Connected or Disconnected? The EU and International Law Lecture 2 – Position of International Law in EU Legal Order Prof. Pieter Jan KUIJPER

Connected or Disconnected?The EU and International LawLecture 2 – Position of International Law in EU Legal Order

Prof. Pieter Jan KUIJPER

Lecture 2: Position of International Law in EU Legal Order

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The 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?


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Different 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


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ECJ 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.


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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.


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If there is no direct effect, what then? Harmonious interpretation insofar as possible.

Motivated by a desire of courts not to place one’s 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”.

ECJ 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?


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ECJ and customary int’l 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.


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ECJ and decisions of Int’l 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)


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ECJ 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.

ECJ and Treaties of the Member States 2

Succession? In exceptional cases: GATT(Case 21-24/72 International

Fruit)

Refused in all other cases:UN; 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.


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ECJ 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.


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ECJ 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).


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ECJ 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).


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Conclusions

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.


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Comparative 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.

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Connected or Disconnected? The EU and International Law Lecture 2 – Position of International Law in EU Legal Order Prof. Pieter Jan KUIJPER