A. Background and Overview
1 Given the broad scope of competences transferred to the former European Community (‘EC’) and now the European Union (‘EU’) on the one hand, and the broad scope of contemporary international law on the other hand, the relationship between EC/EU law and international law is of considerable importance (see also European Community and Union, Party to International Agreements).
1. The Emancipation of European Community and Union Law from International Law
2 At the beginning of European integration, one core issue was to emancipate the law of the European Communities from international law (European Union, Historical Evolution). The groundbreaking decision is the 1963 European Court of Justice (‘ECJ’) judgment in the van Gend & Loos Case. The ECJ decided that the objective of the 1957 Treaty Establishing the European Economic Community (‘EEC’ [294 UNTS 17]) to establish a common market ‘implies that this treaty is more than an agreement which merely creates mutual obligations between the contracting states’ and that ‘the Community constitutes a new legal order of international law’. In the 1964 Costa v ENEL Case, the ECJ further emancipated EEC law from international law by stipulating its autonomy and its primacy over the national legal systems, but also by abstaining from the denotation ‘of international law’: the ECJ considers Community law a ‘new legal order’ tout court. In Parti écologiste ‘Les Verts’ v European Parliament (1986), the ECJ went further by characterizing the EEC Treaty as a ‘basic constitutional charter’ (para. 23), thus stressing the municipal nature of Community law. The notion of ‘constitutional charter’ is later confirmed in several judgments and opinions (eg Opinion 1/91 para. 1; Weber v European Parliament [1993] para. 8; Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [Opinion of Advocate General Maduro] [2008] para. 21; Kadi Case).
3 Today, the prevailing understanding of EU law with regard to international law is that of an autonomous legal order of an internal/municipal law character with federal features (but see, for example, Pellet for whom the European legal order is still just ‘ordre juridique de droit international’ [at 245]). By contrast, the legal nature of Titles I (Common Provisions), V (Provisions on a Common Foreign and Security Policy), and VI (Provisions on Police and Judicial Cooperation in Criminal Matters) of the Nice (2001) version of the Treaty on European Union (‘EU Treaty’; ‘TEU’) was disputed. Whereas some argued that the law under these titles was categorically different from Community law and that it belongs to international law (see Herrmann) this article holds that Community law and the law under those titles formed part of the legal order of the EU, which is to be conceived as different from international law (von Bogdandy [1999]; Eeckhout 165; Ireland v European Parliament and Council of the European Union [2009] para. 56). The Lisbon Treaty in the new Art. 2 TEU has definitely abolished this distinction.
2. Primary Law Provisions on the Relationship between European Union Law and International Law
4 The European treaties do not address the relationship between the two legal orders, nor the issues of incorporation and effect of international law in EU law in a detailed manner. Article 216 (2) Treaty on the Functioning of the European Union (‘TFEU’) (Art. 300 (7) Treaty Establishing the European Community [‘ECT’]), which stipulates the binding nature of international treaties for the institutions and Member States, remains the core provision on the relation between EU law and international law. Also addressed is the effect of treaties to which Member States had become parties before becoming members of the EU, as well as the regional union between the Benelux countries in Art. 350 TFEU (Art. 306 ECT). According to Art. 351 TFEU (Art. 307 ECT) on pre-Union agreements binding Member States, the Treaty does not preclude obligations from such treaties but obliges Member States to take all appropriate measures to eliminate possible conflicts between such treaties and Union law. Further reference to international law can be found in the preamble[s] and general provisions of the treaties. As early as in 1957, the Preamble mentioned the principles of the United Nations Charter (‘UN Charter’). Reference to the UN Charter, to the Helsinki Final Act (1975), and the 1990 Charter of Paris for a New Europe later became part of the provisions on European Common Foreign and Security Policy (Art. 11 Treaty of Amsterdam; Art. 21 TEU [Lisbon] [General Provisions on the Union’s External Action]), and respect for the principles of the UN Charter is part of the objectives of the EU according to Art. 3 (5) TEU (Lisbon). Furthermore, in the 1986 Single European Act [1754 UNTS 3] reference was made to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1950] (‘ECHR’) and the European Social Charter. Since the Treaty of Maastricht, the ECHR has been recognized in Art. F.2 (Art. 6 (2) TEU [Amsterdam]; Art. 6 (3) TEU [Lisbon]) as of relevance for the EU’s fundamental rights. According to Art. 6 (2) TEU (Lisbon), the EU shall formally accede to the ECHR.
5 Given the vagueness of these provisions and the dynamic nature of European integration, the ECJ and, since the start of its operation in 1989, the former Court of First Instance (‘CFI’) (now General Court) have been playing a crucial role in determining the relationship between the two legal orders (European Union, Court of Justice and General Court).
C. Special Problems
1. World Trade Organization Law
25 No other multilateral treaty has raised so much discussion as the 1994 WTO Treaty concluded by the EC and its Member States as a mixed agreement (Opinion 1/94). If the ECJ has in general been generous in deciding on the direct effect of international agreements and their invocability when assessing the legality of a Union measure, this has not been the case for the WTO Treaty (Portugal v Council Case para. 41) and its predecessor, the 1947 GATT (International Fruit Company [1972] para. 27; Federal Republic of Germany v Council of the European Union [1994] paras 105–12). This has triggered much criticism in the legal literature. It has been argued that the ECJ’s position in the 1947 GATT and WTO Agreement cases is political and mostly influenced by an attempt to protect Union interests. The ECJ’s position has been supported by an EU Council statement that the WTO Agreement ‘is not susceptible to being directly invoked in [Union] or Member State courts’ (Council Decision 94/800/EC of 22 December 1994, Preamble, last recital).
26 The ECJ held that
It corroborated this conclusion with two main arguments: the negotiability of WTO obligations (ibid para. 42) and the lack of reciprocity regarding direct effect when taking into account the main trading partners (ibid paras 43–45). If the ECJ directly applied WTO rules, it would prevent the Community from making effective use of its rights under Art. 22.2 Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization) (ibid para. 39).
27 There are two exceptions to this line of jurisprudence. Some scholars consider GATT rules to be directly applicable either if the Union intends to implement, with the enactment of an internal act, a particular international obligation (Nakajima [1991] para. 31), or where an internal act explicitly refers to an agreement (Fediol [1989] para. 21). This understanding has been confirmed for the WTO Agreement (Portugal v Council Case [1999] para. 48; see also, eg Biret International SA v Council of the European Union [2003] para. 52; Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau [BIRB] [2005] para. 40). Furthermore, the case Commission v Germany (1996) illustrates that the ECJ applies WTO rules when deciding on the legality of measures taken by Member States. The legal basis for that application is left open.
28 In order to assess this approach, it should be considered that the issue of direct effect of WTO law goes beyond the technical criterion of determinedness. It raises constitutional concerns relating to democratic government, legal certainty, and legal equality. Direct effect of WTO law would increase the need for international legislation, but the WTO system does not have at its disposal an institution that could serve as legislator. Another principle to be considered is legal equality. The EU legal system addresses the concern that the EU law might not be applied equally by domestic courts through various mechanisms, above all the preliminary rulings procedure according to Art. 367 TFEU (Art. 234 ECT). The WTO system, by contrast, does not provide for a similar mechanism to guarantee the equal application of WTO law in domestic courts. Moreover, the potential discrimination against domestic producers if WTO law is applied directly is to be considered (for details see von Bogdandy [2008]).
29 A further issue is the effect of decisions of the Dispute Settlement Body (‘DSB’; World Trade Organization, Dispute Settlement). So far, the ECJ has denied direct effect in cases where the reasonable period of time to comply with the decision or to negotiate on compensation has not yet expired (Biret [2003] para. 62). However, even the expiry of the deadline does not entail that the Union has exhausted all options for negotiations; accordingly, direct effect has been denied (Léon Van Parys NV [2005] para. 51). The ECJ invoked the lack of reciprocity as preventing domestic courts from declaring Community legislation incompatible with WTO law since this would ‘deprive the Community’s legislative or executive bodies of the discretion which the equivalent bodies of the [Union’s] commercial partners enjoy’ (Léon Van Parys NV [2005] para. 53). Furthermore, the ECJ denied the Union’s liability towards economic operators suffering damages caused by retaliatory measures imposed upon the exporters due to the Community’s failure to bring its measures into conformity with its obligations under the WTO agreements within the time limit laid down by the DSB (FIAMM v Council of the European Union [2008] para. 188). By contrast, Advocate General Maduro suggested that economic operators in such cases should have the right to compensation on the basis of the principle of objective liability (ibid para. 63; von Bogdandy [2005] 65).
2. European Convention for the Protection of Human Rights and Fundamental Freedoms
30 Although the EU is not a Contracting Party of the ECHR so far, its guarantees and the jurisprudence of the European Court of Human Rights (ECtHR) are the main reference for the ‘fundamental human rights enshrined in the general principles of Community law’ (Stauder v City of Ulm, Sozialamt [1969] para. 7; see also Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] para. 13; Ordre des barreaux francophones et germanophones v Conseil des ministres [2007] para. 29). Despite explicit reference in Art. 6 (3) TEU (Lisbon) (Art. 6 (2) TEU [Nice]) and discussions on the functional succession of the Union to the ECHR, the prevailing position in the legal doctrine and jurisprudence of the ECJ is that the ECHR is not a part of the EU legal order, and thus that the ECJ cannot apply the ECHR directly when reviewing the legality of Union and Member State measures. Legally, it remains a subsidiary tool for the determination of EU law, to which the ECJ, however, often refers (Opinion 2/94 para. 33; see also Mayr-Melnhof Kartongesellschaft mbH v Commission of the European Communities [1998] paras 311–12).
31 Just as the ECJ considers the ECHR as not forming part of the EU legal order but as an interpretative tool of significant importance, the ECtHR also held that while acts of the EU as such cannot be challenged before the ECtHR because the EU is not a Contracting Party, Member States’ responsibility under the ECHR continues after the transfer of their competences to international organizations (Matthews v United Kingdom [1999] para. 32). The ECtHR, however, limits its review of such acts to cases where the protection of human rights has been manifestly deficient. In principle, it assumes that the fundamental rights protection by the ECJ is comparable to that under the ECHR (Bosphorus v Ireland [2005] paras 149–56; Bosphorus Case).
32 According to Art. 6 (2) TEU (Lisbon), it is envisaged for the EU to accede to the ECHR. This will resolve the question as to the position of the ECHR within the EU legal order. Furthermore, the Charter of Fundamental Rights of the European Union (2000) has become formally binding on the EU and the Member States upon the entry into force of the Lisbon Treaty. This further clarifies the position of the ECHR in the EU legal order since Art. 52 (3) of the Charter establishes that for the rights which correspond to those guaranteed by the ECHR that their ‘meaning and scope … shall be the same as those laid down by the said Convention’. The latter does not, according to the same provision, prevent the EU providing more extensive protection than that accorded under the ECHR.
3. United Nations Charter
33 The implementation of UN Security Council measures under Chapter VII UN Charter by the EU brought the doctrinal question as to the relationship between the UN Charter and EU legal order into the limelight, and has provoked a rich discussion if, and to what extent, the EU is bound by the UN Charter and secondary UN law. This is particularly the case for UN Security Council resolutions, especially those affecting individuals. A crucial issue is the competence of the ECJ in this field.
34 For a long time, the EU has not been considered to be bound by the UN Charter and UN Security Council measures (cf Art. 25 UN Charter). Yet, since the EU Member States are members of the UN, the Union institutions were supposed ‘to take into account’ UN law. Accordingly, EU measures that implement UN Security Council resolutions, such as economic sanctions, demonstrate the will of the Member States to fulfil their obligations under the UN Charter also via the EU law (implied in Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and Others [1996]; confirmed in R v HM Treasury and Bank of England, ex parte Centro-Com Srl [1997] paras 27–30). If the Member States have recourse to EU law to implement their obligations, these measures need to be compatible with the EU law (ibid para. 30), including EU fundamental rights.
35 In decisions on economic sanctions against individuals, the CFI extended the doctrine of functional succession to the UN Charter (Yusuf v Council of the European Union [2005] para. 250; see also Kadi v Council of the European Union and Commission of the European Communities [2005]; Ayadi v Council of the European Union [2006]) even though the Member States had not fully conferred their powers related to the UN Charter upon the EU (Yusuf [2005] para. 125). In addition to functional succession, the CFI also based its argument on Art. 307 ECT (ibid para. 235). Article 307 ECT (Art. 351 TFEU), however, does not oblige the Union to implement obligations of Member States according to such agreements but only disburdens the Member States of EU responsibility for infringements of Union law while acting in accordance with their international obligations.
36 As decided in the Kadi and Al Barakaat International Foundation v Council and Commission [2008] judgment, the ECJ can judge Union implementing measures on their compatibility with EU primary law (see also Advocate General Opinion of 16 January 2008, confirmed by the General Court in Kadi v Commission [2010]). This indirectly strengthens European fundamental rights and the European rule of law against measures of international organizations. At the same time, the autonomy of the ‘Treaty as an autonomous legal system’ (Kadi [2008] para. 316) vis-à-vis the international legal order is asserted. In the academic responses to the judgment much criticism was raised regarding these points (see the contributions in [2008] 5 IOLR 323–79).
D. Assessment
37 The complex relationship between EU law and international law is but an element of the complexity of the external dimension of European integration. Some of this complexity might simply be due to the contorted evolution of the law of European integration from an international treaty to an autonomous legal order; the law of an important international actor: it would be surprising if all elements of that legal development fitted neatly together.
38 Some observers criticize a certain reticence of the EU’s institutions towards international law. Yet, every developed domestic legal system can limit the effect of a norm of international law in cases of conflict with its constitutional principles. There should always be the possibility, at least in liberal democracies, to legally limit the effect of a norm or an act under international law within the domestic legal order if it severely conflicts with constitutional principles. This corresponds to the state of development of international law and the sometimes debatable legitimacy of international legal acts.
39 Nevertheless, those who assert that the ECJ has a rather instrumental understanding of international law have a point. The ECJ uses international law certainly more as an argument to enforce Member States’ Union obligations than to submit measures of the EU institutions to scrutiny. Moreover, the ECJ has mostly attributed direct effect to international obligations of agreements where the EC or the EU has been the politically hegemonic force and has therefore had political control over the obligation, whereas it has denied direct effect in other constellations, in particular WTO law and the United Nations Convention on the Law of the Sea. Perhaps the ECJ sees the EU as an emerging superpower (Superpowers and Great Powers). Such an understanding would sit uncomfortably with the professed support of international law, pointedly expressed in Art. 21 (1) TEU (Lisbon):