CYIL vol. 8 (2017)

KRISTÝNA URBANOVÁ CYIL 8 ȍ2017Ȏ The reason behind the described technique when one member was annexing the schedules for another member, was actually a reflection of the legal situation in the EU and its members by the WTO. Since trade has belonged to the exclusive competence of the EU, its members were unable to submit the schedules by themselves. Therefore, the EU submitted the schedules for all its members, since these members lacked capacity in these commercial matters. 24 Interestingly, this regime established inequality between the original members of the WTO Agreement and states joining the WTO later, since according to Article XII of the WTO Agreement, only a state or separate customs territory possessing full autonomy in the conduct of its external commercial relations may accede to this Agreement. Since the EU member states has lacked such full autonomy, the only way they could have accepted the WTO Agreement was the submission of the schedules for them by another member (the EU) envisaged by Article XI:1. 25 Thus when the EU (or the European Economic Community at the time) submitted Schedule LXXX 26 to the Marrakesh Protocol to the GATT 1994 for its members, the schedules were submitted for the UK as well, 27 and the last condition of Article XI:1 of the WTO Agreement is also met by the UK. It is concluded here that while the European Union has also joined the WTO and became its member, the EU member states became WTO members alongside the EU, and all EU’s member states, the UK included, acquired full membership in the organisation with their own rights. 28 This conclusion is further supported by the rules on decision making of the WTO, where Article IX:1 of the WTO Agreement states that “ where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States which are Members of the WTO ”. Moreover, the decision practice of the WTO dispute settlement body has also confirmed that the EU member states who are also WTO members have the same rights and obligations as all other “ordinary” WTO members. In the case of Large Civil Aircraft, 29 the European Communities submitted a request to the Panel asking the Panel to remove all individual EU member states as participants to the proceedings, to the effect that the European Communities would have remained the sole respondent in the case. 30 However, the Panel rejected the request, reasoning that “ Each of these five is, in its own right, a Member of the WTO, with all the rights and obligations pertaining to such membership, including the obligation to respond to claims made against it by another WTO Member .” 31 Clearly, in the view of the Panel the position of the UK as a WTO member has not differed from the membership of a non-EU WTO member. 24 Ibid. 25 Ibid . 26 Schedule LXXX, supra note 22. 27 Marrakesh Protocol to the General Agreement on Tariffs and Trade 1994, 15 April 1994. Available at: https:// www.wto.org/english/docs_e/legal_e/13-mprot_e.htm. 28 Member Information: The European Union and the WTO, World Trade Organization, https://www.wto.org/ english/thewto_e/countries_e/european_communities_e.htm. 29 Report of the WTO Panel, European Communities and certain member states – Measures affecting trade in large civil aircrafts, 30 June 2010, WT/DS316/R, (Short title: EC and certain member States – Large Civil Aircraft) Available at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds316_e.htm. 30 Ibid . 31 Ibid , paragraph 7.174.

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