Search

One of the most important issues in the law of the World Trade Organization is the right of WTO members to adopt measures for nontrade purposes. In the WTO’s General Agreement. on Tariffs and Trade (GATT 1994) and General Agreement on Trade in Services (GATS), this right is secured in general exceptions provisions, which permit WTO members to adopt measures to achieve certain objectives, notwithstanding any other provisions of these agreements and also, in some cases, other WTO agreements. These objectives include, most importantly, the protection of public morals, the maintenance of public order, the protection of human, animal, or plant life or health, the enforcement of certain domestic laws, and the conservation of exhaustible natural resources.

Opinion 1/08 of the Grand Chamber of the European Court of Justice (ECJ) resolves a dispute between the European Commission, supported by the European Parliament, on the one hand, and the Council of the European Union (Council) and fifteen member states, on the other, as to the competence of the European Community (EC) to conclude -- with certain members of the World Trade Organization (WTO) -- particular agreements (Agreements) modifying the schedules of specific commitments (Schedules) of the EC and its member states under the General Agreement on Trade in Services (GATS). More importantly, by interpreting for the first time some of the provisions defining the common commercial policy (CCP) as they were recast by the Nice Treaty in 2001, this opinion clarifies the scope of the external powers of the EC vis-a-vis its member states. The Court held in essence that the Agreements -- although concerning neither exclusively nor predominantly sensitive sectors, such as culture, education, as well as social and human health services -- fall within the shared competence of the EC and its member states. Interestingly enough, the opinion was rendered on November 3'8 2009, on the eve of the entry into force of the Lisbon Treaty, which, inter alia, modified once more the CCP provisions. Yet, this opinion remains relevant to the extent that it helped to resolve another dispute pending before the ECJ on whether the approval of Vietnam's membership in the WTO fell solely under the competence of the EC or whether it also required the participation of the member states.