WTO법의 직접효력에 관한 최신 CJEU의 입장 - CJEU의 Biret, Van Parys, Ikea 및 FIAMM 판결을 중심으로 -

Having regard to direct effect of WTO law in the EU legal order which means that individuals can directly challenge the validity of EU measures founded as violating WTO law before the Court of Justice of the European Union, the CJEU has consistently denied it except for the Nakajima and Fediol Exceptions. However, the recent judgments of the Court seem to leave open the possibility of recognizing direct effect. In particular, AG Alber in Biret proposed that the Community may incur liability for non-compliance of a DSB ruling within a reasonable period of time and damages caused to individuals and the DSB ruling could have direct effect in an action for damages under Article 340(2) of the TFEU. Since the ECJ did not mention clearly as to whether the Community has obligation to compensate for damages after the expiry of the period of time, it appears to have the potential of recovery for damages in the EU legal system. However, this position of the ECJ has changed in subsequent judgments and returned to the conservative approach in Van Parys. In Ikea, the ECJ showed the intention to interpret provisions of secondary legislation in question, as far as possible, in a manner that is consistent with those of WTO Agreements, according to the principle of treaty-consistent interpretation which is also supported by scholars who even deny direct effect of WTO rules. However, the ECJ in FIAMM did not recognize it because first, the main trading partners of the EU do not include WTO Agreements among the rules by reference to which their courts review the legality of their rules of domestic law and second, to require the courts to refrain from applying rules of internal law which are incompatible with WTO Agreements would result in depriving the executive or legislative organs of possibility of entering into temporary negotiated arrangements. Contrary to the judgment in Biret, the Court held that there is no reason to draw a distinction according to whether the legality of the Community action is to be reviewed in annulment proceedings or for the purpose of deciding an action for compensation and there is no rule to draw a distinction between the direct effect of WTO rules and the direct effect of DSB rulings. However, an action for the recovery to damages (Amtshaftungsklage) does not seek to annul EU measure at issue but acknowledge its unlawfulness. Therefore, even if one recognizes direct effect, it could not limit the discretion of the legislative or executive organs concerning the decision how to implement a DSB ruling and could just seek for compensation, not require the EU to take a particular measure. Consequently, the author thinks individuals should be able to invoke a DSB ruling in an action for damages in order to recover damages. This will lead to promote the rule of law in the EU legal discourse due to respect for WTO law and serve as a good example to other WTO Members. In addition, it could get rid of unreasonable damages that individuals should suffer as a result of EU measures in breach of WTO rules. Moreover, it needs to note that the Supreme Court of Korea in 2009 expressly denied direct effect of WTO Agreements since it could have a negative impact upon our economy, considering that our country significantly depends on trade. Thus, we should take into account the possibilities of introducing not only an action for claims for state compensation under State Compensation Act if damages occurred to individuals because of WTO-inconsistent national law, but also the principle of treaty-consistent interpretation.