Prof. Pieter Jan KUIJPER
Connected or Disconnected?
The EU and International Law
Lecture 2 – Position of International Law in EU Legal
Order
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?
Lecture 2: Position of International Law in
EU Legal Order
2
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
Lecture 2: Position of International Law in
EU Legal Order
3
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.
Lecture 2: Position of International Law in
EU Legal Order
4
ECJ and Community Agreements 2

Can the agreement be invoked before the Court by
an individual; is there direct effect or ‘selfexecutingness’?
 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.
Lecture 2: Position of International Law in
EU Legal Order
5
ECJ 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 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”.
Lecture 2: Position of International Law in
EU Legal Order
6
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?
Lecture 2: Position of International Law in
EU Legal Order
7
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 T115/94 Opel Austria and C-162/96 Racke
Harmonious interpretation extremely important.
 Possible consequence: ultra vires. See: Poulsen case.
Lecture 2: Position of International Law in
EU Legal Order
8
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)
Lecture 2: Position of International Law in
EU Legal Order
9
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.
Lecture 2: Position of International Law in
EU Legal Order
10
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.
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.
Lecture 2: Position of International Law in
EU Legal Order
12
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 C286/90 Poulsen above).
Lecture 2: Position of International Law in
EU Legal Order
13
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).
Lecture 2: Position of International Law in
EU Legal Order
14
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.
Lecture 2: Position of International Law in
EU Legal Order
15
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.
Lecture 2: Position of International Law in
EU Legal Order
16