Title: Connected or Disconnected? The EU and International Law
1Connected or Disconnected?The EU and
International Law
Prof. Pieter Jan KUIJPER
- Lecture 2 Position of International Law in EU
Legal Order
2The Importance of the Subject
- The classical problem of Monism/Dualism (?)
- How separate/open is EC legal order from/to
international legal order? - Effectiveness of international law.
- Issue of democratic legitimacy.
- Issue of the relation to the Member States.
- Issue of separation/balance of powers.
- Are there certain recognizable historical trends?
3Different aspects of the subject
- ECJ and international agreements (co-) concluded
by the EC. - Pure Community agreements
- Mixed agreements
- ECJ and decisions of int. organizations
- ECJ and international agreements of the MS
- ECJ and customary international law
- ECJ and judgments of international courts
4ECJ and Community Agreements 1
- Is the Agreement law of the land has it become
part of Community law? - In principle yes (Case 104/81, Kupferberg)
- This has important consequences for MS the
constitutions of which were dualist.
5ECJ and Community Agreements 2
- Can the agreement be invoked before the Court by
an individual is there direct effect or
self-executingness? - What are the conditions?
- For the agreement as a whole? (treatment of the
GATT, WTO and Law of the Sea Convention, see
Cases 21-24/72 International Fruit, C-62/98
Portugal v. Council, C-308/06, Intertanko) - For the individual provision? (Case 12/86
Demirel) - Considerations behind the conditions
- Courts want to avoid sitting in the chair of the
legislator or the executive separation of
powers.
6ECJ and Community Agreements 3
- If there is no direct effect, what then?
- Harmonious interpretation insofar as possible.
- Motivated by a desire of courts not to place
ones country or the EC in a position of having
breached an international agreement (see cases
C-53/96 Hermes and C-300 and 392/98 Dior
Assco). - Sometimes harmonious interpretation can come very
close to direct effect Case C-89/99
Schieving/Nystad - Again a question of separation of powers.
7ECJ and mixed agreements
- When does the ECJ have no right to rule on them?
- Case C-431/05 Merck Genericos. If there is truly
no Union law on the matter. - Case C-239/03 Commission v France (Etang de
Berre). Area largely covered by Community Law,
though not the precise subject matter (pollution
by effluents). Preventing France from causing
joint liability? Hidden application of Union
loyalty?
8ECJ and customary intl law
- Is customary international law law of the land?
- Yes. The Community cannot be the vehicle by which
MS escape the limits of customary international
law. See case C-286/90 Poulsen law of the sea. - Can it have direct effect?
- Very doubtful. Problems of (democratic)
legitimacy. Court comes to nuanced conclusions in
Cases T-115/94 Opel Austria and C-162/96 Racke - Harmonious interpretation extremely important.
- Possible consequence ultra vires. See Poulsen
case.
9ECJ and decisions of Intl Organizations
- Are they law of the land?
- Yes, if they are binding. (Case C-192/89 Sevince)
- Can they have direct effect?
- On the same conditions as international
agreements. See Sevince case. - Even if they are not published (Case C-277/94
Taflan-Met)
10ECJ and Treaties of the Member States
- Article 351 TFEU Old MS Treaties
- In principle respect for earlier treaties of
Member States (Para. 1). - On the other hand Member States have a duty to
adapt these treaties, if incompatible with
Community law (Para. 2). - They may even be obliged to revoke them, if
negotiation for adaptation does not work. (ILO
Convention case against Austria C-203/03)). - Demonstrates the tension between the EU being a
new legal order of international law and being
its own constitutional order.
11ECJ and Treaties of the Member States 2
- Succession?
- In exceptional cases GATT(Case 21-24/72
International Fruit) - Refused in all other casesUN Environmental
cases Law of the Sea (Cases c-420/05P Kadi,
C-308/06 Intertanko, C-188/07 Commune de Mesquer,
C-301/08 Bogiatzi Warsaw Convention) - If no succession, no direct effect is possible.
12ECJ and Treaties of the Member States 3
- Relevant elements
- Human Rights Treaties reference in Art. 6 TEU
(old) standing case law of the Court. Full
application. Situation changed in Art. 6 TEU
(new). - Geneva Convention on Refugees 1951 Protocol of
1967 (Art. 78(1) TFEU) Case C-31/09, Bolbol. - European Social Charter (Art. 151 TFEU).
- MS Treaties that have been implemented in
Community law ex. CITES taken account of
(ex. Intertanko a contrario Commune de
Mesquer). NB less than harmonious interpretation.
Cf. also UNSC resolutions (C- 402/05P Kadi and
C-340/08 M and others). - Treaties concluded by MS on behalf of the EC, if
they are all parties. Situation unclear.
13ECJ and Judgments of International Courts
- Not a question of direct effect, but a question
of binding authority of the judgment on EC ( Cf.
Case C-377/02 Van Parys). - This is true for WTO panels and AB, and other
dispute settlement mechanisms in Community
Treaties (e.g. Kyoto mechanism). Special
situation EFTA Court. - Special situation for ECtHR, whose case law is
normally followed (see above). - Judgments of other international courts are
referred to as helpful authority in the
interpretation of international law (cf.
references to ICJ case law e.g. in Case C-286/90
Poulsen above).
14ECJ and Judgments of International Courts 2
- What are the implications for the ECJ of a
binding judgment? - Only very seldom will a case before the ECJ be
(virtually) identical to a case decided by e.g.
WTO Appellate Body. - If there is no identity, nevertheless the Court
should take account of it. It has to argue with
the case. Cf. German Constitutional Court in
Görgülü case. Cf. CFI in Ritek ,T-274/02 - Court sometimes just follows WTO AB without
saying so and on the basis of application of EC
law principles. Cf. German case on bananas Ikea
case (C-351/04).
15Conclusions
- Community system in principle very open to
international law. - In reality great differences between the
individual rights sphere (human rights, rights of
third country workers under bilateral treaties)
and economic rights sphere (in particular
GATT/WTO). Why? - ECJ has become over time more cautious in
granting direct effect. EC legal order has become
less permeable to international law. - ECJ has also been cautious in its approach to
judgments of international courts.
16Comparative Perspective
- Supreme Court of US seems to be subject to the
same kind of developments - Legislator has explicitly excluded self-executing
character of certain treaties, such as WTO. - Has added the requirement of a cause of action
to law of the land and self-executingness
criteria. - Has been unwilling to recognize binding character
of certain judgments of international courts.
Medellin case. - Appeals Courts have even denied the benefit of
harmonious interpretation to WTO agreements.