The EU as an actor in International Law Lund, 7 September 2017 Eduardo Gill-Pedro
Overview The self understanding of the EU as an International Organisation Legal personality of the EU Legal capacity of the EU Limits to capacity of the EU as international actor. Responsibility for the EU and for its member states 2
The nature of the EU The Schuman Declaration Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. 9 May 1950 3
The nature of the EU Case 26/62 Van Gend en Loos This Treaty is more than an agreement which merely creates mutual obligations between the contracting states [ ] The Community constitutes a new legal order 4
The nature of the EU Opinion 2/13 on the Draft Accession Agreement specific characteristics arising from the very nature of EU law: independent source of law, the Treaties, enjoys primacy over the laws of the Member States many provisions have direct effect 5
Legal Personality Article 47 TEU The Union shall have legal personality. 6
Legal Personality Article 216 TFEU The Union may conclude an agreement with one or more third countries or international organisations Agreements concluded by the Union are binding upon the institutions of the Union and on its member states 7
Legal Personality Reparations for Injuries case [the Charter] has equipped [the UN] with organs, and has given it special tasks. It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it. Advisory Opinion of 11 April 1949 8
Legal Personality Reparations for Injuries case [the UN] could not carry out the intentions of its founders if it was devoid of international personality. Advisory Opinion of 11 April 1949 9
Legal Capacity Reparations for Injuries case The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Advisory Opinion of 11 April 1949 10
Legal Capacity Case 22/70 ERTA The Question: The legal effect of the proceedings differs according to whether they are regarded as constituting the exercise of powers conferred on the Community, or as acknowledging a coordination by the member states of the exercise of powers which remained vested in them. 11
Legal Capacity Case 22/70 ERTA The Commission: Article 75, which conferred on the community powers defined in wide terms with a view to implementing the common transport policy, must apply to external relations just as much as to domestic measures in the sphere envisaged.. 12
Legal Capacity Case 22/70 ERTA The Council: Since the Community only has such powers as have been conferred on it, authority to enter into agreements with third countries cannot be assumed in the absence of an express provision in the Treaty. Article 75 relates only to measures internal to the Community. 13
Legal Capacity Case 22/70 ERTA The Court: Article 210 - the Community shall have legal personality To determine in a particular case - Regard to the whole scheme of the Treaty no less than to its substantive provisions. Authority may equally flow from other provisions of the treaty and from measures adopted by the Community institutions 14
Legal Capacity Case 22/70 ERTA The Advocate-General: It appears clear from the general scheme of the Treaty that its authors intended strictly to limit the Community s authority in external matters to the cases which they expressly laid down. 15
Legal Capacity Case 22/70 ERTA The Court: Authority may equally flow from other provisions of the treaty: The adoption of a common policy in the sphere of transport is specially mentioned amongst the objectives of the Community. The member states are required to take all appropriate measures to ensure fulfillment of the obligations arising out of the Treaty 16
Legal Capacity Case 22/70 ERTA Although [the Treaty] does not expressly confer on the community authority to enter into international agreements, nevertheless the bringing into force, of Regulation 543/69 necessarily vested in the community power to enter into any agreements with third countries relating to the subject-matter governed by that regulation. 17
Legal Capacity Case 22/70 ERTA Each time the community, [ ] adopts provisions laying down common rules, whatever form these may take, the member states no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. 18
Legal Capacity Case 22/70 ERTA The Court: Any steps taken outside the framework of the community institutions would be incompatible with the unity of the common market and the uniform application of community law. 19
Legal Capacity Declaration 24 of Treaty of Lisbon [ ] the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties. 20
Internal Limits to Legal Capacity C317/04 Parliament v Council + Commission the European Parliament seeks the annulment of Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security 21
Internal Limits to Legal Capacity C317/04 Parliament v Council + Commission Article 95 EC, read in conjunction with Article 25 of the Directive, cannot justify Community competence to conclude the Agreement. The Agreement relates to the transfer of data which are excluded from the scope of the Directive. 22
External Limits to Legal Capacity C-366/10 Air Transport Association principles of customary international law are relied upon, in essence, in order for the Court to determine whether the European Union had competence, in the light thereof, to adopt Directive 2008/101 23
Legal Capacity review Legal capacity can be implied, even where not expressly provided, if this is necessary to achieve objectives of the Treaty Legislation enacted in order to achieve those objectives can extend power of Union to enter into agreement. But such power cannot be implied in a way that extends EU law beyond its proper scope. 24
Two Questions 1. Is the EU still bound by an international law obligation, even where it did not have the capacity to assume it? 2. What limits do the EU s internal rules impose on the EU s external action? 25
Responsibility Article 4 ARIO There is an internationally wrongful act of an international organization when conduct consisting of an action or omission: (a) is attributable to that organization under international law; and (b) constitutes a breach of an international obligation of that organization. 26
Responsibility C-239/03 Commission v France in ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement 27
Wrongful acts of the State? Matthews v UK the Maastricht Treaty, with its changes to the EEC Treaty, constituted [an] international instrument which w[as] freely entered into by the UK. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention for the consequences of that Treaty. 28
Wrongful Acts of the State? Bosphorous 45036/98 Actions taken to comply with binding and nondiscretionary EU obligation will be justified as the EU provides an equivalent level of protection for Convention rights. Presumption of compliance with Convention unless, on the particular case, the protection of Convention rights is manifestly deficient. 29
Two Questions Is the EU Court the final arbiter of the responsibilities of the EU under international law? What is a member state to do when their obligations under international law and EU law conflict? 30