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

Lecture 2: Position of International Law in EU Legal Order 2 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 3 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 4 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 5 ECJ and Community Agreements 2 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.

Lecture 2: Position of International Law in EU Legal Order 6 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 ones 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? Lecture 2: Position of International Law in EU Legal Order 7

8 ECJ and customary intl 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.

Lecture 2: Position of International Law in EU Legal Order 9 ECJ and decisions of Intl 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 10 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.

Lecture 2: Position of International Law in EU Legal Order 12 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 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 13 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).

Lecture 2: Position of International Law in EU Legal Order 14 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 15 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 16 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.