LVP NV v Belgische Staat.
Date: 2014-12-18
44. In that regard, it must be pointed out at the outset that, given their nature and purpose, 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 European Union institutions (see judgment in Portugal  v Council , C‑149/96, EU:C:1999:574, paragraph 47; order in OGT Fruchthandelsgesellschaft , C‑307/99, EU:C:2001:228, paragraph 24; judgments in Omega Air and Others , C‑27/00 and C‑122/00, EU:C:2002:161, paragraph 93; Petrotub and Republica  v Council , C‑76/00 P, EU:C:2003:4, paragraph 53; Biret International v Council , C‑93/02 P, EU:C:2003:517, paragraph 52, and Van Parys , EU:C:2005:121, paragraph 39).
45. Having noted that the system resulting from the WTO agreements accorded considerable importance to negotiation between the parties (see judgment in Portugal  v Council , EU:C:1999:574, paragraph 36), the Court found that 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 the Understanding on Rules and Procedures Governing the Settlement of Disputes, which forms Annex 2 to the Agreement establishing the WTO (‘the Dispute Settlement Understanding’), of entering into a negotiated arrangement even on a temporary basis (see judgments in Portugal  v Council , EU:C:1999:574, paragraph 40, and Van Parys , EU:C:2005:121, paragraph 48).
46. Furthermore, the Court held that to accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject-matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (see judgment in Portugal  v Council , EU:C:1999:574, paragraphs 43 to 46; Van Parys , EU:C:2005:121, paragraph 53, and FIAMM and Others  v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 119).
47. It is only where the European Union intends to implement a particular obligation assumed in the context of the WTO or where the European Union measure refers expressly to specific provisions of the WTO agreements that the Court can review the legality of the European Union measure at issue in the light of the WTO rules (see, with regard to the General Agreement on Tariffs and Trade of 1947, the judgments in Fediol v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22; Nakajima  v Council , EU:C:1991:186, paragraph 31, and, with regard to the WTO agreements, the judgments in Portugal  v Council , EU:C:1999:574, paragraph 49; Biret International  v Council , EU:C:2003:517, paragraph 53, and Van Parys , EU:C:2005:121, paragraph 40).
59. Finally, the mere reference to the context of the negotiations undertaken by the European Union under Article XXVIII of the GATT 1994, in recitals 2 to 5 in the preamble to Regulation No 1964/2005, cannot lead to the conclusion that that regulation satisfies the second condition that is capable, as is apparent from paragraph 47 of the present judgment and in accordance with the ruling in Fediol  v Commission  (EU:C:1989:254, paragraphs 19 to 22), of justifying an exception to the principle that WTO rules cannot be relied upon before the courts of the European Union, namely the condition that the European Union measure in question refers expressly to specific provisions of the WTO agreements.