THE EUROPEAN COURT OF JUSTICE:
AN INTERNATIONAL POWER
Avrupa Birliği Adalet Divanı: Bir Uluslararası Güç
Ali TÜRKMEN *
ABSTRACT
The more the European Union signs international agreement, the more there is an increase
of legislation in the EU legal order. These agreements also have legal consequences on
EU institutions and on the Member States. However, these agreements are not as simple
as bilateral agreements between two countries; they are more complex, and mostly have
a political structure. The Court of Justice deals with these multidimensional agreements,
and sometimes makes this area more complex with its case law. Nevertheless, the Court
adds a new dimension to the EU’s external relations. Moreover, the Court of Justice
plays a crucial role in the delimitation of the EU’s competence in external relations.
It is argued that the ECJ has shaped the current legal framework on the EU’s external
relations, and that it is likely to do it again in the future.
Keywords: Competence; EU law; External Relations, The ECJ
ÖZET
Avrupa Birliği’nin ne kadar çok uluslararası antlaşma imzalaması, Avrupa Birliği
Hukuku alanında mevzuatın o kadar çok artması anlamına gelmektedir. Bu antlaşmaların
aynı zamanda Birliğin organları ve üye ülkeler nezdinde sonuçları olmaktadır. Ancak,
bu antlaşmalar iki üke arasında imzalanan ik taraflı anlaşmalar kadar basit değil, bilakis
daha karışık ve çoğu zaman siyasi niteliktedir. Avrupa Birliği Adalet Divanı, işte bu çok
yönlü antlaşmaları yargılamakta, ve bazende içtihatları ile bu alanı daha karmaşık bir
hale getirmektedir. Bunun yanında Mahkeme Avrupa Birliği’nin dış ilişkilerine yeni
boyutlarda katmaktadır. Dahada ötesi Adalet Divanı Avrupa Birliği’nin uluslararası
ilişkiler alanındaki yetkilerinin sınırlandırılmasında hayati önem oynamaktadır. Adalet
Divanı, Avrupa Birliği’nin şu anki uluslararası ilişkilerle ilgili mevzuatını şekillendirdiği
gibi bunu ileridede yapacağı tartışılmaktadır.
Anahtar Kelimeler: Yetki, AB Hukuku, Dış İlişkiler, Avrupa Birliği Adalet Divanı
∗∗∗
I. LEGAL FRAMEWORK OF THE EXTERNAL RELATIONS
AND THE COURT’S LEGAL BASIS:
In the early days of the European Community, treaties did not pay too
*
Judge, Sakarya Administrative Court, LLM in EU Law University of Westminster, PhD Candidate in
Constitutional Law University of Westminster
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much attention to the separation of powers between the Community and its
Member States with respect to external relations.1 Instead of this, the ECJ
played a significant role in determining the existence, scope and nature of the
EU’s competences.2 One of the aims of the Lisbon Treaty was to clarify the
relationship between Member States and the EU with the clear categorisation
of competences.3
The legal basis of the EU’s external relations takes place primarily in the
Treaty on European Union (TEU), the Treaty on Functioning of the European
Union (TFEU) and the Euratom Treaty (establishing the European Atomic
Energy Community). Suffice it to say that part V of the TFEU and part V of
the TEU are devoted to the external relations of the EU. The basic provisions
are regulated under Article 47 of the TEU. This article enshrines the legal
personality of the EU which gives rights to the EU to sign international
agreements. The direct and powerful role of the Court of Justice in external
relations has a legal basis in the TFEU. The distinctive characteristic of the
ECJ was the mandate of rendering opinions on international agreements. It
is defined in Article 218/11:
226
“A Member State, the European Parliament, the Council or the Commission
may obtain the opinion of the Court of Justice as to whether an agreement
envisaged is compatible with the Treaties. Where the opinion of the Court
is adverse, the agreement envisaged may not enter into force unless it is
amended or the Treaties are revised.”
Moreover, the Court uses article 259, 260, 263, and 267 of the TFEU to
review the legality of international actions.
II. INTERNATIONAL AGREEMENTS and THE ECJ:
Hartley categorizes the international agreements related to EU Law into three
subcategories.4 The first category is agreements between the EU (alone) and
a non-EU countries or international organizations. The second category is
the EU and the member states on the one hand, and on the other hand, third
countries or international organizations. The third category is on the one hand
1
2
3
4
Andrea Ott and Ramses Wessel ‘The EU’s External Relations Regime: Multilevel Complexity In
an Expanding Union’ in Steven Blockmans and Adam Lazowski (ed) The European Union and Its
Neighbours (T.M.C Asser Instituut 2006).
Paul Craig & Grainne De Burca, EU Law Text, Cases, and Materials (5th edn, OUP 2011) p. 303
Communication From the Commission to the Council ‘Reforming Europe for the 21st Century’ Brussel
[2007].
T.C. Hartley The Foundations of European Communtiy Law (5th edn OUP 2003) p.159.
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member states alone, and on the other hand, third countries or international
organizations. Among those agreements, the agreements entered into by
the EU with third countries or international organizations essentially have
to meet the standards of the Court. The ECJ has approached international
agreements as acts of the EU which are subject to its jurisdiction. It has held
that international agreements are binding and an integral part of the EU law.5
In the early years of the Community, the Court showed its willingness to
intervene in the external relations of the Community. In the Haegaman6 case,
which was related to the Association Agreement between the Community and
Greece (not a member state at that time), the ECJ extended its jurisdiction
to interpret the external rules of EU law, and held that the provisions of
the Athens Agreement, as the Council concluded, forms an integral part of
Community law.7 In the Sevince8 case, the Court went further, and stated
that it also has jurisdiction on the interpretation on the decisions of the legal
bodies of the Ankara Association Agreement.9 Now the legal consequences
of these cases could be seen in Article 216/2 of TFEU which provides that
‘Agreements concluded by the Union are binding upon the institutions of
the Union and on its Member States.’
The Court, in its famous judgement of Van Gend en Loos, created a new
principle of EU law: namely the “direct effect principle,” and it was stated
that the Community constitutes a new legal order of international law. And
for almost 50 years, the Court has seen itself as a guardian of this new legal
order. In Opinion 1/09, the ECJ clearly express this idea: ‘As is evident from
Article 19(1) TEU, the guardians of that legal order and the judicial system
of the European Union are the Court of Justice and the courts and tribunals
of the Member States.’11
10
The Court also held that international agreements may be directly effective.12
This means that agreements between the EU and third countries or international
organizations may confer rights on individuals, and they may use them
5
6
7
8
9
10
11
12
P Craig and G D Burca, (n2) p.303.
Case 181/73 Haegeman [1974] ECR 449.
Ibid., para. 5.
Case C-192/89 Sevince [1990] ECR I-3461.
Ibid., para. 10.
Case C–26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands
Inland Revenue Administration [1963] ECR I–0001.
Opinion 1/09 European and Community Patents Court [2011] ECR.
Case 21-24/72 International Fruit Company [1972] ECR-1219.
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before national courts. However, international agreements have political and
strategic perspectives, so that the direct effect of the international agreements
cannot be solved only with the Van Gend en Loos criteria.13 The test for a
direct effect on international agreements must be evaluated with the nature
of the provisions and the aim of the alleged agreement.14 As Vauchez argued,
it is difficult to fully understand the EU legal order without mentioning the
link between law and politics.15
III. COMPETENCE PROBLEM:
The most significant issue in the EU’s external relations is the issue of
competence, which leads to two other problems. The first one is whether
the EU has an external power in specific area. The second one is, if the EU
has power in that area, whether this power is exclusive or is shared with
the Member States.16 The Court generally deals with these two arguments.
As was mentioned above at the beginning of the Community integration,
the external powers of the EC were small and the Court interpreted the EC
competence widely which show its intervening approach on external issues.17
228
A. Principle of Conferral:
The Principle of Conferral is a fundamental principle of EU law as specified
in Article 5 (1) of the TEU. According to this principle, the EU is a union
of Member States, and all its competences are voluntarily conferred on it
by its Member States. The principle of conferral is defined in Article 5/2 of
the TEU, which provides:
“Under the principle of conferral, the Union shall act only within the limits
of the competences conferred upon it by the Member States in the Treaties
to attain the objectives set out therein. Competences not conferred upon the
Union in the Treaties remain with the Member States.”
The principle of conferral provides the legal basis of the EU’s actions.
Under Article 263 of the TFEU, any measure adopted by EU institutions
13
14
15
16
17
P Craig and G D Burca (n3) 344.
Alina Kaczorowska, ‘European Union Law’ (2th edn, Routledge 2011) 336 cited to Case 308/06 The
Queen on the application of: International Association of Independent Tanker Owners (Intertanko)
and Others v Secretary of State for Transport.
Antonie Vauchez ‘The Transnational Politics of Judicualization. Van Gend en Loos and The Making
of EU Polity’ (2010) 16 ELJ 6.
P Craig and G D Burca (n2) 302.
Ibid 302.
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without a true legal basis were annulled by the ECJ for lack of competence.18
The choice of a legal basis is also important during the promulgation of
secondary acts. The ECJ held that the choice of the appropriate legal basis
has constitutional significance.19
For example, in the Passenger Name Records case, the European Parliament
sought the annulment of the Council Decision on the conclusion of an
agreement between the European Community and the United States on
the processing and transfer of PNR data by Air Carriers to the United
States Department of Homeland Security, Bureau of Customs and Border
Protection.20 The Court ruled that:
“While the view may rightly be taken that PNR data are initially collected by
airlines in the course of an activity which falls within the scope of Community
law, namely sale of an aeroplane ticket which provides entitlement to a supply
of services, the data processing which is taken into account in the decision on
adequacy is, however, quite different in nature. As pointed out in paragraph
55 of the present judgment, that decision concerns not data processing
necessary for a supply of services, but data processing regarded as necessary
for safeguarding public security and for law-enforcement purposes.”21
The Court concluded that allowing PNR data to the third country for a public
security aim was expressly excluded from the scope of the EC competence
at the time.22
B. Exclusive-Shared Competence and the Implied Power Doctrine:
Article 2 of the TFEU categorizes the competence subject in three parts; the
Union’s exclusive competence in a specific area, competence shared with
Member States in a specific area, and competence to support, coordinate
or supplement Member States. Provisions of treaties might confer on the
EU institutions express or implied powers. Express powers are granted to
the EU institutions and clearly defined in treaty provisions or in one of the
Union’s legislative act.23 With regards to implied powers, these powers do
not originate directly and expressly from provisions of treaties but rather
18
19
20
21
22
23
A Kaczorowska (n14) 82.
Opinion 2/00 on the Cartegana Protocol [2001] ECR I-9713.
Case C-317/04 European Parliament v Council; C-318/04 European Parliament v Commission [2005]
ECR I-02457.
Ibid para. 57.
Ibid para. 68-69.
A Kaczorowska (n14) 83.
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from general objectives laid down by the Treaties as interpreted by the
ECJ.24 Furthermore, the Lisbon Treaty made clear the areas where the Union
would be able to exercise its external competence.25 Article 3/2 of the TFEU
approves the speciality of the EU’s external competences. This article also
can be read as the reflection of the ECJ’s case laws on the implied power
doctrine.
“The Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative
act of the Union or is necessary to enable the Union to exercise its internal
competence, or in so far as its conclusion may affect common rules or alter
their scope.”
In addition, Art.216 (1) TFEU provides:
230
“The Union may conclude an agreement with one or more third countries
or international organisations where the Treaties so provide or where the
conclusion of an agreement is necessary in order to achieve, within the
framework of the Union’s policies, one of the objectives referred to in the
Treaties, or is provided for in a legally binding Union act or is likely to affect
common rules or alter their scope”.
The EU, therein, uses not only express powers but also implied powers when
concluding an international agreement.26
C. The History of the Implied Powers Doctrine:
The ERTA27 decision is one of the most important judgments handed down
by the ECJ, and it established the implied exclusive powers doctrine. The
Commission requested the annulment of the resolution of the Council
concerning the work of the crews of vehicles engaged in an international
road transport. The Court started with article 210 of the EEC Treaty and stated
that ‘the Community has legal personality.’28 The Court also acknowledged
the treaty-making capacity of the Community, and held that this right arises
not only from an express treaty article, but may equally emerge from other
provisions of the treaty and from measures adopted, within the framework
24
25
26
27
28
Ibid page 83.
Panos Koutrakos, ‘Primary Law and Policy in EU External Relations: Moving Away From the Big
Picture’ (2008) 33 ELR 10.
A Kaczorowska (n14) 83.
Case 22/70 Commission v Council [1971] ECR 263.
Ibid para. 13.
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of those provisions, by the Community institutions.29 The Court then showed
the competence division between Member States and the Community with
following sentences:
“When the Community is implementing a common policy envisaged by the
Treaty, 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.”30
The rationale behind the ERTA judgment is that the Court understands
that the express treaty articles are insufficient to play an important role in
an international arena and gave a wide interpretation of the EC’s implied
powers.31According to Kaczorowska, in the 1970s the ECJ did not make any
distinction between the existence and the nature of an external competence.
Once the Court decided that the Community had implied competence,
such a competence was automatically exclusive in nature.32 However, in
Opinion 1/03, the Court clearly stated that implied competence may be either
exclusive or shared.33
Another case on the doctrine of implied power is the Kramer judgment
concerning the establishment of a common policy for the conservation of
the fishing industry, which is a preliminary ruling case from the Netherland
Courts.34 In this case, there is no specific treaty article authorizing the
Community to enter into international commitments in the sphere of
conservation of the biological resources of the sea,35 just like there is no
express legal basis in common transport policy in the ERTA case. Then the
Court looked to the general scheme of the treaty and concluded that this
policy area is under competence of the Community. However, at that time the
Community had not yet having fully exercised its functions in this area. The
ECJ stated that if there is an EC competence but no implementing legislation
yet, the Member States had the power to undertake commitments only in
a transitional period, and they were bound by the Community obligations
29
30
31
32
33
34
35
Ibid para. 16.
Ibid para. 17.
P Craig, G D Burca (n2) 302-309..
A Kaczorowska (n14) 83.
Opinion 1/03 Competence of the Community to conclude the new Lugano Convention [2006] ECR I
1145 [115] .
Cases 3, 4, and 6/76 Kramer [1976] ECR 1279.
Ibid para. 16.
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in their negotiations.36 The differences between the ERTA and Kramer
cases is that there was no secondary legislation or implementing act in the
Kramer judgement at the time of the facts, and the Court believed that the
conservation of fishes on the high seas had a multilateral nature where also
non-member countries have to be involved.37
However, the ECJ decided differently in opinion 1/76 related to the Inland
Waterways transport sector in the Rhine and Moselle basin.38 The Court held
that the Community has exclusive external competence, even when there
is no prior Community legislation.39 In this case, the ECJ established the
principle of the parallelism doctrine. According the Court, if the Community
has an internal power, this internal power would almost unavoidably have
to be matched by an external power.
232
The codification of the EU’s external competence was one of the main
essentials in the reform process that concluded in the Lisbon Treaty.40 These
competences are now generally identified in the Lisbon Treaty. Treaty
makers mostly take the ECJ’s case law into consideration. The ECJ with
those judgments facilitate the action of the Union in a globalised world,
in particular when dealing with the external dimension of internal policies
and action.41
D. The Line between Exclusive and Shared Competences:
In Article 4 of the TFEU, we can see the policy areas with shared competences.
Complexity in the case law on the EU’s external competence, whether it is
exclusive or shared with Member States, also emerges from the blurred lines
between the policy areas. For example, in ‘custom union’ issues under Article
3 of the TFEU, the EU has exclusive competence. However in ‘internal
market’ issues under article 4 of the TFEU, the EU and the Member States
have shared competence. It is difficult to draw a line between these two
issues.
36
37
38
39
40
41
Ibid para . 39-40.
Piet Eeckhout ‘EU External Relations Law’ (2th edn, OUP 2011) 78.
Opinion 1/76 On the Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels
[1977] ECR 741.
Ibid para 3-4.
P Craig and G D Burca, (n 2) 73.
CONV 459/02, Final Report of Working Group VII on External Action, Brussels, 16 Dec 2002 [16].
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One of the important judgments about that blurred line is Opinion 1/94.42
For Craig and de Burca, this opinion shows that the ECJ changed its mind
from its expansive case law on the implied exclusive competences in external
relations.43 It held that exclusive external competence was dependent on the
actual exercise of internal powers, and not only their existence. The questions
asked of the Court by the Commission in its request for an Opinion, was
whether the EU has a competence to conclude the General Agreement on
Trade in Services (‘GATS’) and the Agreement on Trade-Related Aspects of
Intellectual Property Rights, including trade in counterfeit goods (‘TRIPs’).
In Opinion 1/94 on the WTO Agreement, the ECJ held that:
“Where harmonizing powers have been exercised, the harmonization
measures thus adopted may limit, or even remove, the freedom of the Member
States to negotiate with non-member countries. However, an internal power
to harmonize which has not been exercised in a specific field cannot confer
exclusive external competence in that field on the Community.”44
“....Save where internal powers can only be effectively exercised at the
same time as external powers (see Opinion 1/76 and paragraph 85 above),
internal competence can give rise to exclusive external competence only if
it is exercised...”45
IV. SELECTED CASES:
A. Access to ECHR:
We can see the Court’s interventionist approach in Opinion 2/94, related
to whether the Community has competence to accede to the European
Convention for the Protection of Human Rights and Fundamental Freedoms.46
There are two burning questions in this opinion; (i) the competence of the
Community to conclude such an agreement, and (ii) its compatibility with
the provisions of the Treaty, in particular those relating to the jurisdiction
of the Court.47
42
43
44
45
46
47
Opinion 1/94 Competence of the Community to Conclude International Agreements Concerning Services
and the Protection of Intellectual Property, WTO [1994] ECR I–5267.
P Craig, G D Burca (n 2 ) 314
Opinion 1/94 (n 61) para 88.
Ibid para 89.
Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR
I–1759.
Ibid para 9.
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The court did not give an answer to second question. The reasoning for not
answering the second question was limited.
“.... The Court has been given no detailed information as to the solutions that
are envisaged to give effect in practice to such submission of the Community
to the jurisdiction of an international court. It follows that the Court is not in
a position to give its opinion on the compatibility of Community accession
to the Convention with the rules of the Treaty.”48
234
The Court finally held that the Community has no competence to accede to
the Convention without a treaty amendment.49 The Court first explained the
implied power doctrine in this case. It said that fundamental rights form an
integral part of the general principles of law, whose observance the Court
ensures, rather than turn to Article 235 of EC Treaty (a special clause to fill
the gap where no specific provisions of the treaty confer on the Community
institutions express or implied powers to act, now Art. 352 TFEU) and
examined this article and concluded that access to the ECHR system go
beyond the scope of Article 235, and concluded that the current Treaty is
not suitable for accession to the ECHR.
For Craig and de Burca, opinion 2/94 on the accession of the EC to the
ECHR pointed out that there are other restrictions to the implied external
competence of the EU.50 Eeckhout summarizes the Court’s decision from a
different aspect:
“One issue is the relationship between the implied powers doctrine and
Article 352(ex article 235 EC) TFEU. A possible reading is that the Court
wrong-foots the student of the Opinion, by first reciting the implied powers
principles, and then swiftly turning to Article 352 ‘in the absence of express
or implied powers.’ That seems to suggest that Article 352 is not itself part of
the implied powers doctrine, and that the Court needs to analyse it because
the Treaty does not elsewhere contain express or implied powers in the
human rights field.”51
The accession to the ECHR will only materialize now as the Treaty of Lisbon
finally provides a legal basis with the Article 218 of the TFEU for the ECHR
accession.
48
49
50
51
Ibid para 21-22.
Ibid para 36.
P Craig, G D Burca (n 2) 302-309.
P Eeckhout (n 37) 99.
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B. EFTA Court:
There are two other opinions where the Court showed its power on
international matters. Opinion 1/91 was related to the compatibility with the
EEC Treaty of the system of judicial supervision on the EEA Treaty.52 The
EEA agreement is identical to the EEC Treaty and was establishing the EEA
Court composed of judges from the ECJ and the EFTA countries. This Court
would have worked in a manner similar to the ECJ, which means interpreting
the EEA agreement. The court started its ruling with an interpretation of the
terminternational treaty:
“...An international treaty is to be interpreted not only on the basis of its
wording, but also in the light of its objectives. Article 31 of the Vienna
Convention of 23 May 1969 on the law of treaties stipulates in this respect
that a treaty is to be interpreted in good faith in accordance with the ordinary
meaning to be given to its terms in their context and in the light of its object
and purpose.”53
The Court investigated the aim of the agreement, homogeneity of the rules
of law, the principle of direct effect and supremacy and their affect on
EFTA countries, transferring of sovereign rights issue, possible problem
that would emerge from case laws of the ECJ before the agreement and after
the agreement, binding nature of the two Courts decisions between them,
preliminary ruling procedure on EFTA countries, and the judges’ approach
to cases who are working both in the EEA Court and the ECJ. At the end
the Court decided that: ‘An international agreement providing for a system
of courts, including a court with jurisdiction to interpret its provisions is not
in principle incompatible with Community law...’54 This case also indicated
the Court was unwilling to share its power with another Court.
After this Opinion, the Community re-negotiated the Agreement, and brought
a new Agreement before the ECJ for a new opinion where the Court gave
a green light. Paragraph 17 of Opinion 1/92 summarizes the essence of the
case:
“In that context, it is to be noted that the agreement no longer provides
for the creation of an EEA Court, but proposes that an EFTA Court be
established by a separate agreement between the EFTA States. Contrary to
52
53
54
Opinion 1/91 Agreement on the European Economic Area [1991] ECR I–6079.
Ibid para 14.
Ibid para 70.
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what was proposed in the case of the EEA Court, the EFTA Court will not
hear disputes between Contracting Parties and will exercise its jurisdiction
only within EFTA.”55
In order to preserve the homogeneous interpretation between the ECJ and the
EFTA Courts, the EEA agreement established a special Joint committee as an
arbitrator. The Court held that: ‘...It follows that the settlement of disputes by
arbitration is not liable adversely to affect the autonomy of the Community
legal order.’56 The ECJ held that decisions taken by the Joint Committee do
not affect the case-law of the Court of Justice and are laid down in a form
binding on the Contracting Parties. When the Court understood that it would
not lose power, it gave a positive opinion.
C. IMO and Sincere Cooperation:
236
The ECJ also gives important attention to the duty of sincere cooperation on
external relations of the EU. For the Court, the duty of sincere cooperation
is of general application, irrespective of the nature of EU competence.57 For
instance, the ECJ held that, by submitting a proposal to the International
Maritime Organisation, Greece has failed to fulfil its Treaty obligations.58
Greece submitted to the IMO committee a proposal which initiateda procedure
which could lead to the adoption by the IMO of new rules.59 The adoption of
such new rules would as a consequence have an effect on the Community
Regulation, the Community legislature having decided before.60 The Court
stated that Community is not a member of there IMO and there is no way
for it to be a member, so that it does not prevent its external competence
from being in fact exercised, in particular through the Member States acting
jointly in the Community’s interest.61 The ECJ held that the EU member
States are under an obligation to follow an agreed EU position within a
particular organisation, even if the EU itself is not a member thereof.62 Also,
the principle of sincere cooperation is not limited to Member States, but is
55
56
57
58
59
60
61
62
Opinion 1/92 Agreement on the European Economic Area [1992] ECR I–2821.
Ibid para 36.
Bart Van Vooren EU External Relations Law and the European Neighbourhood Policy: A Paradigm
for Coherence (Routhledge 2012) p.120.
Case C-45/07 Commission of the European Communities v Hellenic Republic [2009] ECR I–701.
Ibid para 20.
Ibid para 21.
Ibid para 30-31.
Frank Hoffmeister ‘The European Union’s common commercial policy a year after Lisbon – Sea
change or business as usual?’ in Panos Koutrakos (eds) The European Union’s External Relations a
Year After Lisbon (T.M.C. Asser Institute 2011) p. 94.
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also applicable in relations between Community institutions.63 Cremona
argues that this case shows that ‘affecting the Community rules’ is enough
for a breach of EU law.64
D. MOX Plant and Going to Special Courts:
Article 344 of the TFEU (ex Article 292 TEC) states that: ‘Member States
undertake not to submit a dispute concerning the interpretation or application
of the Treaties to any method of settlement other than those provided for
therein.’
In the MOX Plant case,65 the Court, for the first time decided the extent
of its jurisdiction based on Article 344 of the TFEU.66 Ireland introduced
proceedings against the United Kingdom before arbitral tribunals under
both the UNCLOS and OSPAR Conventions in order to resolve the dispute
emerging from the radioactive discharges of the MOX plant. The European
Commission started an Article 258 of the TFEU infringement procedure
against Ireland for violating Article 344 TFEU and the identical provision
in the Euratom Treaty.67
The Court held that:
237
“...the matters covered by the provisions of the Convention relied on by
Ireland before the Arbitral Tribunal are very largely regulated by Community
measures...”68..International agreement cannot affect the allocation of
responsibilities defined in the Treaties and, consequently, the autonomy of
the Community legal system, compliance with which the Court ensures under
Article 220 EC. That exclusive jurisdiction of the Court is confirmed by
Article 292 EC, by which Member States undertake not to submit a dispute
concerning the interpretation or application of the EC Treaty to any method
of settlement other than those provided for therein...”69..Declares that, by
instituting dispute-settlement proceedings against the United Kingdom of
Great Britain and Northern Ireland under the United Nations Convention on
63
64
65
66
67
68
69
M Cremona ‘External Relations of the EU and the Member States: Competence, Mixed Agreements,
International Responsibility, and Effects of International Law’ Report for FIDE 2006.
M Cremona ‘Extending the reach of the AETR principle: comment on Commission v Greece (C45/07)’ ELR (2009) 6.
C-459/03 Commission of the European Communities v Ireland [2006] E.C.R. I-4635.
N Lavranos ‘The Scope of the Exclusive Jurisdiction of the Court of Justice’ ELR (2007) 3.
Ibid page 3.
C-459/03 (n65) para 110.
Ibid para 123.
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Ali TÜRKMEN
the Law of the Sea concerning the MOX plant located at Sellafield (United
Kingdom), Ireland has failed to fulfil its obligations under Articles 10 EC
and 292 EC and under Articles 192 EA and 193.”70
238
Koskenniemi claimed that, from the point of view of the ECJ, to appeal to
international law against the United Kingdom, Ireland was violating the
sovereignty of European law.71 According to Lavranos, the most significant
aspect of this judgment was that the Court defined the scope of its exclusive
jurisdiction very broadly. For him also this extensive definition of the Court’s
jurisdiction was based on the two fundamental concerns: (i) protecting the
autonomy of Community law, in particular by ensuring the uniform and
consistent interpretation and application of it; and (ii) protecting its exclusive
jurisdiction against the rising number of international courts and tribunals
by limiting as far as possible their utilisation by the EU Member States.72 In
the same vein, Jan Willem van Rossem pointed out that this judgment was
reflecting the ‘concern for the erosion of the Court’s exclusive power of judicial
review as a result of competition by an international tribunal.’73 The important
point is that Member States do not like the limitation of their sovereign rights
from the Court of Justice and try to solve problems without the Court.74
E. KADI and Common Foreign and Security Policy:
The nature of the Union’s Common Foreign and Security Policy competence
has been a legal problem from the beginning of the EU and is largely excluded
from the ECJ’s judicial review.75 The primary role in the CFSP is under the
control of the European Council and the Council, the Commission, and the
Parliament’s role are secondary and small, and the ECJ has no jurisdiction
except for Article 40 TEU and Art 275 TFEU.
The Kadi case was a very important judgment, which shaped the Treaty of
Lisbon and EU’s external relations on Common Foreign and Security Policy.76
70
71
72
73
74
75
76
Ibid para 184.
Martti Koskenniemi ‘International Law: Constitutionalism, Managerialism and the Ethos of Legal
Education’ available at http://www.ejls.eu/1/3UK.htm
N Lavranos (n64) page 4.
Jan Willem van Rossem ‘The Autonomy of EU Law: More is Less?’ in Ramses A. Wessel, Steven
Blockmans (eds) Between Autonomy and Dependence: The EU Legal Order under the Influence of
International Organisations (Springer 2013) p.16
N Lavranos (n65) page 6.
P Craig, G D Burca (n2) 327.
Cases C-402/05 P and C-415/05 Kadi and Al Barakaat International Foundation v Council and
Commission (2008) ECR I-6351
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The case concerns the legality of the EU’s ‘smart sanctions’ implementing the
UN anti-terrorist resolution. This case is also important about the competence
of the EU, the relationship of EU law and international law, and the approach
of the ECJ to the fundamental rights.77 The EU adopted a regulation in order
to implement the UN Security Council Resolution. Under this regulation,
the Commission froze Mr Kadi’s financial assets. Kadi argued that this EU
Regulation infringed on is fundamental rights, because he did not have not
any opportunity to defend himself and there is no judicial review for the UN
resolution. The Court stated that fundamental rights form an integral part of
EU law whose observance are ensured by the Court.78 It went on and stated that
‘International agreements cannot have effect of prejudicing the constitutional
principles of the EC Treaty.’79 Then the Court did not accept the UN Resolution
as superior to EU law and annulled the Regulation. The Lisbon Treaty opened
the gates for judicial review of the actions brought by natural or legal persons
when the institutions imposed ‘restrictive measures ‘against them. 80
Koutrakos defines the role of the ECJ after the Lisbon Treaty this way: ‘All in
all, the problematic formulations chosen by the drafters of the Lisbon Treaty
would not reduce the role of the Court of Justice; neither would they prevent
it from shaping the development of EU external relations law.81 He also
indicates the importance of Article 40 TEU Lisbon which reads as follows:
“The implementation of the common foreign and security policy shall
not affect the application of the procedures and the extent of the powers
of the institutions laid down by the Treaties for the exercise of the Union
competences referred to in Articles 3 to 6 of the Treaty on the Functioning
of the European Union. Similarly, the implementation of the policies listed
in those Articles shall not affect the application of the procedures and the
extent of the powers of the institutions laid down by the Treaties for the
exercise of the Union competences under this Chapter.”
He states that the role of the Court of Justice in external relations would
increase as inter-institutional disputes about how to determine the correct
legal basis arise.82
77
78
79
80
81
82
P Craig, G D Burca (n2) 374
Cases C-402/05 para 283
Cases C-402/05 para 285
Article 274 TFEU
P Koutrakos (n25) 11.
Ibid page 11.
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CONCLUSION:
The Treaty of Lisbon was a significant step forward for the coherence of the
EU’s external relations. While the Treaty of Lisbon considerably amended
the legal framework of the EU’s external relations, the role of the ECJ on
external actions of the EU has been continuing without losing its importance.
The determination of the nature of a competence is generally decided on a
case by case basis. The ECJ, as usual, filled the gap on external relations of
the EU with teleological interpretation. As with national governments, the
EU institutions do not like courts to intervene too much in their external
relations. The ECJ also set an example to Member States’ Supreme Courts
by its international interventionist approach. In short, all the above mentioned
case laws are good reasons for supposing that the ECJ will remain vital for
the EU’s external relations.
∗∗∗
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240
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Law & Justice Review, Volume: IV, Issue: 2, December 2013
The European Court of Justice: An International Power
Ali TÜRKMEN
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Cases C-402/05 P and C-415/05 Kadi and Al Barakaat International
Foundation v Council and Commission [2008] ECR I-6351.
Case C-45/07 Commission of the European Communities v Hellenic Republic
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Opinion 1/76 On the Draft Agreement Establishing a Laying-up Fund for
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Law & Justice Review, Volume: IV, Issue: 2, December 2013
241
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Opinion 1/91 Agreement on the European Economic Area [1991] ECR
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Opinion 2/00 on the Cartegana Protocol [2001] ECR I-9713.
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242
Communication From the Commission to the Council ‘Reforming Europe
for the 21st Century’ Brussel [2007].
CONV 459/02, ‘Final Report of Working Group VII on External Action’
Brussels, 16 Dec 2002 [16]..
Cremona, M ‘External Relations of the EU and the Member States:
Competence, Mixed Agreements, International Responsibility, and Effects
of International Law’ Report for FIDE 2006.
Koskenniemi, M ‘International Law: Constitutionalism, Managerialism and
the Ethos of Legal Education’ available at http://www.ejls.eu/1/3UK.htm
Law & Justice Review, Volume: IV, Issue: 2, December 2013