CYIL 2015

MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ reasoning it avoided taking a position on the question of whether the British and Irish custom authorities had to be considered as organs of the Union (which would support the executive federalism thesis of the Union) or whether their action engaged rather these two Member States too. 97 The same ambiguity transpires through the official denomination of the report issued in this case which ended up being associated with the Union as the only respondent, although its header bears the numbers of the three initially launched actions including those against the UK and Ireland. The United States and the Union also argued over this aspect and the panel observed that whereas the modification of the title of the case might have been acceptable if agreed by the parties, given that its report constituted a “consolidated response to the United States’ requests contained in the documents WT/DS62, WT/DS67 and WT/ DS68”, this change was requested by the United States too late in the proceedings. In the panel’s view the title of the report “read together with the three document symbols it carries, [did] not lead to any confusion or misunderstanding regarding the substance of this dispute”. 98 The panel was also careful enough to “note that the title of a particular dispute is given for the sake of convenience […] and in no way affects the substantive rights and obligations of the parties to the dispute.” 99 This caution nevertheless contrasts with the final conclusions in which the panel states the failure by the Union to comply with its WTO obligations without taking position “on the substantive rights and obligations” of the United Kingdom and Ireland. Be that as it may, the executive federalism thesis may be considered as having conquered the minds of the WTO panelists in subsequent cases 100 before receiving, however, a serious blow when a WTO panel considered that intra-EU competence division is a matter internal to the EU. 101 Finally, the DARIO do not provide much help either. Besides the introductory warning as to the delicate balance that it strikes between codification and progressive 97 European Communities – Custom classification of certain computer equipment , WT/DS62/R; United Kingdom - Custom classification of certain computer equipment , WT/DS67; Ireland - Custom classification of certain computer equipment , WT/DS68, esp. pt. 8.16. Panel report dated 5 Feb. 1998. 98 Ibidem , pt. 8.17. 99 Ibidem , pt. 8.17, in fine . 100 European Communities – Selected Customs Matters , WT/DS315/R, Report of the Panel 16 Jun. 2006, pt. 7.547-7.553 et seq .; European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs , WT/DS174/R, 15 Mar. 2005, 7.87-7.98 (concerns, however, the possibility of the Commission to speak on behalf of the concerned Member States); European Communities – Measures Affecting the Approval and Marketing of Biotech Products , WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 Sep. 2006, pt. 7.101. For comments see KUIJPER, P.J., PAASIVIRTA, E., “EU International Responsibility and its Attribution …”, op. cit ., fn. No. 69, p. 61. 101 European Communities and Certain Member States - Measures Affecting Trade in Large Civil Aircraft , WT/ DS316R, 30 Jun. 2010; Appellate Body Report 18 May 2011. For an interpretation consolidating this position with the previous line of reasoning see KUIJPER, P. J., PAASIVIRTA, E., “EU International Responsibility and its Attribution …”, op. cit ., fn. No. 69, p. 61 and further references.

338