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Pacta sunt servanta


 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.