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Nakajima 判決理論の要件

リストマーク "intend to implement"

 Chiquita 事件 では、Nakajima 判決理論の要件について争われた。原告である Chiquita は、ECがある特別の義務に従うことを意図する(intent to comply)ことで足りると捉えているが(para. 89, 91)、他方、欧州委員会は、「従うこと」(to comply)ではなく、「履行する(実施する)」(to implement) ことが必要であると主張している(para. 106)。

 この問題について、第1審裁判所は、欧州委員会の見解に従っていると解される。Chiquita 判決 では、例えば、以下のように述べられている。

[167] So far as concerns the characteristics of Regulation No 2362/98, the evidence submitted by the applicant together with the Commission’s written and oral statements indicate that when adopting the 1999 regime, of which Regulation No 2362/98 forms part, the Community intended to comply with its obligations assumed under the WTO Agreements, following the DSB ruling of 25 September 1997 (Case T-254/97 Fruchthandelsgesellschaft Chemnitz v Commission [1999] ECR II-2743, paragraph 26). However, those factors do not show that the Community intended to implement obligations assumed in the context of the WTO Agreements within the meaning of the Nakajima case-law.

 なお、以下に引用するように、Nakajima 判決において、EC裁判所は "intend to comply" という表現を用いているが、事後の判決では、"intent to implement"  と判示されている。

リストマーク Nakajima 判決

[31] It follows that the new basic regulation, which the applicant has called in question, was adopted in order to comply with the international obligations of the Community, which, as the Court has consistently held, is therefore under an obligation to ensure compliance with the General Agreement and its implementing measures (see the judgments in Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, at paragraph 11, and in Case 266/81 SIOT v Ministero delle Finanze and Others [1983] ECR 731, at paragraph 28).

リストマーク Germany v Council 判決(Case C-280/93 [1994] ECR I-4973)

111 In the absence of such an obligation following from GATT itself, it is only if the Community intended to implement a particular obligation entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of GATT, that the Court can review the lawfulness of the Community act in question from the point of view of the GATT rules (see Case 70/87 Fediol v Commission [1989] ECR 1781 and Case C-69/89 Nakajima v Council [1991] ECR I-2069).

Portugal v Council 判決

[49] 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 WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules (see, as regards GATT 1947, Fediol, paragraphs 19 to 22, and Nakajima, paragraph 31).


リストマーク Petrotub 判決

[56] It is therefore established that the Community adopted the basic regulation in order to satisfy its obligations arising from the 1994 Anti-dumping Code and that, by means of Article 2(11) of that regulation, it intended to implement the particular obligations laid down by Article 2.4.2 of that code. To that extent, as is clear from the case-law cited in paragraph 54 of the present judgment, it is for the Court to review the legality of the Community measure in question in the light of the last-mentioned provision.
57 In that regard, it should be recalled that Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C-341/95 Bettati [1998] ECR I-4355, paragraph 20).

リストマーク 条約義務が具体的であること

 Chiquita 判決において、第1審裁判所は、以下に引用するように、Nakajima判決理論が適用されるためには、WTO諸協定上の義務は一般的(general)ではなく、具体的でなければならないとしている。

[158] As regards the WTO Agreements, the applicant claims that the Community has infringed Article XIII of the GATT 1994 and Articles II and XVII of the GATS, such infringement having been found by the DSB ruling of 25 September 1997 in relation to the 1993 regime and subsequently by the Panel ruling of 6 April 1999 and the arbitrators’ ruling of 9 April 1999 in relation to certain provisions of the 1999 regime contained in Regulation No 2362/98.

[159] However, those provisions of the GATT 1994 and the GATS contain no characteristics such as would support the conclusion that the Nakajima case-law applies. Article XIII of the GATT 1994 (‘Non-discriminatory Application of Quantitive Restrictions’), and Articles II (‘Most-Favoured-Nation Treatment’) and XVII (‘National Treatment’) of the GATS lay down principles and obligations which, by their wording, their nature and their scope are general in character. Those provisions thus clearly differ from those of the 1979 and 1994 Anti-Dumping Codes. In that respect, it is sufficient to recall, for example, that the preambles to Regulations Nos 3283/94 and 384/96 emphasised that the 1994 Anti-Dumping Code ‘contains new and detailed rules, in particular, with regard to the calculation of dumping, procedures for initiation and the subsequent investigation, including the establishment and treatment of the facts, the imposition of provisional measures, the imposition and collection of anti-dumping duties, the duration and review of anti-dumping measures and the public disclosure of information relating to anti-dumping investigations’.

[160] Moreover, neither the GATT 1994 nor the GATS imposes an obligation on its signatories to make an adaptation of their national law equivalent to that required by Article 16(6)(a) of the 1979 Anti-Dumping Code and Article 18(4) of the 1994 Anti-Dumping Code.

[161] Even if the applicant’s line of argument could be interpreted as seeking to rely on infringement by the Community of its obligation to implement the recommendations or rulings of the DSB, it cannot be accepted. Even though the Commission considers having regard to international law - that the DSU requires the losing party to bring a measure declared incompatible by a DSB ruling into compliance with the WTO Agreements, that obligation to ensure the conformity of internal measures with international undertakings arising from the WTO Agreements is undoubtedly of a general character, which contrasts with the rules of the Anti-Dumping Codes. Therefore, it cannot be relied on for the purposes of applying the Nakajima case-law.


リストマーク その他の要件