Abstract
Over the past decades, most issues concerning the interface between EU law and national law have been resolved, and the Member States’ authorities have grown to accept the basic tenets of supremacy and direct effect. However, from the moment that rules of international law come into play as well, the relationship between norms from the EU and the national legal order becomes less clear-cut. To smoothen the interplay between international, European and national law, the Treaties contain several tools and mechanisms, but these do not succeed in eradicating the tensions altogether. In this chapter, we will explore some of the (potential) fracture lines, and analyse the legal provisions that seek to iron them out. First, attention is devoted to the place of the EU in the international legal order and the way it has generally positioned itself (para. 9.2). Thereby, we shall also discuss the internal rank and effect of international law norms, as well as the meandering views of the EU Courts on that subject. Hereafter, we take a closer look at the position of the Member States, sandwiched between their international and European commitments (para. 9.3). In that investigation, particular attention will be devoted to the intricacies of managing mixed agreements, as well as to the (waning) possibilities for seeking enforcement at international courts and tribunals.
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Notes
- 1.
The ability of the Community to take up membership of IOs was confirmed by the ECJ in Opinion 1/76, Draft agreement establishing a European laying-up fund for inland waterway vessels.
- 2.
The EU is e.g. a full member of the WTO and the FAO, but holds observer status in the ILO. If an international organisation only admits states (e.g. the IMF and the World Bank), the Union may authorise its Member States to act there on its behalf and in its interest.
- 3.
Case 6/64, Costa v ENEL. But cf. already the ‘new legal order’ postulate in Case 26/62, NV Internationale Transportonderneming Van Gend & Loos v Nederlandse Administratie der Belastingen.
- 4.
Opinion 1/76, Draft agreement establishing a European laying-up fund for inland waterway vessels.
- 5.
Opinion 1/91, Draft agreement on the creation of the European Economic Area (I). Following renegotiations, a novel agreement was drawn up, which received the blessing of the ECJ in Opinion 1/92, Draft agreement on the creation of the European Economic Area (II).
- 6.
Opinion 1/00, Envisaged agreement on the establishment of a European Common Aviation Area.
- 7.
Joined Cases C-402/05 P and C-415/05 P, Kadi and Al-Barakaat International Foundation v Council.
- 8.
Ibid., para. 316.
- 9.
Leading some to regard the EU as a ‘self-contained’ legal order. Considering however that the system continues to be rooted in international law, the Vienna Convention on the Law of Treaties does not cease to apply automatically: cf. De Waele (2005), pp. 171–178.
- 10.
See e.g. Case C-286/90, Anklagemyndigheden v Poulsen and Diva Navigation Corp, and Case C-386/08, Brita GmbH v Hauptzollamt Hamburg-Hafen.
- 11.
Cf. Case 294/83, Parti écologiste ‘Les Verts’ v European Parliament, para. 23.
- 12.
Joined Cases 41–44/70, NV International Fruit Company and others v Commission.
- 13.
See, respectively, Case C-308/06, The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport; Case C-286/90, Anklagemyndigheden v Poulsen and Diva Navigation Corp.
- 14.
Joined Cases C-402/05 P and C-415/05 P, Kadi and Al-Barakaat International Foundation v Council. Some commentators read an earlier confirmation of this position in Case 41/74, Van Duyn v Home Office.
- 15.
See e.g. Case T-115/94, Opel Austria GmbH v Council; Case C-344/04, The Queen on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport.
- 16.
See e.g. Case C-61/94, Commission v Germany; Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl.
- 17.
See e.g. Case 181/73, Haegeman v Belgium; Case C-308/06, The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
- 18.
See e.g. Case 87/75, Bresciani v Amministrazione Italiana delle Finanze; Case 12/86, Demirel v Stadt Schwäbisch Gmünd; Case C-18/90, Office national de l’emploi v Kziber; Case C-416/96, El-Yassini v Secretary of State for Home Department; Case C-438/00, Deutscher Handballbund eV v Kolpak.
- 19.
See e.g. Case C-469/93, Amministrazione delle Finanze dello Stato v Chiquita Italia SpA, and Case C-160/09, Ioannis Katsivardas – Nikolaos Tsitsikas OE v Ipourgos Ikonomikon.
- 20.
See e.g. Case C-308/06, The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
- 21.
See Chap. 4, para. 4.4.
- 22.
Case C-308/06, The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
- 23.
Case C-162/96, A. Racke GmbH & Co. v Hauptzollamt Mainz.
- 24.
For a splendid overview, see Bronckers (2008).
- 25.
See Mendez (2010).
- 26.
For example, education, culture, some aspects of public health. One might add topics that touch on military and defence issues, as the Treaties do not pronounce themselves unequivocally on the nature of the CSDP (nor, for that matter, on the CFSP).
- 27.
For the founding members of the EU, this refers to agreements concluded before 1 January 1958; for states that have acceded later, the date of their accession presents the relevant yardstick.
- 28.
Case 812/79, Attorney General v Burgoa. If over time, the EU has fully subsumed areas of competence in which all the Member States had previously entered into treaty relations, ‘functional succession’ may take place, with the Union replacing them and assuming their legal entitlements and obligations. For the precise conditions, see Joined Cases 41–44/70, NV International Fruit Company and others v Commission; Case C-188/07, Commune de Mesquer v Total France and Total International Ltd; Case C-301/08, Bogiatzi v Deutscher Luftpool, Société Luxair, European Communities, Luxembourg Foyer Assurances SA; Case C-308/06, The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
- 29.
See Case C-124/95, The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England.
- 30.
See Case C-266/03, Commission v Luxembourg; Case C-433/03, Commission v Germany.
- 31.
Of course, in case the EU does enjoy an exclusive power, any new commitments undertaken by the Member State in the field concerned would immediately constitute an egregious violation of EU law. Member States should proceed cautiously in case the EU possesses a shared power: judging from Case C-205/06, Commission v Austria and Case C-249/06, Commission v Sweden, they have to avoid a potential conflict of rules, and may have to rescind prior treaty commitments that potentially clash with provisions of EU law, even when the Union has not yet exercised its powers.
- 32.
Case C-324/93, The Queen v Secretary of State for Home Department, ex parte Evans Medical Ltd and Macfarlan Smith Ltd.
- 33.
Case C-62/98, Commission v Portugal. This entails that the inclusion of a ‘disconnection clause’, a provision according to which certain partners to a multilateral convention will apply special rules (here: EU law) in their relations inter se (in so far as such special rules govern the particular subject and apply to the case at hand), will not be enough. For illustrations of such clauses and their working, see Cremona (2010).
- 34.
See e.g. Case C-170/98, Commission v Belgium; Case C-84/98, Commission v Portugal.
- 35.
See Case C-205/06, Commission v Austria; Case C-249/06, Commission v Sweden; Case C-118/07, Commission v Finland.
- 36.
The Court’s tenacity in letting the rules of EU law triumph over the Member States’ (prior) international commitments is magisterially portrayed in Klabbers (2009).
- 37.
See e.g. Case C-216/01, Budvar v Rudolf Ammersin GmbH.
- 38.
Of course, as long as there existed an adequate legal basis and no procedural errors were committed.
- 39.
Evidently, at the exercise of a shared competence the Member States will be bound ipso facto.
- 40.
See e.g. Case 14/83, Von Colson and Kamann v Land Nordrhein-Westfalen and Case C-53/96, Hermès International v FHT Marketing Choice BV.
- 41.
But see Chap. 8, para. 8.2.2, footnote 5.
- 42.
- 43.
Case C-266/03, Commission v Luxembourg; Case C-433/03, Commission v Germany.
- 44.
This obligation has been held to stem from a general principle of unity in the international representation of the EU, e.g. in Opinion 2/91, Conclusion of ILO Convention No. 170 concerning safety in the use of chemicals at work.
- 45.
Case C-266/03, Commission v Luxembourg; Case C-433/03, Commission v Germany.
- 46.
Case C-246/07, Commission v Sweden. See also Case C-45/07, Commission v Greece, entailing that in the absence of a Union common position, Member States are equally to refrain from individual action within the framework of international organisations.
- 47.
For example, Council Decision 2000/278/EC on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIP Performances and Phonograms Treaty, OJ [2006] L 89/6; Council Decision 2002/358/EC concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder, OJ [2002] L 130/1.
- 48.
Case C-53/96, Hermès International v FHT Marketing Choice BV; Case C-337/95, Parfumes Christian Dior SA v Evora BV.
- 49.
Case C-13/00, Commission v Ireland.
- 50.
Case C-337/95, Parfumes Christian Dior SA v. Evora BV; Case C-431/05, Merck Genéricos – Produtos Farmacêuticos Lda v Merck & Co. Inc. and Merck Sharp & Dohme Lda.
- 51.
Case C-13/00, Commission v Ireland.
- 52.
Case C-239/03, Commission v France.
- 53.
Yet, as the EU is not itself a member of the UN, any action at the ICJ will have to be initiated by one or more Member States.
- 54.
Case C-459/03, Commission v Ireland.
- 55.
Remarkably, the UNCLOS in fact stipulated itself that specific dispute resolution mechanisms should take precedence over those in part XV of the Convention.
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de Waele, H. (2011). The EU, the Member States and International Law. In: Layered Global Player. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20751-8_9
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