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Between Autonomy and Dependence pp 47–68Cite as

Norms Emanating from International Bodies and Their Role in the Legal Order of the European Union

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Abstract

The EU recognises that engagement with international organisations is vital to allow it to realise its objectives. Although the EU takes part in the work of a considerable number of international organisations and fora, the effects of norms emanating from these international bodies upon the EU often remain unclear. In addition to legal instruments that are binding on the Union and Member States, there is also a growing body of other norms developed at the international level that influences legal and policy developments within the EU and that may even be referred to in EU legislation or case law. The chapter explores, in a non-exhaustive manner, how norms developed at the international level, such as rules, standards, principles and best practices, influence the development of EU law, even though they are not strictly legally binding upon the Union. It examines how norms developed within several bodies—the Food and Agriculture Organization (FAO) and the Codex Alimentarius Commission, the World Health Organization (WHO), OECD and the G20—have been dealt with within the EU legislature and judiciary.

Jan Wouters—Professor of International Law and International Organizations, Director of the Leuven Center for Global Governance Studies/Institute for International Law. Jed Odermatt—Research Fellow.

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Notes

  1. 1.

    Article 21(1) TEU, first and second para.

  2. 2.

    Article 21(2)(h) TEU.

  3. 3.

    See inter alia Lavranos 2004; Tietje 2008; Kuijper 2008.

  4. 4.

    A full account of the influence of the WTO in the EU legal order is beyond the scope of this paper, and is discussed in detail in Chap. 7 of this volume. See also De Meester and Wouters 2007; Gattinara 2012; Koutrakos 2006; Von Bogdandy 2005.

  5. 5.

    International Law Commission 2011, Article 2(a).

  6. 6.

    See, e.g., Schermers and Blokker 2003, p. 23, para 33, who define international organisations as “forms of cooperation founded on an international agreement usually creating a new legal person having at least one organ with a will of its own, established under international law”. Akande 2010, p. 254: “an organization must have a separate legal personality and be able to act on majority basis”.

  7. 7.

    Bindschedler 1995, p. 1289: “an association of States established by and based upon a treaty, which pursues common aims and which has its own special organs to fulfil particular functions within the organization”.

  8. 8.

    White 2005, p. 1.

  9. 9.

    Klabbers 2009, p. 6.

  10. 10.

    Sands and Klein 2009, p. 13.

  11. 11.

    Ibid, p. 16. Their definition not only looks at the organisation’s membership and legal personality, but also the extent to which the body is “capable of adopting norms (in the broadest sense) addressed to its members”.

  12. 12.

    These include the Human Rights Committee (HRC), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination Against Women (CEDAW), Committee Against Torture (CAT), Committee on the Rights of the Child (CRC), Committee on Migrant Workers (CMW), Committee on the Right of Persons with Disabilities (CRPD), Committee on Enforced Disappearance (CED).

  13. 13.

    Established by the World Meteorological Organization, Resolution 4 of the fortieth Session of the Executive Council (EC-XL), “Intergovernmental Panel on Climate Change” (Geneva, 7–16 June 1988), and the United Nations Environment Programme, Governing Council Resolutions 14/20 of 18 June 1987 and 15/36 of 25 May 1989, endorsed by the United Nations General Assembly, UNGA Res. 43/43 “Protection of global climate for present and future generations of mankind” 6 December 1988, UN Doc. A/RES/43/53.

  14. 14.

    Council of Europe, Committee of Ministers, Resolution (2002) 3, “Revised Statute of the European Commission for Democracy through Law”, adopted by the Committee of Ministers on 21 February 2002 at the 784th meeting of the Ministers’ Deputies.

  15. 15.

    See the definitions used in Krasner 1983, pp. 1–2: “sets of implicit or explicit principles, norms, rules, and decision making procedures around which actors’ expectations converge”.

  16. 16.

    See inter alia Wouters et al. 2011a; Wouters and Geraets 2012.

  17. 17.

    Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards OJ 2002 L 243/1.

  18. 18.

    E.g. UN Security Council Resolution S/RES/1373 of 28 September 2001 Threats to international peace and security caused by terrorist acts, which has had a great impact on the EU, implemented by inter alia Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism OJ 2001 L 344/93, Council Regulation (EC) No. 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism OJ 2001 L 344/70. It would also include a treaty negotiated under the auspices of an international organisation, such as the WHO Framework Convention on Tobacco Control implemented by inter alia Directive 2003/33/EC  of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products OJ 2003 L 152/16, and Directive 2001/37/EC of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products OJ 2001 L 194/26.

  19. 19.

    For instance, the standards set by the Basel Committee on Banking Supervision with regard to capital adequacy. Directive 2006/48/EC of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions OJ 2006 L 177/1 and Directive 2006/49/EC of 14 June 2006 on the capital adequacy of investment firms and credit institutions OJ 2006 L 177/201. The prudential requirements laid down in these two directives would be streamlined in one single instrument through the proposal from the Commission for a Regulation of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms, COM (2011) 452 final.

  20. 20.

    For instance, the Code of Conduct Fundamentals for credit rating agencies issued by the International Organisation of Securities Commissions (IOSCO Code) referred to in Regulation (EC) No. 1060/2009 of 16 September 2009 on credit rating agencies OJ 2009 L 302/1.

  21. 21.

    Article 4(1) of the Charter of the United Nations states that “membership in the United Nations is open to all […] peace-loving states” excluding the EU from full membership.

  22. 22.

    See, apart from Articles 21(1) and 21(2)(h) TEU, Article 220 TFEU, pursuant to which “[t]he Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development”.

  23. 23.

    UN General Assembly Resolution A/RES/65/276 of 10 May 2011 Participation of the European Union in the work of the United Nations,. Wouters et al. 2011b.

  24. 24.

    ECJ Joined Cases C-402/05 P & C-415/05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351.

  25. 25.

    Ibid., para 285.

  26. 26.

    Ibid., para 308.

  27. 27.

    Case T–85/09 Yassin Abdullah Kadi v European Commission, Judgment of the General Court of 30 September 2010 not yet published, para 120.

  28. 28.

    See inter alia De Búrca 2010; Milanović 2009; Halberstam and Stein 2009; Wouters 2010.

  29. 29.

    See Chap. 2 of this volume.

  30. 30.

    The EU’s relationship with the Food and Agriculture Organization is discussed in more detail by Françoise Schild in Chap. 10 of this volume.

  31. 31.

    Council Decision of 25 November 1991 on the accession of the Community to the United Nations Food and Agriculture Organization (not published in the OJ). For the EU declaration of competence, see http://ec.europa.eu/world/agreements/viewCollection.do?fileID=58585 Accessed 5 June 2012. See De Pascale 1992; Schwob 1993.

  32. 32.

    See Pedersen 2006; Frid 1993; Sack 1995; Heliskoski 2000.

  33. 33.

    Commission Decision 2010/93/EU of 18 December 2009 adopting a multiannual Community programme for the collection, management and use of data in the fisheries sector for the period 2011–2013 OJ 2010 L 41/8.

  34. 34.

    Council Regulation (EC) No. 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing OJ 2008 L 286/1.

  35. 35.

    Council Regulation (EC) No. 1225/2010 of 13 December 2010 fixing for 2011 and 2012 the fishing opportunities for EU vessels for fish stocks of certain deep-sea fish species OJ 2010 L 336/1.

  36. 36.

    Friedrich 2008, p. 1158, where reference is made to the impact of the Code of Conduct on EU policy making, including the European Commission’s “Green Paper on the Future of the Common Fisheries Policy”, COM (2001) 135 final. Agreements entered into by the EU also refer to the Code of Conduct: See Council Decision 2012/130/EU of 3 October 2011 on the approval, on behalf of the European Union, of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean OJ 2011 L 67/1.

  37. 37.

    Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable sources OJ 2009 L140/16: “The sustainability criteria should consider forest as biodiverse where it is a primary forest in accordance with the definition used by the Food and Agriculture Organisation of the United Nations (FAO) in its Global Forest Resource Assessment.”; Commission Regulation (EC) No. 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council Regulation (EC) No. 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) OJ 2006 L 368/15, the definition of forest and wooded area “should be in line with the definition used by the Food and Agriculture Organisation of the United Nations (FAO)”, p. 17.

  38. 38.

    Regulation (EC) No. 1337/2008 of the European Parliament and of the Council of 16 December 2008 establishing a facility for rapid response to soaring food prices in developing countries OJ 2008 L 354/62.

  39. 39.

    Council Decision 2003/822/EC of 17 November 2003 on the accession of the European Community to the Codex Alimentarius Commission OJ 2003 L 309/14, Annex II contains the declaration of competence.

  40. 40.

    ECJ Case C-448/06 Cp-Pharma Handels GmbH v Bundesrepublik Deutschland [2008] ECR I-05685.

  41. 41.

    Commission Regulation (EC) No. 1873/2003/EC of 24 October 2003 amending Annex II to Council Regulation (EEC) No. 2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin OJ 2003 L 275/9.

  42. 42.

    Council Regulation (EEC) No. 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin OJ 1990 L 224/1.

  43. 43.

    ECJ Case C-448/06 Cp-Pharma Handels GmbH v Bundesrepublik Deutschland [2008] ECR I-05685, para 36.

  44. 44.

    Ibid., para 29.

  45. 45.

    Ibid., para 37.

  46. 46.

    Case T-70/99 Alpharma v Council [2002] ECR II-03495.

  47. 47.

    Ibid.: “[R]isk” thus constitutes a function of the probability that use of a product or a procedure will adversely affect the interests safeguarded by the legal order. “Hazard” (“danger”) is, in this context, commonly used in a broader sense and describes any product or procedure capable of having an adverse effect on human health (see in that regard, at an international level, the provisional communication from the Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations and the World Health Organisation, CX 2/20, CL 1996/21-GEN, June 1996).

  48. 48.

    Case T-70/99 Alpharma v Council [2002] ECR II-03495, para 169: “A scientific risk assessment is commonly defined, at both international level (see the provisional communication from the Codex Alimentarius Commission), and at Community level, as a scientific process consisting in the identification and characterisation of a hazard, the assessment of exposure to the hazard and the characterisation of the risk”.

  49. 49.

    See also Wouters and Verhoeven 2006.

  50. 50.

    See Eggers and Hoffmeister 2006.

  51. 51.

    Directive 2010/45/EU of 7 July 2010 on standards of quality and safety of human organs intended for transplantation OJ 2010 L 207/14.

  52. 52.

    World Health Organization, Guiding Principles on Human Cell, Tissue and Organ Transplantation (2008).

  53. 53.

    Council of Europe, Recommendation Rec (2006)15 of 8 November 2006 by the Committee of Ministers to member states on the background, functions and responsibilities of a National Transplant Organisation (NTO).

  54. 54.

    Commission Directive 2003/40/EC of 16 May 2003 establishing the list, concentration limits and labelling requirements for the constituents of natural mineral waters and the conditions for using ozone-enriched air for the treatment of natural mineral waters and spring waters OJ 2003 L 126/34.

  55. 55.

    Scientific Committee for Food, Opinion (expressed on 13 December 1996) on arsenic, barium, fluoride, boron and manganese in natural mineral waters, Reports of Scientific Committee for Food, 43th Series.

  56. 56.

    ECJ Case C-236/01 Monsanto Agricoltura Italia SpA and Others v Presidenza del Consiglio dei Ministri and Others [2003] ECR I-08105.

  57. 57.

    Commission Recommendation 97/618/EC of 29 July 1997 concerning the scientific aspects and the presentation of information necessary to support applications for the placing on the market of novel foods and novel food ingredients and the preparation of initial assessment reports under Regulation (EC) No. 258/97 OJ 1997 L 253/1.

  58. 58.

    ECJ Case C-84/94 United Kingdom v Council [1996] ECR I-5755, para 15.

  59. 59.

    Council Directive 93/104/EC concerning certain aspects of the organisation of working time OJ 1993 L 307/18.

  60. 60.

    ECJ Case C-84/94 United Kingdom v Council [1996] ECR I-05755, para 15.

  61. 61.

    Ibid., para 15.

  62. 62.

    ECJ Case C-13/05 Chacón Navas v Eurest Colectividades SA [2006] ECR I-06467.

  63. 63.

    ECJ Case C-249/96 Grant v South West Trains [1998] ECR I-00621.

  64. 64.

    In particular, Communication No. 488/1992 Toonen v Australia U.N. Doc CCPR/C/50/D/488/1992 (1994) which interpreted “sex” to include “sexual orientation”.

  65. 65.

    See former Article 231 EEC Treaty: “The Community shall establish close cooperation with the Organization for European Economic Cooperation, the details to be determined by common accord”.

  66. 66.

    Supplementary Protocol No. 1 to the Convention on the OECD, 14 December 1960: “The Commissions of the European Economic Community and of the European Atomic Energy Community as well as the High Authority of the European Coal and Steel Community shall take part in the work of that Organisation”.

  67. 67.

    Organization for Economic Co-operation and Development, European Union and the OECD, available at http://www.oecd.org/document/61/0,3746,en_33873108_33873325_34511677_1_1_1_1,00.html Accessed 31 May 2012.

  68. 68.

    Emerson et al. 2011.

  69. 69.

    See http://www.oecd.org/linklist/0,2678,en_2649_33721_1797105_1_1_1_1,00.html. Accessed 24 March 2012.

  70. 70.

    Regulation (EU) No. 1233/2011 of the European Parliament and of the Council of 16 November 2011 on the application of certain guidelines in the field of officially supported export credits and repealing Council Decisions 2001/76/EC and 2001/77/EC OJ 2011 L 326/45.

  71. 71.

    See European Commission, “Bribery, Environment and Sustainable Lending”, available at http://ec.europa.eu/trade/creating-opportunities/trade-topics/export-credits/ Accessed 31 May 2012.

  72. 72.

    Regulation (EC) No. 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development co-operation OJ 2006 L 378/41.

  73. 73.

    Ibid., Preamble, recital 24.

  74. 74.

    Ibid., Article 1(1): “The Community shall finance measures aimed at supporting cooperation with developing countries, territories and regions included in the list of aid recipients of the Development Assistance Committee of the Organization for Economic Cooperation and Development (OECD/DAC)”.

  75. 75.

    Council Regulation (EC) No. 1934/2006 of 21 December 2006 establishing a financing instrument for cooperation with industrialised and other high-income countries and territories OJ 2006 L 405/41, Article 2(3).

  76. 76.

    ECJ Case C-155/07 European Parliament v Council [2008] ECR I-08103.

  77. 77.

    Council Decision 2006/1016/EC granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community OJ 2006 L 414/95.

  78. 78.

    ECJ Case C-155/07 European Parliament v Council [2008] ECR I-08103, para 19.

  79. 79.

    Ibid., para 52.

  80. 80.

    Ibid., para 52.

  81. 81.

    Case T-34/02 EURL Le Levant 001 v Commission [2006] ECR II-00267.

  82. 82.

    Council Directive 90/684/EEC of 21 December 1990 on aid to shipbuilding OJ 1990 L 380/27, Article 4(7). See OECD Working Party No. 6 in its agreement concerning the interpretation of Articles 6 to 8 of the OECD Council Resolution of 3 August 1981, OECD Understanding on Export Credits for Ships.

  83. 83.

    ECJ Case C-400/92 Germany v Commission [1994] ECR I-4701.

  84. 84.

    Commission Decision 92/569/EEC of 31 July 1992 concerning proposed aid by Germany to the Chinese shipping company Cosco for the construction of container vessels OJ 1992 L 367/29.

  85. 85.

    European Commission 2009; Communication from the Commission of 29 October 2008 From Financial Crisis to Recovery: A European Framework for Action, Brussels, COM (2008) 706 final.

  86. 86.

    Directive 2010/76/EU of 24 November 2010 amending Directives 2006/48/EC and 2006/49/EC as regards capital requirements for the trading book and for re-securitisations, and the supervisory review of remuneration policies OJ 2010 L 329/3.

  87. 87.

    Directive 2010/76/EU of 24 November 2010 amending Directives 2006/48/EC and 2006/49/EC as regards capital requirements for the trading book and for re-securitisations, and the supervisory review of remuneration policies OJ 2010 L 329/3, Recital 39.

  88. 88.

    Directive 2009/111/EC of 16 September 2009 amending Directives 2006/48/EC, 2006/49/EC and 2007/64/EC as regards banks affiliated to central institutions, certain own funds items, large exposures, supervisory arrangements, and crisis management OJ 2009 L 302/97, Preamble Recital 1.

  89. 89.

    Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board OJ 2010 L 331/1.

  90. 90.

    Report of The High-Level Group of Financial Supervision in the EU Chaired by Jacques de Larosière, Brussels, 25 February 2009.

  91. 91.

    Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board OJ 2010 L 331/1, Preamble, Recital 8.

  92. 92.

    European Commission, Proposal for a Regulation of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories (2010), COM (2010) 484/5.

  93. 93.

    Ibid., Explanatory Memorandum, p. 2.

  94. 94.

    Ibid., Explanatory Memorandum, p. 4.

  95. 95.

    Press Release, European Parliament, EP-Council deal on rules for a safe and transparent derivatives market 9 February 2012, available at http://www.europarl.europa.eu/news/en/pressroom/content/20120209IPR37742/html/EP-Council-deal-on-rules-for-a-safe-and-transparent-derivatives-market Accessed 31 May 2012.

  96. 96.

    European Commission, Proposal for a Directive of the European Parliament and the Council on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms and amending Directive 2002/87/EC of the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate (2011), COM (2011) 453 final.

  97. 97.

    “The possible changes set out in this document are closely aligned with the expected amendments to the Basel II framework and the introduction of a global liquidity standard that are currently being drawn up and their impact assessed by the Basel Committee on Banking Supervision (BCBS). They also reflect commitments made by G-20 leaders in London on April 2, 2009 and in Pittsburgh on September 24–25, 2009 as regards building high quality capital, strengthening risk coverage, mitigating pro-cyclicality, discouraging leverage as well as strengthening liquidity risk requirements and forward-looking provisioning for credit losses.” Consultation Paper, Commission Services Staff Working Document Possible Further Changes to the Capital Requirements Directive, available at http://ec.europa.eu/internal_market/consultations/docs/2010/crd4/consultation_paper_en.pdf Accessed 31 May 2012.

  98. 98.

    Press Release, European Commission, Commission wants stronger and more responsible banks in Europe, 20 July 2011, available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/915&format=HTML&aged=0&language=E Accessed 31 May 2012.

  99. 99.

    Directive 2011/61/EU on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No. 1060/2009 and (EU) No. 1095/2010 OJ 2010 L 171/1.

  100. 100.

    European Commission statement at the occasion of the European Parliament vote on the directive on hedge funds and private equity, MEMO/10/573, 11 November, 2010.

  101. 101.

    Report from the Commission to the European Parliament and to the Council, Review of Directive 94/19/EC on Deposit Guarantee Schemes, COM (2010) 369 final.

  102. 102.

    Basel Committee on Banking Supervision, Core Principles for Effective Deposit Insurance Systems, June 2008.

  103. 103.

    Regulation (EC) No. 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies OJ 2009 L 302/1.

  104. 104.

    Code of Conduct Fundamentals for credit rating agencies issued by the International Organisation of Securities Commissions (IOSCO Code).

  105. 105.

    Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee, the Committee of the Regions and the European Central Bank, An EU Framework for Crisis Management in the Financial Sector, Brussels, 20 October 2010, COM (2010) 579 final, p. 3: “The Commission is helping to shape the work of the FSB and the G20, and is also closely monitoring other international developments”.

  106. 106.

    Ibid., p. 3.

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Authors and Affiliations

  1. Leuven Centre for Global Governance Studies, University of Leuven, Leuven, Belgium

    Jan Wouters & Jed Odermatt

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  1. Jan Wouters
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  2. Jed Odermatt
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Correspondence to Jan Wouters .

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  1. , Centre for European Studies, University of Twente, Drienerlolaan 5, Enschede, 7522 NB, Netherlands

    Ramses A. Wessel

  2. , Unit on EU Foreign Policy, Centre for European Policy Studies, Place du Congres 1, Brussels, 1000, Brussels Hoofdst.ge., Belgium

    Steven Blockmans

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© 2013 T.M.C. Asser Press and the author(s)

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Wouters, J., Odermatt, J. (2013). Norms Emanating from International Bodies and Their Role in the Legal Order of the European Union. In: Wessel, R., Blockmans, S. (eds) Between Autonomy and Dependence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-903-0_3

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