CYIL vol. 8 (2017)

KRISTÝNA URBANOVÁ CYIL 8 ȍ2017Ȏ Clearly, the schedules of EU member states and the EU are tied together, and their creation has always required lengthy and complex negotiations. According to this background we can read the statement of the WTO Director General predicting other necessary complex negotiations of the UK’s schedule after Brexit. This view based on necessity of schedule renegotiations has attracted large endorsement among the leading commentators, 39 though not unequivocal. 40 In opposition to the popular “necessary renegotiation” view, one of the leading academics on WTO law, Lorand Bartels, argues that the current schedules annexed to the GATT 1994, submitted by the EU are not attributable to the EU but to the member states themselves. 41 His analysis is, inter alia , based on interpretation of Article XI:1 of the WTO Agreement, which states that the schedules are submitted “for” a member (by another member). Bartels points out that Article XI:1 is concerned with a limited autonomy of EU member states in trade issues, and the legal construction of Article XI:1 enabled the WTO original member states with limited autonomy to access the WTO. He explains that autonomy over trade rights (which was lacked by the UK in 1995) and attribution of the rights and obligations represent two separate issues. In this context the WTO Agreement, and related annexes, does not suggest that the WTO rights and obligations of the EU member states are limited to their areas of autonomy. 42 The argument that the WTO rights and obligations still belongs to the UK, though the schedule was annexed by the EU for the UK, is considered convincing here, and not only with regard to the linguistic interpretation of Article XI:1 of the WTO Agreement. The mechanism of decision making incorporated in Article IX:1 of the WTO Agreement (see part 4 of this paper) which allocates the EU a number of votes equal to the number of their member States is a strong indication that the WTO rights and obligations are attributed to the states themselves. In addition the WTO Dispute Settlement Body itself rejected the attempts of the European Commission to substitute five EU member states’ WTO rights and obligations with the EU’s WTO rights and obligations in the Large Civil Aircraft Case. 43 The Panel expressed the view 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 … whatever responsibility the European Communities bears for the actions of its member States does not diminish their rights and obligations as WTO Members, but is rather an internal matter concerning the relations between the European Communities and its member States .” 44 Moreover, the European Court of Justice when interpreting the Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1 C of the WTO Agreement) in the Hermes case mentioned that “ the WTO Agreement was concluded by the Community and ratified by its Member States without any allocation between them of their respective obligations towards the other contracting parties. ” 45 39 KOUTRAKOS, Panos, What does Brexit mean for the UK in WTO ? 12 July 2016,www.monckton.com/brexit- mean-uk-wto/. 40 BARTELS, Lorand , The UK’s WTO Schedules, Global Trade and Customs Journal , Volume 12 (2017), Issue 3, p. 83-86. 41 BARTELS, Lorand, The UK status of the WTO after Brexit , supra note 13. 42 Ibid , p. 5. 43 Report of the WTO Panel, EC and certain member States – Large Civil Aircraft, footnote 29. 44 Ibid , paragraph 7.174, (emphasis added). 45 Case C-53/96 , Hermès International and FHT Marketing Choice BV , on the interpretation of Article 50(6) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, as set out in Annex 1 C to the Agreement

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