerated proceedings on the merits and, second, that even if it is admitted that the measures in question are covered by the expression `provisional measures' in Article 50 of the TRIPs Agreement, the fact remains that that provision does not require the parties, at least not always and in all circumstances, to stipulate in their legislation that proceedings on the merits must be initiated within a given period, otherwise the measure adopted will cease to have effect.
40 I must observe, first, that Article 50 of the TRIPs Agreement expressly covers all measures adopted `to prevent an infringement of any intellectual property right from occurring' (paragraph 1), including those adopted `inaudita altera parte' where appropriate (paragraph 2). I should add at once that the measure requested by Hermès clearly meets that objective and the fact that it was adopted after hearing the parties is certainly not such as to place it outside the ambit of the provision in question.
This view is supported by the wording of Article 50(6) which, I recall, refers expressly to measures taken on the basis of paragraphs (1) and (2) of that article, thus also, but not only, to measures adopted inaudita altera parte. (72)
Nor do I find the second objection convincing, namely that an interim measure such as the Netherlands measure is already covered by Article 44(1) of the TRIPs Agreement (73) and that Article 50 must therefore necessarily refer to measures of a different kind - provisional measures. The only observation I have to make on this subject is that, whereas Article 44 deals with possible remedies, that is with the substantive rules for the protection of trade marks, Article 50 is a highly delicate procedural provision and, as such, cannot apply every time a provisional measure is adopted, irrespective of whether the measure in question is taken inaudita altera parte, whether it is in written form, and whether or not it is open to challenge. Similarly, I do not think the terms of the problem are altered by the fact, also emphasised by the Commission, that the Agreement does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general: the fact remains that the national procedure must be consistent with that laid down in the relevant provisions of the TRIPs Agreement.
41 It is true that the arguments invoked by Hermès, the Netherlands Government and the Commission are found, on close inspection, to be based essentially on the fact that in most cases, 95% according to the Netherlands Government, the parties accept the provisional measure in question as a definitive decision.
I do not think, however, that such a practice can be of importance, still less of decisive importance, for the purpose of resolving the present case. I must observe, in this connection, first, that the measure thus adopted is still in law a provisional measure (74) and, second, that the undoubted practical advantages attaching to the fact that in most cases no time-limit is set for initiating the proceedings on the merits are certainly not such as to alter the provisional nature of the measure in question. (75)
In my view, the situation would be different only if the relevant national rules on the subject could be regarded as affording more extensive protection than those imposed by the TRIPs Agreement without of course contravening them. Such an eventuality, expressly envisaged by Article 1(1) of the TRIPs Agreement, does not seem to me to obtain in the present case however.
It is true that the proceedings in question, allowing the parties if they so wish to regard the provisional measure in question as a definitive decision, might enable an effective and definitive result to be achieved with the expenditure of less time and effort but the fact remains that the measure adopted cannot even so be regarded as affording intellectual property rights more extensive protection than proceedings leading to a decision on the merits.
It is scarcely necessary to add that the fact that the parties may reach a compromise or in any case an agreement as a result of, and on the basis of, the measure in question affords no guarantee in this regard and, what is more important, has nothing to do with the degree of protection.
Moreover, it would be reductive, in the absence of any explicit provision to that effect, to hold that Article 50 of the TRIPs Agreement applied only to interim protective measures adopted inaudita altera parte.
42 In short, I consider that Article 50(6) of the TRIPs Agreement should be interpreted as meaning that it also covers provisional measures adopted after hearing the parties, in written form, duly reasoned and open to challenge, notwithstanding the fact that those measures are accepted by the parties as definitive.
I would add that, should the Court inform the national court that the provision in question is not directly effective, there appears to be nothing to prevent that court from interpreting the Netherlands rules in a manner consistent with the relevant provision of the TRIPs Agreement. Indeed, even on the basis of national provisions, the judge hearing an application for interim measures may in some cases, as we have already pointed out, (76) set a time-limit for the parties to initiate proceedings on the merits;
the provision in question, I recall, leaves it to the judicial authorities to determine a reasonable period, where the relevant law so permits, and sets a period itself, should they be unable to do so.
Conclusion
43 In the light of the foregoing considerations, I therefore propose that the Court give the following answer to the question submitted by the Arrondissementsrechtbank, Amsterdam:
Article 50(6) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) must be interpreted as meaning that the provisional measures to which it refers include an interim measure adopted after hearing the parties, in written form, duly reasoned and open to challenge.
(1) - OJ 1994 L 336, p. 1.
(2) - The TRIPs Agreement is published in OJ 1994 L 336, p. 213.
(3) - Opinion of 15 November 1994 on the `competence of the Community to conclude international agreements concerning services and the protection of intellectual property' [1994] ECR I-5267.
(4) - See judgments cited in footnotes 39, 42 and 44 below.
(5) - Opinion 1/94 (cited in footnote 3), paragraph 105.
(6) - One of the reasons that caused it to take that view was that otherwise it would have been possible, through agreements with non-member countries for harmonising the protection of intellectual property rights on a world-wide scale as well as at Community level, to modify the procedures and voting rules laid down in the Treaty for the harmonisation of the sector in Articles 100, 100a and 235, which are different from those applicable under Article 113.
The Court also emphasised that previous practice, consisting of autonomous measures adopted by the Community or incorporated in external agreements adopted on the basis of Article 113, was irrelevant mainly because such measures were purely ancillary (paragraphs 60 to 70).
(7) - In this connection, the Opinion states that such parallelism occurs when subordinate legislative acts adopted in the Community context could be affected by international obligations (paragraph 102).
The competence in respect of TRIPs cannot therefore be exclusive inasmuch as, while it is true that some secondary legislation has been adopted in the area of intellectual property in exercise of this internal competence, it is equally true that such harmonisation has been only partial and that, in many areas, no harmonisation has been either envisaged or achieved (paragraph 103).
Nor does the Court accept that exclusive external competence can be derived from a particular interpretation of Opinion 1/76 of 26 April 1977, [1977] ECR 741, according to which whenever internal powers have been conferred for the purposes of attaining a specific objective (coherence of the internal market, for example), international competence implicitly flows from those provisions. In Opinion 1/94, the Court effectively reinterpreted Opinion 1/76, reducing its scope to the specific nature of the case at issue without entering into excessive detail (paragraphs 85 and 100).
(8) - Opinion 1/94 (cited in footnote 3), paragraph 104; my emphasis.
(9) - This state of affairs could change only if Article 113(5) of the Treaty, inserted under the Treaty of Amsterdam, were to be applied after it enters into force. That provision states that the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs (1) to (4) to international negotiations and agreements on services and intellectual property insofar as they are not covered by these paragraphs.
In other words, Article 113(5) allows provisions on intellectual property too to be included in the Common Commercial Policy, from which they are at present excluded, and consequently to come within the exclusive competence of the Community.
(10) - On this view, see, for example, Appella: `Constitutional Aspects of Opinion 1/94 of the ECJ concerning the WTO Agreement', in International and Comparative Law Quarterly, No 2, 1996, p. 440 et seq. According to the author, `it should be noted that "shared competence" does not mean that the Community and the Member States have separate competence for different parts of the Agreements, as if the Community had exclusive power for certain parts of the Agreements and the Member States retained their exclusive powers for other parts.
It means, rather, that any decision in respect of the areas covered by the Agreement is to be decided jointly by the Community and the Member States' (p. 460, note 79).
On the - correct - view that `The adoption of this procedure is therefore the expression of sharing of authority and not of concurrent authority', see Pescatore, The Law of Integration, Leiden, 1974, p. 47.
(11) - Nor, in my view, could such a problem be solved by adopting a code of conduct, a project that has been in gestation for a great many years already, to govern the arrangements for Member States' and Community participation in the WTO as regards the exercise of their (respective) powers in sectors where competence is shared.
For the purposes of the present case, it should be noted that the draft code confirms that the expression `joint competence' is certainly not to be understood as meaning that any decision on the subject should be adopted by mutual agreement between the Community and the Member States. While providing that the Commission would be responsible for conducting the negotiations and would be the sole spokesman for the Community and the Member States, on the basis of authorisation granted in relation to a common position adopted beforehand, the draft code in fact authorises the Member States to act independently in cases where a common position is not reached.
On the draft code, see V. Van den Bossche: The EC and the Uruguay Round Agreements, University of Limburg, 1995, p. 17 et seq.
(12) - Opinion 1/94 (cited in footnote 3), paragraphs 106 to 109.
(13) - The inclusion of clauses defining the respective areas of competence of the Community and the Member States in cases where they participate jointly in the same agreement is becoming more and more frequent.
See, for example, the Vienna Convention for the Protection of the Ozone Layer of 22 March 1985 (OJ 1988 L 297, p. 10) and the third United Nations Conference on the Law of the Sea (Montego Bay) of 10 December 1982.
A strict and precise definition of the respective areas of competence of the Community and its Member States is, moreover, a requirement to which the other contracting parties attach considerable importance; witness, for example, the General Rules of the United Nations Food and Agriculture Organisation (FAO), as amended to allow the accession of the Community as a member of that organisation on 26 November 1991.
Those rules require a declaration of competence, specifying the matters with respect to which the Member States have transferred their competence to the Community and the Community is empowered to negotiate at international level.
For internal purposes, an arrangement was concluded `regarding preparation for FAO meetings, statements and voting', to establish the necessary coordination between the Community and the Member States for the purpose of exercising their respective responsibilities and/or statements on a particular point.
This arrangement did not, however, prove capable of preventing conflict, as is demonstrated by the fact that the Court has already been called on to settle a dispute in this area (see Case C-25/94 Commission v Council [1996] ECR I-1469).
(14) - See Article XI of the WTO Agreement.
It should, however, be noted that Article IX, paragraph 1, provides that: `Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their Member States.'
It is further specified in a note that: `The number of votes of the European Communities and their Member States shall in no case exceed the number of the Member States of the European Communities.'
(15) - This is the view taken in some of the legal literature on the more general subject of mixed agreements, where, of course, they contain no provisions on external competence (see, inter alia, Steenbergen and Louis: `La répartition des compétences entre les Communautés' in Les États fédéraux dans les relations internationales, Brussels, 1984).
This view is also supported by certain statements of the Court, which has observed that the division of powers is a domestic question, particularly as it may change in the course of time (see, in particular, Ruling 1/78 of 14 November 1978, delivered pursuant to the third paragraph of Article 103 of the EAEC Treaty, [1978] ECR 2151, paragraph 35).
(16) - Some authors have held that, as the Treaty makes no provision for such an eventuality, the conclusion of a mixed agreement constitutes an implicit amendment of the Treaty by virtue of which the whole agreement becomes part of Community law and that the Court therefore undoubtedly has jurisdiction to interpret a mixed agreement in its entirety (on this view, see inter alia Bleckmann:
`Der Gemischte Vertrag im Europarecht', in Europarecht, 1976, p. 301 et seq.).
Others, on the contrary, consider that a mixed agreement falls into two parts:
a Community section, which becomes an integral part of the Community legal order in the same way as an agreement that falls within the exclusive competence of the Community, and a second part, which remains within the competence of the Member States (on this view, see inter alia Ehlermann:
`Mixed agreements: a list of problems', in O'Keeffe, Schermers: Mixed agreements, Deventer, 1983, p. 3 et seq., which recommends using Article 228 to solve all the problems of coordination that may arise from joint participation and to establish the terms and conditions on which States may participate in such agreements.
However, it is clear from the context in which Opinion 1/94 was delivered that a prior Opinion of the Court pursuant to Article 228 may not suffice to solve all problems.
It is scarcely necessary to point out that, in that case, the Court confined itself to stating that there was a general obligation of cooperation and it seems to me that, given the lack of provisions on the subject, it could not have done otherwise).
The following authorities, too, are opposed to the Court interpreting all the provisions of a mixed agreement, independently of any investigation to determine whether competence is vested in the Community or the Member States: Schermers-Waelbroeck: Judicial Protection in the European Communities, Deventer, 1992, p. 430, and Hartley: The Foundations of European Community Law: an introduction to the constitutional and administrative law of the European Community, Oxford, 1994, p. 186, 273 et seq.
(17) - See, for example, the judgments in Case 181/73 Haegeman v Belgium [1974] ECR 449, concerning the interpretation of the Association Agreement with Greece; Case 87/75 Bresciani v Amministrazione Italiana delle Finanze [1976] ECR 129, concerning the interpretation of the Yaoundé Convention of 1963; and Case 65/77 Razanatsimba [1977] ECR 2229, concerning the interpretation of the Lomé Convention.
See also, more recently, the judgments in Case C-18/90 Kziber [1991] ECR I-199 and Case C-103/94 Krid v CNAVTS [1995] ECR I-719, concerning the interpretation of the Cooperation Agreements concluded with Morocco and Algeria respectively.
(18) - On this view, see the judgment in Haegeman (cited in the preceding note), paragraphs 3/5 and 6. It was precisely these views that led Advocate General Trabucchi to state, in his Opinion in Bresciani (cited in the preceding note), that `when a national court has to determine whether an act or the conduct of a Member State is consistent with obligations assumed by the Community under an international convention, which, under Article 228(2) of the EEC Treaty, is also binding on every Member State, it is quite in order, indeed necessary, at the same time to take the Convention into account in order to identify the State's Community obligation, which is based on the Treaty and is specifically defined in the Convention binding the Community'.
In the same Opinion, the Advocate General also pointed out that `the definition of the scope of a State's Community obligation is always a question of interpreting Community law' ([1976] ECR 147).
(19) - Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, concerning the interpretation of certain provisions of the Association Agreement with Turkey.
(20) - Judgment in Demirel (cited in the preceding note), paragraph 9.
See also, in this connection, Advocate General Darmon's observation in his Opinion in the same case that `the settlement of the question of the Court's jurisdiction does not appear to necessitate the elaboration of a general theory on the subject - useful though this would be' ([1987] ECR 3737 et seq., point 13).
(21) - Judgment in Demirel (cited in footnote 19), paragraph 11.
See also the Opinion of Advocate General Darmon (point 12), in which he points out that the case-law of the Court is quite plain as regards the Community character of the obligation imposed on Member States to comply with external agreements but that it `does not, however, lay down any criterion for determining jurisdiction, nor does it expressly exclude the possibility that a provision inserted in a mixed agreement might, by reason of its inherent nature or an express reserve contained therein, lie outside the Court's interpretative jurisdiction' (cited in the preceding footnote).
(22) - On this point, see Gaja:
`Sull'interpretazione degli accordi misti da parte della Corte di giustizia' in Rivista di diritto internazionale, 1988, p. 605 et seq. After pointing out that the Court had not in fact stated in this judgment that all the matters dealt with in association agreements or other mixed agreements fell within the competence of the Community, the author argues that the Court's jurisdiction cannot extend to provisions of mixed agreements where the subject-matter of the provisions is outside the scope of Community law.
He nevertheless admits, albeit with some caution, that an exception might possibly be made in the case of a `procedimento di infrazione promosso nei confronti di uno Stato membro il cui comportamento di violazione dei propri obblighi derivanti dall'accordo misto comporti conseguenze negative per la Comunità'.
(23) - On the assumption that the Member States have undertaken a commitment not only vis-à-vis the Member States but also with regard to the Community, it has been pointed out that in the event of any failure to perform the agreement the Community would in any case be held responsible, as well as the Member State in question, giving rise to an interest-power on the part of the Community, and in particular the Court, in ensuring a uniform application, performance and interpretation of all the provisions (on this view, see Nolte, `Comments on Case 12/86' in Common Market Law Review, 1988, p. 403 et seq.).
(24) - On this point, see Neuwahl, `Shared Powers or Combined Incompetence?
More on Mixity', in Common Market Law Review, 1996, p. 667 et seq.
For a more general approach, see also Bourgeois, Dewost, Gaiffe: La Communauté européenne et les accords mixtes.
Quelles perspectives?, Bruges Conference, No 11, 1997.
(25) - The United Kingdom Government expressed some concern on this subject.
In the event of the Court ruling that it has jurisdiction to interpret all the WTO agreements, the United Kingdom foresees that the Member States will become more cautious about concluding mixed agreements in the future and more inclined to opt for entirely separate arrangements.
(26) - Opinion 1/94 (cited in footnote 3), paragraph 107.
(27) - In this connection, see, for example, Rideau:
`Les accords internationaux dans la jurisprudence de la Cour de justice des Communautés européennes; réflexions sur les relations entre les ordres juridiques international, communautaire et nationaux', in Revue générale de droit international public, 1990, p. 289 et seq.
The author points out that a division of competence between the national courts and the Court of Justice `peut cependant s'avérer délicate en raison des difficultés de rattachement des différentes dispositions de l'accord à l'un ou à l'autre ordre de compétences et des risques de discordance dans l'application de l'accord mixte' (p. 347).
The same view on the need for uniform application of the provisions that form part of the Community system is to be found in Advocate General Darmon's Opinion in Demirel (cited in footnote 20); the approach suggested by Eeckhout, specifically with regard to the interpretation of the WTO agreements, is not very different; see: `The domestic legal status of the WTO Agreement: interconnecting legal systems', in Common Market Law Review, 1997, p. 11 et seq.
(28) - In this context, it should be observed that the Court's jurisdiction to interpret the provisions of the TRIPs Agreement on measures for the protection of intellectual property may be considered to be established, not only as regards the aspects falling within the scope of the Community rules prohibiting the release into free circulation of counterfeit goods but also as regards the rules on the Community trade mark contained in Regulation (EC) No 40/94 (OJ 1994 L 11, p. 1).
That regulation contains a specific provision (Art. 99) on provisional measures, with the truly paradoxical consequence that jurisdiction to interpret the same provision of the same agreement, in this case Article 50 of the TRIPs Agreement, may lie either with the Community court or with the national court, depending on the circumstances.
It must also be noted that the very fact that the interpretative jurisdiction is divided between the Community court and the national courts has important consequences for the functioning of the system as a whole, if only for example because of the (by no means remote) possibility that they may come to different conclusions on the question of direct effect.
In this connection, the view expressed by the French Government at the hearing is certainly significant, albeit somewhat unorthodox and contentious, in that it said the Court had no jurisdiction to interpret Article 50 of the TRIPs Agreement but nevertheless advised it to give the national court some indication as to whether or not the provisions of the WTO Agreement, including those of the TRIPs Agreement have direct effect, precisely in order to forestall differences of interpretation on such an important matter.
(29) - It should be pointed out that the purpose of such a fundamental requirement is not in fact `to forestall future differences of interpretation', as the Court has shown in asserting its jurisdiction to interpret provisions of national law which refer to Community law or are couched in exactly the same terms as the corresponding provisions of Community law but which are to be applied in an area that does not fall within the scope of Community law (Joined Cases C-297/88 and C197/89 Dzodzi [1990] ECR I-3763, paragraph 37; that ruling has been confirmed, most recently, by Case C-28/95 Leur-Bloem [1997] ECR I-4161, paragraph 32, and Case C-130/95 Giloy [1997] ECR I-4291, paragraph 28).
One might well be tempted to employ the same sort of reasoning in the present case, with the necessary adjustments of course, notably by linking the aim of forestalling future differences of interpretation with the potential competence of the Community.
I must observe, however, that the situation is decidedly different since, in the first place, the provision at issue does not refer to, or use the same terms as, any rule of Community law and, in the second place, the need for uniform interpretation is actual, not potential, in the case in question.
I feel impelled to add that, in any event, to extend the approach adopted in Dzodzi to the present case would be, more generally, contrary to the Court's case-law on the admissibility of references for preliminary ruling, particularly on hypothetical and/or purely internal questions (in this connection, see the remarks in my Opinion in Case C-346/93 Kleinwort Benson [1995] ECR I-615, I-617, in particular points 25 to 27).
(30) - See points 14 and 18 in this connection.
(31) - It is not inapposite to recall, in this connection, that Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, which admittedly concerned a non-mixed agreement, particularly emphasised the need for uniform interpretation of provisions that form an integral part of the Community legal order, including international agreements.
It being incumbent on both the institutions of the Community and the Member States to ensure compliance with agreements concluded by the Community, the Court ruled that the Member States fulfil an obligation not only in relation to the non-member country concerned `but also and above all in relation to the Community which has assumed responsibility for the due performance of the agreement' (paragraph 13), a statement which seems to me to be particularly significant and which has been repeated in connection with a mixed agreement such as the agreement at issue in Demirel (cited in footnote 19, paragraph 11).
And if the provisions of agreements form an integral part of Community law, even if they are provisions of mixed agreements, as the Court held in Haegeman (cited in footnote 17), it follows that the statement that `their effect in the Community may not be allowed to vary according to whether their application is in practice the responsibility of the Community institutions or of the Member States and, in the latter case, according to the effects in the internal legal order of each Member State which the law of that State assigns to international agreements concluded by it' (paragraph 14) applies also, and above all, to such agreements.
(32) - For confirmation of this view, see Ruling 1/78 (cited in footnote 15), paragraph 36; Opinion 2/91 [1993] ECR I-1061, paragraph 36; and, most recently, the judgment in Commission v Council (cited in footnote 13), paragraph 48.
(33) - The absence of close cooperation between Community institutions and Member States - in view of the ineffectiveness that would inevitably result from a failure to speak with one voice and, above all, from a lack of common rules of conduct and common procedures - would certainly be a considerable drawback in any future negotiations within the WTO and also, more generally, whenever it was necessary to adopt a position on a matter governed by the TRIPs Agreement (in this connection, see Vellano:
`La Comunità europea e i suoi Stati membri dinanzi al sistema di risoluzione delle controversie dell'Organizzazione Mondiale del Commercio: alcune questioni da risolvere', in La Comunità Internazionale, 1996, p. 499 et seq.).
In particular, as the Commission has argued before the Court, in areas where competence is shared, the cross-retaliation measures established under Article 22 of the Dispute Settlement Understanding might lose much of their force.
Clearly, in the absence of agreement on this point, a Member State wishing to exercise its right to retaliate in the sector of goods rather than services or intellectual property would not be authorised to do so.
Similarly, in the absence of agreement with the Member States, the Community would be unable to exercise the right to retaliate in the areas covered by GATS or TRIPs, those being (still) within the competence of the Member States.
(34) - See, inter alia, Case C-306/93 SMW Winzersekt [1994] ECR I-5555, paragraph 15, and Case C-85/95 Reisdorf v Finanzamt Köln-West [1996] ECR I-6257, paragraph 15.
(35) - Joined Cases 16/79 to 20/79 Danis [1979] ECR 3327, paragraph 8.
For a more general view, see Case C-147/91 Ferrer Laderer [1992] ECR I-4097, in which the Court states that `under the cooperation procedure between the national courts and the Court of Justice, laid down in Article 177, it is for the Court to provide the national court with an answer enabling the latter to resolve the dispute before it, by interpreting such provisions of Community law as may be applicable' (paragraph 6).
(36) - Kupferberg (cited in footnote 31), paragraph 17.
(37) - In this connection, see Pescatore:
`Drafting and analysing decisions on dispute settlement', in Pescatore, Davey, Lowenfeld:
Handbook of WTO/GATT Dispute Settlement, New York 1997.
The author states, in particular that these attempts to modify the effect of a multilateral treaty after the event, by means of internal legislation adopted unilaterally, are incompatible with good faith in international relations or with the principle of the legal protection of individual rights in a democratic society (p. 11, footnote 3).
See also Mengozzi:
`Les droits des citoyens de l'Union européenne et l'applicabilité directe des accords de Marrakech', in Revue du marché unique européeen, 1994, p. 171, and Gaja: `Il preambolo di una decisione del Consiglio preclude al "GATT 1994" gli effetti diretti nell'ordinamento comunitario?' in Rivista di diritto internazionale, 1995, p. 407 et seq.
On the contrary view, that the recital in question is not without relevance, see point 127 of Advocate General Cosmas's Opinion in Case C-183/95 Affish [1997] ECR I-4315 and points 28 and 29 of Advocate General Elmer's Opinion in Joined Cases C-364/95 and C-365/95 T. Port, still pending.
(38) - In other words, for the purpose of deciding whether or not the provisions of the WTO agreements have direct effect, it is not sufficient, or even relevant, that the Commission, the Council and the Parliament are of one mind in considering that the factors that have so far led the Court to exclude direct effect of the provisions of GATT 1947 are still valid as regards the provisions of the WTO agreements.
Speaking for myself, I think there can be little doubt that it is for the Court, by providing an interpretation, to decide whether that is the case.
(39) - Joined Cases 21/72 to 24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraphs 19 and 20.
(40) - Idem, paragraph 21.
(41) - Idem, paragraphs 27 and 28.
(42) - Judgment in Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 110.
The Court gave more reasons for its decision in that case than it had done in earlier judgments on the subject.
It emphasised, in particular, the non-binding nature of decisions taken in the context of GATT, the `sympathetic consideration' to be given to proposals, and the power to suspend certain obligations unilaterally
(paragraphs 107 and 108).
(43) - It has been pointed out, in particular, that the undeniable flexibility of some provisions of this Agreement (a characteristic, incidentally, that is common to all multilateral international agreements) is no greater than that of many provisions of other agreements, which the Court has held to have direct effect (on this view, see inter alia Giardina: `La Corte europea ed i rapporti tra diritto comunitario e diritto internazionale' in Rivista di diritto internazionale privato e processuale, 1973, p. 582 et seq., notably p. 588 et seq.).
It has also been pointed out that the circumstances in which self-defence is permitted are formally defined and, more generally, that the system for the settlement of disputes has proved to be particularly effective, so much so that Community representatives have even complained, within GATT, that it is excessively judicial (on this view, see inter alia Petersmann:
`The EEC as a GATT-Member - Legal Conflicts between GATT Law and European Community Law', in The European Community and the GATT - Studies in Transnation Economic Law, vol. IV, Deventer, 1986, p. 23 et seq.; and Hahn and Schuster:
`Le droit des États membres de se prévaloir en justice d'un accord liant la Communauté', in Revue générale de droit international public, 1995, p. 367 et seq., notably p. 381 et seq.).
(44) - See inter alia Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135, paragraphs 28 to 30; Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 28; and, most recently, Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia [1995] ECR I-4533, paragraphs 26 to 29.
(45) - The judgments in Case 70/87 Fediol v Commission [1989] ECR 1781 and Case C-69/89 Nakajima v Council [1991] ECR I-2069 are only apparently, or at any rate only partly, inconsistent with this general tendency.
The implication of those judgments is that whenever a Community rule refers to the provisions of GATT (as in Fediol) or has been adopted for the purpose of implementing them (as in Nakajima), the Court accepts that individuals may rely on those provisions as a measure of the legality of the Community act in question.
It is true that in such cases the option of invoking the GATT provisions is not based on the direct effect of those provisions but on the fact that there is a Community act which has implemented them or at least expressed the intention of implementing them.
The fact that the provision may serve as a measure of the validity of a Community act only in cases where the act refers to or implements the GATT provision clearly means that it may do so only if and when the international provision has been transposed into Community law.
This in turn raises further questions about the `monist' consistency of the Court's case-law, which is openly at odds with the approach in Nakajima (see inter alia Eeckhout:
`The domestic legal status of the WTO Agreement: interconnecting legal systems', cited in footnote 27, p. 56 et seq.).
(46) - On this view, see for example the judgment in Kupferberg (cited in footnote 31), in which the Court stated, on the one hand, that `the mere fact that the contracting parties have established a special institutional framework for consultations and negotiations inter se in relation to the implementation of the agreement is not in itself sufficient to exclude all judicial application of that agreement' (paragraph 20) and, on the other, that `as regards the safeguard clauses which enable the parties to derogate from certain provisions of the agreement it should be observed that they apply only in specific circumstances and as a general rule after consideration within the joint committee in the presence of both parties' (paragraph 21).
(47) - In this connection, see inter alia Ligustro: Le controversie tra Stati nel diritto del commercio internazionale dal GATT all'OMC, Padua, 1996; and Young, `Dispute resolution in the Uruguay Round: lawyers triumph over diplomats', in International Lawyer, 1995, p. 389 et seq.
(48) - Thus, the Understanding on Balance-of-Payments Provisions of GATT 1994 seeks to ensure that non-tariff restrictive measures, which have been applied indiscriminately particularly in the developing countries, are more strictly regulated and above all administered in a more transparent manner.
Attention should also be drawn in this connection to the Agreement on Safeguards (OJ 1994 L 336, p. 184) based on Article XIX of GATT and designed to `re-establish multilateral control over safeguards and eliminate measures that escape such control' (second recital).
The Agreement also contains a specific provision requiring all measures in the so-called `grey area' to be phased out within a period not exceeding four years after the date of entry into force of the WTO Agreement (see Article 11).
(49) - See Article IX(3) and (4) of the WTO Agreement.
For example, a waiver granted by the Ministerial Conference requires a decision to be taken by three fourths of the Members; the decision must state the exceptional circumstances justifying it and the date on which the waiver is to terminate; and the waiver itself must be reviewed at regular intervals to examine whether the exceptional circumstances still exist. Moreover, the Understanding in Respect of Waivers of Obligations under GATT 1994 imposes further conditions for obtaining waivers and provides that a Member may initiate the dispute settlement procedure if it considers that a benefit accruing to it under GATT 1994 is being nullified or impaired as a result of the application of a waiver by another Member.
(50) - See Annex 2 to the WTO Agreement (OJ 1994 L 336, p. 234).
In the first place, as regards the structure of the mechanism, three levels of decision for the settlement of disputes are provided for.
The Dispute Settlement Body (DSB) is in fact the General Council, convening to discharge its dispute settlement responsibilities; it may have its own chairman and rules of procedure (WTO Agreement, Article IV(3)).
The panels, comprising three to five experts in international trade law selected individually according to requirements, constitute the first level of technical assessment.
Lastly, there is a Standing Appellate Body, comprising seven legal experts unaffiliated with any government.
The procedure provides for an initial phase of consultation between the parties to the dispute with a view to reaching a solution or eliminating points that are not in dispute.
The second phase consists of assessment by a panel, which in turn may also comprise two phases.
(51) - Moreover, an appeal may be lodged, entailing a further report which will likewise be adopted unless the Council decides by consensus not to adopt it.
Essentially, the principle of negative consensus means that the report will always be adopted and the unsuccessful party must comply with it.
The report may in fact contain recommendations and suggest ways in which the Member concerned could implement them (Article 19) and the Member in question is required to comply with the recommendations and rulings within a reasonable period of time.
If it fails to comply within that time, the Dispute Settlement Body may authorise retaliatory measures such as the suspension of tariff concessions or other obligations unless there is a consensus to the contrary.
(52) - Nor do I consider that the terms of the problem can be altered by the fact, as illustrated, for example, by Timmermans: `L'Uruguay Round: sa mise en oeuvre par la Communauté européenne', in Revue du marché unique européen, 1994, p. 175 et seq., that it cannot in any way be excluded that the compensation may ultimately be a `provisoire qui dure' (p. 178).
Amongst other things, I must point out that, under Article 171 of the Treaty, an infringement of Community law on the part of a Member State may also result in payment of a sum and thus enable that State to `pay' for being able to persist in maintaining the infringement. At all events, I do not consider that the direct effect of a provision can depend on the period of time, long or short, taken by the Member State to comply with a decision, whether it be judicial or taken by a special group, still less instruments which are liable to be used to attenuate the effects of a breach of obligations and/or to encourage compliance with the rules.
(53) - Advocates General Cosmas and Elmer have expressed a contrary view in their Opinions in the Affish and T. Port cases (cited in footnote 37), in respectively paragraphs 118 to 128 and paragraphs 27 to 29.
(54) - In this connection, see in particular point 27 and footnote 46 above.
More generally speaking, it is not without relevance to observe that GATT is the only agreement with respect to which the Court has come to the conclusion, based on its `characteristics' that none of its provisions could have direct effect.
In all the other cases in which it has been called upon to rule on international agreements concluded by the Community, the Court has never held that the characteristics of those agreements were such as to preclude individuals from invoking their provisions before the courts - though it has, where appropriate, held that the particular provision it was called upon to examine was not directly effective. See also, in addition to the judgments cited in footnote 17, the judgment in Chiquita Italia, cited in footnote 44, in which the Court stated that the fact that the ACP-EEC Convention lays down a special procedure for settling disputes between the contracting parties did not prevent it from recognising that some of its provisions had direct effect (paragraph 36).
(55) - In fact, even with regard to GATT 1947, it has been observed that the characteristics attributed to it by the Court, as a reason for holding that its provisions were not directly effective, make it look more like a forum for negotiating and finding solutions than a binding agreement, when `The GATT is not a caricature of an international agreement, but is obligatory on the Community and Member States.
It must be taken seriously by the institutions and the Court' (Everling:
`Will Europe slip on Bananas?
The Bananas Judgement of the Court of Justice and National Courts', in Common Market Law Review, 1996, p. 401 et seq., 422).
And it has also been pointed out that `quelle que soit la façon de caractériser le système de règlement des litiges du GATT, on peut sans doute dire qu'il s'agit d'un des systèmes les plus efficaces de règlement des différends existant entre États aujourd'hui' (Hahn and Schuster: `Le droit des États ...', cited in footnote 43, p. 381).
These remarks, I need hardly add, apply a fortiori to the (new) system introduced with the WTO which, despite all differences, is unanimously agreed to represent a definite change, in the sense of being more open to judicial control and more binding.
(56) - Seen in this light, the idea of confining the possibility of invoking the provisions of the WTO agreements (too) in proceedings before the competent courts to cases such as Fediol v Commission and Nakajima v Council (judgments cited in footnote 45) might not be so very surprising or, ultimately, altogether arbitrary.
(57) - On this view, see Mengozzi:
`Les droits des citoyens ...', cited in footnote 37.
(58) - Bresciani (cited in footnote 17), paragraphs 22 and 23;
our emphasis.
(59) - Chiquita Italia (cited in footnote 44), paragraphs 32 and 34.
(60) - It is not inapposite to observe that in that case (cited in footnote 31), the direct effect of the provisions of the EEC-Portugal Free-Trade Agreement was contested by certain governments precisely because its implementation depended on the principle of reciprocity.
(61) - Kupferberg (cited in footnote 31), paragraph 18.
(62) - In this connection, I should add that, when the agreements in question were being negotiated, it was proposed to specify that the relevant provisions should not be self-executing.
However, that proposal was not adopted.
(63) - International Fruit (cited in footnote 39), paragraph 21.
(64) - This was already abundantly clear, as far as GATT 1947 was concerned, from the judgment in Chiquita Italia (cited in footnote 44), in which the Court expressly noted that the Fourth ACP-EEC Convention `is not of the same nature as the GATT' (paragraph 31), before stating that the provisions of the Convention may have direct effect despite the appreciable imbalance in the obligations undertaken by the contracting parties.
(65) - That impression comes over very strongly in the judgment in Germany v Council, cited in footnote 42, in which the Court held that those features of GATT that prevent it from being recognised as having direct effect also preclude its provisions from being taken into consideration to assess the lawfulness of a Community regulation in an action brought by a Member State under Article 173 (paragraph 109).
That impression is reinforced by the fact that, according to the Court, those same provisions may constitute a valid criterion for assessing, in the context of proceedings brought by the Commission under Article 169, whether national practice or regulations are compatible with the commitments undertaken in the context of GATT (see Case C-61/94 Commission v Germany [1996] ECR I-3989).
(66) - In my view, this last provision, by expressly stating that there is no need to provide special instruments, merely confirms, on the contrary, that these provisions may indeed be directly invoked in proceedings before the national courts.
(67) - In support of this view, the Commission cites Article 1(1) of the TRIPs Agreement, under which `Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of the Agreement'.
However, not only does that provision not support the Commission's view, it makes it clear that, while Member States are free to adopt more protective legislation, they are required to comply with the `minimum' provisions of the Agreement, which may therefore be relied upon by individuals provided that they are sufficiently clear, precise and unconditional.
(68) - See, for example, the judgments in Schlüter (cited in footnote 44) and in Case 59/75 Pubblico Ministero v Manghera [1976] ECR 91, in which the Court interpreted Council Resolutions even though it held that they cannot create legal consequences of which parties might avail themselves in court.
Similarly, in Case C-322/88 Grimaldi v Fonds des maladies professionnelles [1989] ECR I-4407, the Court furnished the national court with an interpretation of a recommendation, to the effect that, although recommendations cannot in themselves confer rights on individuals upon which they may rely before national courts, they can be useful to those courts in casting light on the interpretation of national measures (paragraphs 16 to 19).
The Court has also ruled, in its judgment in Case 111/75 Mazzalai v Ferrovia del Renon [1976] ECR 657, that under Article 177 it has jurisdiction to give preliminary rulings `concerning the interpretation of acts of the institutions of the Community, regardless of whether they are directly applicable' (paragraph 7).
It is scarcely necessary to recall, lastly, the judgment in Case C-106/89 Marleasing [1990] ECR I-4135, in which the Court laid down the principle that national law must be interpreted in conformity with a Community directive so that, in the absence of direct effect, `a national court ... is required to interpret its national law in the light of the wording and the purpose of that directive' (paragraph 13).
(69) - Joined Cases 267/81 to 269/81 Amministrazione delle Finanze dello Stato v SPI and SAMI [1983] ECR 801, paragraphs 14 and 19, our emphasis.
(70) - Commission v Germany (cited in footnote 65), paragraph 52.
(71) - On the possibility of invoking the provisions of an agreement not producing direct effect, see inter alia Monin: `A propos de l'accord instituant l'organisation mondiale du commerce et l'accord sur les marchés publics: la question de l'invocabilité des accords internationaux conclus par la Communauté européenne' in Revue trimestrielle de droit européen, 1997, p. 399 et seq., in particular pp. 407 and 412 et seq.
(72) - Furthermore, in stipulating that provisional measures shall cease to have effect if proceedings leading to a decision on the merits are not initiated within a certain time, Article 50(6) expressly states that that rule is without prejudice to paragraph (4), which in turn stipulates that, where provisional measures have been adopted inaudita altera parte, `a review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed'.
Clearly, there would be no reason for such a statement if Article 50 covered only provisional measures adopted inaudita altera parte.
(73) - For present purposes, I recall that that provision states that `the judicial authorities shall have the authority to order a party to desist from an infringement inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right ...'.
(74) - It is not without bearing to note, in this connection, as the Netherlands Government has pointed out, that the measure adopted is described as an interim decision, precisely because interim proceedings, in which the court is not required to respect the legal rules on evidence, may always be followed by proceedings on the merits.
(75) - It should be noted that in some cases the judge hearing an application for interim measures grants the measure referred to in Article 289 of the Code of Civil Procedure only on condition that proceedings on the merits are initiated within a certain time.
At all events, it is perfectly obvious that the unsuccessful party may in any case initiate such proceedings even if no time-limit is set in this connection (Article 292 of the Code of Civil Procedure).
(76) - See footnote 75.