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85
Omega criticises, first, the judgment in Case C-149/96 Portugal v
Council [1999] ECR I-8395, in which the Court held (paragraph 47)
that the WTO agreements are not in principle among the rules in the
light of which the Court is to review the lawfulness of measures
adopted by the Community institutions.
86 According to Omega, in examining the compatibility of Community
measures with international agreements, the Court distinguishes, in
paragraph 42 of Portugal v Council, according to whether they are
based on reciprocal and mutually advantageous arrangements or not.
Omega considers, however, that that distinction is unhelpful, as all
international agreements have such a basis.
87 Omega submits, second, in the alternative, that Article 2 of the
ATBT is sufficiently precise to have direct effect. As regards the
compatibility of the Regulation with that provision, it observes
that the criterion of by-pass ratio, fixed at 3 in the Regulation,
disregards several provisions of Article 2 of the ATBT.
88 It submits, to begin with, that Article 2(2) of the Regulation is a
technical regulation within the meaning of the ATBT. Next, paragraph 2.4
of the ATBT provides that, where technical regulations are required and
relevant international standards exist, Members are to use them, or the
relevant parts of them, as a basis for their technical regulations. Finally,
paragraph 2.8 of the ATBT urges Members, when drawing up technical regulations,
to base them not on the design and technical characteristics of the products
but rather on their performance, contrary to what the Regulation provides.
89 On this point, suffice it to say that Omega misunderstands the basis
of the Court's case-law. The decisive factor here is that the resolution
of disputes concerning WTO law is based, in part, on negotiations between
the contracting parties. Withdrawal of unlawful measures is indeed the
solution recommended by WTO law, but other solutions are also authorised,
for example settlement, payment of compensation or suspension of concessions
(see, to that effect, Portugal v Council, paragraphs 36 to 39).
90 In those circumstances, to require the judicial organs to refrain
from applying rules of domestic law which are inconsistent with the
WTO agreements would have the consequence of depriving the
legislative or executive organs of the contracting parties of the
possibility of finding negotiated solutions, even on a temporary
basis (see, to that effect, Portugal v Council, paragraph 40).
91 It follows that the WTO agreements, interpreted in the light of
their subject-matter and purpose, do not determine the appropriate
legal means of ensuring that they are applied in good faith in the
domestic legal order of the contracting parties (see Portugal v
Council, paragraph 41).
92 It is common ground, moreover, that some of the contracting
parties, which are among the most important trading partners of the
Community, have concluded from the subject-matter and purpose of the
WTO agreements that they are not among the rules in the light of
which their judicial organs are to review the lawfulness of their
rules of domestic law (see Portugal v Council, paragraph 43).
93 It follows from all the above considerations that, having regard
to their nature and structure, the WTO agreements are not in
principle among the rules in the light of which the Court is to
review the lawfulness of acts of the Community institutions (see
Portugal v Council, paragraph 47).
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