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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.

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”.

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.”

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

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.

Ibidem

, pt. 8.17.

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.