EC条約第300条第7項は、同条に従い締結された国際条約はECと加盟国を拘束すると定めるが、これは、当事国は条約を誠実に履行しなければならないとする国際法上の大原則(ウィーン条約法条約第26条(pacta
sunt servanta ))を明確にしたものである。EC条約第307条第1項は、EC条約が締結される前に、すでに加盟国が締結していた国際条約の優先性について定めているが(参照)、これも前掲の国際法上の原則に則している。
なお、pacta sunt servanta (合意は守られなければならない)の原則について、第1審裁判所は、Chiquita 判決(Case T-19/01)において、以下のように判断している。
[248] Even if
this plea could be interpreted as seeking to demonstrate that, without
infringing its obligations under the WTO Agreements, the Community nevertheless
acted without good faith, it must be rejected. The principle of Article 26 of
the Vienna Convention is a principle of international law on which the
applicant cannot rely in this case, given that the international agreement
whose performance in good faith it questions does not have direct effect.
[249] First of
all, the applicant cannot rely on the case-law derived from the judgment in
Opel Austria. That is not relevant here, since the judgment in that case
concerned not the pacta sunt servanda principle but Article 18 of the Vienna
Convention, which forbids the binding character of international agreements
from being evaded by measures adopted just before the entry into force of an
agreement which would be incompatible with the fundamental principles of that
agreement.
[250]
Nor can
the applicant rely on the judgment in Racke. There, the Court of Justice held
(paragraph 51) that ‘an individual relying in legal proceedings on rights which
he derives directly from an agreement with a non-member country may not be
denied the possibility of challenging the validity of a regulation which, by
suspending the trade concessions granted by that agreement, prevents him from
relying on it, and of invoking, in order to challenge the validity of the
suspending regulation, obligations deriving from rules of customary
international law which govern the termination and suspension of treaty
relations’. In this case, however, the applicant is not relying on rules of
customary international law which, by way of exception from the pacta sunt
servanda principle, govern the termination and suspension of treaty relations
by reason of a fundamental change in circumstances. Moreover, unlike the
international agreement at issue in Racke (paragraph 34), the provisions of the
WTO Agreements are not designed in principle to confer upon individuals rights
on which they may rely before the courts.
[251]
Finally,
the Biotechnologies judgment must also be dismissed here as irrelevant. In that
case, the plea alleging breach of international law was directed ‘not so much
at a direct breach by the Community of its international obligations, as at an
obligation imposed on the Member States by the [directive in question] to
breach their own obligations under international law, while [that directive]
itself claims not to affect those obligations’ (Biotechnologies, paragraph 55).
[252]
In any
event, this plea is incorrect on the facts. Contrary to what the applicant
claims, the Community cannot be regarded as having acted in bad faith following
the DSB ruling of 25 September 1997. The Community repealed the 1993 regime
after that DSB ruling in order to comply with its general obligations assumed
within the framework of the WTO Agreements. By Regulation No 1637/98, the
Council expressly entrusted the Commission with the task of adopting the
detailed rules for applying the trade regime with third countries, such rules
to include, according to Article 20(e) of Regulation No 404/93 as amended by
Regulation No 1637/98, ‘measures needed to ensure respect for obligations
stemming from agreements concluded by the Community under Article [300 EC]’.
The Commission was thus prevailed upon to define new detailed rules for
managing tariff quotas and allocating import licences, in the context of
Regulation No 2362/98.
[253] In the
WTO context, the Community subsequently undertook negotiations with its trading
partners, who were parties to the Bananas III dispute, with a view to finding a
mutually agreed solution in accordance with the provisions of Article 3.6 of
the DSU. In the preamble to Regulation No 216/2001, the Council thus states
that:
‘There have been numerous close contacts
with supplier countries and other interested parties to settle the disputes
arising from the import regime established by Regulation (EEC) No 404/93 and to
take account of the conclusions of the special group set up under the dispute
settlement system of the World Trade Organisation (WTO). Analysis of all the
options presented by the Commission suggests that establishment in the medium
term of an import system founded on the application of a customs duty at an
appropriate rate and application of a preferential tariff to imports from ACP
countries provides the best guarantees, firstly of achieving the objectives of
the common organisation of the market as regards Community production and
consumer demand, secondly of complying with the rules on international trade,
and thirdly of preventing further disputes. However, such a system must be
introduced upon completion of negotiations with the Community’s partners in
accordance with WTO procedures, in particular Article XXVIII of the General
Agreement on Tariffs and Trade (GATT). The result of these negotiations must be
submitted for approval to the Council which must also, in accordance with the
provisions of the Treaty, establish the applicable level of the Common Customs
Tariffs.’
[254] Those
circumstances do not support the conclusion that the Community did not act in
good faith. Similarly, the availing of remedies provided for by the DSU cannot
be treated as an abuse of procedure on the part of the Community.
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