The End of the Line? C & J Clark International Ltd and the Nakajima Exception

Abstract:

In C & J Clark International Ltd the Court of Justice of the European Union once again engaged with the issue of whether WTO law has direct effect within the EU legal order.

Superficially, the Court reiterated the long-recognized Nakajima exception – that an intention to implement a WTO obligation is a valid exception to the general rule that WTO law has no direct effect within the EU legal order. However, this case note argues that, in fact, the Clark judgment hardens the stance taken earlier in Rusal Armenal and practically abolishes the Nakajima exception.

It makes this argument by first establishing the factual and legal details of Clark and positioning that judgment within the existing Nakajima chronology. It then assesses the pragmatic and systemic implications of the Clark judgment.