Introduction

The debate on the direct effect of World Trade Organisation (WTO) law within the European Union (EU) is one which has been ongoing at judicial, political and academic levels since the establishment of the WTO over a decade ago. This debate has been fuelled by the dissident opinions voiced within the European Court of Justice (ECJ), and by novel opportunities arising for the ECJ to nuance its already complicated jurisprudence, Van Parys being a case in point. The extent to which the EC judicature takes account of WTO obligations has, therefore, been subject to much scrutiny. The same cannot, however, be said about the Community legislature. It would appear at the outset that more often than not in the course of the decision-making process, those that are opposed to legislative proposals will invoke WTO incompatibility arguments. However, this issue needs to be analysed in further detail. This contribution therefore sets out to examine precisely this question: to what extent does the EC legislature take into account substantive WTO obligations when legislating?

An exhaustive analysis of this question would necessitate examining the legislative history of all Community legislation. Furthermore, several situations would need to be distinguished: those situations where in the course of the decision-making process draft legislation was amended or provisions dropped on account of WTO obligations, those situations where objections based on WTO obligations were consciously put aside during the process, those where no thought was given to possible inconsistency with the WTO Agreements and, finally, those where WTO considerations were taken into consideration.