Connected or Disconnected: The EU and International Law

1. Prof. Pieter Jan KUIJPER Connected or Disconnected:The EU and International Law Lecture 5: The EU and International Responsibility

2. Which rules of international law can the EU break? • Treaty law • Pure Community Agreements, mainly trade agreements. • Mixed Agreements, such as Association and Cooperation Agreements • Mixed Agreements, with exclusive EC powers included, such as WTO. • Depends on dispute settlement clauses available Lecture 5: The EU and International Responsibility

3. Which rules of international law can the EU break? 2 • Customary rules of international law. • In reality multilateral treaty regimes to which the Union is not a party, but which have become customary law. • Human rights law • Humanitarian law • General principles of international law. • Not highly likely; • Again availibility of a forum is important Lecture 5: The EU and International Responsibility

4. Which elements of the law of responsibility apply to the EU? • Based on the ILC draft articles on responsibility of IO’s • The normal ones: • Internationally wrongful act of the EU entails international responsibility of the EU, if • Conduct in the form of an act or omission • Is attributable to the EU, and • Constitutes a breach of an international obligation of the EU. Article 4 ARIO, cf. Art 2 ARS Lecture 5: The EU and International Responsibility

5. Which elements of the law of responsibility apply to the EU? 2 • Specific problems of attribution • Conduct of an organ (e.g. the Council) or an agent (e.g. a Head of Del) of the EU = an act of the EU (rules of the EU play a role in determining this). Article 5 ARIO • Conduct of organs or agents placed at the disposal of the EU is an act of the organization if there is effective control. Art. 6 ARIO. What about MS customs personnel? Cf. WTO Cases on LAN Equipment, on Customs Administration and IP Discrimination; What about MS troop contingents in CFSP operations? Cf. Behrami-Saramati case (ECtHR) • Conduct acknowledged and adopted by the EU as its own. Art. 7 ARIO. • Responsibility not always dependent on attribution. In some cases responsibility can be directly “incurred.” Lecture 5: The EU and International Responsibility

6. How does the EU fit into this scheme of things? • Problems resulting from executive federalism • Are MS organs “agents” of the EU? Normally not. • Can this be solved by rules of attribution? • Do we need special rules of attribution for REIO’s? • Problems resulting from mixed agreements • Does it matter, when exclusive EU powers are in play? • Joint or joint and several responsibility? EDF case. • Obligation to provide information on division of powers EU-MS – beneficial? (sanction: joint and several resp.) Lecture 5: The EU and International Responsibility

7. Classical International Law approach is not much help • The old-fashioned categories are: • Aid and assistance (art. 13 ARIO) • EU responsible if it aids and assists a State in committing wrongful act. • Direction and control (art. 14 ARIO) • EU responsible if it directs and controls a State in committing a wrongful act. • Conditions identical in both cases: • EU acts with the knowledge of the circumstances of wrongful act. • Act would be wrongful, if committed by the EU • Coercion of a State by an IO (not realistic) (art. 15 ARIO) Lecture 5: The EU and International Responsibility

8. Special problem: relation EU – Member State • Decisions, authorizations and recommendations • EU is responsible if it binds a MS by a decision to take an act that would be wrongful if taken by the EU and would thus circumvent the obligations of the EU. Example? • Same for an authorization of or recommendation to a MS by the EU, if MS commits that act because of the authorization or recommendation • Indifferent whether the act is wrongful or not for the MS. • There is room for shared responsibility. (arts 16-18 ARIO). Lecture 5: The EU and International Responsibility

9. Mirror Image Rules on the abuse of an IO by States and its MS. • Again the classical situations • Aid and assitance of State to the EU (art. 57 ARIO) • State responsible if it aids and assists the EU in committing wrongful act. • Direction and control (art. 58 ARIO) • State responsible if it directs and controls the EU in committing a wrongful act. • Conditions identical in both cases: • State acts with the knowledge of the circumstances of wrongful act. • Act would be wrongful, if committed by the State • Coercion of an IO by a State (not realistic) (art. 59 ARIO) Lecture 5: The EU and International Responsibility

10. Special problem: relation Member State – IO • Responsibility of a MS seeking to avoid compliance (Art. 60 ARIO); • An MS would incur responsibility if it seeks to avoid its own compliance with obligations by “taking advantage of the fact that the EU has competence in relation to the subject matter of that obligation” so that the EU acts in a way that would have constituted a breach of an obligation of the MS. • Is this situation comparable to the Bosphorus judgment of the ECtHR? • Assumption of responsibility for an act of the EU by a MS • Leaves open the possibility for shared responsibility. Lecture 5: The EU and International Responsibility

11. The solution for the EU: lex specialis? • Article 63 ARIO (cf. Art. 55 ARS) • “These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or the implementation of the international reponsibility of an international organization, or a State, for an internationally wrongful act of an international organization, are governed by special rules of international law, including rules of the organization applicable to the relations between the international organization and its members.” • Is this the solution to the EU’s problems? Lecture 5: The EU and International Responsibility