The Interface Between EU and International Law

Contemporary Reflections

Inge Govaere, Sacha Garben

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509923397
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

Despite their many obvious interconnections, EU and international law are all too often studied and practised in different spheres. While it is natural for each to insist on its own unique characteristics, and in particular for the EU to emphasise its sui generis nature, important insights might be lost because of this exclusionary approach. This book aims to break through some of those barriers and to show how more interaction between the two spheres might be encouraged. In so doing, it offers a constitutional dimension but also a substantive one, identifying policy areas where EU and international law and their respective actors work alongside each other. Offering a 360-degree view on both EU and international institutional and substantive law, this collection presents a refreshing perspective on a longstanding issue.

PART I

A Horizontal, Holistic Approach

1

Interconnecting Legal Systems and the Autonomous EU Legal Order: A Balloon Dynamic

INGE GOVAERE

I.The Balloon Dynamic of the Autonomous EU Legal Order

The concept of the new and autonomous EU legal order, as it emanated from the historic Van Gend & Loos judgment of the Court of Justice of the European Union (CJEU),¹ can best be pictured as an empty balloon firmly slid in-between public international law and constitutional law.² At first this would sit somewhat uneasily and create some friction, but it would not yet raise any major concerns. More important frictions with international law however started to appear with the rapid expansion of the EU integration process both in terms of substantive coverage and territorial scope, due to the constant transfer of competence towards the EU, coupled with the EU enlargement process to include new Member States. The balloon imagery goes that with every such new EU development, more air is automatically blown into the balloon. Yet strongly inflating the EU balloon has as a direct consequence that also more and more international law (and Member States’ constitutional law) is systematically squeezed out. It is this gradual but steady EU integration process which inevitably causes increased friction and possibly even resistance against a further expansion of the autonomous EU legal order. Not surprisingly, the biggest friction is likely to relate to the transfer of areas which for a long time were kept outside the EU law balloon and within the sole realm of international law.

Concurrently, the EU legal order, as any balloon, gets more fragile when inflated. The necessity to shield the balloon from ‘external puncturing’ and its ensuing deflation, for instance in terms of forum shopping for dispute settlement, therefore also becomes all the stronger. It was argued before that this gradual EU integration process most likely explains why the crucial debate on EU law compatibility of Investor-State Dispute Settlement (ISDS) in the new and comprehensive EU free trade agreements, such as EU-USA Transatlantic Trade and Investment Partnership (TTIP), EU-Canada Comprehensive Economic and Trade Agreement (CETA) and EU-Singapore Free Trade Agreement (EUSFTA), has only recently arisen.³ The underlying trigger is undoubtedly the express inclusion of foreign direct investments in Article 207 of the Treaty on the Functioning of the European Union (TFEU) by the Lisbon Treaty, thus unequivocally conferring exclusive common commercial policy competence in the matter to the EU.⁴ In so doing, a field traditionally governed by international law was for the first time brought firmly within the balloon of the autonomous EU legal order. In the much awaited Opinion 1/17, the questions posed by Belgium pertain to the compatibility of the ISDS provisions in CETA with the autonomous EU legal order post-Lisbon.⁵ Advisory Opinion 1/00 on the European Common Aviation Area shows, however, that it does not suffice to raise questions in terms of possible incompatibility with the EU autonomous legal order for the CJEU also to conclude in that sense;⁶ the assessment is much more refined and complex.

Such a complex balloon dynamic process warrants the following threefold analysis. First of all, it is crucial to remember the very raison d’être of the EU law balloon and the mechanisms underlying its inflation, so as to understand why and how the CJEU coined the concept of ‘autonomous EU legal order’ in Van Gend & Loos.⁷ Many studies and conferences have already been devoted to the study of Van Gend & Loos so this will not be repeated here.⁸ Second, in order to avoid puncturing the balloon membrane it is crucial to pinpoint clearly the structural pressures that rest on the autonomous EU legal order. Third, it needs to be considered what the possible degree of resilience or elasticity of the EU balloon membrane can be in terms of offering substantive remedies to avoid conflict. The latter two elements are necessarily and inherently intertwined in any single legal analysis performed by the CJEU. The structural membrane serves to safeguard the ‘autonomy’ of the EU legal order so that, not surprisingly, the CJEU will strive for a strict division and a ‘hermetically closed’ EU law system. Yet in order to forge acceptance thereof, the CJEU needs, at the same time, to be seen to strive for ‘openness’ and ‘symbioses’ with the other legal systems in terms of substantive resilience/elasticity, in relation to both constitutional law of the Member States and international law (including the UN, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)). This contribution will systematically deconstruct those last two distinct yet stringently interrelated elements before turning to the key question in the current Post-Lisbon setting: will the EU balloon likely continue to fly or deflate?

The Lisbon Treaty now expressly states among the EU objectives in Article 3(5) of the Treaty on European Union (TEU) that the Union ‘… shall contribute to (…) the development of international law, including respect for the principles of the United Nations Charter’. Upon an isolated reading of this new provision of primary EU law, it could be claimed that this objective should always and necessarily take the upper hand and in every instance be given a full effect. The question still remains if, and if so to what extent, in so-doing concessions can or should be made to safeguard the autonomy of the EU legal order, which also derives its logic from primary EU law. Another possibility is more simply to read a codification of consistent case law of the CJEU into this new provision. As an international actor with legal personality the EU should then in its dealings with third countries and other international organisations comply with and contribute to the international legal order, short of any obligation to turn the EU into a traditional ‘state like’ subject of international law, let alone yielding core features of EU law to international law. There is no doubt that the insertion of this provision in the Lisbon Treaty contains ample potential to refuel a difficult discussion.

In order to grasp the complexity, dynamics and current challenges facing this interconnecting process, it is crucial that the place of the autonomous EU legal order in the larger international legal setting is subjected to a dynamic reassessment on its own merits and, importantly, free from hindsight reasoning. The focus lies on a one-sided analysis, exclusively from an EU law perspective. Equally crucial and interesting questions emerging from a complementary international law perspective, such as determining the impact of EU law on international law and the ‘accommodation’ of the EU by other international organisations, will thus be left aside. By way of additional caveat, as the focus is exclusively put on an EU legal analysis, mainly trying to understand the logic of the CJEU, political and economic issues of interconnecting legal orders will only be considered as contextually important but not form the focus of analysis as such.

II.Structural Pressure on the Balloon Membrane

A lot of attention has traditionally gone on the study of the (intra-balloon) development of EU law, looking at the specificities and subject matters of EU law.⁹ This concerns the essential and distinctive characteristics of EU law, namely primacy, direct effect and uniform interpretation by the CJEU,¹⁰ but also transfer of competence to the EU in various and ever increasing fields.¹¹ The balloon dynamic of interaction between EU law and international law is not, however, limited to the process of inflation of the balloon with its ongoing shift in competence towards the EU. It also, if not foremost, points to the need to maintain intact a balloon membrane surrounding that ever expanding autonomous EU legal order. Seen from this perspective, the role of the CJEU in safeguarding a hermetically closed system of EU law appears to be crucial for the very survival of the authenticity of the autonomous EU legal order. The common feature to be discerned in the CJEU’s approach is that it seeks to prevent any ‘direct’ interference of international law within the EU balloon, unless it has been expressly endorsed as ‘integrated’ or ‘incorporated’ into the EU legal order.¹² The challenges here are twofold for the EU legal order as set up by Van Gend & Loos. It continues to be subject to both internal and external structural pressures, also following the Lisbon Treaty. First, the CJEU’s approach to the structural internal pressure post-Lisbon will be briefly pinpointed and some (wider) lessons drawn, before turning to the highly topical issue of increasing external structure pressure.

A.Structural Internal Pressure and the Rule of ‘EU’ Law

From within, the structural pressure on the hermetically closed EU law system essentially comes from the intergovernmental elements surviving the abolishment of the pillar structure by the Lisbon Treaty in CFSP matters. The crux of the autonomous EU legal order consists in preserving the unique position bestowed upon the CJEU by the Treaties. Articles 19 TEU and 344 TFEU combined confer exclusive jurisdiction to the CJEU, thereby as a rule preventing forum shopping and excluding any form of international dispute settlement in relation to the intra-balloon issues of EU law. An important exception thereto is still to be found in the ‘horizontal pillar’ of CFSP,¹³ in principle excluding CJEU jurisdiction for CFSP matters other than Article 40 TEU¹⁴ and restrictive measures against natural or legal persons (Articles 24(1) TEU¹⁵ and 275 TFEU¹⁶). As such, whereas the political power to act is shifted from the Member States to the EU, the judicial control mechanism continues to remain outside the EU legal order.¹⁷ Judicial control over CFSP measures thus lies primarily with the domestic courts of the Member States as well as international courts, such as the European Court of Human Rights (ECtHR).¹⁸

According to the Treaties, the CFSP is thus sort of half in and half out of the EU law balloon. It is to a large extent kept outside judicial control by the CJEU in favour of political control mainly by the Council and the High Representative.¹⁹ Nonetheless, the CJEU uses its general jurisdiction to ensure the rule of law under Article 19 TEU in order to minimise the possible negative impact thereof on the autonomous EU legal system. It does so in two ways, one in relation to CFSP agreements, the other relating to autonomous CFSP decisions.

First of all, the CJEU deftly uses the unitary procedure for the conclusion of agreements as laid down in Article 218 TFEU, ‘an autonomous and general provision of constitutional scope’,²⁰ to try to ensure some coherence in terms of the level of judicial and democratic control within the broader EU law balloon.²¹ The CJEU thus refutes the arguments of the Council to the effect that it would totally lack jurisdiction as soon as it concerns a CFSP agreement. Instead, it points out that an exception to the rule of general jurisdiction conferred upon the CJEU by Article 19 TEU should necessarily be restrictively interp...

Table of contents

• Cover
• Title Page
• Contents
• List of Contributors
• Introduction: The Interface between EU and International Law
• PART I: A HORIZONTAL, HOLISTIC APPROACH
• PART II: THE INTERACTION BETWEEN EU AND INTERNATIONAL LAW IN SELECTED AREAS
• PART III: THE EU AND ‘THIRD’ COUNTRIES
• PART IV: A VIEW FROM PRACTICE: COMMENTS ON CURRENT DEVELOPMENTS IN THE INTERFACE BETWEEN EU AND INTERNATIONAL LAW
• Index
• Copyright Page