5 - The Court and the Appellate Body: between constitutionalism and dispute settlement  pp. 99-138

The Court and the Appellate Body: between constitutionalism and dispute settlement

By Pieter Jan Kuijper

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Introduction: what do we compare?

If one sets out to make a comparative study of the Court of Justice of the EU and the dispute settlement mechanism of the WTO, what should one compare? At first sight the most reasonable approach seems to be to compare the Court of Justice of the EU in the narrow sense (hereinafter the Court or CJ) with the Appellate Body (AB) of the WTO. They both can be seen as courts, that is to say they both decide legal disputes, they are both composed of lawyers (with the occasional exception in the AB membership), they have a stable composition and are composed of independent people. Both decide cases on appeal from a lower international jurisdiction, respectively the General Court for the CJ and the so-called panels in the case of the AB. Their judgments are final and are binding on the parties before them. In short the CJ and the AB largely seem to fulfil the same functions – which would make their comparison useful and instructive.

However, which judicial activity of the two courts do we compare? If we are strict, we should limit ourselves to cases in which one state sues another state for breach of treaty. This is the only judicial activity of the AB. However, in practice it is an extremely limited task of the CJ; there are almost no cases of this nature. As a consequence, limiting our research to this kind of case would make this contribution end here. A more reasonable approach would be to compare the AB cases (which are all about breach by a Member of the WTO agreements or of norms directly derived from these agreements) and the AB’s mandate (which refers to deciding issues of law and legal interpretation, presumably in connection with alleged treaty infringements) with the CJ cases which directly or indirectly are concerned with a breach or the interpretation of the EU’s founding treaties. That would make sense also because both systems grant the exclusive power to interpret and apply their respective founding treaties to these courts.

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