EUSA Ninth Biennial International Conference
Austin, Texas
March 31-April 2, 2005










The European Union and WTO Dispute Settlement: in search of a 
normative framework for autonomous measures

Work in progress – please let me know should you wish to quote











Antonis Antoniadis
Table of contents

1.	Introduction	2
2.	The US – 1916 Anti-Dumping Act case	4
3.	The Regulation	6
4.	Analysis of the Regulation's legality under Community law	9
4.1.	Legal basis	10
4.2.	Content	18
4.3.	Context	20
5.	Analysis of the Regulation's legality under WTO law	24
6.	Conclusions	29

1.	Introduction

The WTO provides a forum for the resolution of disputes where recourse to unilateralism is 
discouraged. This does not only accrue form the provisions of the Dispute Settlement 
Understanding (DSU) which contain a strict and detailed procedure requiring resort to prior 
authorization by the Dispute Settlement Body (DSB), but is complemented by Article 23 
DSU, entitled "Strengthening the multilateral system", which explicitly advocates the 
multilateral character of the system, emphasizes the strict adherence to the provisions of the 
DSU and anticipates problems at the operation of this procedure.  A WTO Member, once 
availing itself of the provisions of the DSU in order to resolve an outstanding dispute with 
another WTO Member, undertakes to follow religiously the procedures enshrined therein. 
While the DSU, not immune from gaps and inefficiencies, could be interpreted to provide a 
complete set of rules,  the two major trading partners within the WTO, namely the USA and 
the EC, have on several occasions stretched the interpretative boundaries of the DSU 
provisions and took, or threatened to take, a deviant path away from the DSU framework.  
From an EC perspective, autonomous measures of a unilateral character are gradually 
establishing themselves as essential arrows within the Union's trade quiver so much so that 
recently practice demonstrates an inclination to adopt unilateral measures in anticipation of a 
WTO dispute rather than in the course of actual litigation.  

The remark made above instigates a broad discussion over the relationship between 
autonomous measures and international dispute settlement and in particular, the past, present 
and future of WTO Dispute Settlement. The broader repercussions to the relationship will be 
evinced by virtue of an analysis focussed on a particular case where autonomous measures 
have been adopted by the EC. The case in hand concerns the measures taken by the EC in 
order to respond to the non-compliance by the US with the unfavourable ruling delivered by 
the WTO Dispute Settlement Body in the dispute US - 1916 Anti-Dumping Act.  In particular, 
the longstanding dispute concerns an EC complaint against the United States over the latter's 
Anti-Dumping Act of 1916 (the Act).  Having exhausted all stages of the WTO Dispute 
Settlement system since the EC requested consultations in June 1998 and faced with delays in 
compliance by the US, the Council adopted Regulation 2238/2003 (the Regulation) in 
response.  The Regulation is an autonomous measure adopted following the internal EC 
procedure. The DSB granted no authorization for this measure, nor has any authorization been 
requested. In this sense, the Regulation represents a unilateral measure taken in the margin of 
an ongoing WTO Dispute. In the analysis that follows its legality shall be assessed in the light 
of the overlapping frameworks established by the WTO and EC legal orders.

2.	The US – 1916 Anti-Dumping Act case

The 1916 Anti-dumping Act which forms the subject-matter of the Community's complaint 
provided that 
"It shall be unlawful … to import, sell or cause to be imported or sold such 
articles within the United States at a price substantially less than the actual 
market value or wholesale price of such articles, …, : Provided, that such act 
or acts be done with the intent of destroying or injuring an industry in the 
United States, or of preventing the establishment of an industry in the United 
States, or of restraining or monopolizing any part of trade and commerce in 
such articles in the United States. Any person who violates or combines or 
conspires with any other person to violate this section is guilty of a 
misdemeanour, and, on conviction thereof, shall be punished by a fine not 
exceeding $5,000, or imprisonment not exceeding one year, or both, in the 
discretion of the court. Any person … may sue … and shall recover threefold 
the damages sustained, and the cost of the suit, including a reasonable 
attorney's fee."  
The EC considered that these provisions were incompatible with WTO law,  and on 4 June 
1998, the EC requested consultations with the US in respect of the latter's alleged failure to 
repeal its Anti-Dumping Act of 1916.  At the EC's request a panel was established by the 
DSB on 1 February 1999.  In its report, circulated to Members on 31 March 2000,  the panel 
considered that the 1916 Act violated Articles VI:1 and VI:2 of the GATT 1994, Articles 1, 4 
and 5.5 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. On the 
appeal by the US, the Appellate Body upheld all of the findings and conclusions of the panel 
that were appealed. 

After the adoption of the Appellate Body report and the Panel report by the Dispute 
Settlement Body (DSB), the US stated that it was its intention to implement the DSB's 
recommendations and rulings, it would however require a reasonable period of time for 
implementation and would consult with the EC and Japan on this matter.  The resulting 
arbitration pursuant to Article 21.3(c) of the DSU set the reasonable period of time in this 
case at 10 months, expiring on 26 July 2001, but was extended by the DSB until 31 December 
2001 or the end of the current session of the US Congress, whichever earlier. On 7 January 
2002, on the grounds that the US had failed to bring its measures into conformity within the 
reasonable period of time, the EC and Japan requested authorisation to suspend concessions 
pursuant to Article 22.2 of the DSU. Both Members proposed that the suspension of 
concessions takes the form of an equivalent legislation to the Anti-Dumping Act of 1916 
against imports from the US. The US objected to the levels of suspension of obligations 
proposed by the EC and Japan and the matter was referred to arbitration, in accordance with 
Article 22.6 of the DSU which was suspended during the parties' efforts to find a mutually 
satisfactory solution.  

Faced with the repeated foot-dragging by the US to pass legislation that would repeal the Act 
and, having retroactive effect, would apply to all cases pending in US courts at the time 
against EC and Japanese exporters, the EC and Japan noted that proceedings against some of 
their companies were about to resume and that it was imperative for swift action to be taken 
by the United States to prevent the EC and Japanese companies from incurring huge expenses 
in order to defend themselves under legislation which had been found to be inconsistent with 
WTO rules. Given that no legislation repealing the Act and terminating cases pending before 
the US courts had been adopted, on 19 September 2003 the EC requested the Arbitrators to 
reactivate the arbitration proceeding. The decision by the Arbitrators was circulated to 
Members on 24 February 2004. In light of the fact that the nullification or impairment results 
from the 1916 Act "as such", and not from particular instances of application of that law, the 
Arbitrators decided to set a number of parameters  ((i) damages paid by EC companies as a 
result of judgments under the 1916 Act and (ii) amount of any settlement reached between an 
EC company and a US complainant pursuant to a 1916 Act complaint) with which the EC will 
have to comply when calculating by itself the amount of countermeasures it plans to impose, 
rather than setting a fixed value of trade which the EC should not exceed when suspending its 
WTO obligations against the US.   On 3 December 2004, before any retaliatory measures 
were taken by the EC and Japan, a provision repealing the Act – with prospective effect - was 
signed into law by President Bush.  

3.	The Regulation 

It could be argued on the basis of the chronological account analysed above that, despite any 
delays and shortcomings, the resolution of this dispute constitutes a triumph of 
multilateralism and of the WTO Dispute Settlement system in particular. This proposition 
could not be further from the truth. Faced with the protracted unwillingness of the US to 
conform with the rulings of the Panel and Appellate Body by repealing the Act or amending 
the WTO-inconsistent provisions thereof and despite the forthcoming authorization for 
countermeasures in the form of WTO-inconsistent anti-dumping legislation by the DSB, an 
additional line of defence was devised by the EC. Two months after it had reactivated the 
Article 22.6 arbitration and while arbitration was still pending, the EC considered that it 
would be more efficient to take additional measures against American industries involved in 
the American disputes against the European companies. Acting on the basis of Article 133 EC 
Treaty (Common Commercial Policy), the Council adopted the Regulation under scrutiny in 
this study.  The objectives of the Regulation, enshrined in its preamble, are to coerce the 
United States of America to repeal the Act whose maintenance and application impedes the 
harmonious development of world trade,  to protect persons under the jurisdiction of the 
Member States against whom claims under the Act are pending before US courts which are 
causing substantial litigation costs and may ultimately result in a judgment awarding treble 
damages,  to protect the established legal order and the interests of the Community and of 
natural or legal persons exercising rights under the Treaty,  and, under these exceptional 
circumstances, to do so by removing, neutralising, blocking or otherwise counteracting the 
effects of the Act. 

In order to achieve these objectives two measures are promulgated in the Regulation: a 
negative ('the blocking provision') and a positive measure ('the clawback provision'). The 
blocking provision prohibits the recognition and enforcement of judgments and decisions by 
administrative or judicial authorities rendered in the US giving effect to the Act.  The 
clawback provision grants the affected Community industries the right to recover any outlays, 
costs, damages and miscellaneous expenses as a result of the application of the Act.  
Recovery may be obtained from any person or entity that brought the claim under the Act.  
Recovery may take the form of seizure and sale of assets held by the defendant, including 
shares in a legal person incorporated in the Community. 

It is not the first time that such measures have been taken in international relations. The origin 
of the blocking provision can be traced in the US anti-boycott regulations adopted in response 
to the Arab boycott of Israel. The US anti-boycott regulations however did not contain any 
clawback provisions for the compensation of those firms penalised by the boycotting 
countries.  The first instance when the clawback provision has been noted was the UK 
Protection of Trading Interests Act of 1980.  The UK Act had been adopted so as to 
counteract the multiple damages awarded by US Courts in anti-trust cases and provide for the 
recovery of the damages actually suffered.  In the EC legal framework, the first attempt to 
adopt such a legal instrument took place in 1982 when the US Government prohibited the 
Community to use US technology at the construction of the Siberian gas pipeline. The 
Community then made a formal 'dιmarche' complaining against the US but no 
countermeasures were taken at a Community level.  

The first successful use of these provisions by the Community took place in 1996, when, in 
the course of another WTO dispute, the Helms-Burton Regulation was adopted   in order to 
counteract the effects of the notorious Helms-Burton Act.  The Helms-Burton Regulation's 
provisions are essentially reproduced by the 2003 Regulation.  It should be mentioned here 
that the Community was not alone in adopting measures as Canada and Mexico had also put 
similar legislation in place for the same reason.  It should be admitted however, that neither 
the Community nor any other party attracted serious criticism for the adopted measures owing 
to the furore caused by the adoption of the extraterritorial measures by the US which, in the 
opinion of several commentators, were also fundamentally misguided on a political level.  In 
addition, the Regulation was hardly put to the test due to the continuous suspension of the 
application of the Helms-Burton Act. 

Having been adopted in the context of an ongoing WTO dispute, having Article 133 EC as its 
legal basis and having the content analysed above, the Regulation raises several questions 
which go further than the discourse on multilateralism within the legal framework established 
by the WTO. In fact, the first question to be asked is whether the Regulation is consistent with 
Community law. The answer is dependent on the choice of Article 133 as the legal basis for 
its adoption, the Regulation's content and the context within which the measures enshrined in 
the Regulation were adopted, namely the Trade Barriers Regulation (TBR).  The second 
question is the legality of the Regulation in WTO law. Accordingly, their legality shall be also 
assessed under the WTO rules and in particular those enshrined in the WTO DSU. The 
analysis of the conformity of the Regulation with WTO law, apart from its standalone merit, 
affects the answer to the question of legality in Community law since the TBR explicitly sets 
the multilateral trading rules, and in particular those of the WTO, as the Community's 
normative benchmark. As a consequence, the Regulation's legality in Community law shall 
also be affected by the conclusion drawn regarding its legality under WTO law.

4.	Analysis of the Regulation's legality under Community law

As mentioned above, the Regulation is based on Article 133 EC Treaty. Article 133 contains 
the rules for the exercise by the Union of its Common Commercial Policy (CCP) and 
represents the basic source of authority for the EC to conduct of its external trade relations. 
As such it represents the mechanism which enables EC to assert its rights on the international 
trading plane and, most notably, participate in the WTO Dispute Settlement system. The first 
question to be answered therefore is whether the Regulation is validly based on Article 133. 
The answer forms part of broader considerations on the nature and scope of the CCP and the 
measures that can be taken in its application. Conflicting considerations include the Columbus 
egg dilemma which ponders over whether a measure taken in the course of an ongoing WTO 
dispute is a Commercial Policy measure its content regardless or whether the content of the 
measure will determine its nature as a commercial policy measure. The question of the scope 
of the Common Commercial Policy (CCP), enshrined in Article 133 EC Treaty, has been 
central in the seminal Opinion 1/94  and the Treaty amendments in Amsterdam, Nice and the 
Constitutional Treaty. As is well known, the Common Commercial Policy can be 
implemented by both the conclusion of international agreements and the adoption of 
autonomous measures.  Article 133 can form the legal basis for both. While contractual and 
autonomous Commercial Policy run in parallel, a gradual deviation from the principle of 
parallelism has been noted since the Treaty of Amsterdam amendments. While the scope of 
the CCP was extended to cover negotiation and conclusion of international agreements on 
services and IP, the adoption of internal measures on the same subject-matter was still based 
on the appropriate internal legal bases.  The question on the scope of the CCP in the case-law 
was primarily concerned with the scope of Article 133 for the purposes of the conclusion of 
international agreements.  

The current case presents a major novelty: it deals not with the conclusion of an international 
agreement but the adoption of internal measures. In this sense, it is not the width of the 
common commercial policy as seen in the debate of the 90s and whether it covers trade in 
services and IP but rather the depth of its scope with particular focus on the nature of the 
measures which can be taken under the CCP. Based on Article 133(1), the adoption of 
commercial defence measures, such as the imposition of anti-dumping and countervailing 
duties, has been uncontroversial. The provisions of the Regulation however, necessitate a 
broader discussion. 

4.1.	Legal basis

The theoretical underpinnings the debate have been divided into an instrumentalist and an 
objective approach.  The former makes the choice of the legal basis for a measure dependent 
on its function and the latter on its aim. A lot could be said about the conflict but it is obvious 
in the post-Opinion 1/94 case-law that the Court tends to favour the objective approach. In 
connection with this statement the following question arises: do the measures contained in the 
Regulation belong to the Common Commercial Policy only because they relate to an 
international trade dispute or should their content determine the nature of the measures and 
accordingly, their potential legal basis? The issue of the nature of the measures is not 
unrelated to the issue of interpretation of the exclusivity of Community competence in 
relation to the competence of the Member States. A distinction should be drawn here between 
exclusivity of the CCP for the conclusion of international agreements and the adoption of 
internal measures. While Member States are precluded from concluding international 
agreements with third countries as those may affect the internal market, they are not precluded 
from adopting internal measures affecting international trade to the extent which they are 
allowed to do so in the internal market context. For example, Member States enjoy the 
competence to enact domestic rules imposing restrictions on goods originating in other 
Member States insofar as these rules protect the public interest requirements of Article 30 EC 
Treaty.  Those national rules would have been rendered meaningless had Member States not 
been allowed to impose the same restrictions on goods originating in third countries.  Had 
the instrumentalist approach been favoured by the Court, Member States would have been 
precluded to adopt these measures as they affect international trade. The exclusivity of 
Community competence only ensues in the internal market when the field is exhaustively 
regulated by common rules. As far as the contractual action of the Community is concerned, 
this is assumed a priori.  

With the above in mind, an examination of Article 133 as the legal basis for the Regulation 
must be examined. The Court of Justice has been persistent in its case-law that the "legal 
basis shall be adopted on the basis of objective factors amenable to judicial review".  With 
regard to the CCP, the Court has consistently held that the Community institutions enjoy a 
margin of discretion in their choice of the means needed to achieve the common commercial 
policy.  In 1987, analysing the instruments of Common Commercial Policy, Bourgeois wrote 
"Import duties, surveillance, anti-dumping and countervailing duties, and quantitative 
restrictions imposed as protective measures may not always be appropriate or even possible. 
To further the common commercial policy interest, other actions and measures may be 
necessary. Legislation should be adopted under Article 113, e.g. to protect the commercial 
policy interests against boycott and against other actions by third countries, or act against 
trade in counterfeit goods".  This proposition must have been, in all probability, the starting 
point of the Commission's reasoning favouring the adoption of such a measure on the basis of 
Article 133. 

The Commission has many reasons for choosing Article 133 as the legal basis and would 
certainly be supportive of Bourgeois's proposition: First, the effectiveness of Community 
action at the handling the US – 1916 Anti-Dumping Act dispute is a fundamental 
consideration. Effectiveness could be facilitated if the Union's response to the United States' 
unwillingness to comply with the DSB rulings is informed by the same people and procedures 
and, more importantly, under exclusive Community competence, under qualified majority and 
without the involvement of the European Parliament. Second, closely linked to effectiveness 
is the uniformity of external trade action which in the case of the common commercial policy 
is safeguarded as it flows directly from the text of the Treaty. It has been acknowledged by 
the Court  and supported by the Commission. The basic consideration behind the principle of 
parallelism and the principle of exclusivity with regard to the internal powers doctrine was to 
safeguard the principle of uniformity and the armouring of the Single Market by providing the 
same site of decision-making, meaning that the EC should legislate with regard to the same 
subject matter internally and externally.

However, both effectiveness and uniformity as grounds for resort to Article 133 should be 
examined against the historical evolution of the CCP. Constitutionally, the Union has made 
strides since the 70s. The narrow scope of the EC Treaty coupled with the broad interpretation 
of Article 133 by the Court of Justice in the 70s afforded the perception of Article 133 as a 
broad and all-encompassing legal basis for external economic activity.  Since then, the 
failure of the Commission to achieve a formal recognition of this in the successive Treaty 
amendments in juncto with the broadening of the scope of the Treaties that those amendments 
brought rendered Article 133 EC untenable as a general external relations legal basis. The 
Constitutional Treaty seems to change little in this process except for the fact that the CCP is 
granted a broader scope and competence conferred by virtue of its provisions is exclusive to 
the Union for all aspects of trade including services, IP and investment. Regarding uniformity, 
it has been witnessed in the development of the case-law, reflected in the constitutional 
development of the Union and has been pointed out by commentators,  uniformity is not 
critical for the effective operation of the internal market. 

Another argument for resort to Article 133 as the legal basis, is that indeed the Regulation is 
an unfair trade instrument.  Is Regulation 2238/2003 a commercial defence instrument? A 
literal interpretation of Article 133(1) indicates that it could be. The reference to "measures to 
protect trade such as those to be taken in the event of dumping or subsidies" permits an 
interpretation which extends the choice of commercial defence instruments not only to the 
traditional anti-dumping and anti-subsidies duties but also any other measure which is taken 
in order to protect trade. Traditionally, however, it has been anti-dumping and countervailing 
duties and safeguards which were considered falling within the commercial defence 
instrument term to such a degree that commentators suggested that it covers only those.  The 
same conclusion may be drawn should the Regulation be examined in the light of the rules 
governing commercial defence instrument within the multilateral trading system. Indeed, the 
Annexes to the WTO Agreement provide a restrictive list of mechanisms in order to protect 
trade and those include the Anti-dumping, Anti-subsidies and Safeguard Agreements. 

An additional argument in favour of Article 133 as the legal basis would advocate that 
because of the "open nature" of the CCP,  autonomous measures may be taken by the 
Community even if their subject matter is covered by other provisions of the Treaty.  This 
has been the case for trade measures taken in the field of development cooperation   or trade 
measures with foreign policy implications.  Even if it were to be accepted that the Regulation 
concerns trade, the insertion of Articles 301 and 181a in the EC Treaty puts the above 
propositions in doubt.

The content of the Regulation as such could hardly be characterised as a commercial policy 
measure. Viewed outside their context, the blocking provision whereby the EC prohibits the 
recognition and enforcement of judgments by US courts is a private international law matter. 
The clawback provision granting a remedy to affected European companies enabling them to 
obtain damages by having recourse to the assets of US companies held in the Community 
territory is more difficult to characterise.  While it has obvious repercussions to the operation 
of the internal market there is considerable difficulty basing it on the narrow provision of 
Article 133(1).

The choice of legal basis created difficulties in the Helms-Burton case too.  The Helms-
Burton Regulation was complemented by a Joint Action under the CFSP  in order to ensure 
that the Member States take the necessary measures to protect those natural or legal persons 
whose interests are affected by the aforementioned laws and actions based thereon, insofar as 
those interests are not protected by this Regulation.  The Regulation is based on ex Articles 
73c, 113 and 235 EC Treaty.  At the choice of legal basis the Council examined several 
options but it was clear at the outset that the measures proposed went far beyond the common 
commercial policy and the use of Article 133 as the sole legal basis was readily dismissed.  It 
was thought that it had broader policy considerations and its main objective was to secure the 
operation of the common market.  In the context of the Helms-Burton Regulation, the 
Council also considered its adoption on the basis of Article 301 EC Treaty. This was rejected 
in the Council as the Helms-Burton regulation was not aimed at interrupting economic 
relations with the United States.  In the case of the Regulation at stake, Member States in the 
Council wishing to minimise anything stemming for the Helms-Burton Regulation model 
destined to cause controversy, have slashed anything in the Regulation perceived as a 
potential source of problem. This included the need for Joint Action under Title V and all 
other legal bases under the EC Treaty. Some substantive provisions have also fallen victim of 
this race to the bottom in the Council. 

The only defence for Article 133 as the chosen legal basis is that this is a measure taken 
against an anti-dumping measure taken by another state. Indeed, contrary to the US 
contentions, the Act has been found to be an anti-dumping measure. As such, measures taken 
against it should be considered as commercial policy measures. This approach tends to favour 
the instrumentalist approach and does not sit comfortably with the Court's case-law on the 
matter.

Should Article 133 be considered as an inappropriate legal basis for the adoption of such 
measures what would the correct legal basis be? Regarding the blocking provision, it should 
be recalled that in the aftermath of the Treaty of Amsterdam amendments the Community was 
granted competence in the field of Justice and Home Affairs including the recognition and 
enforcement of judgments. To this end, the Community has adopted Council Regulation 
44/2001 (the Brussels Regulation).  The adoption of the Brussels Regulations lay down 
common rules internally, in the AETR sense,  and empowers the Community to act externally 
in the field occupied by those rules. It is not clear whether this competence is exclusive but 
there is a request currently pending in the Court of Justice for an Opinion pursuant to Article 
300(6) on whether the Community has exclusive competence to conclude the Lugano 
Convention, which is a parallel Convention to the 1968 Brussels Convention.  It should be 
relatively difficult to argue that the Community enjoys exclusive competence at the 
conclusion of the Lugano Convention, at least not for the whole subject-matter of the 
Convention, but it is difficult to surmise the terms in which the Court is expected to phrase its 
Opinion.

Be that as it may, it can be argued that the Community has competence in the field of 
recognition and enforcement of judgments and therefore, the blocking provisions should be 
adopted having Articles 61(c) and 67(1) EC Treaty as its legal basis. Those provisions are at 
disadvantage compared to Article 133 as they do not serve the interests of effectiveness and 
uniformity equally well. In particular, their choice would require unanimity in the Council 
which may complicate the achievement of an agreement, the competence over the subject 
matter is shared with the Member States while it requires the participation of the European 
Parliament in the process. Further, issues of the functioning of internal market would arise, as 
Denmark is excluded from the application of Title IV EC Treaty. The importance of the 
exception of Denmark from the application of the Brussels Regulation  could hardly be 
understated. This is illustrated by current practice in the field of Justice and Home Affairs and 
the exclusion of Denmark from the application of international agreements concluded in the 
field of Title IV.  There are no companies involved in the US proceedings which, in the 
knowledge of the author, are established in Denmark. In terms of principle however, the 
choice of 61(c) and 67(1) as the legal basis would give a competitive disadvantage to the 
Danish companies and affect the functioning of the internal market. On the issue of 
exclusivity, the importance of the choice of correct legal basis does not only serve the inter-
institutional balance but also the special derogations afforded to specific Member States. This 
issue is of importance in the future construction of the European Union as a multi-speed 
Europe. If exclusivity represented a formula enabling the Community to function effectively 
on the international place and at the same time protect the uniform operation of the internal 
market, the reason for its maintenance seems to have been rendered obsolete by the prevailing 
trend of differentiation. Practice so far under Justice and Home Affairs has taken into account 
the special position of Denmark. It is interesting to see that the special position is important 
only insofar as it extends to the issue of competence and the validity of the obligation as such. 
Simply put, in the recent agreement on the readmission of persons residing without 
authorisation concluded between the European Community and Hong Kong,  there is a joint 
declaration annexed to the text of the agreement providing "The Contracting Parties take not 
that this Agreement does not apply to the territory of the Kingdom of Denmark. In such 
circumstances it is appropriate that the Hong Kong SAR and Denmark conclude a 
readmission agreement in the same terms as this Agreement."  There are several questions 
which are raised by this declaration. Although the preamble to Council decision concluding 
the Agreement refers to the special position of the Denmark and the fact that Denmark is 
neither bound by this decision nor subject to its application, it is clear that the legal soundness 
is subordinated to the effectiveness of the application of the Agreement with Hong Kong in 
the Community. Therefore, by virtue of the Decision taken in Denmark's formal absentia 
there is a political obligation imposed on it to conclude a readmission agreement with Hong 
Kong and to frame this agreement "in the same terms" as the one concluded by the 
Community. With reference to the current analysis, this example offers little comfort to the 
fact that the special position of Denmark has the following ramifications if the Regulation was 
adopted under Articles 61(c) and 67(1) EC Treaty. If this were the case, the Regulation would 
exclude Denmark from its application and accordingly, a judgment recognised in Denmark 
could be automatically enforced in all other Member States under the Brussels Convention 
which applies between Denmark and the other Member States with regard to recognition and 
enforcement of judgments in civil and commercial matters. However, were the Regulation to 
be adopted under Article 61(c) and 67(1), Denmark could deny the recognition and 
enforcement of a judgment rendered thereunder on grounds of public policy.  Despite 
potential problems evident in the above analysis, Articles 61(c) and 67(1) constitute the 
appropriate legal basis for the blocking measure. 

Regarding the clawback provision, the situation is far more complicated. A preliminary issue 
which needs to be resolved is the nature of the right created by Article 2 of the Regulation. 
The same analysis made under the blocking provision in order to reject Article 133 as the 
legal basis should be also applicable here. Such measure could hardly fall within the scope of 
Article 133(1). Accordingly, from an EC perspective, it is difficult to find a basis in the 
Treaty for the creation of these rights under the Regulation and equally difficulty to determine 
the nature of the rights thereof. As it is unclear whether the right created is a right in tort or a 
right conferred by public law, it is also unclear whether the issue falls within the issue of 
jurisdiction and enforcement in "civil and commercial matters". The Helms-Burton 
Regulation provided that recovery could be obtained from the natural or legal person or any 
other entity causing damages or from any person acting on its behalf or intermediary and 
determined the Brussels Convention as applicable.  The Regulation, on the other hand, 
provides that "Recovery may be obtained from the natural or legal person or any other entity 
related to that person or entity. Persons or entities shall be deemed to be related if: (a) they are 
officers or directors of one another's businesses; (b) they are legally recognised partners in 
business; (c) one of them controls directly or indirectly the other; (d) both of them are directly 
or indirectly controlled by a third person"  and mentions nothing with regard to the 
application of the Brussels Regulation. The Brussels Regulation will provide the applicable 
rules on jurisdiction if the right created by the Regulation fits within the "civil and 
commercial matters" classification which means that even if the respondent is not domiciled 
in any Member State then the Brussels Regulation will apply.  Courts of the Member States 
would assume jurisdiction under the provisions of the Brussels Regulation and the same rules 
would apply for the recognition and enforcement of the judgments rendered to all other 
Member States where assets of the respondent US companies could be located. Although it is 
inconclusive as to whether the clawback provision could be characterised as covered by the 
Brussels Regulation, Articles 61(c) and 67(1) must be considered as candidate legal bases. If 
this argument is dismissed, bearing in mind that the clawback provision clearly affects the 
operation of the common market, as with the Helms-Burton Regulation, Article 308 EC 
should be added as a legal basis.  

4.2.	Content

The basic problems the content of the Regulation raises in Community law are the 
extraterritorial reach of its provisions and the creation of rights for private parties with 
unwarranted basis on either international or Community law. In addition, even if Article 133 
is considered as the correct legal basis, the measures run counter to the objectives of the 
Common Commercial Policy which are the harmonious development of world trade, the 
progressive abolition of restrictions on international trade and the lowering of customs 
barriers. 

The means chosen in the Regulation contain a clear element of extraterritoriality. While there 
is no obligation incumbent of either the Community or the Member States to recognise 
judgments rendered by US courts, this is what normally happens on grounds of international 
comity. While the Brussels Regulation provides for exceptions to the recognition and 
enforcement of judgments rendered by the courts of the Member States on grounds of public 
policy,  the concept does not have a uniform interpretation in different Member States. 
Assuming that what the Regulation does is to harmonise the concept of public policy there are 
two possible side-effects. First, assuming that the Community has the competence to 
harmonise the principle of public policy in so far as it concerns the recognition and 
enforcement of foreign judgments this harmonisation should only take place under the 
appropriate legal bases, Articles 61(c) and 67(1) EC Treaty. Meanwhile, the threshold for 
public policy in Community private international law is set very low. When the courts of 
other WTO members apply WTO-inconsistent rules their judgments shall not be recognised in 
Community law. In addition, when these judgments impose financial penalties or fines the 
affected Community industries shall be entitled to compensation. This, apart from de facto 
ousting the jurisdiction of the US courts to apply their laws, it pre-empts their jurisdiction to 
hear claims for damages suffered by the EU companies. The relationship between the Courts 
of the Member States and the US Courts then becomes problematic as can be seen in the 
context of anti-trust litigation. For example, in the famous Laker Airways litigation, in 
Laker's appeal in the House of Lords against a decision based on the 1980 Protection of 
Trading Interests Act, whose terms the Regulation mirrors, the House of Lords held that 
English Courts had no power to block the exercise of judicial power by the US Courts as long 
as the US Courts had jurisdiction.  

The creation of rights for individuals is equally problematic with regard to the direct effect of 
WTO law. As is well known, the Court of Justice has consistently held that WTO rules are 
not capable of conferring rights on individuals.  Similarly to the EC legal order, WTO law 
does not grant rights to individuals from the point of view of the US legal order. Bearing in 
mind that the breach of WTO rules is the source of the Community action, the Regulation 
establishes an, otherwise non-existent, link between WTO rules and individuals. In 
connection with the discussion on extraterritoriality, the Council creates WTO-based rights in 
a foreign legal order at the same time as it denies those rights in the EC legal order.  

Suppose that WTO rules confer rights on individuals, what are the rights in this case? EU 
companies can recover the fines imposed, the litigation costs and the amount of any 
settlement. The latter two relate to the future as there haven't been any cases where fines were 
actually imposed against EC companies nor any case has settled. Regarding the claim for 
litigation costs, the request to be calculated at the determination of the level of nullification or 
impairment has been declined by the arbitrator whose report was issued his Report three 
months after the adoption of the Regulation.   Assuming, contrary to the Arbitrator's Report, 
that the Regulation validly establishes a right for the recovery of any litigation costs suffered 
by EC companies, this should be limited to damages after 31 December 2001 when the 
reasonable period for implementation has expired. This is not only so in WTO law  where 
remedies are prospective but also recognised by the Court of Justice in Community law. 

4.3.	Context

Moving on to the examination of the measure in its context, it should be pointed out that the 
Regulation was adopted in the course of an important WTO dispute initiated under the Trade 
Barriers Regulation, the commercial policy instrument specifically adopted in order to allow 
the Community to avail itself of the provisions of the multilateral trading system and in 
particular, the WTO DSU.  It is designed to exert the Community's rights and to remove the 
barriers to trade set by other WTO members. In fact, US – 1916 Anti-Dumping Act case has 
been initiated on the basis of a complaint brought by EUROFER, a company subject to 
proceedings under the Act. 

The examination of the context in which the Regulation was adopted offers a useful nexus for 
the scrutiny of the Regulation. First, the context may be a factor determinative for the choice 
of the legal basis. Second, the context sets the procedural parameters which the Regulation 
needs to observe. Third, it provides an additional gateway which necessitates the scrutiny of 
the Regulation's provisions against the multilateral trading rules. 

The Court held in Opinion 2/00 '… the Protocol is, in the light of its context, its aim and its 
content, an instrument intended essentially to improve biosafety and not to promote, facilitate 
or govern trade.  The mention of the term "context" is a novel factor for the determination of 
the legal basis of a measure. Since the context within which the Regulation has been adopted 
is the WTO Dispute Settlement System externally and the Trade Barriers Regulation 
internally, it offers significant support to justify the choice of Article 133 as the legal basis for 
the Regulation. However, because of the content of the measure analysed above, it is unlikely 
that the context of the TBR sufficiently tilts the balance in favour of Article 133 as the correct 
legal basis.

The soundness of this proposition should be examined in the light of an analysis of the 
relevant provisions of the TBR. Article 1 of the TBR provides:
"This Regulation establishes Community procedures in the field of the 
common commercial policy in order to ensure the exercise of the 
Community's rights under international trade rules, in particular those 
established under the auspices of the World Trade Organization which, 
subject to compliance with existing international obligations and 
procedures,  are aimed at:
(a) responding to obstacles to trade that have an effect on the market of the 
Community, with a view to removing the injury resulting therefrom; 
(b) responding to obstacles to trade that have an effect on the market of a third 
country, with a view to removing the adverse trade effects resulting therefrom.
These procedures shall be applied in particular to the initiation and subsequent 
conduct and termination of international dispute settlement procedures in the 
area of common commercial policy."
It is clear that when the Community is faced with barriers to market access abroad it can avail 
itself of the relevant dispute settlement procedures. 
 
It is further obvious that the Community bound itself to follow those procedures at the 
exercise of its international trade rights but "subject to compliance with existing obligations 
and procedures". This entails both a procedural and a substantive obligation for the 
Community. While the adoption of the TBR is without prejudice to the right of the 
Commission to initiate WTO proceedings under the traditional procedure of Article 133, it 
should none the less submitted that when the Community initiates a dispute under the TBR 
within the WTO it is bound to follow the procedural rules contained therein. Second, at its 
conduct, it is necessary to observe the substantive international trade law obligations unless 
authorisation to do so is granted by the DSB under the suspension of concessions or other 
obligations procedure. In order to conform to these requirements, Article 12 TBR, entitled 
"Adoption of commercial policy measures", provides:
1. Where it is found (as a result of the examination procedure, unless the factual 
and legal situation is such that an examination procedure may not be required) 
that action is necessary in the interests of the Community in order to ensure the 
exercise of the Community's rights under international trade rules, with a view 
to removing the injury or the adverse trade effects resulting from obstacles to 
trade adopted or maintained by third countries, the appropriate measures shall 
be determined in accordance with the procedure set out in Article 13.
2. Where the Community's international obligations require the prior discharge 
of an international procedure for consultation or for the settlement of disputes, 
the measures referred to in paragraph 3 shall only be decided on after that 
procedure has been terminated, and taking account of the results of the 
procedure. In particular, where the Community has requested an international 
dispute settlement body to indicate and authorize the measures which are 
appropriate for the implementation of the results of an international dispute 
settlement procedure, the Community commercial policy measures which 
may be needed in consequence of such authorization shall be in accordance 
with the recommendation of such international dispute settlement body.
3. Any commercial policy measures may be taken which are compatible with 
existing international obligations and procedures, notably: 
(a) suspension or withdrawal of any concession resulting from commercial 
policy negotiations; 
(b) the raising of existing customs duties or the introduction of any other charge 
on imports; 
(c) the introduction of quantitative restrictions or any other measures modifying 
import or export conditions or otherwise affecting trade with the third country 
concerned.
4. The corresponding decisions shall state the reasons on which they are based 
and shall be published in the Official Journal of the European Communities. 
Publication shall also be deemed to constitute notification to the countries and 
parties primarily concerned.
It is clear from Article 12 of the TBR that the measure that can be taken by the Community in 
response to illicit commercial practices abroad are those specified in paragraph 3 namely, 
suspension or withdrawal of concessions, raising of customs duties or the introduction of 
quantitative restrictions. Those can only be taken only after the discharge of international 
dispute settlement procedures and in accordance with the recommendation of the dispute 
settlement body. The substantive legal obligation should be considered as binding on the 
Community irrespective of the route chosen for the initiation of the dispute. In this case, even 
if the dispute was initiated under the Article 133 EC Treaty route, the substantive legal 
obligations contained in the TBR should still be binding on the Community. The adoption of 
the Regulation therefore, is in violation of the TBR prima facie since it is not included in the 
list of consistent with the TBR actions that can be taken in the context of a WTO dispute.
  
In addition, the duty to provide reasons enshrined in Article 12(4) TBR is a restatement of the 
general duty enshrined in Article 253 EC Treaty. The reasons provided in the preamble to 
Regulation are the Community interests towards the harmonious development of world 
trade,  the protection of persons under the jurisdiction of the Member States against 
substantial litigation costs and the possibility of a judgment awarding treble damages,  the 
established legal order and the interests of natural and legal persons exercising rights under 
the Treaty,  and the need to protect the interests of natural and legal persons under the 
jurisdiction of the Member States.  It should be stated that behind the grandiose language 
used in the Preamble of the Regulation it is difficult to identify the reasons, while a retaliation 
procedure is pending under the WTO Dispute Settlement, for the adoption of the measures. 
Neither the rights of the Community industry can be identified especially since no judgment 
on the basis of the Act has been rendered in the US courts against EC companies.  Neither is, 
it can be argued, in the Community interest, as required by the TBR's preamble, to take these 
measures.

Finally, the Regulation may violate Community law and, in particular, the TBR, should it be 
found to be inconsistent with the multilateral trading rules to which the TBR clearly refers. 
According to the Fediol judgment, the WTO norms become the standard of review in the 
present case.  This is the so-called clear reference exception and in this particular case makes 
the legality of the Regulation with Community law dependent on its legality in WTO law. For 
this purpose, the analysis of its legality with WTO law follows.

5.	Analysis of the Regulation's legality under WTO law

The United States attempted to challenge the Regulation in the course of the Article 22.6 
Arbitration.  They claimed that the existence of the Regulation reveals that litigation costs 
are excluded from the amount of nullification or impairment suffered by the EC and that any 
amount of nullification or impairment awarded to the EC under that arbitration should be 
reduced by the amount the Regulation reduces nullification or impairment.  The arbitrators 
decided that the Regulation fell outside the Panel's terms of reference and invited the US to 
have recourse to the appropriate dispute settlement procedures if the Regulation results in a 
situation where the suspension of the obligations exceeds the level of nullification or 
impairment.  The Regulation remains unchallenged to date.

Moving on to the analysis of the theoretical underpinnings of the discussion, it should be 
accepted that any unilateral action outside the DSU especially after its provisions have been 
invoked would result in a violation of Articles 3(1)  and 23  DSU.  In fact, this was the 
basis for the complaint brought by the EC against the US – Section 301.  The Community 
brought this dispute against the US at a time where the latter was flexing its muscle against 
the former's reluctance to comply with the Panel and Appellate Body ruling in the Bananas 
case.  In this manner the Community attempted to pre-empt any unilateral retaliation from 
the US under Sections 301-310 of the 1974 Trade Act.  The US claimed that the US Trade 
Representative enjoyed wide discretion at the administration of Section 301 consistently with 
the WTO DSU and in particular Article 23(2)(a) in accordance with the US Statement of 
Administrative Action.  Consequently, the Panel found that Sections 301-310 of the 1974 
Act are not inconsistent with Article 23 DSU subject to the undertaking offered by the US.  

Unilateral action has been undertaken by the US in the context of the Bananas dispute. While 
the Articles 21(5) and 22(6) panels were deliberating and in order to prepare for the 
imposition of additional tariffs on products originating in the EC by 19 April 1999, the US 
adopted the measures against the targeting products and imposed them with retroactive effect. 
The Community immediately requested the establishment of a Panel to assess whether this 
was a breach of WTO law.  The Panel held that "First, no WTO violation can justify a 
unilateral retaliatory measure by another Member; this is the object of the prohibitions 
contained in Article 23.1 of the DSU.  If Members disagree as to whether a WTO violation 
has occurred, the only remedy available is to initiate a DSU/WTO dispute process and obtain 
a WTO determination that such a WTO violation has occurred.  Secondly, as noted by the 
Panel in US – Section 301, most of the time-limits in the DSU are either minimum time-limits 
without ceilings or maximum time-limits that are, nonetheless, indicative only.  … Delays in 
dispute settlement procedures can always happen.  The fundamental obligation of Article 23 
of the DSU would be a farce if every time there is a delay in a panel or arbitration process, the 
unsatisfied Member could simply unilaterally determine that a violation has occurred and 
unilaterally impose any remedy.  We reject, therefore, this US defence."  The Appellate 
Body reversed this finding on the procedural ground that such a determination escaped the 
Panel's terms of reference but it confirmed the fact that Article 23 DSU concerns the 
prohibition of unilateral action. 

It is not difficult to draw a parallel between the US attitude in the Bananas dispute and the EC 
attitude with regard to the Act. While, in that case, the United States prepared itself in winter 
1998 to take certain measures which consisted of consistent with the WTO rules retaliatory 
measures (subject, of course, to authorisation by the DSB), the Community was blaming the 
US for unilateralism.  More importantly as Weiss puts it "The use of or threat of concurrent 
unilateral self-help approaches under domestic legislation,…, is also likely to call in question 
their legal obligation to proceed in good faith."  Weiss goes on to explain that "unilateral 
action … is the very antithesis of the WTO's multilateral dispute settlement system".  While 
the former is based on domestic policy considerations, is subject to the dealings on the 
internal political and economic agenda, is unpredictable and determined by the interests of 
domestic influential groups with no regard to the international legal obligations, the WTO 
Dispute Settlement is rooted in multilateralism, predictability and security in the multilateral 
trading system.  Unilateral action represents a step backwards in the evolution of the 
international trading system from a power-oriented to a rule-oriented one. Set against the US 
"carousel" legislation, the Regulation appears to be even more detrimental to the multilateral 
trading system. Comparatively speaking, while Section 301 provides for domestic measures 
in order to protect the US interests, the EU bound itself pursuant to the TBR to adopt "the 
commercial policy measures which may be needed in consequence of such authorisation shall 
be in accordance with the recommendation of such international dispute settlement body".  
Even if an international dispute settlement procedure is not being invoked and action in the 
interests of the Community should prove necessary then the Community is bound by the TBR 
to suspend or withdraw concessions, raise tariffs or impose quotas.  In the correct 
understanding of Article 23 only suspension or withdrawal of concessions may be taken as 
countermeasures for the violation of the WTO Agreement and this is subject to prior 
authorization by the DSB. Those considerations apply both to the blocking and the clawback 
provisions.

In fact, the EC attitude towards the concept of unilateralism in international trade relations is 
obvious. One of the examples is the "carousel" legislation adopted by the United States in the 
course of the Bananas dispute. In that case, the US Trade Representative was authorised to 
revise the retaliatory actions adopted under Section 301 of the Trade Act of 1974 and to revise 
the list of products, wholly or partially, by rotating the list of products subject to retaliation 
120 days after their adoption and every 180 days thereafter.  Despite the existence of a DSB 
authorisation to retaliate, the EC considered such behaviour unacceptable. In fact, in addition 
to the economic arguments made, the EC argued that "[It] considers that the US measure is in 
breach of the DSU since it mandates unilateral action without any prior multilateral 
control."  

With reference to the clawback provision, there is additional guidance in the jurisprudence of 
the Panels and Appellate Body where similar measures have been tested. For instance, the 
United States had adopted the Continued Dumping and Subsidy Offset Act (commonly 
known as Byrd Amendment) which provides for the distribution of anti-dumping and 
countervailing duties to the affected domestic producers for qualifying expenditure on an 
annual basis.   According to its terms, as "affected domestic producer" qualifies a company 
that was a petitioner or interested party in support of the petition with respect to which an 
anti-dumping duty or a countervailing duty order and as "qualifying expenditure" the 
expenditure[s] incurred after the issuance of the anti-dumping duty finding or order or 
countervailing duty order has been entered.  The Panel and Appellate Body of the WTO 
found that the Byrd Amendment constitutes a non-permissible specific action against 
dumping or a subsidy, contrary to Articles VI:2 and VI:3 of the GATT 1994, Articles 18.1 
and 18.4 of the Anti-Dumping Agreement, Articles 32.1 and 32.5 of the Subsidies and 
Countervailing Measures Agreement and Article XVI:4 of the WTO Agreement.  The 
United States did not comply and, in accordance with the recent decision by the Arbitrator,  
the EC was granted authorisation to suspend its concessions under the covered agreements in 
order to offset the amounts paid to the affected US producers in the annual distribution of the 
CDSOA and which was calculated to reach the amount of $150 million per annum.  There 
are certain parallels that can be drawn between the Byrd Amendment and the Regulation. 
Importantly, the reason for their adoption is to reimburse private parties whose interests have 
been affected by illicit commercial practices and the extent of the granted reimbursement 
usually exceeds the core of the damage suffered from those practices to include very broadly 
framed "qualifying expenditure" and legal expenses respectively. The difference is that while 
the Byrd Amendment was a measure taken against dumping and subsidies, the clawback 
provision could be deemed as an actionable subsidy itself within the meaning of the Subsidies 
and Countervailing Measures Agreement. Aware that this is a difficult argument to make, it is 
suggested that a broad interpretation of the requirement of "financial contribution" to include 
the artificial public law right created by the clawback provision be made. 

Returning to the stronger argument that the Regulation must be deemed to violate Article 23 
DSU, can they be justified as legitimate countermeasures from a point of view of general 
public international law?  First, Article 60 of the Vienna Convention on the Law of the 
Treaties permits the suspension of a treaty if the other party fails to respect an essential 
element to the object and purpose of the Treaty. In this case it is doubtful whether the US 
non-compliance with the DSB rulings regarding the Act qualifies as an essential violation of 
the WTO Agreement. Further, the existence of the WTO dispute settlement system operates 
as lex specialis and any authorisation for the suspension of treaty obligations should stem 
from the DSB.  In the same vein, according to Article 52(3)(b) of the ILC Draft Articles on 
State Responsibility: "Countermeasures may not be taken and if already taken must be 
suspended without undue delay if: …the dispute is pending before a court or tribunal which 
has the authority to make decisions binding on the parties". There is a question here on 
whether the dispute is pending between the EU and the US. It could be argued that after the 
DSB delivered its recommendations the case is not pending any more before the tribunal. The 
Draft Articles provision however should be given a broad temporal interpretation. The request 
for the suspension of concessions or other obligations is an integral part of the dispute 
settlement mechanism established under the DSU and any authorisation granted is temporary 
pending full implementation of the DSB recommendations. Therefore the fact that there was a 
request submitted to the Arbitrators under Article 22.6 DSU on 19 September 2003 and 3 
months later, on 15 December 2003 the Community adopted the countermeasures offers a 
disservice to any EC argument in support of their validity in international law.

6.	Conclusions

Behind the argument for exclusivity stemming from Article 133 EC Treaty lies the need for 
effectiveness of the Community participation on the international trading plane and the 
concern that the concurrent participation of Member States would risk compromising the 
commercial interests of the Community.  It should be made clear by now that this argument 
has been defeated in the course of the constitutional development of the European Union. 
Member States have been extremely reluctant to relinquish competence in favour of the 
Union and practice so far has been successful under the hybrid regime established under 
mixity.  In fact, the exclusivity in external action, so powerful in the 70s case-law of the 
Court of Justice, has been undermined not only by the expansion of specific legal bases for 
the conclusion of international agreements providing a specific role for Member States,  but 
by the very tainting of the CCP, the formerly hardcore domain of exclusivity, with the term 
shared competence.  With regard to this watered down CCP, it can be argued that the 
Regulation exceeds the outer boundaries, internal and external, of the CCP as those are drawn 
by the Community and WTO rules. With regard to the former, the adoption of the Regulation 
takes a maximalistic understanding of the CCP and sets it as the general external economic 
relations policy. In the history of the tormented provision of Article 133 EC Treaty, it is clear 
that neither the Court  nor the Member States  condoned the use of the CCP as an all-
inclusive external economic relations policy and the ad hoc exception in this case does not 
represent a shift in direction. At the same time, a challenge in the WTO Dispute Settlement 
system would, in all probability, be upheld. The argument this study makes is that the 
Regulation exceeds both internal and external boundaries of the CCP, it constitutes an 
anomaly within the Community legal order and is susceptible to a challenge in the WTO 
Dispute Settlement system.

The formal legality of the Regulation regardless, the advisability of the adoption of those 
measures is questionable. Even if the claims of the Community industries are perfectly valid, 
the balance tips towards the non-adoption of this kind of measures. First, they sit 
uncomfortably with basic norms of the multilateral trading system and generally speaking, 
international law. They are tainted with extraterritoriality, they grant rights to European 
companies unfounded in law and they open the Community to criticism. This is particularly 
so because of the timing, content and context of the measures. Since a WTO dispute has been 
initiated by the Community in the course of which the Community was authorised to suspend 
obligations under the covered agreements the Community should not resort to unilateral 
action. This unilateral action undermines the procedure and its claim for nullification and 
impairment of benefits and its credibility within the multilateral trading system.

Can the Community afford leaving EU companies competing in the US and other markets 
without any protection from WTO-incompatible legislation? This invites a look at the 
intrinsic characteristics of the system and the public international law nature which excludes 
the immediate involvement of individuals.  The WTO system is certainly imperfect but one 
should not dismiss its usefulness as a mechanism to coerce even the strongest political and 
economic players like the US to comply with its norms.  It also facilitates the creation of 
level-playing field. After all, in the context of the 1916 Act it is clear that since the expiry of 
the deadline for implementation with the Panel and the Appellate Body rulings to date no 
treble damages have been imposed on any European companies.  Since the Community has 
submitted itself to the WTO Dispute Settlement it should allow the protection of competitive 
opportunities that the system is designed to safeguard. The rights of the private parties should 
be exhausted at the possibility of judicial review of the Commission decision to initiate 
proceedings under the TBR.  

With a view to the future, several proposals can be made as far as the protection of the rights 
of private parties is concerned. One would be to introduce direct effect to the WTO rules. This 
should not be the preferred choice for reasons explained elsewhere.  The most attractive 
option would be to adopt a WTO Understanding whereby Members are authorised to return 
part of the revenue generated from suspended concessions to the affected private parties. This 
is not without its problems, most importantly, the express overruling of the Byrd Amendment 
and the contravention to several provisions of the Subsidies and Countervailing Measures 
Agreement. It could nonetheless be resolved by means of an authoritative interpretation of 
those agreements by the Ministerial Conference or the General Council. 

Regarding a normative framework for the adoption of autonomous measures, this may indeed 
be necessary in the Community's quiver but should be adopted after wide consultation, under 
the correct legal basis (one is not suggested because it will depend on the content), containing 
transparent and predictable procedures. This legislation should only be invoked in exceptional 
circumstances, like the Helms-Burton Act, not be abused in the context of an ordinary trade 
dispute stemming from the one party's illicit commercial practices. In addition, its application 
must be mutually exclusive with the TBR. One must however be very careful with this 
proposal. The establishment of the WTO readily endowed the Community with a system to 
challenge unfair trading practices of WTO measures. The availability of autonomous 
measures and remedies might tempt the EC to coerce compliance by recourse to unilateral 
action instead of using the multilateral mechanism established under the WTO DSU. Out of 
the blue, the WTO Dispute Settlement system which is celebrated for its rigour might look as 
the second best alternative. Recent practice by the EC confirms this hypothesis  and it is 
only to be hoped that the Community will continue having resort to the broadly successful 
system of dispute settlement under the WTO DSU instead of taking an anachronistic recourse 
to unilateralism.

Antonis Antoniadis
Lecturer in Law

Contact details:
Department of Law
University of Durham
50 North Bailey
Durham DH1 3ET
Tel. 0044 191 3342838
E-mail: antonis.antoniadis@durham.ac.uk

  Article 23 states 
"1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits 
under the covered agreements or an impediment to the attainment of any objective of the covered agreements, 
they shall have recourse to, and abide by, the rules and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified of 
impaired or that the attainment of any objective of the covered agreements has been impeded, except through 
recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make 
any such determination consistent with the findings contained in the panel or Appellate Body report adopted by 
the DSB or an arbitration award rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member 
concerned to implement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other 
obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or 
other obligations under the covered agreements in response to the failure of the Member concerned to implement 
the recommendations and rulings within that reasonable period of time."
  David Palmeter and Petros C. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and 
Procedure, (CUP, 2004) pp. 227-233 and 295-299; Mitsuo Matsushita, Thomas J. Schoenbaum & Petros C. 
Mavroidis, The World Trade Organization: Law, Practice, and Policy, (OUP, 2003), pp. 43-44; Nicolaos 
Lavranos, "Some Proposals for a Fundamental DSU Reform" (2002) 29 Legal Issues of Economic Integration 
73; Joost Pauwelyn, "Proposals for Reforms of Article 21 of the DSU" (2004) 18 Studies in Transnational 
Economic Law 51; Petros C. Mavroidis, "Proposals For Reform of Article 22 of the DSU: Reconsidering the 
"Sequencing" Issue and Suspension of Concessions" (2004) 18 Studies in Transnational Economic Law 61; 
Ernst-Ulrich Petersmann, "Additional Negotiation Proposals on Improvements and Clarifications of the DSU" 
(2004) 18 Studies in Transnational Economic Law 91; Donald McRae, "What is the Future of WTO Dispute 
Settlement?" (2004) 7 Journal of International Economic Law 3; Ernst-Ulrich Petersmann, "The Doha 
Development Round Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding 
2001-2003: An Overview" (2004) 18 Studies in Transnational Economic Law 3. 
  USTR Press Release, dated 3 March 1999, "United States takes customs action on European imports" 
(unauthorised retaliation in the EC- Bananas – WT/DS165 - United States — Import measures on certain 
products from the European Communities); Section 407 US Trade and Development Act of 2000 (adoption by 
the US of 'carousel' legislation); Council Regulation 2271/96 of 22 November 1996 protecting against the 
effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon 
resulting therefrom, O.J. L309, 29.11.1996, p. 1 (EC response to the Helms-Burton Act – WT/DS38 United 
States — The Cuban Liberty and Democratic Solidarity Act).
  Council Regulation 1177/2002 of 27 June 2002 concerning a temporary defence mechanism to shipbuilding, 
O.J. L172, 2.7.2002, p. 1 (EC response to Korean subsidies to shipbuilding – WT/DS273 Korea — Measures 
affecting trade in commercial vessels).
  WT/DS136 United States — Anti-Dumping Act of 1916.
  Title VIII of the Revenue Act of 1916.
  Council Regulation 2238/2003 of 15 December 2003 protecting against the effects of the application of the 
United States Anti-Dumping Act of 1916, and actions based thereon or resulting therefrom, O.J. L333, 
20.12.2003, p. 1.
  WT/DS136/R United States — Anti-Dumping Act of 1916, Panel Report at para. 2.1.
  Articles III:4, VI:1, and VI:2 of GATT 1994, Article XVI:4 of the WTO Agreement, and Articles 1, 2, 3, 4 and 
5 of the Anti-Dumping Agreement.
  Japan also brought a complaint against the Act several months after the EC (WT/DS162).
  WT/DS136/AB/R United States — Anti-Dumping Act of 1916, Appellate Body Report at para. 155.
  WT/DS136/ARB US – 1916 Anti-Dumping Act of 1916 (Recourse to Arbitration by the United States under 
Article 22.6 of the DSU), Decision by the Arbitrators, 24 February 2004, at para. 2.1. The US -1916 Anti-
Dumping Act case generated a novelty regarding the nature of retaliation requested by the Community. Instead of 
requesting suspension of concessions which has been the practice so far, the EC requested authorisation to 
suspend the application of other obligations, namely Article VI GATT and the AD Agreement so that it is 
enabled to adopt an Anti-Dumping regulation mirroring the Act to apply to dumped products originating in the 
USA.
  Section 2006 of the Miscellaneous Trade and Technical Corrections Act 2004.
  Council Regulation 2238/2003 of 15 December 2003 protecting against the effects of the application of the 
United States Anti-Dumping Act of 1916, and actions based thereon or resulting therefrom, O.J. L333, 
20.12.2003, p. 1.
  Recital (8) read in juncto with recital (1).
  Recitals (6) and (7).
  Recital (8)
  Recital (9)
  Article 1 of the Regulation.
  Article 2(1) of the Regulation.
  Article 2(3) of the Regulation.
  Article 2(4) of the Regulation.
  Martin, "Legislative Developments: Anti-boycott measures" (1997) 3 Columbia Journal of European Law 320 
at 322-3.
  Article 6 of the 1980 Protection of Trading Interests Act.
  Lowe, "US Extraterritorial Jurisdiction: The Helms-Burton and D'Amato Acts" (1997) 46 ICLQ 378 at p. 388.
  Bourgeois, "The Common Commercial Policy – Scope and Nature of the Powers" in Vφlker (ed.), 
Protectionism and the European Community, (Kluwer, 1987) p. 1 at 12 footnote 32.
  Council Regulation 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial 
application of legislation adopted by a third country, and actions based thereon resulting therefrom, O.J. L309 
29.11.1996. p. 1.
  The Cuban Liberty and Democratic Solidarity Act (LIBERTAD).
  Article 1 of the Regulation reproduces Article 4 of the Helms-Burton Regulation, Article 2 reproduces Article 
6 and Article 3 reproduces Article 11.
  Forsythe, "Canada: Foreign Extraterritorial Measures Act incorporating the amendments countering the US 
Helms-Burton Act" (1997) 36 ILM 111.
  Lowe, "US Extraterritorial Jurisdiction: The Helms-Burton and D'Amato Acts" (1997) 46 ICLQ 378 at p. 385.
  Vermulst and Driessen, "The Choice of a Switch: The European Reaction to the Helms-Burton Act" (1998) 11 
Leiden Journal of International Law 81 at p. 86.
  Council Regulation 3286/94 of 22 December 1994 laying down Community procedures in the field of the 
common commercial policy in order to ensure the exercise of the Community's rights under international trade 
rules, in particular those established under the auspices of the World Trade Organization, O.J. L349, 31.12.1994, 
p. 71.
  Opinion 1/94 (Re WTO) [1994] ECR I-5267.
  Opinion 1/75 (Re OECD Local Cost Standard) [1975] ECR 1355 at p. 1363.
  Marise Cremona, "External Economic Relations and the Amsterdam Treaty" in O' Keeffe D. and Twomey P. 
(eds.), Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999) 225. Also, Case C-281/01 Commission v. 
Council (Re Energy Star Agreement) [2002] ECR I-12049 at para. 46.
  Opinion 1/94 (Re WTO) [1994] ECR I-5267; Opinion 2/00 (Re Cartagena Protocol) [2001] ECR I-9713 .
  Panos Koutrakos, "I Need to Hear You Say It': Revisiting the Scope of the Common Commercial Policy" 
(2003) 22 YEL 407 at p. 411.
  "The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or 
goods in transit justified on grounds of public morality, public policy or public security; the protection of health 
and life of humans, animals or plants; the protection of national treasures possessing articstic, historic or 
archaeological value; or, the protection of industrial and commercial property. Such prohibitions shall not, 
however, constitute a means of arbitrary discrimination or disguised restriction on trade between Member 
States."
  Article 24(1)(a)(i) of Council Regulation 3285/94 of 22 December 1994 on the common rules on imports, O.J. 
L349, 31.12.1994, p. 53.
  Koutrakos, above note 38 at p. 409.
  Case C-300/89 Commission v. Council (Re Titanium dioxide) [1991] ECR I-2867; Case 45/86 Commission v. 
Council (Re GSP) [1987] ECR 1493.
  Case C-150/94 United Kingdom v. Council [1998] ECR I-7235 at para. 53.
  Bourgeois, "The Common Commercial Policy – Scope and Nature of the Powers" in Vφlker (ed.), 
Protectionism and the European Community, (Kluwer, 1987) p. 1 at 12.
  Case C-125/94 Aprile [1995] ECR I-2919.
  Opinion 1/75 (Re OECD Local Cost Standard) [1975] ECR 1355.
  Marise Cremona, "A Policy of Bits and Pieces? The Common Commercial Policy After Nice" (2001) 4 
CYELS 61; Panos Koutrakos, "The elusive quest for uniformity in EC external relations" (2001) 4 CYELS 243.
  The term commercial defence instrument is narrower than unfair trade instrument in the sense that an unfair 
trade instrument may not only be used in the defence of the Community's interests but also in the offensive in 
order to remove barriers to market access that the Community industries are faced with. See Candido Garcia 
Molyneux, "Establishing the Rules of the Game: Domestic Structures and Unfair Trade Instruments" in Snyder, 
Regional and Global Regulation of International Trade, (Hart, 2001) pp. 97-110.
  Barnard, The Substantive Law of the EU: The Four Freedoms, (OUP, 2004) at p. 218; Bronckers, "WTO 
Implementation in the European Community- Antidumping, Safeguards and Intellectual Property" (1995) 29:5 
JWT 73.
  Opinion 1/94 (Re WTO) [1994] ECR I-5267 at para. 41.
  Lyons, EC Customs Law, (OUP, 2001) at p.43.
  Case 45/86 Commission v. Council (Re GSP) [1987] ECR 1493 at paras. 20-21.
  Case C-124/95 The Queen v. HM Treasury and the Bank of England, ex parte Centro-Com [1997] ECR I-81.
  See below.
  Huber, "The Helms-Burton Blocking Statute of the European Union" (1997) 20 Fordham International Law 
Journal 699.
  Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Article J.3 and K.3 of 
the Treaty on European Union concerning measures protecting against the effects of the extra-territorial 
application of legislation adopted by a third country, and actions based thereon or resulting therefrom, O.J. L309, 
29.11.1996, p. 7.
  Recital (11) of Council Regulation 2271/96.
  New Articles 57, 133 and 308.
  Huber, above note 55 at 708.
  Idem at 713.
  Idem at 709.
  Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters, O.J. L12 , 16.01.2001, p. 1.
  Case 22/70 Commission v. Council (Re AETR) [1971] ECR 263.
  Opinion 1/03 (Re Lugano Convention), O.J. C101, 26.4.2003, p. 1.
  Article 1(3) of the Brussels Regulation.
  See, for instance, Council Decision 2004/294/EC of 8 March 2004 authorising the Member States which are 
Contracting Parties to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear 
Energy to ratify, in the interest of the European Community, the Protocol amending that Convention, or to 
accede to it, O.J. L97, 08.03.2004. p. 53, preambular clause (12); Council Decision 2004/246/EC of 2 March 
2004 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the 
Protocol of 2003 to the International Convention on the Establishment of an International Fund for 
Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the 
European Community, to accede to the underlying instruments, O.J. L78, 16.03.2004 p. 22 preambular clause (7) 
  Council Decision 2004/80/EC of 17 December 2003 concerning the conclusion of the Agreement between the 
European Community and the Government of the Hong Kong Special Administrative Region of the People's 
Republic of China on the readmission of persons residing without authorisation, O.J. L17, 24.1.2004, p. 23.
  Agreement between the European Community and the Government of the Hong Kong Special Administrative 
Region of the People's Republic of China on the readmission of persons residing without authorisation, O.J. 
L17, 24.1.2004, p. 25 at 39.
  Article 27 of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and 
commercial matters.
  Article 6 of the Helms-Burton Regulation.
  Article 2(3) of the Regulation.
  Case C-281/02 Owusu, judgment of 1 March 2005, not yet reported. This judgment should be considered to 
render the lethal blow on the application of traditional rules of jurisdiction and notes the end of the forum non 
conveniens doctrine.
  Huber, above note 55 at pp. 711-712.
  Article 131 EC Treaty.
  Article 34 of the Brussels Regulation. 
  British Airways v. Laker Airways [1984] 3 WLR 413.
  Case C-149/96 Portugal v. Council [1999] ECR I-8395 and a recent confirmation despite Advocate General 
Tizzano's Opinion to the contrary in C-377/02 Lιon Van Parys NV v. Belgisch Interventie-en Restitutiebureau 
(BIRB), judgment of 1 March 2005, not yet reported.
  See, the preamble of 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), O.J. L336, 23.12.1994, p. 1.
  WT/DS136/ARB US – 1916 Anti-Dumping Act of 1916,  Decision by the Arbitrators at paras. 5.76-5.78.
  Article 21.3 (c) DSU.
  Case C-93/02 Biret International SA v. Council and C-94/02 Ιtablissments Biret et Cie. v. Council, [2003] 
ECR I-10497 at paras. 61-65.
  This should be examined in the light of the fact that the TBR is the successor of the New Commercial Policy 
Instrument which was adopted in response to commentators urging the Community to take action in order to 
counteract US boycott against EU companies working on the Siberian gas pipeline.
  See Notice of initiation of an examination procedure concerning an obstacle to trade within the meaning of 
Council Regulation No 3286/94 - Failure of the United States of America to repeal the Antidumping Act of 
1916, O.J. C58, 25.2.1997, p. 14.
  Opinion 2/00 (Re Cartagena Protocol) [2001] ECR I-9713 at para. 37.
  Emphasis added.
  Emphasis added.
  Recital (1).
  Recitals (6) and (7).
  Recital (8).
  Recital (9).
  A judgment on the basis of the Act has been rendered against Japanese companies. See, 
http://www.ebearing.com/news2004/121401.htm?printerfriendly. 
  Case 70/87 Fediol v. Commission [1989] ECR 1825. For a full analysis, Francis Snyder, "The Gatekeepers: 
The European Courts and WTO Law" (2003) 40 CMLRev. 313; Antonis Antoniadis, "The EU and WTO Law: 
A Nexus of Reactive, Coactive and Proactive Approaches" available online as a working paper on the website of 
the European Centre for Political Research (http://www.jhubc.it/ecpr-bologna/docs/423.pdf). 
  WT/DS136/ARB US – 1916 Anti-Dumping Act of 1916, Decision by the Arbitrators at paras. 3.16-3.20.
  WT/DS136/ARB US – 1916 Anti-Dumping Act of 1916, Decision by the Arbitrators at para. 3.17.
  WT/DS136/ARB US – 1916 Anti-Dumping Act of 1916, Decision by the Arbitrators at paras. 3.19-3.20.
  'Members affirm their adherence to the principles for the management of disputes heretofore applied under 
Articles XXII and XXIII of GATT 1947, and the rules and procedures as further elaborated and modified 
herein.'
  Above note 1.
  Andreas Lowenfeld, International Economic Law, (OUP, 2002) at p. 183.
  WT/DS152 US – Sections 301-310 of the Trade Act of 1974 (complaint brought by the European 
Communities). 
  WT/DS27 EC – Measures Affecting the Importation, Distribution and Sale of Bananas.
  Andreas Lowenfeld, International Economic Law, (OUP, 2002) at p. 184.
  WT/DS152/R US – Sections 301-310 of the Trade Act of 1974 Panel Report at paras. 7.110-7.113.
  WT/DS152/R US – Sections 301-310 of the Trade Act of 1974 Panel Report at para. 8.1.
  WT/DS165 United States – Import Measures on Certain Products from the European Communities 
(complaint brought by the European Communities)
  WT/DS165/R United States – Import Measures on Certain Products from the European Communities Panel 
Report at para. 6.135 (emphasis is in the original).
  WT/DS165/AB/R United States – Import Measures on Certain Products from the European Communities 
Appellate Body Report at para. 111.
  Weiss, "Manifestly Illegal Import Restrictions and Non-compliance with WTO Dispute Settlement Rulings: 
Lessons from the Banana Dispute" in Petersmann & Pollack, Transatlantic Economic Disputes: The EU, the US, 
and the WTO, (OUP, 2003) p.121 at p. 130.
  Idem at p. 134.
  Idem at p. 135.
  Article 3.2 DSU.
  Article 13(2) TBR.
  Article 13(3) TBR.
  WT/DS200/1 United States – Section 306 of the Trade Act of 1974 and Amendments thereto, Request for 
Consultations by the European Communities, 13 June 2000.
  Ibid. Emphasis added.
  Enacted as part of the Agriculture, Rural Development, Food and Drug Administration and Related Agencies 
appropriations Act, 2001, Public Law 106-387, 114 Stat. 1549, 28 October 2000, sections 1001-1003.
  WT/DS217/R United States – Continued Dumping and Subsidy Offset Act of 2000 (complaint by Australia, 
Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea, Thailand) Panel Report at paras. 2.1-
2.7.
  WT/DS217/AB/R United States – Continued Dumping and Subsidy Offset Act of 2000 (complaint by 
Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea, Thailand) Appellate Body 
Report; WT/DS217/R United States – Continued Dumping and Subsidy Offset Act of 2000 (complaint by 
Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea, Thailand) Panel Report.
  WT/DS217/ARB/EEC United States – Continued Dumping and Subsidy Offset Act of 2000 (complaint by 
Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea, Thailand) Decision by the 
Arbitrators.
  US Byrd Amendment – WTO says eight WTO Members may retaliate against the US, Joint Press statement 
by Brazil, Canada, Chile, the EU, India, Japan, Korea, and Mexico, Brussels, 31 August, available at 
http://europa.eu.int/comm/trade/issues/respectrules/dispute/pr010904_en.htm. 
  Lefeber, "Frontiers of International Law: Counteracting the Exercise of Extraterritorial Jurisdiction" (1997) 
10 Leiden Journal of International Law 1 at p. 4-6
  Esa Paasivirta and Alan Rosas, "Sanctions, Countermeasures and Related Actions in the External Relations of 
the EU: A Search for Legal Frameworks" in Enzo Cannizzaro (ed.), The European Union as an Actor in 
International Relations, (Kluwer Law International, 2002) 207 at p. 215; White and Abass, "Countermeasures 
and Sanctions" in Malcolm D. Evans (ed.), International Law, (OUP, 2003) 505 at pp. 513-4. 
  Opinion 1/75 (Re Local Cost Standard) [1975] ECR 1355 at 1364.
  Allan Rosas, "The European Union and Mixed Agreements" in A. Dashwood and C. Hillion (eds.), The 
General Law of EC External Relations, (Sweet & Maxwell, London, 2000) p.200; Joni Heliskoski, Mixed 
Agreements as a Technique for Organising the International Relations of the European Community and its 
Member States, (Kluwer Law International, 2001).
  Article 174(4), Article 181 etc EC Treaty.
  Article 133(6) EC Treaty.
  Opinion 1/94 (Re WTO) [1994] ECR I-5267.
  Particularly in the Maastricht Intergovernmental Conference where the proposal tabled by the Irish 
Presidency to transform the CCP into a general external economic policy was rejected. For more, Marc 
Maresceau, "The Concept of 'Common Commercial Policy' and the Difficult Road to Maastricht" in M. 
Maresceau (ed.), The European Community's Commercial Policy after 1992: The Legal Dimension, (Martinus 
Nijhoff, Dordrecht, 1993) pp. 3-19. Also, the outcome of the Treaty of Nice negotiations gives helpful insights 
into the Member States stance on the matter.
  Joel P. Trachtman and Philip M. Moremen, "Costs and Benefits of Private Participation in WTO Dispute 
Settlement: Whose Right is it Anyway?" (2003) 44 Harvard International Law Journal 221; Joel P. Trachtman, 
Private Parties in EC-US Dispute Settlement at the WTO: Toward Intermediated Domestic Effect" in Petermann 
and Pollack, Transatlantic Economic Disputes: The EU, the US, and the WTO, (OUP, 2003) p. 527.
  The repeal of the 1916 Anti-Dumping Act by virtue of Section 2006 of the Miscellaneous Trade and 
Technical Corrections Act of 2004 offers ample evidence to this effect.
  WT/DS136/ARB US – 1916 Anti-Dumping Act, Decision of the Arbitrators at para. 6.5.
  Case 70/87 Fediol v. Commission [1989] ECR 1825.
  Antonis Antoniadis, "The Participation of the European Community in the World Trade Organisation: An 
External Look at European Union Constitution-Building" in Tridimas & Nebbia (eds.), EU Law for the 21st 
Century: Rethinking the New Legal Order, Vol. I, (Hart Publishing, 2004) 321.
  Article IX:2 of the WTO Agreement.
  Council Regulation 1177/2002 of 27 June 2002 concerning a temporary defence mechanism to shipbuilding, 
O.J. L172, 2.7.2002, p. 1 (EC response to Korean subsidies to shipbuilding – The request for consultations in 
WT/DS273 Korea — Measures affecting trade in commercial vessels was made on 24 October 2002, four 
months after the autonomous measures were adopted); Regulation 868/2004 of the European Parliament and of 
the Council of 21 April 2004 concerning protection against subsidisation and unfair pricing practices causing 
injury to Community air carriers in the supply of air services from countries not members of the European 
Community, O.J. L162, 30.4.2004, p. 1 (no case was brought in the WTO).
 
 
 
 


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