Skip to main content
SpringerLink
Log in

The Participation of the EU in International Dispute Settlement: General Principles and Conditions Set by the Court of Justice

  • Chapter
  • First Online:
The Participation of the EU in International Dispute Settlement

Abstract

This chapter aims to examine the case law of the ECJ concerning the participation of the EU in international dispute settlement. By analysing the main findings of the Court in some landmark decisions, it will provide an appraisal of the principles and conditions of EU law governing the participation of the EU in international dispute settlement as set out by the Court of Justice. Special attention will be devoted to the so-called principle of autonomy of the EU legal order, which will be presented as a sort of umbrella concept encompassing what the Court considers ‘the specific characteristics of the EU’, and which has served as a means to assess the compatibility with EU law of international dispute settlement to which the EU or the Member States have subscribed.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 89.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 119.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    See Hillion and Wessel 2017, p. 24. As well as Larik 2016, pp. 100–107.

  2. 2.

    See de Witte 2014, p. 33.

  3. 3.

    See de Witte 2014, p. 46.

  4. 4.

    These decisions are, in chronological order: Court of Justice, Draft Agreement establishing a European laying-up fund for inland waterway vessels, Opinion of 26 April 1977, Opinion 1/76 , ECLI:EU:C:1977:63; Court of Justice, Draft Agreement relating to the creation of the European Economic Area, Opinion of 14 December 1991, Opinion 1/91 , ECLI:EU:C:1991:490; Court of Justice, Commission of the European Communities v Ireland, Judgment of 30 May 2006, Case C-459/03, ECLI:EU:C:2006:345; Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, Opinion of 8 March 2011, Opinion 1/09 , ECLI:EU:C:2011:123; Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion of 18 December 2014, Opinion 2/13 , ECLI:EU:C:2014:2454; Court of Justice, Slowakische Republik v Achmea BV, Judgment of 6 March 2018, Case C-284/16, ECLI:EU:C:2018:158.

  5. 5.

    In fact, the author is aware of at least one colleague who is currently working on the idea of a monographic study concerning the principle of autonomy , namely Cristina Contartese. This would be most welcome, as the scholarship has so far taken a piecemeal approach to the topic. Much light still needs to be shed on the principle of autonomy and its broader implications. A comprehensive study of it would, therefore, fill an important gap in the literature.

  6. 6.

    This is the case, for example, of the Kadi judgment, in which the autonomy of the EU legal order was called into question not by the participation of the EU in international dispute settlement, but by the alleged exclusion from judicial review of EU regulations implementing UN sanctions. See the considerations made by Contartese 2017, pp. 1643–1646, as well as by de Witte 2010, pp. 142–143.

  7. 7.

    See Van Vooren and Wessel 2014, pp. 74–96.

  8. 8.

    For an overview of the differences between internal and external autonomy, see Contartese 2017, pp. 1632–1633, as well as the considerations made in Sect. 6.3 of this book.

  9. 9.

    See Court of Justice, Draft Agreement establishing a European laying-up fund for inland waterway vessels, para 21.

  10. 10.

    See Court of Justice, Draft Agreement establishing a European laying-up fund for inland waterway vessels, para 22, emphasis in the original.

  11. 11.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, paras 1–29.

  12. 12.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, supra note 4, para 30.

  13. 13.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, supra note 4, para 52.

  14. 14.

    See de Witte 2014, p. 36.

  15. 15.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, para 34.

  16. 16.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, para 35, emphasis added.

  17. 17.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, para 40.

  18. 18.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, para 45.

  19. 19.

    This is the so-called homogeneity objective, which the EFTA Court has actively tried to pursue. See, among others, Baudenbacher 2005.

  20. 20.

    The saga of the EEA Court is commented in great detail by Brandtner 1992.

  21. 21.

    See Court of Justice, Draft Agreement between the European Community and non-Member States on the establishment of a European Common Aviation Area, Opinion of 18 April 2002, Opinion 1/00, ECLI:EU:C:2002:231.

  22. 22.

    For a thoughtful analysis of cases concerning a direct referral from an international tribunal to the ECJ see Contartese 2016.

  23. 23.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 65.

  24. 24.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 69.

  25. 25.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 71.

  26. 26.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 74.

  27. 27.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 76.

  28. 28.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 77.

  29. 29.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 78.

  30. 30.

    See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 89.

  31. 31.

    For a more detailed appraisal, see Lock 2011.

  32. 32.

    See de Witte 2014, p. 43.

  33. 33.

    See Article 6(2) TEU.

  34. 34.

    The process of accession is summarised in the Opinion. See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, paras 46–57.

  35. 35.

    Among many others, see the thoughtful examination carried out by Eeckhout 2015; Spaventa 2015, as well as the other scholarly writings referenced throughout this chapter that deal with Opinion 2/13 .

  36. 36.

    As is well known, this principle is an essential component of the Area of Freedom, Security and Justice (AFSJ), according to which the Member States have to blindly recognise national judicial decisions in criminal matters without, in principle, questioning their validity. The automaticity of mutual recognition is based on the presumption that fundamental rights as guaranteed in the EU legal order are respected in all Member States. Since under the Accession Agreement the EU and the Member States were conceived of as Contracting Parties not only in their relations with third countries but also in their relations with each other, the principle of mutual trust on which the entire AFSJ is based was directly called into question by the Draft Accession Agreement . On the constitutional significance of mutual trust and mutual recognition, see Mitsilegas 2006.

  37. 37.

    As is well-known, the judicial review carried out by the ECJ of CFSP acts acts is very limited, in accordance with Article 24(1) TEU.

  38. 38.

    More comprehensively on the co-respondent mechanism , see Gaja 2014.

  39. 39.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 221.

  40. 40.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 230.

  41. 41.

    See Lavranos 2006b, p. 291, who rightly observes that the dearth of disputes between the EU Member States can likely be explained by the long-lasting friendly relations existing between them and the reciprocal willingness to avoid the diplomatic repercussions that would result from bringing each other before an international court.

  42. 42.

    See Court of Justice, Draft Agreement relating to the creation of the European Economic Area, supra note 4, para 35.

  43. 43.

    Court of Justice, Commission of the European Communities v Ireland (MOX Plant), Judgment of 30 May 2006, Case C-459/03, ECLI:EU:C:2006:345.

  44. 44.

    For a thorough overview of the MOX Plant dispute, see Shany 2004.

  45. 45.

    Meaning, in essence, that Ireland should have started infringement proceedings under Article 259 TFEU if it considered that the UK had violated the Directive at stake. The UK’s argument is summarised in the award. See Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom of Great Britain and Northern Ireland), Final Award, 2 July 2003, paras 107–109.

  46. 46.

    See Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, para 113.

  47. 47.

    See Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, para 142.

  48. 48.

    See Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, para 143.

  49. 49.

    For a general comment of this decision, see McDorman 2004.

  50. 50.

    See the considerations made by Lavranos 2006a, pp. 236–237.

  51. 51.

    See Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, UK Counter-memorial of 6 June 2002, para 3.15. It is also noteworthy that Ireland also entirely ignored this issue, as promptly noted by the UK in its Rejoinder of 28 August 2002.

  52. 52.

    See Permanent Court of Arbitration, Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands , Decision of 24 May 2005.

  53. 53.

    See Lavranos 2006a, p. 228.

  54. 54.

    See Permanent Court of Arbitration, Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005, para 103.

  55. 55.

    See Permanent Court of Arbitration, Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands , Decision of 24 May 2005, para 103.

  56. 56.

    See Permanent Court of Arbitration, Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands , Decision of 24 May 2005, paras 107–137.

  57. 57.

    See Permanent Court of Arbitration, Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands , Decision of 24 May 2005, para 107.

  58. 58.

    See Lavranos 2006a, p. 238.

  59. 59.

    See Permanent Court of Arbitration, MOX Plant Case (Ireland v. United Kingdom), Procedural Order no. 3 of 24 June 2003, paras 20 et seq.

  60. 60.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), paras 88–96.

  61. 61.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), paras 110–120.

  62. 62.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), para 121.

  63. 63.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), para 123.

  64. 64.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), para 123.

  65. 65.

    See Court of Justice, Commission of the European Communities v Ireland (MOX Plant), para 127.

  66. 66.

    See Lavranos 2006b, p. 295.

  67. 67.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 201, emphasis added.

  68. 68.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 204.

  69. 69.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 212.

  70. 70.

    See Contartese 2017, p. 1651, emphasis in the original.

  71. 71.

    This is also the opinion of Contartese 2017, p. 1651. But see Eeckhout 2015, pp. 976–977, who observed that in order for the ECtHR to decide whether a dispute brought under Article 33 raises questions of EU law, its decision would “require just such an examination of basic EU law principles”, which is admittedly contrary to the ECJ’s expansive interpretation of the meaning of intra-EU dispute. This argument is, however, not entirely convincing. In Opinion 2/13 the ECJ has clearly connected Article 344 TFEU with questions concerning the division of competence , in much the same way it had done so in its previous case law. This should be read as meaning that only if EU competence is at stake, the ECtHR would be barred from issuing its interpretation of it. Cases that do not raise issues relating to the allocation of responsibilities as defined in the Treaties would not trigger Article 344 TFEU.

  72. 72.

    See Eeckhout 2015, pp. 974–975. This argument is certainly fascinating. However, while it is true that the ECJ cannot review the validity of Treaty provisions, it can certainly interpret such provisions within the meaning of Article 344 TFEU —for example in an action brought by a Member State against another Member State under Article 259 TFEU.

  73. 73.

    A non-comprehensive list of writings analysing the different aspects of this problem include Titje and Wackernagel 2015; Ortolani 2015; Moskovan 2015; Wehland 2016; Binder 2016; Bjørge 2017.

  74. 74.

    See Court of Justice, Slowakische Republik v Achmea BV, para 32.

  75. 75.

    See Court of Justice, Slowakische Republik v Achmea BV, para 41.

  76. 76.

    See Court of Justice, Slowakische Republik v Achmea BV, paras 44–57.

  77. 77.

    See Court of Justice, Slowakische Republik v Achmea BV, para 33.

  78. 78.

    See, in particular, Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, paras 165–167.

  79. 79.

    See supra, Sect. 4.3.

  80. 80.

    See, more comprehensively on this issue, the considerations made in Sect. 6.3.

  81. 81.

    See Court of Justice, Slowakische Republik v Achmea BV, para 57.

  82. 82.

    See Court of Justice, Slowakische Republik v Achmea BV, para 58.

  83. 83.

    As is well known, Belgium has requested an Opinion of the ECJ on the compatibility with EU law of the ICS established under CETA. Opinion 1/17 is expected to be delivered in early 2019.

  84. 84.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, paras 249–250.

  85. 85.

    On this issue, see Butler 2017.

  86. 86.

    See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 2, paras 255–257.

  87. 87.

    See, in particular, Contartese 2017, pp. 1656–1657.

  88. 88.

    See Eeckhout 2015, p. 988.

  89. 89.

    Court of Justice, Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008, Joined Cases C-402/05 and C-415/05, ECLI:EU:C:2008:461, paras 287–289. Further on this analogy, see Eeckhout 2015, pp. 988–989.

  90. 90.

    A similar checklist is provided by Hillion and Wessel 2017, p. 30.

References

  • Baudenbacher C (2005) The EFTA Court: An Actor in the European Judicial Dialogue. Fordham International Law Journal 28:353–391.

    Google Scholar 

  • Binder C (2016) A Treaty Law Perspective on Intra-EU BITs. The Journal of World Investment and Trade 17:964–983.

    Article  Google Scholar 

  • Bjørge E (2017) EU Law Constraints on Intra-EU Investment Arbitration? The Law and Practice of International Courts and Tribunals: A Practitioners’ Journal 16:71–86.

    Article  Google Scholar 

  • Brandtner B (1992) The ‘Drama’ of the EEA. Comments on Opinions 1/91 and 1/92. European Journal of International Law 3:300–328.

    Article  Google Scholar 

  • Butler (2017) A Question of Jurisdiction: Art. 267 TFEU Preliminary References of a CFSP Nature. European Papers 1:201–208.

    Google Scholar 

  • Contartese C (2016) The procedures of prior involvement and referral to the CJEU as means for judicial dialogue between the Luxembourg Court and international jurisdictions. Geneva Jean Monnet Working Papers (University of Geneva), 27/2016, available at www.ceje.ch/fr/recherche/jean-monnet-working-papers/working-papers-2016/.

  • Contartese C (2017) The autonomy of the EU Legal Order in the ECJ’s External Relations Case Law: From the “Essential” to the “Specific Characteristics” of the Union and back Again. Common Market Law Review 54:1627–1671.

    Google Scholar 

  • De Witte B (2010) European Union Law: How Autonomous is its Legal Order? Zeitschrift für öffentliches Recht 65:141–155.

    Article  Google Scholar 

  • De Witte B (2014) A Selfish Court? The Court of Justice and the Design of International Dispute Settlement Beyond the European Union. In: Cremona M, Thies A (eds) The European Court of Justice and External Relations Law. Hart Publishing, Oxford/Portland, pp. 33–46.

    Google Scholar 

  • Eeckhout P (2015) Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky. Fordham International Law Journal 38:955–992.

    Google Scholar 

  • Gaja G (2014) The “Co-Respondent Mechanism” According to the Draft Agreement for the Accession of the EU to the ECHR. In: Kosta V, Skoutaris N, Tzevelekos V (eds) The EU Accession to the ECHR. Hart Publishing, Oxford and Portland, pp. 341–347.

    Google Scholar 

  • Hillion C, Wessel R (2017) The European Union and International Dispute Settlement: Mapping Principles and Conditions. In: Cremona M, Thies A, Wessel R (eds) The European Union and International Dispute Settlement. Hart Publishing, Oxford/Portland, pp. 7–30.

    Google Scholar 

  • Larik J (2016) Foreign Policy Objective in European Constitutional Law. Oxford University Press, Oxford.

    Google Scholar 

  • Lavranos N (2006a) The MOX Plant and Ijzeren Rijn Disputes: Which Court Is the Supreme Arbiter? Leiden Journal of International Law 19:223–246.

    Article  Google Scholar 

  • Lavranos N (2006b) The MOX Plant judgment of the ECJ: How exclusive is the jurisdiction of the ECJ? European Environmental Law Review 15:291–296.

    Google Scholar 

  • Lock T (2011) Taking National Courts More Seriously? Comment on Opinion 1/09. European Law Review 36:576–588.

    Google Scholar 

  • McDorman TL (2004) Access to Information under Art. 9 OSPAR Convention (Ireland v. UK), Final Award. American Journal of International Law 98:330–339.

    Google Scholar 

  • Mitsilegas V (2006) The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU. Common Market Law Review 43:1277–1311.

    Google Scholar 

  • Moskovan D (2015) The Clash of Intra-EU Bilateral Investment Treaties with EU Law: A Bitter Pill to Swallow. Columbia Journal of European Law 22:101–138.

    Google Scholar 

  • Ortolani P (2015) Intra-EU Arbitral Awards vis-à-vis Article 107 TFEU: State Aid Law as a Limit to Compliance. Journal of International Dispute Settlement 6:118–135.

    Article  Google Scholar 

  • Shany Y (2004) The First MOX Plant Award: The Need to Harmonize Competing Environmental Regimes and Dispute Settlement Procedures. Leiden Journal of International Law 4:815–827.

    Article  Google Scholar 

  • Spaventa E (2015) A Very Fearful Court? The Protection of Fundamental Rights in the European Union After Opinion 2/13. Maastricht Journal of European and Comparative Law 22:35–56.

    Article  Google Scholar 

  • Titje C, Wackernagel C (2015) Enforcement of Intra-EU ICSID Awards: Multilevel Governance, Investment Tribunals and the Lost Opportunity of the “Micula” Arbitration. Journal of World Investment and Trade 16:205–247.

    Google Scholar 

  • Van Vooren B, Wessel R (2014) EU External Relations Law: Text, Cases and Materials. Cambridge University Press, Cambridge.

    Google Scholar 

  • Wehland H (2016) The Enforcement of Intra-EU BIT Awards: “Micula v Romania” and Beyond. The Journal of World Investment and Trade 17:942–963.

    Article  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. BRV [Public Management, Law & Safety], The Hague University of Applied Sciences, The Hague, The Netherlands

    Luca Pantaleo

Authors
  1. Luca Pantaleo
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Luca Pantaleo .

Rights and permissions

Reprints and permissions

Copyright information

© 2019 T.M.C. Asser Press and the author

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Pantaleo, L. (2019). The Participation of the EU in International Dispute Settlement: General Principles and Conditions Set by the Court of Justice. In: The Participation of the EU in International Dispute Settlement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-270-5_3

Download citation

  • DOI: https://doi.org/10.1007/978-94-6265-270-5_3

  • Published:

  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-269-9

  • Online ISBN: 978-94-6265-270-5

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation