Case C-377/02

Léon Van Parys NV

v

Belgisch Interventie- en Restitutiebureau (BIRB)

(Reference for a preliminary ruling from Raad van State (Belgium))

(Common organisation of the markets – Bananas – GATT 1994 – Articles I and XIII – Framework agreement of 23 April 1993 between the EEC and the Cartagena Group – Direct effect – Recommendations and decisions of the WTO Dispute Settlement Body – Legal effects)

Opinion of Advocate General Tizzano delivered on 18 November 2004

Judgment of the Court (Grand Chamber), 1 March 2005.

Summary of the Judgment

Preliminary rulings – Determination of validity – Not possible to rely on WTO agreements to challenge the legality of a Community measure – Exceptions – Community measure intended to ensure their implementation or referring to them expressly and specifically – Decision of the WTO Dispute Settlement Body – Community obligations – Right to rely on the WTO agreements – None

(Art. 234 EC)

Given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules.

By undertaking after the adoption of the decision of the WTO Dispute Settlement Body (DSB) to comply with the rules of that organisation and, in particular, with Articles I(1) and XIII of GATT 1994, the Community did not intend to assume a particular obligation in the context of the WTO, capable of justifying an exception to the impossibility of relying on WTO rules before the Community Courts and enabling the latter to exercise judicial review of the relevant Community provisions in the light of those rules.

First, even where there is a decision of the DSB holding that the measures adopted by a member are incompatible with the WTO rules, the WTO dispute settlement system nevertheless accords considerable importance to negotiation between the parties. In those circumstances, to require courts to refrain from applying rules of domestic law which are inconsistent with the WTO agreements would have the consequence of depriving the legislative or executive organs of the contracting parties of the possibility afforded in particular by Article 22 of the Understanding on rules and procedures governing the settlement of disputes of reaching a negotiated settlement, even on a temporary basis.

Secondly, to accept that the Community Courts have the direct responsibility for ensuring that Community law complies with the WTO rules would deprive the Community’s legislative or executive bodies of the discretion which the equivalent bodies of the Community’s commercial partners enjoy.

Therefore, an economic operator cannot plead before a court of a Member State that Community legislation is incompatible with certain WTO rules, even if the DSB has stated that that legislation is incompatible with those rules.

(see paras 39-42, 48, 53-54, operative part)