Abstract
Sixty years after its launch by the European Court of Justice in the case of Costa v ENEL, the notion that EU law derives from an autonomous source still leads to divergent interpretations. In this chapter, it is submitted that the concept of EU autonomy in effect comes down to a disguised claim to sovereignty. Contrary to what is often believed, such a reading, which is premised on the Court’s insistence on the self-referential nature of the Union legal order, provides a promising point of departure for assessing the manner in which the EU deals and, in the future, should deal with norms that originate in international law. In particular, perceiving the claim to authority in Costa v ENEL and more recent cases such as Kadi as a claim to sovereignty could pave the way for a jurisprudential approach in which deference towards international law is the norm and in which resistance towards external norms is only acceptable if such norms put the constitutional identity of the EU at risk. More autonomy vis-à-vis international law might actually mean less autonomy.
Many thanks to Christina Eckes for her valuable comments on an earlier version of this chapter.
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Notes
- 1.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.
- 2.
See e.g. Craig and De Búrca 2008, who, at 202–204, only pay attention to the principle of autonomy in a specific external sense. Even a constitutional textbook like Lenaerts and Van Nuffel 2005 does not mention the concept. Two important exceptions to this rule are Barents 2004, who devoted a monograph to the concept, and Walker 2003a, which contains several contributions on the related question of sovereignty. See also the debate between Schilling 1996 and Weiler and Haltern 1996. Of more recent date is Griller 2008; De Witte 2010; Govaere 2010; Lock 2011a.
- 3.
ECJ Case 6/64 Costa v ENEL [1964] ECR 585.
- 4.
- 5.
As a denominator for the relationship between the Union and the Member States, the notion only resurfaced in ECJ Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, in which the ECJ clarified that the primacy rule makes no exception for norms of a constitutional nature. Cf. further ECJ Case 327/84 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, para 11; ECJ Case C-287/98 Linster [2000] ECR I-6719, para 43, in which the Court stressed the importance of “an autonomous and uniform interpretation” of Community measures.
- 6.
ECJ Opinion 1/91 EEA Agreement [1991] ECR I-6079.
- 7.
A revised draft EEA Agreement was held compatible with the Treaties by the ECJ in Opinion 1/92 EEA Agreement II [1992] ECR I-2821.
- 8.
ECJ Opinion 1/91 EEA Agreement [1991] ECR I-6079, para 35. The ECJ furthermore explained that the concept of autonomy was also implicated because concluding the proposed the EEA Agreement would have “the effect of introducing in the Community legal order a body of legal rules which is juxtaposed with a corpus of identically-worded Community rules”. As the EEA tribunal was in addition charged with guaranteeing the homogeneous application of these rules, this would, according to the ECJ, have been tantamount to handing over the keys as regards the interpretation of Community law, which, in turn, was contrary to (now) Article 19 TEU.
- 9.
See also ECJ Opinion 1/00 ECAA Agreement [2002] ECR I-349; ECJ Opinion 1/09 Agreement on the European and Community Patents Court, judgment of 8 March 2011, not yet reported.
- 10.
ECJ Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635.
- 11.
Ibid., para 154.
- 12.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 318–326. Cf. also Ziegler 2009, 298–302.
- 13.
Ibid., para 316 “(T)he review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”.
- 14.
“Municipal” is the word used by AG Maduro in para 21 of his Opinion in the Case to drive home the same message.
- 15.
Any confusion on this point may beforehand have been due to the fact that the English version of Costa speaks of “independent” instead of “autonomous”. Other language versions, however, including, as we saw, the French original, consistently speak of “autonome”—French and Dutch—or “autonomen”—German. Cf. Castillo de la Torre 2002, 1390.
- 16.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 282.
- 17.
Lavranos 2010, 268–271.
- 18.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 304.
- 19.
Lavranos 2010, 271.
- 20.
See ECJ Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629, para 18.
- 21.
ECJ Case 6/64 Costa v ENEL [1964] ECR 585, at 601 (emphasis added).
- 22.
See extensively on the relationship between autonomy and unity: Barents 2004.
- 23.
To be sure, one may question if it is sensible to highlight that the ECJ claims that the EU constitutes a self-referential legal order and, in particular, that this sets the EU apart from (mainstream) international law. What about (other) international organisations, one might argue. Should they not also, in an ever more fragmented world, be perceived as autonomous unities with corresponding internal claims to validity? As will be discussed in more detail below, in Sect. 2.4, this reading neglects the fact that there is also a national dimension to every discussion on the nature of international law. Accordingly, what really sets the EU apart from (other) international organisations is that its most important legal spokesperson, the ECJ, claims that the Treaties, of which it is the guardian, derive from an autonomous source.
- 24.
To my knowledge, apart from the four cases discussed in the previous section, there are only three other cases in which the ECJ explicitly mentions the concept of autonomy. These cases are: ECJ Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; ECJ Opinion 1/00 ECAA Agreement [2002] ECR I-349; ECJ Opinion 1/09 Agreement on the European and Community Patents Court [2011] ECR I-0000.
- 25.
See extensively Holdgaard 2008, 185–194.
- 26.
ECJ Case 181/73 Haegeman v Belgian State [1974] ECR 449, para 5. By way of this incorporation, the Court has later explained, the Union intends to show third parties that it is a reliable international partner. See ECJ Case 104/81 Kupferberg [1982] ECR 3641, para 11. The legal basis of this incorporation is Article 216(2) TFEU. As the ECJ recently explained in Case C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011, not yet reported, paras 101–102, the legal basis for the binding character of customary international law is Article 3(5) TEU, which provides that the EU is to contribute to the strict observance and the development of international law.
- 27.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 307.
- 28.
Ibid., para 308. See also e.g. ECJ Case C-327/91 France v Commission [1994] ECR I-3641; ECJ Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission (PNR) [2006] ECR I-4721.
- 29.
Ibid., para 23 of the Opinion of AG Maduro.
- 30.
- 31.
Article 216(2) TFEU. See also ECJ Case 104/81 Kupferberg [1982] ECR 3641, para 13.
- 32.
Initially, a large number of Member States vehemently protested against this “Unionisation” of international agreements. See Mendez 2010, 1720–1723.
- 33.
See ECJ Case C-431/05 Merck [2007] ECR I-7001, paras 30–38. In Merck, the Court explained that mixed agreements, just as “purely” EU international agreements, are received into the Union legal order as a whole. Previously, the ECJ only stressed that mixed treaties had the same status in the Union legal order as purely EU agreements “in so far as” the provisions of such treaties fell within the scope of EU law. (See e.g. ECJ Case C-239/03 Commission v France (Étang de Berre) [2004] ECR I-9325, para 25.) Consequently, it could be argued that provisions of a mixed agreement which fell outside the scope of EU law did not form part of the Union legal order; a point of view that, for various reasons, was quite problematic. See Van Rossem 2012, 69–74; 83–85. Cf. also ECJ Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky judgment of 8 March 2011, not yet reported, paras 29–36.
- 34.
See the recent ECJ Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-04107, paras 59–62.
- 35.
See e.g. ECJ Case 181/80 Arbelaiz-Emazabel [1981] ECR 2961, paras 30-32. See further Schütze 2009, 323–329. It should be noted that the principle that an international norm which does not bind the EU is not received into the EU legal order is not only relevant in the event of a treaty conflict, but also when such an international norm is invoked for purely interpretational purposes. See ECJ Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-04107, paras 61–62. Critical: Klabbers 2009, 142–148.
- 36.
Or, if a Member State has acceded to the EU at a later date, before the moment of accession.
- 37.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 304.
- 38.
The Court has made clear that this obligation might even entail a duty to denounce an anterior treaty. See e.g. ECJ Case C-62/98 Commission v Portugal [2000] ECR I-5171. Cf. further Koutrakos 2006, 304–316.
- 39.
See Halberstam and Stein 2009, 62–63. Furthermore, cf. ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 31 of the Opinion of AG Maduro, who develops a similar argument with regard to Article 351 TFEU (ex Article 307 TEC).
- 40.
See Sect. 2.6.
- 41.
This pattern can also be discerned in what, according to some, constitutes the most momentous Court decision in the field of EU external relations: the AETR judgment. In this case, the ECJ developed the doctrine of parallelism, according to which there is an intimate connection between what happens at the internal level and the external level. Specifically, when the EU effectuates its internal competence to lay down common rules, the Member States, even in the absence of express external competence, are no longer allowed to undertake independent international action if this action affects those rules. This is because, under such circumstances, “the conclusion of an agreement by the Member States is incompatible with the unity of the common market and the uniform application of Community law”. See ECJ Case 22/70 Commission v Council (AETR) [1971] ECR 263, para 31. Cf. also ECJ Opinion 1/03 Lugano Convention [2006] ECR I-1145. See on the transformational character of the AETR judgment e.g. Koutrakos 2006, 84–85; Eeckhout 2010.
- 42.
See Poiares Maduro 2005, 334–343.
- 43.
- 44.
The heterarchical nature of the European legal order would e.g. follow from a combined reading of Article 2 TEU, which lays down the values on which the Union is based, and Article 4(2) TEU, the national identity clause. See e.g. Von Bogdandy and Schill 2011; Pernice 2011. See for the case law that is often cited in support of the idea that the Union has overcome absolute primacy e.g. ECJ Case C-36/02 Omega Spielhallen [2004] ECR I-9609; ECJ Case C-208/09 Sayn-Wittgenstein, judgment of 22 December 2010, not yet reported.
- 45.
- 46.
- 47.
This critique is not just about bringing the vexed issue of Kompetenz–Kompetenz, the usual bedfellow of legal hierarchy, into the spotlight. There are also good legal philosophical reasons to question the particular sovereignty conception of the Verfassungsverbund theory. Pouvoir constitué and pouvoir constituant, the two traditional constitutional notions in norm-fact discussions, are mutually constitutive. Just as a norm needs a sovereign in order to become valid, a sovereign needs a norm which designates the sovereign as sovereign. In the Verfassungsbund, such a norm is lacking. Therefore, its citizens stand on soggy ground. See on the paradoxical nature of sovereignty e.g. Lindahl 2007; Walker 2002, 340–341; Heller 2002, 265–279.
- 48.
In particular the Lisbon judgments of the Czech Constitutional Court spring to mind. See Komárek 2009 for excerpts from a translation of the second Decision. See, from the same Constitutional Court, however also Pl. ÚS 5/12 of 31 January 2012 Slovak Pensions, the first time ever (!) a judgment by the ECJ was declared ultra vires by a national court.
- 49.
- 50.
See e.g. Barents 2009, 444–445; MacCormick 1995, 265. Of course, this does not mean that the EU and the Member States live in complete isolation of each other. It does mean, however, that there is no constitutional “bridge” which overarches and connects the two competing narratives put forward by, on the one hand, the ECJ and, on the other, several constitutional courts. Accordingly, this view is also at variance with more “pluralistic” versions of the idea of constitutional pluralism, such as Miguel Maduro’s theory of contrapunctual law, which argue that while the concept of autonomy cannot be sidelined, as supporters of the Verfassungsverbund idea maintain, there has to be some normative code that ties the aforementioned competing narratives together. See for a brief overview of the different strands which one encounters within the school of constitutional pluralism: Avbelj 2008, 11–19.
- 51.
- 52.
Cf. Dekker and Wessel 2010, 160–163.
- 53.
This is also the line that the German Constitutional Court takes. See e.g. BVerfGE 89, 155, 190 Maastricht.
- 54.
- 55.
See Simma and Pulkowski 2006, 516–519.
- 56.
Which, of course, is an option that many national constitutional courts still leave open vis-à-vis EU law. See Grabenwarter 2010 for an overview of the most important case law in this respect.
- 57.
- 58.
See e.g. Weiler 1991, 2481.
- 59.
See, approving of the idea of divided sovereignty, e.g. Oeter 2010, 63–65; Schütze 2009, 69–73. Admittedly, the founding judgments of the ECJ—Van Gend and Costa—prima facie also seem to lend credence to the view that, in the context of European integration at least, sovereignty has become something that can be pooled or shared. In ECJ Case 6/64 Costa v ENEL [1964] ECR 585, for example, the Court stated that the Community enjoys “real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community” (emphasis added by the author). On closer consideration, however, it appears doubtful that this passage should be interpreted as meaning that sovereignty as such has been divided. Rather, it conveys the message that the Member States no longer exercise all powers usually associated with the concept of sovereignty. This is also borne out by the German and French versions of the Decision, which, respectively, speak of “Hoheitsrechten and Souveränitätsrechte” and of “droits souverains” which are limited by European integration. See De Witte 1998, 277.
- 60.
See Böckenförde 1991, 107–112.
- 61.
See supra n. 47.
- 62.
- 63.
In particular there is a legitimacy issue. Even if the Court’s claim has over the years been strengthened by democratic and institutional developments, there is still no constitutional process to back this claim up in an adequate fashion. Until that changes, the “market citizen” to whom the ECJ alluded in Van Gend will remain a rather pale figure. Another reason why it might be problematic to perceive the EU as a sovereign entity is the fact that one of its policy areas, the former second pillar, is still very much intergovernmental in nature and largely devoid of supranational features such as direct effect and judicial review. However, while this aspect certainly makes the autonomy claim put forward by the ECJ less strong, it does not appear to undermine the main tenet of this claim—i.e. that the Union constitutes a unity. Cf. e.g. Von Bogdandy 2010, 26–28.
- 64.
Legal scholars who seek to downplay the nature of the claim which the ECJ makes in Van Gend and Costa often refer to the fact that the supremacy rule does not result in the annulment but in the disapplication of national law. (See ECJ Joined Cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE’90 Srl [1998] ECR I-6307, para 21.) It is respectfully submitted, however, that this is not a convincing argument. The sanction of nullity might be an important argument in favour of hierarchy, but the absence thereof does not provide conclusive evidence that such hierarchy is lacking. See e.g. Sillen 2010, who analyses constitutional practice in the United States and in the Netherlands and shows that, as a general rule, a judicial decision by an American or Dutch judge that a national norm conflicts with a norm issued by a state or provincial body does not render the latter norm non-existent.
- 65.
- 66.
Cf. Schmitt 2003, 366–379, who to this end developed the concept “Bund”, a constitutional form somewhere in between a federal state (Bundesstaat) and a confederacy (Staatenbund). According to Schmitt, because the issue of sovereignty is deliberately being left open in a Bund, this construction is inherently unstable. For in the final analysis a Bund is founded on a “Widerspruch”. Typical for a Bund, accordingly, is that there is no distinctly constitutional way to solve existential conflicts between the whole and the parts. Indeed, in case such existential conflict might occur—something Schmitt elsewhere famously called a “state of exception”—we can expect to discover who the real “sovereign” is. Even though Schmitt came up with his Bund theory long before the process of European integration started, this notion arguably constitutes a framework which is remarkably apt for understanding the current state of constitutional affairs in Europe. In particular, because it nicely illustrates that there are limits to what constitutional law can explain and embrace. Indeed, in a way it could be argued that we are experiencing a state of exception right now! After all, what else is the Euro crisis than an existential conflict about the future of the EU?
- 67.
BVerfGE 123, 267 Lissabon.
- 68.
- 69.
Cf. Thym 2009, 1809–1812. See also the German Constitutional Court’s recent decision in Honeywell, judgment of 6 July 2010, 2 BvR 2661/06, in which it responded, in a very accommodating manner, to the ECJ’s Mangold jurisprudence, see ECJ Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981.
- 70.
Lissabon, para 223 (citing the 19th century German legal scholar Ferdinand van Martitz).
- 71.
Ibid., para 224.
- 72.
Ibid.
- 73.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 22 of the Opinion of AG Maduro.
- 74.
- 75.
Cf. e.g. Lavranos 2010.
- 76.
ECJ Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635; ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351; ECJ Case C-308/06 Intertanko [2008] ECR I-4057. See also, the recent ECJ Case C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011, not yet reported.
- 77.
- 78.
Lissabon, para 340.
- 79.
Ibid.
- 80.
Ibid.
- 81.
Here I mainly rely on Martti Koskenniemi’s still seminal work From Apology to Utopia. See in particular Koskenniemi 1989, 52–130.
- 82.
Ibid., 40–42.
- 83.
- 84.
Cf. Peters 2009.
- 85.
- 86.
Ibid., 160–161.
- 87.
See Editorial Comments 2011, 3–4.
- 88.
See Klabbers 2009, 219.
- 89.
These principles are: “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.”.
- 90.
In this analysis, the focus will lie on aspects of the Court’s case law that are directly related to the claim of autonomy. This means that the issue of direct effect is being left out of the equation. When it comes to the concrete impact of international law within the EU legal order, this issue is just as vital as the question whether an external norm infringes the integrity of this legal order. To a certain extent, therefore, this choice is somewhat arbitrary. Conceptually, however, there is a clear difference between concerns related to validity (autonomy) and to justiciability (direct effect), and I will stick to that difference for the remainder of this chapter.
- 91.
See e.g. Ziegler 2009, 297–298.
- 92.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 292–297.
- 93.
See e.g. Griller 2008, 538.
- 94.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 298–299.
- 95.
Ibid., paras 305–308.
- 96.
Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, para 254.
- 97.
ECJ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 305–307.
- 98.
- 99.
In the International Fruit cases, the Court decided to incorporate GATT into the European legal order. It did so on two grounds: first, that there had been a significant transfer of powers from the Member States to the Community in the field of trade policy; second, that third parties allowed the Community to act within the GATT framework. See ECJ Joined Cases 21/72 to 24/72 International Fruit BV v Produktschap voor Groenten en Fruit [1972] ECR 1219, paras 10–18. Several commentators have argued that both conditions have not been fulfilled with respect to UN law. Thus, when the CFI invoked International Fruit in order to bolster its argument that the Community was bound to the Charter in Yusuf and Kadi, it was severely criticised for this. It is submitted, however, that this critique is partly undeserved. For the CFI only used International Fruit to state its case that the Charter had become binding as a matter of European law; and not, as the ECJ had done with regard to GATT, also as a matter of international law. (See Yusuf, paras 242–254). Consequently, while, admittedly, the CFI’s reference to International Fruit was rather unfortunate, the frequently heard objection (that the EU is still very much a bystander in the UN framework and, therefore, is in no position to succeed into the Member States’ obligations internationally) misses direction. What remains is the argument that there has not been a significant transfer of powers from the Member States to the EU in the field of UN law. Arguably, however, this is also an objection that can be overcome. See to this end Van Rossem 2012, 86–88. Cf. also Eeckhout 2004, 438.
- 100.
De Búrca 2010, 4.
- 101.
See with respect to UN law e.g. ECJ Case 374/87 Orkem [1989] ECR 3283; ECJ Case C-84/95 Bosphorus [1996] ECR I-3953.
- 102.
See supra n. 41.
- 103.
Before the ECJ starts to contemplate whether it can incorporate an international agreement to which the EU is not formally bound, an important consideration seems to be that all Member States are bound to such an agreement. Another crucial factor is the issue whether there is secondary EU legislation which shows that the Member States have sought to discharge their obligations under international law into Union law and, at the same time, that there has been a significant transfer of powers. See for various techniques which the Court may apply in this regard (techniques which do not necessarily correspond with the rather one-dimensional approach advocated here): Eckes 2010, 905–915. Cf. also Eeckhout 2009, 2051–2053.
- 104.
See e.g. ECJ Case C-308/06 Intertanko [2008] ECR I-4057; ECJ Case C-188/07 Commune de Mesquer [2008] ECR I-4501; ECJ Case C-301/08 Bogiatzi [2009] I-10185; ECJ Case C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011, not yet reported. Cf. also ECJ Case C-205/06 Commission v Austria [2009] ECR I-1301; ECJ Case C-249/06 Commission v Sweden [2009] ECR I-1335.
- 105.
Cf. Chap. 7 of this volume.
- 106.
See e.g. ECJ Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-04107.
- 107.
ECJ Case C-308/06 Intertanko [2008] ECR I-4057.
- 108.
See ECJ Case 314/85 Foto-Frost [1987] ECR 4199. In addition, the Court also denied direct effect to UNCLOS, another treaty on which the applicants based their claim in Intertanko.
- 109.
ECJ Case C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011, not yet reported. Other international norms on which the applicants based their claim were: the Kyoto Protocol (binding upon the Union, but no direct effect); the Open Skies Agreement (binding upon the EU and direct effect, but no violation found); and several principles of customary law (binding upon the Union and, rather surprisingly, direct effect, but no violation found).
- 110.
Ibid., paras 62–72.
- 111.
See Sect. 2.3.
- 112.
By fencing off a legislative measure from its source in international law the ECJ also creates a situation in which the Member States can be held responsible for breaching their international obligations. It has been argued that Member States are not particularly worried about this prospect; probably because they realise that this is the price they have to pay for maintaining a presence on the international plane. See Schütze 2006–2007, 437. Could it therefore be that the ECJ’s concealed appeal to the concept of autonomy in Intertanko, in a somewhat twisted way, may also be explained as a token of respect for the distribution of competences between the Union and the Member States? While this option cannot be excluded, it seems unlikely that such a consideration is at the forefront of the Court’s mind when it decides not to interpret an international norm. More plausible seems to be that, alongside the general concern for the integrity of EU law, it sends a signal to the Member States and perhaps also to third parties that they should pave the way for a formal accession of the EU to international organisations and treaty systems from which these norms derive. Cf. Hoffmeister 2010, 267.
- 113.
In her Opinion in Intertanko, AG Kokott tried to circumvent the non-binding nature of Marpol as regards the EU by developing an argument in which this treaty was incorporated through UNCLOS, another treaty on which the applicants had based their claim and which was binding upon the EU. See ECJ Case C-308/06 Intertanko [2008] ECR I-4057, paras 46–70 of the Opinion of AG Kokott.
- 114.
See Directive 2005/35/EC concerning ship-source pollution and on the introduction of penalties for infringements, OJ 2005 L 255/11, recitals 2, 3, 15 of the Preamble and Article 1(1).
- 115.
See Klabbers 2012, 129–131, who puts this rationale forward as an acceptable explanation for the Court’s sometimes reluctant attitude towards international law. This may be true with respect to a case like Kadi, but is harder to defend with respect to cases such as Intertanko and Air Transport Association of America.
- 116.
ECJ Opinion 1/09 Agreement on the European and Community Patents Court, judgment of 8 March 2011, not yet reported.
- 117.
Ibid., para 66.
- 118.
The draft treaty sought to repair this situation by placing the Patents Court under an obligation to refer questions to the ECJ instead. However, this could not convince the ECJ, that, unlike within EU law, there were no enforcement mechanisms in place in case the Patents Court would fail to fulfil this duty. Ibid., paras 86–89.
- 119.
Lock 2011b, 588.
- 120.
The road of Article 218(11) TFEU will also no doubt be taken when the EU, in the nearby future, has a draft treaty ready for its legally prescribed accession to the European Convention on Human Rights (ECHR). Already, there are clear indications that the ECJ is anxious about the autonomy of the EU legal order in the light of this accession, especially where it concerns its own power to interpret EU law. See on this concern e.g. Lock 2011a; Jacqué 2011. Cf. further Chap. 5 of this volume.
- 121.
ECJ Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635. See Sect. 2.2.
- 122.
Ibid., para 102.
- 123.
Ibid., para 120.
- 124.
Ibid., paras 120–121.
- 125.
See supra n. 33.
- 126.
ECJ Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635, paras 122–127.
- 127.
Here, again, one may point to the Court’s own Kupferberg rationale, which holds that by incorporating international norms within its legal order, the Union intends to show third parties that it is a reliable international partner. See ECJ Case 104/81 Kupferberg [1982] ECR 3641.
- 128.
ECJ Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635, paras 130–133.
- 129.
See Schrijver 2010, 874–875.
- 130.
- 131.
There are interesting parallels here with the EU’s inner functioning. Think e.g. of the practice with respect to the preliminary reference procedure. Fifty years after Van Gend, in which it transformed this procedure into the catalyst of the integration process, the Court still holds on to a fairly strict interpretation as to how national courts should function in the framework created by this. The uniform application of EU law by national courts is still at the top of its list in this regard. (Cf. to this end e.g. ECJ Case C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011, not yet reported, paras 46–47). Over the past couple of years, however, commentators and judges have put forward several interesting suggestions to tone this practice down. The common denominator behind these suggestions: the EU has grown into a relatively mature constitutional being, and does not need its fixation on unity anymore. See e.g. AG Cruz Villalón’s Opinion to ECJ Case C-173/09 Elchinov, judgment of 5 October 2010, not yet reported. Further cf. Komárek 2007.
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van Rossem, J.W. (2013). The Autonomy of EU Law: More is Less?. In: Wessel, R., Blockmans, S. (eds) Between Autonomy and Dependence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-903-0_2
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