Suchergebnisse

In der WTO und in der EU bestehen Ausnahmebestimmungen zur Rechtfertigung von legitimen Schutzzielen im Warenhandel. Diese machen es schwierig, die jeweilige Zielvorstellung, die Verwirklichung des Binnenmarktes bzw. eines liberalisierten Warenhandels, zu realisieren. Wie auf beiden Ebenen mit diesen ähnlichen Problemen und Aufgaben umgegangen wird, wird in dieser Arbeit untersucht. Dafür werden zunächst die jeweiligen Bestimmungen, die Handelshemmnisse abbauen sollen, verglichen. Anschließend werden die Ausnahmebestimmungen in beiden Rechtsordnungen einander gegenübergestellt. Dabei werden die Gemeinsamkeiten und Unterschiede thematisiert und Erklärungsversuche unternommen. Abschließend werden aus dem Vergleich der beiden Systeme rechtspolitische Forderungen aufgestellt, die zu einer Effektivierung des Schutzes bestimmter überragend wichtiger legitimer Schutzziele führen würden

Two main aims were present for the preparation of this work. First, it was aimed to show that conflicts between WTO Agreements are real and conceivable phenomena and they have to be taken seriously. The second aim was to lay down a theoretical framework on how to deal with such potential conflicts between WTO Agreements. Regarding the first issue, it was shown in this work that conflicts between WTO Agreements are not only likely but they are almost inevitable. Except the GATT whose main textual body was concluded in 1947, all of other WTO Agreements which are annexes to the WTO Agreement were negotiated and concluded simultaneously. These agreements constitute a complex network of legal texts. Particularly, the three main pillars of the system – GATT, GATS and TRIPS- are comprehensive agreements designed to regulate different areas. Conflicts are likely in the intersection areas of these different domains. After having adopted a broader definition of conflict and having accepted that conflicts may occur between WTO Agreements, we arrive at the second main task of this work: to lay down a theoretical framework to resolve those conflicts. In fact, there is already a well-developed set of tools to handle with cases of conflict in international law and in the practice of international courts. That being the case, it is important to understand to what extent those tools can be imported into the WTO practice. A closer look at the current WTO rules on dispute settlement and the jurisprudence arising from dispute settlement practice reveals that the transposition of such tools into the WTO legal system is possible. While the Panels and the AB had a somewhat reluctant and timid approach to the use of such tools which are developed outside the WTO system, there are clearly many "open doors" left, to use them in case such uses are indispensable. It was thus shown in this work that the lex specialis maxim can systematically be invoked as a conflict resolving tool in WTO context, especially for resolving conflicts between GATT, GATS and TRIPS Agreements between which no hierarchy is defined. It was, however, necessary to define and elaborate the specific elements of this maxim regarding its application to conflicts between WTO Agreements. For this purpose, a number of questions were proposed to elaborate how the this maxim can be applied in a specific case of conflict between two WTO Agreements. In addition, in this work, a case study has been carried out as an example of a potential conflict between two WTO Agreements, namely GATT and GATS. The issue of freedom of transit, particularly the case of quotas applied on transit traffic in road transportation offers an interesting and a suitable example to apply the analytical framework developed in this work. The quotas applied on transit traffic has both elements related to trade in goods and trade in services. Moreover, application of the rules related to these two different domains, the provisions of GATT or GATS, would bring about contradicting results. Thus, having exhibited that a conflict between two agreements may potentially occur on this case, the next task becomes to resolve that conflict by applying the lex specialis maxim.