Prof. Pieter Jan KUIJPER
Connected or Disconnected:
The EU and International Law
Lecture 5: The EU and International Responsibility
Which rules of international law can the EU
break?

Treaty law

Pure Community Agreements, mainly trade
agreements.

Mixed Agreements, such as Association and
Cooperation Agreements

Mixed Agreements, with exclusive EC powers
included, such as WTO.

Depends on dispute settlement clauses available
Lecture 5: The EU and International
Responsibility
2
Which rules of international law can the EU
break? 2

Customary rules of international law.

In reality multilateral treaty regimes to which the Union is not
a party, but which have become customary law.

Human rights law

Humanitarian law
General principles of international law.



Not highly likely;
Again availibility of a forum is important
Lecture 5: The EU and International
Responsibility
3
Which elements of the law of responsibility
apply to the EU?


Based on the ILC draft articles on responsibility of IO’s
The normal ones:

Internationally wrongful act of the EU entails international
responsibility of the EU, if

Conduct in the form of an act or omission

Is attributable to the EU, and

Constitutes a breach of an international obligation
of the EU.
Article 4 ARIO, cf. Art 2 ARS
Lecture 5: The EU and International
Responsibility
4
Which elements of the law of responsibility
apply to the EU? 2

Specific problems of attribution

Conduct of an organ (e.g. the Council) or an agent (e.g. a Head of Del) of the
EU = an act of the EU (rules of the EU play a role in determining this). Article
5 ARIO

Conduct of organs or agents placed at the disposal of the EU is an act of the
organization if there is effective control. Art. 6 ARIO. What about MS customs
personnel? Cf. WTO Cases on LAN Equipment, on Customs Administration
and IP Discrimination; What about MS troop contingents in CFSP operations?
Cf. Behrami-Saramati case (ECtHR)


Conduct acknowledged and adopted by the EU as its own. Art. 7 ARIO.
Responsibility not always dependent on attribution. In some cases
responsibility can be directly “incurred.”
Lecture 5: The EU and International
Responsibility
5
How does the EU fit into this scheme of
things?


Problems resulting from executive federalism

Are MS organs “agents” of the EU? Normally not.

Can this be solved by rules of attribution?

Do we need special rules of attribution for REIO’s?
Problems resulting from mixed agreements

Does it matter, when exclusive EU powers are in play?

Joint or joint and several responsibility? EDF case.

Obligation to provide information on division of powers EUMS – beneficial? (sanction: joint and several resp.)
Lecture 5: The EU and International
Responsibility
6
Classical International Law approach is not
much help

The old-fashioned categories are:

Aid and assistance (art. 13 ARIO)

EU responsible if it aids and assists a State in committing wrongful
act.

Direction and control (art. 14 ARIO)

EU responsible if it directs and controls a State in committing a
wrongful act.


Conditions identical in both cases:

EU acts with the knowledge of the circumstances of wrongful act.

Act would be wrongful, if committed by the EU
Coercion of a State by an IO (not realistic) (art. 15 ARIO)
Lecture 5: The EU and International
Responsibility
7
Special problem: relation EU – Member State

Decisions, authorizations and recommendations

EU is responsible if it binds a MS by a decision to take an
act that would be wrongful if taken by the EU and would thus
circumvent the obligations of the EU. Example?

Same for an authorization of or recommendation to a MS by
the EU, if MS commits that act because of the authorization
or recommendation

Indifferent whether the act is wrongful or not for the MS.

There is room for shared responsibility. (arts 16-18 ARIO).
Lecture 5: The EU and International
Responsibility
8
Mirror Image Rules on the abuse of an IO by
States and its MS.

Again the classical situations

Aid and assitance of State to the EU (art. 57 ARIO)

State responsible if it aids and assists the EU in committing
wrongful act.

Direction and control (art. 58 ARIO)

State responsible if it directs and controls the EU in committing a
wrongful act.

Conditions identical in both cases:

State acts with the knowledge of the circumstances of wrongful
act.


Act would be wrongful, if committed by the State
Coercion of an IO by a State (not realistic) (art. 59 ARIO)
Lecture 5: The EU and International
Responsibility
9
Special problem: relation Member State – IO

Responsibility of a MS seeking to avoid compliance (Art. 60 ARIO);

An MS would incur responsibility if it seeks to avoid its own compliance with
obligations by “taking advantage of the fact that the EU has competence in
relation to the subject matter of that obligation” so that the EU acts in a way
that would have constituted a breach of an obligation of the MS.

Is this situation comparable to the Bosphorus judgment of the ECtHR?

Assumption of responsibility for an act of the EU by a MS

Leaves open the possibility for shared responsibility.
Lecture 5: The EU and International
Responsibility
10
The solution for the EU: lex specialis?

Article 63 ARIO (cf. Art. 55 ARS)

“These articles do not apply where and to the extent that the
conditions for the existence of an internationally wrongful act or the
content or the implementation of the international reponsibility of an
international organization, or a State, for an internationally wrongful
act of an international organization, are governed by special rules of
international law, including rules of the organization applicable
to the relations between the international organization and its
members.”

Is this the solution to the EU’s problems?
Lecture 5: The EU and International
Responsibility
11