European Union

• Author: International Law Group

In an application filed at the European Court of Justice on June 21, 2002, the French Republic, supported by the United Kingdom, brought an action against the EC Commission under Article 230 EC to have the decision by which the Commission of the European Communities entered into an agreement with the United States annulled. The challenged arrangement is entitled Guidelines on Regulatory Cooperation and Transparency (the "contested decision" and "the Guidelines", respectively).

At the London summit in May 1998, the EU and the U.S. ("the partners") approved a joint declaration on the Transatlantic Economic Partnership. In essence, the partners announced that they will focus their efforts on taking down any barriers that seriously restrain transatlantic trade and investment.

This specifically included regulatory roadblocks that tend to thwart market opportunities for goods or services. It pledged to set up as soon as possible a plan that identifies areas for common actions, both bilaterally and multilaterally, with a schedule for reaching specific goals. It also entailed the securing of any necessary authority to start negotiations. A footnote to the joint statement declares that "nothing in the above text constitutes a negotiating mandate for the European Union."

The partners then adopted an "Action Plan for the Transatlantic Economic Partnership." It was forwarded to the Council of the European Union on November 9, 1998 ("the Action Plan"). Within that framework, the Council authorized the Commission to negotiate with a view to entering into bilateral agreements with the U.S., inter alia, in the field of technical barriers to trade.

In July 1999, the relevant directorates of the Commission and their counterparts in the offices of the U.S. Trade Representative and the Department of Commerce started discussions on the Guidelines. During the meetings, the Commission officials often pointed out that the Guidelines would not create any rights or duties at the international level between the EU and the U.S. The two sides come up with a set of unsigned Guidelines in February 2002. The conferees notified them to the Commission but they did not appear in the EU's Official Journal.

A Commission memorandum of April 2002 also stressed two points. First, it noted that the partners will apply the Guidelines on a voluntary basis, in line with the rules and policies followed by each partner. Secondly, it affirmed that the Guidelines do not amount to an...