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Chiquita 事件 の被告である欧州委員会は、Nakajima 判決理論の適用は例外的であり、主にダンピング防止規則に対する訴えにおいて適用されると主張しているが、第1審裁判所は、 以下のように述べ、ダンピング防止規則の分野でのみ適用が認められるというわけではないとしている。
[109] According to the Commission, for the Nakajima case-law to apply, four conditions must be met. [110] First, the ‘particular obligation’ in question must be a positive obligation to act in a certain manner. The GATT Anti-Dumping Codes are an example of that type of obligation. A recommendation or ruling by the DSB cannot be a ‘particular obligation’ because it imposes merely a general obligation to make measures WTO-consistent. It is for the contracting party in question to determine the measures intended to ensure compliance of its legal order with WTO rules. [111] Second, the Nakajima case-law applies only when the Community measure in question incorporates or transposes into the Community legal order a ‘particular obligation’ assumed in the WTO context. That interpretation flows directly from the expression ‘implement’. [112] Third, for the Nakajima case-law to apply, it is also necessary that the Community legislature should not be pursuing several conflicting objectives. [113] Fourth, the Nakajima case-law also requires that the Community measure in question make express reference to the particular WTO legal obligations it is intended to implement. Findings of the Court [114] Having regard to their nature and general scheme, the WTO Agreement and its annexes are not, in principle, among the rules in the light of which the Court of Justice and the Court of First Instance will review the legality of acts of the Community institutions (Portugal v Council, paragraph 47). Those texts are not of such a kind as to create in favour of individuals rights which they may use before a court by virtue of Community law (see, to that effect, Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307, paragraph 44). [115] It is only where the Community 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 agreements included in the annexes to the WTO Agreement, that it is for the Court of Justice and the Court of First Instance to review the legality of the Community measure in question in the light of the WTO rules (Portugal v Council, paragraph 49). [116] The applicant relies exclusively on the first of those exceptions. It claims that, by adopting Regulation No 1637/98, the implementing measures for which were defined by Regulation No 2362/98, the Community intended to implement a particular obligation assumed in the WTO context for the purposes of the case-law flowing from the Nakajima judgment. [117] The rule arising from the Nakajima judgment is designed, exceptionally, to allow individuals, in an indirect manner, to plead infringement by the Community or its institutions, of GATT rules or WTO agreements. As an exception to the principle that individuals may not directly rely on WTO provisions before the Community judicature, that rule must be interpreted restrictively. [118] It should be noted in that respect that, so far as actions by individuals are concerned, the Court of Justice and the Court of First Instance have not applied the Nakajima principle in a context other than that of indirectly reviewing the compliance of anti-dumping basic regulations with the provisions of the 1979 and 1994 Anti-Dumping Codes (Agreement on implementation of Article VI of the GATT 1994; Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), OJ 1994 L 336, p. 1, Annex 1 A). [119] The Court of Justice and the Court of First Instance have, on a number of occasions, examined pleas concerning the compatibility of anti-dumping regulations with the Anti-Dumping Codes (Case C-105/90 Goldstar v Council [1992] ECR I-677, paragraph 31 et seq.; NMB v Commission, paragraph 23; NTN Corporation v Council, paragraph 65; and NMB France and Others v Commission, paragraph 99) and have twice upheld such pleas (Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79, paragraph 52 et seq.; Case T-256/97 BEUC v Commission [2000] ECR II-101, paragraph 63 et seq.). [120] However, outside that particular context of anti-dumping disputes, the Court of Justice and the Court of First Instance have declined to apply the Nakajima case-law. They have also declined to review the legality of a Community act in the light of the provisions of the WTO Agreements in the context of actions by individuals challenging certain aspects of the common organisation of the market in bananas (order of 2 May 2001 in Case C-307/99 OGT Fruchthandelsgesellschaft [2001] ECR I-3159; judgments in Cordis v Commission; Bocchi Food Trade International v Commission; and Case T‑52/99 T. Port v Commission), and of Community legislation concerning the administration of hormonal substances to farm animals (judgments in Case T-174/00 Biret International v Council [2002] ECR II-17, and Case T-210/00 Biret et Cie v Council [2002] ECR II-47). [121] It should be noted that in the anti-dumping area the relevant GATT and WTO agreements imposed a direct obligation on each of the contracting parties to adapt their national legislation so as to reflect the content of those agreements. The 1979 Anti-Dumping Code, in an Article 16(6)(a), headed ‘National legislation’ required the contracting parties to take ‘all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of this Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Party in question’ (Decision 80/271). Article 18(4) of the 1994 Anti-Dumping Code contains similar provisions. [122] In order to comply with those obligations, the Council amended the legislation applicable to anti-dumping procedures. Thus, after the adoption of the 1979 Anti-Dumping Code, the Council adopted Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1979 L 339, p. 1). It is apparent, in particular from the preamble (third and fourth recitals) to that regulation, that Community rules defending against dumped imports had to be amended in the light of the agreements which emerged from the multilateral trade talks concluded in 1979 at the end of the Tokyo Round, the Council considering it ‘essential, in order to maintain the balance of rights and obligations which these agreements sought to establish, that the Community take account of their interpretation by the Community’s major trading partners, as reflected in legislation or established practice’. The preamble to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1), the compatibility of which with the 1979 Anti-Dumping Code was challenged in Nakajima, contained identical provisions and also stated that the common rules for protection against dumped or subsidised imports ‘were adopted in accordance with existing international obligations’, in particular those arising from Article VI of the GATT and the 1979 Anti-Dumping Code. [123] Similarly, following the conclusion of the 1994 Anti-Dumping Code, the Community amended its internal rules concerning anti-dumping procedures by successively adopting Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1) and then Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1). The preamble to Regulation No 3283/94 indicated that, following the conclusion of multilateral trade negotiations in 1994’it [was] appropriate to amend the Community rules in the light of [those] new Agreements’ (third recital). The preamble states that, in order to maintain ‘the balance of rights and obligations which the GATT Agreement establishes’, it is ‘essential that the Community takes account of their interpretation by [its] major trading partners’ (fourth recital). It further emphasises that ‘in view of the extent of the changes [arising from the 1994 Anti-Dumping Code] and to ensure an adequate and transparent implementation of the new rules, it is appropriate to transpose the language of the new agreements into Community legislation to the extent possible’ (fifth recital). Those provisions were maintained in the preamble to Regulation No 384/96, which was the relevant regulation in Petrotub and Republica. [124] The applicant rightly argues that application of the Nakajima case-law is not, a priori, limited to the area of anti-dumping. It is capable of being applied in other areas governed by provisions of the WTO Agreements where those agreements and the Community provisions whose legality is in question are comparable in nature and content to those just referred to above concerning the Anti-Dumping Codes of the GATT and the anti-dumping basic regulations which transpose them into Community law. [125] Therefore, the condition for applying the Nakajima case-law to the effect that the Community measure whose legality is challenged must have been adopted for the purpose of ‘implementing a particular obligation assumed in the context of the WTO Agreements’ requires, in particular, that that measure specifically transposes prescriptions arising from the WTO Agreements into Community law.
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