Traditionally, the ECJ has treated the international legal framework of the external trade law of the Community with judicial self restraint. Especially the GATT was perceived as a forum for interstate negotiations driven by the spirit of intergovernmental reciprocity. Thus, the ECJ has concluded that the GATT should be protected from intrusion by national authorities and cannot be invoked directly before the court. However, in the context of new developments, GATT and WTO-law are increasingly seen differently: International trade rules can serve as a quasi-constitutional constraint on excessive national trade policy. Basic principles such as the Most Favored Nation clause, the principle of non-discrimination and the prohibition of quantitative restrictions are reinterpreted as protection of economic rights of individuals rather than as protection of interstate reciprocity. Application of GATT-rules by national authorities is thus essential for the effective implementation of the “spirit” of GATT to fight a potential bias in favor of protectionism. This article comments on the historic conditions and the development of this fundamental change in the perception of the spitit of the GATT and tries to assess its consequences.
GATT; WTO; Uruguay round; common commercial policy; non-tariff barriers; non-discrimination; dispute resolution; law
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