Developments in EU External Relations Law (Collected Courses of the Academy of European Law) [1 ed.] 0199552894, 9780199552894

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The Collected Courses of the Academy of European Law Series Editors: Professor Gráinne de Búrca, Fordham Law School, New York Professor Bruno de Witte, Professor Marise Cremona, and Professor Francesco Francioni, European University Institute, Florence Assistant Editor: Anny Bremner, European University Institute, Florence

VOLUME XVII/1 Developments in EU External Relations Law

The Collected Courses of the Academy of European Law Edited by Professor Marise Cremona, Professor Gráinne de Búrca, Professor Bruno de Witte, and Professor Franceso Francioni Assistant Editor: Anny Bremner This series brings together the Collected Courses of the Academy of European Law in Florence. The Academy’s mission is to produce scholarly analyses which are at the cutting edge of the two fields in which it works: European Union law and human rights law. A ‘general course’ is given each year in each field, by a distinguished scholar and/or practitioner, who either examines the field as a whole through a particular thematic, conceptual, or philosophical lens, or who looks at a particular theme in the context of the overall body of law in the field. The Academy also publishes each year a volume of collected essays with a specific theme in each of the two fields.

Developments in EU External Relations Law Edited by

M A R ISE CR E MON A

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Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York ©The several contributors, 2008 The moral rights of the author have been asserted Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) First published 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Developments in EU external relations law / edited by Marise Cremona. p.cm.—(The collected courses of the Academy of European Law; v. 17/1) Includes bibliographical references and index. ISBN 978–0–19–955289–4 1. International and municipal law—European Union countries. 2. European Union countries—Foreign relations. I. Cremona, Marise. KJE5057.D48 2008 341.242'2—dc22 2008028211 Typeset by Newgen Imaging Systems (P) Ltd, Chennai, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn ISBN 978–0–19–955289–4 1 3 5 7 9 10 8 6 4 2

Contents List of Contributors Table of Cases Table of Legislation

ix xi xix

1. Introduction Marise Cremona

1

2. Tous pour un, un pour tous! Coherence in the External Relations of the European Union Christophe Hillion 1. Introduction 2. Defining Coherence in the Context of EU Primary Law

10 10 12

A. The Ambiguity of the Notion of Coherence B. The Multifarious Dimensions of Coherence in EU External Relations

12

3. Coherence as a Function of other EU Legal Principles

18

A. Negative Coherence: Absence of Contradictions in the External Activities of the Union B. Achieving Positive Coherence: The Principle of Cooperation

4. Conclusion 3. The Contribution of EU Practice to International Law Frank Hoff meister 1. Introduction 2. The EU as an Actor under International Law A. B. C. D.

The Notion ‘European Union’ External Powers Internal Coordination and External Representation Conclusions

3. The EU’s Contribution to General International Law A. B. C. D.

Sources of International Law Subjects of International Law Jurisdiction Responsibility, Dispute Settlement, and Enforcement of International Law E. Conclusion

17

18 27

35 37 37 38 38 38 47 54

54 54 71 80 86 95

Contents

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4. The EU’s Contribution to Particular Branches of International Law A. Jus contra bellum, ius in bello, and the Law of Disarmament B. The International Law Framework for the Fight against Terrorism C. International Human Rights and Criminal Law D. International Economic Development and Environmental Law E. Conclusion

5. Closing Remarks 4. The Trade and Development Policy of the European Union Lorand Bartels 1. Introduction 2. Origins A. B. C. D. E.

The French Union The Treaty of Rome The Yaoundé Conventions Reciprocity The EDF and Trade

3. International Reactions A. Comparable Arrangements B. GATT Reviews C. The Principle of Non-reciprocity

4. The Community Response A. B. C. D.

The Lomé Conventions and Cotonou Agreement Generalized System of Preferences Regional Trade Agreements Under-utilization of Preferences: Rules of Origin

96 97 102 112 118 124

125 128 128 129 129 132 135 137 139

140 140 142 143

146 147 153 160 161

5. Post-Cotonou Trading Arrangements

165

A. Economic Partnership Agreements B. Alternatives to EPAs

166 170

6. Conclusion 5. Of Modes and Sectors: External Relations, Internal Debates, and the Special Case of (Trade in) Services Markus Krajewski 1. Introduction 2. Political Economy of Services Trade and Services Liberalization

171 172 172 174

Contents

3. Conceptualizing Trade in Services from a Legal Perspective A. In Foro Externo B. In Foro Interno C. Towards a Uniform Concept of Trade in Services?

4. Services and the Common Commercial Policy A. Express Powers B. Implied Powers

5. Public Services and External Trade Law A. B. C. D.

What are Public Services? Scope of Agreements on Trade in Services Specific Commitments An All-inclusive, but Flexible Approach—if Used Wisely

6. Conclusion 6. Comparing the EU’s Role in Neighbourhood Conflicts Nathalie Tocci 1. Introduction 2. An Analytical Framework to Assess the EU’s Role in Conflict Resolution A. EU Channels of Influence through Contractual Relations B. Understanding the Effectiveness of the EU’s Role in Conflict Resolution

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176 177 183 187

188 188 196

201 202 203 208 213

214 216 216 217 218 220

3. The EU’s Impact on Conflict Resolution 4. Comparing the Effectiveness of EU Contractual Relations in Promoting Peace in the Neighbourhood

226

A. The Value of EU Contractual Relations B. The Credibility of EU Obligations C. The Political Management of EU Contractual Relations

226 232 240

5. Concluding Remarks 7. The European Neighbourhood Policy: More than a Partnership? Marise Cremona 1. What is the ENP? A. B. C. D.

222

243 244 244

Introduction The Genesis of the ENP Unpacking the Concept Objectives

244 246 249 257

2. Instruments and Methodologies

263

A. Instruments B. Methodologies

263 281

Contents

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3. The Future of the ENP A. A Failure or a Win-Win Policy? B. ‘Greater Coherence, Effectiveness and Visibility’ for EU External Action?

Index

294 294 296

301

List of Contributors Lorand Bartels is a University Lecturer in International Law and Fellow of Trinity Hall, University of Cambridge. He was previously a Lecturer in International Economic Law at the University of Edinburgh, and in 2007 he was an Alexander von Humboldt Fellow at the Max Planck Institute for International and Comparative Law, Heidelberg. He is a member of the International Trade Law Committee of the International Law Association, and is a founding committee member of the Society of International Economic Law. He is also joint General Editor of the Cambridge International Trade and Economic Law Series. Marise Cremona is Professor of European Law at the European University Institute in Florence and Co-director of its Academy of European Law. She previously held the position of Professor of European Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London. Professor Cremona has published extensively on EU external relations, including trade and commercial policy, EU–WTO relations, foreign and security policy, enlargement, and the European Neighbourhood Policy. She is a member of the Advisory Board of the European Foreign Aff airs Review. Christophe Hillion is Professor of European Law at the University of Leiden, and Co-director of the Leiden Europa Institute. His publications focus on the external relations, enlargement, and constitutional law of the European Union. Frank Hoff meister works at the Legal Service, External Relations Team, of the European Commission and is Professor of International Economic Law at the Free University of Brussels. In 2001–2002 he served as desk officer at the Commission’s DG Enlargement, Cyprus Team. Prior to joining the Commission, he worked as an academic assistant at the Walter Hallstein-Institute for European Constitutional Law in Berlin and as a researcher at the Max-Planck-Institute for Foreign Public Law and International Law, Heidelberg. He has published widely on international law and European law, including Legal Aspects of the Cyprus Problem—Annan Plan and EU Accession (2006) and, as co-editor, The United Nations and the European Union—An Ever Stronger Partnership (2006). Markus Krajewski is Assistant Professor (Junior Professor) of Public, European and International Economic Law at the University of Potsdam, Germany. Prior to his current position, he taught at King’s College London and at the University of Hamburg, Germany. He has been a visiting lecturer at the Université Libre de Bruxelles, the World Trade Institute in Berne and the Postgraduate Programme on European Studies in Berlin. He holds a doctoral degree in law from the University of Hamburg and is qualified to practise law in Germany. His research interests include WTO law, in particular questions of constitutionalization and democratic legitimacy, the GATS, EC external relations and the law affecting services of general economic interest. Nathalie Tocci is a Senior Fellow at the Istituto Affari Internazionali in Rome, Italy, and an Associate Fellow at the Centre for European Policy Studies, Brussels. Dr Tocci has a

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List of Contributors

long-standing interest in European foreign policy, conflict resolution, the Middle East and the Mediterranean. She has written two books, numerous peer-reviewed articles, academic and policy papers, and chapters in edited volumes. Her recent publications include The EU and Conflict Resolution: Promoting Peace in the Backyard (2007); ‘The EU and Conflict Resolution in Turkey and Georgia: Hindering EU Potential through the Political Management of Contractual Relations’, Journal of Common Market Studies (2008). Dr Tocci is the 2008 winner of the Anna Lindh Prize, awarded in the context of the European Foreign and Security Policy Studies programme, run by the Compagnia di San Paolo, the Riksbankens Jubileumsfond, and the Volkswagenstiftung.

Table of Cases Ahlström Osakeyhtiö v Commission (Woodpulp) Joined Cases 89, 104, 114, 116, 117, 125–129/85 [1988] ECR 5193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Almelo Case C-393/92 [1994] ECR I-1477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Ambulanz Glöckner Case C-475/99 [2001] ECR I-8089. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Anastassiou Case C-432/92 [1994] ECR I-3087 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Annunziata Matteucci Case 235/87 [1988] ECR I-4805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 AOK Bundesverband ao Joined Cases C-264/01 and others [2004] ECR I-2493 . . . . . . . . . . . 213 Aulinger v Federal Republic of Germany Case C-371/03 [2006] ECR I-2207 . . . . . . . . . . . . . . 92 Belgium v Commission Case C-110/03 [2005] ECR I-2801 . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Bickel and Franz Case C-274/96 [1998] ECR I-7637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Bosphorus v Minister for Transport, Energy and Communications Case C-84/95 [1996] ECR I-3953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 British American Tobacco Case C-491/01 [2002] ECR I-11453 . . . . . . . . . . . . . . . . . . . . . . . . . 32 Bulk Oil v Sun International Case 174/84 [1986] ECR 559 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Centro-Com Srl Case C-124/95 [1997] ECR I-81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 92 Christian Dior Case C-300/98 [2000] ECR I-11307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CILFIT Case 283/81 [1982] ECR 3415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 COM v Germany (International Dairy Agreement) Case C-61/94 [1996] ECR I-4006 . . . . . . 61 Commission v Austria Case C-465/01, judgment of 16 Sep 2004 . . . . . . . . . . . . . . . . . . . . . . . 20 Commission v Austria Case C-205/06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Commission v Belgium Case C-170/98 [1999] ECR I-5493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Commission v Belgium Case C-355/98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Commission v Belgium Case C-471/98 [1998] ECR I-9690 . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Commission v Council (AETR/ERTA) Case 22/70 [1971] ECR 263 . . . . 19, 20, 39, 40, 196, 197 Commission v Council (Tariff Preferences) Case 45/86 [1987] ECR 1493 . . . . . . . . . . . . . . . . 153 Commission v Council (International Convention on the Harmonised System) Case 165/87 [1988] ECR 5545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Commission v Council (FAO) Case C-25/94 [1996] ECR I-1469 . . . . . . . . . . . . . . . . . . . . . . . 32 Commission v Council (Airport Transit Visa) Case C-170/96 [1998] ECR I-2763 . . . . .25, 33, 45 Commission v Council (Rotterdam Convention) Case C-94/03 [2006] ECR I-1 . . . . . . . .33, 153 Commission v Council (Environmental Penalties) Case C-176/03 [2005] ECR I-7879 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 33, 45, 291 Commission v Council (ECOWAS) Case C-91/05, judgment of 20 May 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25, 26, 33, 45, 266 Commission v Council (ECOWAS, Small Arms and Light Weapons) Case C-403/95, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Commission v Council (Ship source pollution) Case C-440/05, judgment of 23 Oct 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 33 Commission v Denmark (Open Skies) Case C-467/98 [2002] ECR I-9519 . . . . . . . . .20, 196, 197 Commission v Finland Case C-249/07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Commission v France Case 232/89 [1989] ECR 2729 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Commission v France (Etang de Berre) Case C-293/03 [2004] ECR I-9325 . . . . . . . . . . . . 20, 59 Commission v Germany Case C-433/03 [2005] ECR I-6985 . . . . 13, 14, 15, 17, 18, 28, 29, 33, 41 Commission v Ireland (Berne Convention) Case C-13/00 [2002] ECR I-2943 . . . . . . . . . . . . . 20 Commission v Ireland (Mox Plant) Case C-459/03 [2006] ECR I-4635 . . . . . . . . . 28, 33, 56, 89

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Table of Cases

Commission v Italy Case 10/61 [1962] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Commission v Italy Case C-283/99 [2001] ECR I-4636 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Commission v Luxembourg and Belgium Cases 90 & 91/63 [1964] ECR 1331 . . . . . . . . . . . . . 56 Commission v Luxembourg Case C-266/03 [2005] ECR I-4805 . . . . . . . . . . . . 13, 14, 15, 17, 18, 28, 29, 33, 41 Commission v Parliament and Council Case C-178/03 [2006] ECR I-107 . . . . . . . . . . . . . . . . 33 Commission v Portugal Case C-62/98 [2000] ECR I-5171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Commission v Portugal Case C-84/98 [2000] ECR I-5215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Commission v Spain Case C-114/97 [1998] ECR I-6717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Commission v Sweden (PFOS) Case C-246/07, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Commission v Sweden Case C-249/07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Commission v United Kingdom Case 804/79 [1981] ECR 1045 . . . . . . . . . . . . . . . . . . . . . . . . 19 Commission v United Kingdom Case C-222/94 [1996] ECR I-4025 . . . . . . . . . . . . . . . . . . . . 68 Costa v ENEL Case 6/64 [1964] ECR 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Cowan Case 186/87 [1989] ECR 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Danisco Sugar Case C-27/96 [1997] ECR I-6653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Demeril Case 12/86 [1987] ECR 3719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Dior Case C-300 & 392/98 [2000] ECR I-11307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59–60 Donckerwolcke v Procureur de la République Case 41/76 [1976] ECR 1921 . . . . . . . . . . . . . . . 39 Dorsch Consult v Council and Commission Case C-237/98 P [2000] ECR I-4941 . . . . . . . . . . 92 Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others Case C-177/95 [1997] ECR I-1111. . . . . . . . . . . . . . . . . . . . . . . . . 92, 93 ERSA Case C-347/03 [2005] ECR I-3785 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 European Parliament v Commission Case C-403/05 23 Oct 2007 . . . . . . . . . . . . . . . . . . . . . 266 European Parliament v Council (EDF) Case C-316/91 [1994] ECR I-625 . . . . . . . . . . . . . . 26, 41 European Parliament v Council of the EU Case C-540/03, judgment of 27 June 2006 . . . . . . 109 European Parliament v Council and Commission Case C-317 & 318/04 [2006] ECR I-4721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 266 European Parliament v Council (Bangladesh) Joined Cases C-181 & 248/91 [1993] ECR I-3685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 FAO Case C-25/94 [1996] ECR I-1469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 FENIN/Commission Case C-205/03 P [2006] ECR I-6295 . . . . . . . . . . . . . . . . . . . . . . . . . . 213 France v Commission Case C-327/91 [1994] ECR I-3641 . . . . . . . . . . . . . . . . . . . . . . . .56, 57, 63 France v Commission Case 233/02 [2004] ECR I-2759 . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 266 Gebhard Case 55/94 [1995] ECR I-4165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Geraets-Smits/Peerbooms Case C-157/99 [2001] ECR I-5473 . . . . . . . . . . . . . . . . . . . . . . . . . 184 Germany v Council Case C-122/95 [1998] ECR I-973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Germany v Parliament and Council (Tobacco Advertising) Case C-376/98 [2000] ECR I-8419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 22, 199 Gestoras Pro Amnistía and others v Council Case C-354/04 P [2007] ECR I-1579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 35, 89 Grau Gomis Case C-167/94 [1995] ECR I-1023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31, 47 Greece v Commission (Abuja) Case C-203/07, pending on appeal . . . . . . . . . . . . . . . . . . . . . . . 44 Haegeman Case 181/73 [1974] ECR 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 59 Hedley Lomas Case C-5/94 [1996] ECR I-2553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Hermès Case C-53/96 [1998] ECR I-3603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Humbel Case 263/86 [1988] ECR 5365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 ICI v Commission (Dyestuffs) Case 48/69 [1972] ECR 619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Ireland v Commission Case C-339/00 [2003] ECR I-11757. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Jany Case C-268/99 [2001] ECR I-8615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 60 Juan Carlos Gomis and others Case C-167/94 [1995] ECR I-1023 . . . . . . . . . . . . . . . . . . . . . . . 13

Table of Cases

xiii

Köbler Case C-224/01 [2003] ECR I-10239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Kramer Joined Cases 3, 4 & 6/76 [1976] ECR 1279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 39 Kupferberg Case 104/81 [1982] ECR 3641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Le Plat v French Polynesia Case C-260/90 [1992] ECR I-643 . . . . . . . . . . . . . . . . . . . . . . . . . 134 Leifer Case 83/94 [1995] ECR I-3235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Luisi and Carbone Joined Cases 286/82 & 26/83 [1984] ECR 377 . . . . . . . . . . . . . . . . . . . . . 185 Luxembourg v European Parliament Case 230/81 [1983] ECR 255 . . . . . . . . . . . . . . . . . . . . . . 30 Marleasing Case C-106/89 [1990] ECR I-4135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Merck Genericos Case C-431/05 [2007] ECR I-7001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Metalsa Case C-312/91 [1993] ECR I-3769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57, 60 Müller-Fauré and Van Riet Case C-385/99 [2003] ECR I-4509. . . . . . . . . . . . . . . . . . . . . . . . 184 Oulane Case C-215/03 [2005] ECR I-1215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Parliament v Council Case C-316/91 [1994] ECR I-625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Parliament v Council, Public Procurement Case C-360/93 [1996] ECR I-11951 . . . . . . . . . . . . 63 Parliament v Council Joined Cases C-317 & 318/04 [2006] ECR I-4721 . . . . . . . . . . . . . . 33, 63 Petrotub SA v Council Case C-76/00 P [2001] ECR I-79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Pfeiffer and others Joined Cases C-397–403/01 [2004] ECR I-8835 . . . . . . . . . . . . . . . . . . . . . 29 Pokrzeptowicz-Meyer Case C-162/00 [2002] ECR I-1049. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Portugal v Council Case C-268/94 [1996] ECR I-6177 . . . . . . . . . . . . . . . . . . . . . . . . .63, 94, 161 Portugal v Council Case C-149/96 [1999] ECR I-8395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Poulsen Case C-286/90 [1992] ECR I-6048 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Pupino Case C-105/03 [2005] ECR I-5285 . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 29, 30, 43, 60 Racke Case C-162/96 [1998] ECR I-3688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 57, 64, 94 Reyners Case 2/74 [1974] ECR 631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Reynolds Tobacco Case C-131/03 P [2006] ECR I-7795 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Schwarz and Commission/Germany Joined Cases C-76/05 & C-318/05, not yet published . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Segi and Others v Council Case C-355/04 P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 35 Simutenkov Case C-265/03 [2005] ECR I-2579 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 61, 62, 269 Traghetti del Mediterraneo SpA Case C-173/03 [2006] ECR I-5177 . . . . . . . . . . . . . . . . . . . . . 22 Van Gend en Loos Case 26/62 [1963] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Vanbraekel Case C-368/98 [2001] ECR I-5363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Von Colson and Kamann Case 14/83 [1984] ECR 1891 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Wählergruppe Gemeinsam Case C-171/01 [2003] ECR I-4301 . . . . . . . . . . . . . . . . . . . . . . . . 20 Watts Case C-327/04 [2006] ECR I-4325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Wirth Case C-109/92 [1993] ECR I-6447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Court of First Instance Ayadi Case T-253/02 12 July 2006, pending on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Dorsch Consult v Council and Commission Case T-182/95 [1998] ECR II-667 . . . . . . . . . . . . 92 Gencor v Commission Case T-102/96 [2001] ECR II-753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Greece v Commission (Abuja) Case T-231/04, pending on appeal C-203/07 [2007] ECR II-63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Hellenic Republic v Commission Case T-231/04 [2007] ECR II-63, pending on appeal C-203/07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Kadi v Council and Commission Case T-315/01 [2005] ECR II-3649 . . . . . . . . 14, 19, 91, 93, 266 Odigitria Case T-572/93 [1995] ECR II-2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 OMPI Case T-228/02, judgment of 12 Dec 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 45, 46, 93 Opel Austria Case T-115/94 [1997] ECR II-39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55, 58, 59 Organisation des Modjahedines du peuple d’Iran Case T-28/02 [2006] ECR II-4665. . . . . . . . 13 Roujansky Case T-584/93 [1994] ECR II-585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Royal Olympic Cruises Ltd and others v Council and Commission Case T-201/99 [2000] ECR II-4005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Segi v Council Case T-338/02 [2004] ECR II-1647 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Svenska Journalistförbundet Case T-174/95 [1998] ECR II-2289 . . . . . . . . . . . . . . . . . . . . . . . 44 Van den Bergh Foods v Commission Case T-65/98 [2003] ECR II-4653 . . . . . . . . . . . . . . . . . . 32 Yusuf et al v Council and Commission Case T-306/01 [2005] ECR II-3533 . . . 14, 19, 41, 93, 266 Opinions 1/75 Local cost standard [1975] ECR 1355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 39, 57, 188 1/76 Laying-up Fund [1977] ECR 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 40, 197 1/78 Natural Rubber Agreement [1979] ECR 2125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 1/91 [1991] ECR I-6079 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 88, 282 2/91 ILO [1993] ECR I-1061 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1/92 [1992] ECR I-2821. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 2/92 OECD [1995] ECR I-521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 197 1/94 WTO [1994] ECR I-5267 . . . . . . . . . . . . . . . . . . . 19, 21, 28, 40, 53, 56, 173, 179, 189, 190, 195, 196, 197, 200, 215, 268 2/94 ECHR [1996] ECR I-1759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 41, 112 2/00 [2002] ECR I-3493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 1/03 Lugano Convention [2006] ECR I-1145 . . . . . . . . . . . . . . . . . . . 20, 26, 27, 29, 40, 196, 197 Council Decisions 349/64 Benefits for African Territories [1964] JO 93 1472 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 66/532 Acceleration Decision [1966] JO 165 2971. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 69/494/EEC Bilateral trade agreements OJ [1969] L326/39. . . . . . . . . . . . . . . . . . . . . . . . . . . 119 81/462/EEC 1979 Geneva Convention on transboundary air pollution OJ [1981] L171/11 . . . 122 88/540/EEC Vienna Convention on the Ozone Layer 1985 and Montreal Protocol 1987 . . . . 122 93/98/EC Basel Convention 1989, Convention on Combating Desertification OJ [1993] L39/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 93/626/EC Biodiversity Convention 1992 OJ [1993] L309/1. . . . . . . . . . . . . . . . . . . . . . . . . . 122 93/731/EC Public Access to documents OJ [1993] L340/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 94/69/EC Climate Change Convention 1992 OJ [1994] L33/11 . . . . . . . . . . . . . . . . . . . . . . . 122 98/414/EC UN Straddling Stocks Convention OJ [1998] L189/14 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 2000/384/EC, ECSC Euro-Mediterranean Agreement between EC and Israel Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 2001/352/CFSP Agreement on monitoring mission in Yugoslavia OJ [2001] L125/1 . . . . . . . . . 43 2001/682/CSFP Agreement on monitoring mission in Macedonia OJ [2001] L241/1 . . . . . . . . 43 2001/855/EC Bilateral trade agreements OJ [2001] L320/13 . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Dec 148/2002 concluding consultations with Zimbabwe OJ [2002] L50/4 . . . . . . . . . . . . . . . 153 2002/358/EC Kyoto Protocol 1999 OJ [2002] L130/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 2002/494/JHA Jurisdiction of the ICC OJ [2002] L167/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 2002/628/EC Cartagena Protocol 2001 OJ [2002] L201/48 . . . . . . . . . . . . . . . . . . . . . . . . . . 122 2003/355/JHA Cooperation in prosecution of crimes against humanity OJ [2003] L118/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 2003/825/EC Serbia and Montenegro OJ [2003] L311/28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2004/496/EC EC–US Agreement on passenger name records OJ [2004] L183/83 . . . . . . . . . . 59 2004/580/EC Albania OJ [2004] L261/116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2004/849/EC Schengen acquis OJ [2004] L368/26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267, 291 2004/860/EC Schengen acquis OJ [2004] L370/78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267, 291

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2005/370 Ratification of Aarhus Convention OJ [2005] L124/1 . . . . . . . . . . . . . . . . . . . . . . . 123 2005/481/CFSP Ukraine–exchange of classified information OJ [2005] L172/83 . . . . . . . . . . 275 2005/495/CFSP Ukraine–participation in EU crisis management operations OJ [2005] L182/28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 2005/525, 526, 527 & 528 Framework Agreements between EC and Albania, Bosnia and Hercegovina, Croatia and Serbia and Montenegro OJ [2005] L192/78–84 . . . . . . . . . . . . 62 2005/667/JHA Framework Agreement on Ship-source pollution . . . . . . . . . . . . . . . . . . . . . . . 25 Arts 1–7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2006/515/EC OJ [2006] L201/15 Annex II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 2007/551/CFSP/JHA EU-US Agreement on Passenger Name Records OJ [2007] L204/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 63 Decision of the Council and Commission of 10 April 1995 concerning the conclusion of the Agreement between the EC and the Government of the USA regarding the application of their competition laws OJ [1995] L95/45–46 . . . . . . . . . . . . . . . . . . . . . . . . 63 Decision of the Council allowing ENP states to benefit from TAIEX, Jan 2006 . . . . . . . . . . . 265 Framework Dec on combating Terrorism 2002/475/JHA OJ [2002] L164/3 . . . . . . . . . . . 80, 103 rec 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 1–4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Art 9(a)–(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 First Additional Protocol, Art 1(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Arbitration Tribunal Iron Rhine case, Award of 24 May 2005 (2007) 27 RIAA 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Council of the International Civil Aviation Organisation (ICAO) Hushkits case OJ [1999] L120/47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ECtHR Bankovic and others v Belgium and 16 other states ECHR 2001-XII . . . . . . . . . . . . . . . . . . . . 107 Belilos v Switzerland (1988) Series A, No 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Bosphorus v Ireland App No 45630/98, judgment of 30 June 2005 . . . . . . . . . . . . . . . . . . . . . 112 Colozza v Italy Ser A, No 89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Emesa Sugar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Illich Sanchez Ramirez v France (Carlos the Jackal) No 28780/95 DR 86 . . . . . . . . . . . . 108, 109 Issa v Turkey App No 31821/96, 16 Nov 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Krombach v France App No 29731/96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Loizidou v Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Öcalan v Turkey App No 46221/99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Osu v Italy App No 36534/97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Senator Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 ECOSOC Decision 1995/201, 8 Feb 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 GATT Decisions Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause), 28 Nov 1979, GATT Doc L/4903 . . . . . . . 146 Generalised System of Preferences, 25 June 1971, GATT Doc L/3545 . . . . . . . . . . . . . . . . . . . 146

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ICJ Decisions Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Reps 136 . . . . . . . . . . . . . . . . . . . . . . . . .107, 108 Aegean Sea Continental Shelf case (Greece v Turkey) [1978] ICJ Reps 3 . . . . . . . . . . . . . . . . . . 57 Avena judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Barcelona Traction, Light and Power Company (Second Phase) (1970) ICJ Reps 3 . . . . . . . . . . 82 Mavromatis Palestinian concessions, PICJ Series A, No 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Nicaragua/Honduras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Reparation for Injuries suffered in the services of the United Nations, ICJ Reps (1949) 173 . . . . 42 Western Sahara ICJ Reps (1975) 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Permanent Court of Arbitration Ireland v UK Dispute concerning access to information under the OSPAR Convention, Final Award 2 July 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 UN Human Rights Committee El-Megreisi v Libya App 440/1990. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Lopez Burgos v Uruguay and Celibertie de Casariego v Uruguay Nos 52/1979 and 56/1979 . . . 108 UNCLOS Arbitration Swordfish case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 88 WTO Appellate Body Report Canada–Automotive Industry WT/DS139/AB/R & WT/DS142/AB/R . . . . . . . . . . . . . . . . . 178 EC–Export Subsidies on Sugar WT/DS265/AB/R, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 EC–Bananas (Art 21.5–Ecuador) Request for establishment of a panel WT/DS27/80, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 EC–Bananas (Request for consultations by Colombia) WT/DS361/1 . . . . . . . . . . . . . . . . . . . 150 EC–Bananas WT/DS27/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 EC–Hormones WTO/DS48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 EC–Tariff Preferences WT/DS246/AB/R 2004 . . . . . . . . . . . . . . . . . . . . . . . . . 154, 156, 157, 160 Enabling Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156, 157 EEC–Bananas II WTO/DS38/R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149, 160 US–Gambling and Betting WT/DS258/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 210, 214 US–Standards of Reformulated and Conventional Gasoline WT/DS2/AB/R, DSR 1996:1 . . . 120 WTO Decision Preferential Tariff Treatment for Least-Developed Countries, Decision on Waiver, 15 June 1999, WT/L/304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 WTO Panel Report EC–Measures affecting the Approval and Marketing of Biotech products WT/DS293/R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 124 EC–Measures Affecting Trade in large civil aircraft, DS 316, pending . . . . . . . . . . . . . . . . . . 121 Mexico–Telecommunications WT/DS204/R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 N AT ION A L C A S E S Czechoslovakia Dreithaler (Pl Us 14/94) Constitutional Ct, 8 Mar 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

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Germany Trial of 9/11 Hamburg suspects, Federal Criminal Ct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 USA Atkins v Virginia 10 June 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Crosby v National Foreign Trade Council 530 US 363, 120 S Ct 2288 . . . . . . . . . . . . . . . . . . . 84 Filartiga v Pena-Irala 630 F 2d 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Hamdan v Rumsfeld 29 June 2006, 548 US, 126 S Ct 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Krishna Maharaj v Secretary of the Department for Corrections, Florida, US Sup Ct . . . . . . . . 90 Medellin v Dretke, US Sup Ct No 04–5928, 544 US 600 . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90 Roper v Simmons 2004 WL 1619203 (US) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Sanchez-Llamas v Oregon, US Sup Ct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Sosa v Alvarez-Machain 542 US 692 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 86

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Table of Legislation E U ROPE A N U N ION Treaties EC Treaty . . . . . . . . . . . . 5, 23, 26, 45, 46, 55, 56, 173, 185 Part IV, Title XIX . . . . . . . . . . . . . . . . . 121 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Art 3(s) (ex Art 3(k)) . . . . . . . . . . . . 128, 132 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . 19, 38 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 10. . . . . 26, 27–29, 30, 31, 32, 41, 48, 91 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . .202 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 45. . . . . . . . . . . . . . . . . . . . . . .206, 207 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 47(2) . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 49 . . . . . . . . . . . . . . . . . . 184, 185, 199 Art 49(1) . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 50 . . . . . . . . . . . . . . . . . . . . . . 183, 184 Art 55. . . . . . . . . . . . . . . . . . . . . . . 199, 206 Art 60 . . . . . . . . . . . . . . . . . . . . 14, 46, 184 Art 80(2) . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 81. . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 86(2) . . . . . . . . . . . . . . . . . . . . . . . .202 Art 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 111(4). . . . . . . . . . . . . . . . . . . . . . . . . 39 Art 131 et seq . . . . . . . . . . . . . . . . . . . . . . . 9 Art 131(1) . . . . . . . . . . . . . . . . . . . . . . . . .42 Art 133 (ex Art 113) . . . . . . . . . . 19, 83, 153, 173, 188–192, 193, 197, 201, 268 Art 133(1) . . . . . . . . . . . . . . . . . . . 193, 195 Art 133(3) . . . . . . . . . . . . . . . . . . . . . . . . 39 Art 133(5) . . . . 191, 192, 193, 194, 195, 198 Art 133(6) . . . . . . . . .46, 191, 192, 195, 198 Art 150(4) . . . . . . . . . . . . . . . . . . . . . . . 199 Art 151(5). . . . . . . . . . . . . . . . . . . . . . . . 199 Art 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 170(2) . . . . . . . . . . . . . . . . . . . . . 39, 41 Art 174 . . . . . . . . . . . . . . . . . . . . . . . . 19, 42 Art 174(2) . . . . . . . . . . . . . . . . . . . . 41, 124 Art 174(4) . . . . . . . . . . . . . . . . . . . . 39, 121

Art 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 177. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Art 177 et seq . . . . . . . . . . . . . . . . . . . . . . 39 Art 177(1). . . . . . . . . . . . . . . . . . . . . . . . .42 Art 177(2) . . . . . . . . . . . . . . . . . . . . . . . .42 Art 179. . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Art 181a . . . . . . . . . . . . . . . 39, 42, 290, 291 Art 182. . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 211 . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Art 225 . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 226 . . . . . . . . . . . . . . . . . . . . 20, 22, 59 Art 230 . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Art 238 . . . . . . . . . . . . . . . . . . . . . . . . . 271 Art 281 (ex 210) . . . . . . . . . . . . . . . . . . . .38 Art 282 . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Art 288 (ex 215) . . . . . . . . . . . . . . . . . . . .92 Art 288(2) . . . . . . . . . . . . . . . . . . . . . . . .88 Art 292 . . . . . . . . . . . . . . . . . . . . . . . 56, 89 Art 295 . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 299(2) . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 300 . . . . . . . . . . . . .21, 22, 39, 191, 276 Art 300(1) . . . . . . . . . . . . . . . . . . . . . . . . 49 Art 300(2) . . . . . . . . . . . . . . . . . . 48, 49, 58 Art 300(3) . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 300(7) . . . . . . . . . . . . . . . . . . . . . 20, 59 Art 301. . . . . . . . . . . . . . . . . . 14, 46, 91, 93 Art 302 . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Art 307 . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 307(2) . . . . . . . . . . . . . . . . . . . . . . . .20 Art 308 (ex Art 235) . . . . . . . . 14, 19, 41, 72, 83, 268 Art 310 (ex Art 238) . . . . . . 19, 39, 135, 270, 290, 291 Annex II. . . . . . . . . . . . . . . . . . . . . . . . . 133 EEC Treaty, 1957 (Treaty of Rome) . . . . . . . . . . . . 128, 131, 132, 140 Part IV . . . . . . . . . . . . 4, 135, 136, 137, 141, 142, 165, 169, 171 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 3(k) (Art 3(s) EC). . . . . . . . . . . 128, 132 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 133

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Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Arts 31–35 . . . . . . . . . . . . . . . . . . . . . . . 133 Arts 32–33 . . . . . . . . . . . . . . . . . . . . . . . 133 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art 115 . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 132(1) . . . . . . . . . . . . . . . . . . . . . . . 138 Art 132(5) . . . . . . . . . . . . . . . . . . . . . . . 133 Art 133(1) . . . . . . . . . . . . . . . . . . . . . . .134 Art 133(2) . . . . . . . . . . . . . . . . . . . . . . .134 Art 133(3) . . . . . . . . . . . . . . . . . . . . . . .134 Art 133(4) . . . . . . . . . . . . . . . . . . . . . . .134 Art 135. . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 136 . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 148. . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art 238 . . . . . . . . . . . . . . . . . . . . . . . . . 135 Annex IV . . . . . . . . . . . . . . . . . . . . 132, 133 Declarations of Intent . . . . . . . . . . . . . . 140 Morocco Protocol . . . . . . . . . . . . . . . . . 140 Treaty establishing a Constitution for Europe (TCE), 2004 . . . . . . .31, 33, 129, 173, 192, 193, 215 Art I-9 . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art I-28 . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art I-28(4) . . . . . . . . . . . . . . . . . . . . . . . . 33 Art I-57(1) . . . . . . . . . . . . . . . . . . . 255, 290 Art III-193(2)(e) . . . . . . . . . . . . . . . . . . . 129 Art III-193(3) . . . . . . . . . . . . . . . . . . . . . 129 Art III-314 . . . . . . . . . . . . . . . . . . . . . . . 193 Art III-315 . . . . . . . . . . . . . . . . . . . 193, 195 Art III-315(1) . . . . . . . . . . . . . . . . . . . . . 193 Art III-315(4) . . . . . . . . . . . . . . . . . 194, 195 Art III-315(6) . . . . . . . . . . . . . . . . . . . . . 194 Art 13(2) . . . . . . . . . . . . . . . . . . . . 194, 197 Treaty of Amsterdam, 1997 . . . . . . . . . . . . . . 11, 30, 38, 58, 215 Declaration No 1 . . . . . . . . . . . . . . . . . . 115 Declaration No 4 . . . . . . . . . . . . . . . . . . .43 Treaty of Lisbon, 2007 (TEU (Lisbon)) . . . . . . . . 8, 11, 31, 33, 49, 109, 255, 290 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 3(5) . . . . . . . . . . . . . . . . . . . . . 124, 125 Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . .34 Art 15(6) . . . . . . . . . . . . . . . . . . . . . . . . . 35 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 18(4) . . . . . . . . . . . . . . . . . . . . . . 33, 34 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 Treaty of Nice . . . . . . . . . . . . 11, 191, 196, 215

Declaration No 10 . . . . . . . . . . . . . . . . . . 41 Treaty of Rome, 1957 . . . . . . . . . . . . . . . . . . 37 Treaty on European Union (EU Treaty), Maastricht, 1992 . . .18, 23, 38, 51, 55, 57 Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Title V . . . . 16, 21, 24, 25, 26, 30, 31, 44, 57 Title VI . . . . . .16, 21, 22, 24, 25, 31, 44, 57 Art 1 . . . . . . . . . . . . . . . . . . . . . . 12, 19, 24 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . 38, 46 Art 2 . . . . . . . . . . . . . .1, 10, 23, 26, 47, 255 Art 3 . . . . . . . . . . 12, 14, 15, 16, 17, 23, 24, 26, 31–35, 245 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . 31, 53 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 6(2) . . . . . . . . . . . . . . . . . . 31, 109, 112 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Art 8 . . . . . . . . . . . . . . . . . . . . . . . 255, 290 Art 11. . . . . . . . . . . . . . . . . . . . . . . . .22, 97 Art 11(1) . . . . . . . . . . . . . . . . . . 5, 43, 45, 55 Art 11(2) . . . . . . . . . . . . . . . . . . . 30, 43, 60 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Art 13(3) . . . . . . . . . . . . . . . . . . . . . . 12, 15 Art 15 . . . . . . . . . . . . . . . . . . . 46, 47, 51, 91 Art 17. . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Art 17(1). . . . . . . . . . . . . . . . . . . . . . . . . . 49 Art 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 19. . . . . . . . . . . . . . . . . . . . . . . . . 46, 52 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . .99 Art 21. . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Art 21(1). . . . . . . . . . . . . . . . . . . . . . . . . 255 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . 16, 50 Art 23(2) . . . . . . . . . . . . . . . . . . . . . . 43, 50 Art 24 . . . . . . . . . . . 21, 22, 43, 45, 63, 102, 117, 267, 291 Art 24(6) . . . . . . . . . . . . . . . . . . . . . . . . .60 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Art 27A or a . . . . . . . . . . . . . . . . . 10, 12, 15 Art 27c . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 29 . . . . . . . . . . . . . . . . . . . . . 22, 24, 45 Art 34b-d . . . . . . . . . . . . . . . . . . . . . . . . .44 Art 34d . . . . . . . . . . . . . . . . . . . . . . . . . .44 Art 35. . . . . . . . . . . . . . . . . . . . . . 22, 44, 89 Art 35(1) . . . . . . . . . . . . . . . . . . . . . . . . .44 Art 35(7) . . . . . . . . . . . . . . . . . . . . . . . . .44 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . 43, 46 Art 37(1) . . . . . . . . . . . . . . . . . . . . . . . . . 52

Table of Legislation Art 37(2) . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 38 . . . . . . . . . . . .22, 43, 44, 45, 60, 63, 117, 267, 291 Art 45. . . . . . . . . . . . . . . . . . . . . . . . . 13, 17 Art 46 . . . . . . . . . . . . . . . 24, 31, 44, 47, 88 Art 47 . . . . . . . . . . . .16, 22, 23, 24–26, 31, 45, 267, 291 Art 49 . . . . . . . . . . . . . . . . . . . . . . 112, 261 Regulations ACP Equivalent Market Access for least developed countries 602/98 OJ [1998] L80/1 . . . . . . . . . . . . . . . . . 157 Agricultural Products 3321/80 OJ [1980] L354/82 Art 31. . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Agricultural Products 3833/90 OJ [1990] L370/86 rec 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Air Service Agreements between Member states and third countries 847/2004/EC OJ [2004] L157/7 . . . . . . . . . . . . . . . . 119 Ban on the exports of instruments that can be used exclusively for the execution of the death penalty 1236/2005 OJ [2005] L200/1 . . . . . . . . . . . . . . . . . . 117 Bananas–tariff rates 1964/2005 OJ [2005] 316/1 . . . . . . . . . . . . . . . . . . . 150 CITES Requirements 3626/82/EC OJ [1982] L384/1 . . . . . . . . . . . . . . . . . .122 Common Agricultural Policy 2285/2002 OJ [2002] L348/2 . . . . . . . . . . . . . . . 148 Common Agricultural Policy 2286/2002 OJ [2002] L348/5 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Drug Production and trafficking 3835/90 OJ [1990] L370/126 . . . . . . . . . . . . . . 155 Environmental standards -Developing Countries 1256/96 OJ [1996] L160/1 . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 European Neighbourhood and Partnership Agreement (ENPI) 1638/2006 OJ [2006] L301/1 . . . . . . . . . . 263, 264, 277–279, 287 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 279 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . .77 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 3 . . . . . . . . . . . . . . . . . . . 264, 266, 267

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Art 27 . . . . . . . . . . . . . . . . . . . . . . . 78, 279 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Everything But Arms Programme (EBA) 416/2001 OJ [2001] L60/43 . . . . . . . . 157 Financial and Technical assistance in the area of Migration and Asylum 491/ 2004/EC OJ [2004] L80/1, repealed and replaced by Reg 1905/2006 . . . . .264 Financial Assistance to encourage the economic development of the Turkish Cypriot community on the island of Cyprus 389/2006 OJ [2006] L65/5 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 73 Rec No 3 . . . . . . . . . . . . . . . . . . . . . . . . . 73 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Financial Instrument for developing Cooperation 1905/2006 OJ [2006] L378/41 . . . . . . . . . . . . . . . . . . . 264, 278 Financial Regulation applicable to the general budget of the EC Council 1605/2002 OJ [2002] L248/1 . . . . . . .44 Financing Instrument for the promotion of democracy and human rights worldwide 1889/2006 OJ [2006] L386/1 . . . . . . 278 Flight ban against the former Yugoslavia 1901/98 OJ [1998] L248/1 . . . . . . . . . . 95 GSP–Withdrawal from Korea for discriminatory application of intellectual property rules 1291/94 OJ [1994] L141/9 . . . . . . . . . 159 GSP–Withdrawal from Korea for discriminatory application of intellectual property rules, extending Reg 3281/94 OJ [1994] L348/1 . . . . . . . . . . . . . . . . . . 159 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Generalized System of Preferences 1308–1314/71 OJ [1971] L142 . . . . . . 153 Generalized System of Preferences (GSP Reg) 980/2005 OJ to [2005] L169/1 . . . . . . . . . . 153, 154, 159, 163, 263, 292 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . 154 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . 158

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Art 12(7) . . . . . . . . . . . . . . . . . . . . . . . . 158 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 16(1) . . . . . . . . . . . . . . . . . . . . . . . . 160 Art 16(2) . . . . . . . . . . . . . . . . . . . . . . . . 157 Art 17. . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 21(1). . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 21(8) . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Art 30(2) . . . . . . . . . . . . . . . . . . . . . . . . 158 Art 71(1) . . . . . . . . . . . . . . . . . . . . . . . . 163 Art 72 . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Annex I . . . . . . . . . . . . . . . . . . . . . . . . . 158 Annex III . . . . . . . . . . . . . . . . . . . . . . . . 156 GSP–Industrial products 3281/94 OJ [1994] L348/1 . . . . . . . . . . . . . . . . . . 154 GSP–Agricultural products 1256/96 OJ [1996] L160/1 . . . . . . . . . . . . . . . . . . 154 GSP 2820/98 OJ [1998] L357/1 . . . . . . . . . 154 GSP 2501/2001 OJ [2001] L346/1 . . . . . . . 154 Industrial Products 3322/80 OJ [1980] L354/114 rec 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Instrument for Pre-Accession Assistance (IPA) 1085/2006/EC OJ [2006] L210/82 . . . . . . . . . . . . . . . . . . . 261, 278 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 261 Labour Standards 1933/2006 OJ [2006] L405/35, corrected by OJ [2007] L29/14 . . . . . . . . . . . . . . . . . . . . . . . . 160 Labour Standards 552/97 OJ [1997] L85/8 . . . . . . . . . . . . . . . . . . . . . . . . . 160 Labour Standards–developing countries 3281/94 OJ [1994] L348/1 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 MEDA 1488/96 OJ [1996] L189/1. . . . . . .277 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . .284 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . .284 Originating Products 2454/93 OJ [1993] L253/1, as amended by Reg 3254/94 OJ [1994] L346/1. . . . . . . . . . . . . . . . 163 Art 67(4) . . . . . . . . . . . . . . . . . . . . . . . . 164 Art 68(2) . . . . . . . . . . . . . . . . . . . . . . . . 163 Originating Products–Bangladesh 2260/97 OJ [1997] L311/8 . . . . . . . . . . . . . . . . 164 Originating Products–cumulation rules 1806–08/2006 OJ [2006] L343/69–74 . . . . . . . . . . . . . . . . . . . . 164

Protection against extra-territorial application of US legislation 2271/96, OJ [1996] L309/1 . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Security Council Measures 1745/2000 OJ [2000] L200/21 . . . . . . . . . . . . . . . . . . 91 Stability: 1717/2006 establishing an Instrument for Stability OJ [2006] L327/1 . . . . . . . . . . . . . . 264, 278 Sugar Protocol 266/2006 OJ [2006] L50/1 . . . . . . . . . . . . . . . . . . . 150 TACIS 99/2000 OJ [2000] L12/1 . . . . . . .277 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . .284 Terrorism (Financial sanctions) 881/2002 . . . . . . . . . . . . . . . . . . . . . . . 93 Trade Barrier 3286/94 OJ [1994] L349/71 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Transparency 1049/2001 OJ [2001] L145/43 . . . . . . . . . . . . . . . . . . . . . . . .44 UN embargo against Serbia and Montenegro 1432/1992 . . . . . . . . . . . .92 Art 1d. . . . . . . . . . . . . . . . . . . . . . . . . . . .92 UN embargo against Serbia and Montenegro 990/1993 . . . . . . . . . . . . .92 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93 Art 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 UN embargo on trade with Iraq 2340/90 . . . . . . . . . . . . . . . . . . . . . . . .92 Weapons: Export control 1334/2000/ EC OJ [2000] L59/1. . . . . . . . . . . . . . 102 Zimbabwe (Restrictive measures) 310/2002 OJ [2002] L50/4. . . . . . . . . . . . . . . . . 153 Directives Environmental Impact in a Transboundary Context 85/337/EC OJ [1985] L175/40 . . . . . . . . . . . . . . . . . . . . . . .122 Freedom of Access to Environmental Information, 90/313 repealed by Dir 2003/4) OJ [1990] L58/56 Art 3(1) . . . . . . . . . . . . . . . . . . . . . 122, 123 Public Access to Environmental Information 2003/4/EC, repealing Dir90/313/EC . . . . . . . . . . . . . . . . . . 123 Public Participation in relation to plans and programmes relating to the environment (amending Dirs 85/337 and 96/61) 2003/35/EC, OJ [2003] L156/17 . . . . . . . . . . . . . . . . . . . . . . . 123

Table of Legislation Services, 2006/123/EC OJ [2006] L376/36 . . . . . . . . . . . . . . . . . 5, 173, 174, 183, 185–187, 197–201, 215 Preamble . . . . . . . . . . . . . . . . 198, 199, 201 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 186 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . 198 Art 2(2)(f) . . . . . . . . . . . . . . . . . . . . . . . 198 Art 2(2)(g) . . . . . . . . . . . . . . . . . . . . . . . 198 Art 2(2)(j) . . . . . . . . . . . . . . . . . . . . . . . 189 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . 186 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . .200 Arts 9–15 . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Arts 16–18 . . . . . . . . . . . . . . . . . . . . . . . 199 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Art 16(4) . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 17. . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 31. . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . .200 “Television sans Frontiers” 89/552 . . . . . . . .68 Water Framework 2000/60/EC OJ [2000] L327/1 . . . . . . . . . . . . . . . . . . 123 Commission Decisions 80/949/EEC 1980 Allowing UK to take interim protective measures with regard to fresh bananas . . . . . . . . . . . 148 81/85/EEC 1981 Italian Republic to take intra-Community surveillance measures in respect of imported bananas . . . . . . . . . . . . . . . . . . . . . . . 148 924/2005 Special incentives arrangement OJH [2005] L337/50 . . . . . . . . . . . . . 157 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . 157 Common Positions 1998/426 OJ [1998] L190/3 Flight ban against former Yugoslavia . . . . . . . . . . 95 1999/877/CFSP Ukraine OJ [1999] L331/1 . . . . . . . . . . . . . . . . . . . . . . . . 259 2001/443/CFSP OJ [2001] L155/19 Rome Statute establishing the ICC . . . . . . . 117 2001/931/CFSP on combating terrorism OJ [2001] L344/93 . . . . . . . . . . . . . . . 93 2002/443/CFSP OJ [2002] L164/1 Action plan on Rome Statute . . . . . . . 117

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2003/444/CFSP Rome Statute OJ [2003] L150/67 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . 118 2003/805/CFSP Weapons of Mass Destruction OJ [2003] L302/34 . . . . . . . . . . . . . . . . . . . 101, 102 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 2005/329/CFSP Nuclear Non-Proliferation Treaty OJ [2005] L106/32 . . . . . . . . . 101 2006/276/CFSP Belarus OJ [2006] L101/5, amended by Common Position 2006/362, renewed by Common Position 2007/173 . . . . . . . . . . . . . . .268 2006/244/CFSP Participation of the EU in the Korean Peninsula Energy Development Organisation (KEDO) 20 March 2006 . . . . . . . . . . . . . . . . . . 53 2007/121/CFSP Restrictions for Transnistrian region of Moldova (extending 2004/179/CFSP) OJ [2007] L51/31 . . . . . . . . . . . . . . . .286 Joint Actions 96/668/CFSP Protection against extraterritorial application of US legislation OJ [1996] L309/7 . . . . . . . . . . . . . . . . 83 recitals 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 83 98/733/JHA Criminalising participation in a criminal organisation OJ [1998] L351/1 . . . . . . . . . . . . . . . . . . . . . . . . 104 2004/495/CFSP Safeguards Agreements (NPT) OJ [2004] L182/46. . . . . . . . . 101 2005/776/CFSP Special Representative for Moldova OJ [2005] L292/13 . . . . . . .287 2005/913/CFSP Chemical Weapons Convention OJ [2005] L331/34 . . . . . 101 2006/184/CFSP Biological and Toxin Weapons Convention OJ [2006] L65/51 . . . . . . . . . . . . . . . . . . . . . . . . 101 2006/418/CFSP Safeguards Agreement (NPT) OJ [2006] L165/20. . . . . . . . . 101 T R E AT I E S , C ON V E N T IONS A N D O T H E R I N T E R N AT ION A L I NS T RU M E N T S Accession Treaty–Republic of Cyprus to EU Protocol 10, Art 1. . . . . . . . . . . . . . . . . . . 72 Protocol 10, Art 3. . . . . . . . . . . . . . . . . . . 72 ACP–EC Council of Ministers, Decision 3/2003 OJ [2003] L345 . . . . . . . . . . . 100

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ACP–EC Partnership Agreement, Decision of 14 Nov 2001, WTO Doc . . . . . . . . 149 Agreement between the ICC and EU on cooperation and assistance OJ [2006] L115/50 . . . . . . . . . . . . . . . . . . . . . . . 117 Amsterdam ‘Declaration on the Establishment of a Policy Planning and Early Warning Unit’ . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Arbitration Commission on Yugoslavia Opinion 2 . . . . . . . . . . . . . . . . . . . . . . . . 75 Opinion 3 . . . . . . . . . . . . . . . . . . . . . . . . 75 Opinion 10 . . . . . . . . . . . . . . . . . . . . . . . 75 Association Agreement concerning the Accession of Mauritius to the Yaoundé Convention OJ [1973] L288/2 . . . . . . 141 Association Agreement with Morocco OJ [1969] L197 . . . . . . . . . . . . . 160, 271 Association Agreement with Tunisia OJ [1969] L198 . . . . . . . . . . . . . . . . 160, 271 Barcelona Declaration on Mediterranean Partnership (Council, Commission and Member States), 1995 . . . . . .47, 270, 271, 272, 273 Basel Waste Convention, 1989 (see also Council Dec 93/98) . . . . . . . . . . . . . .122 Biodiversity Convention 1992 (see also Council Dec 93/626) . . . . . . . . . . . . .122 Biological and Toxin Weapons Convention . . . . . . . . . . . . . . . . . . . . 101 Charter of Fundamental Rights of the EU Art 18. . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . 115 Code of Conduct between member states/FAO . . . . . . . . . . . . . . . . . . . . . . 53 Code of Conduct between member states/ Codex Alimentarius . . . . . . . . . . . . 53, 79 Cotonou Agreement (EC-ACP Partnership Agreement) . . . . . . . . . . . . . . . . . . . . . 53 Art 96 . . . . . . . . . . . . . . . . . . . . . . . 52, 153 Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Cartagena Protocol 2001 (see also Council Dec 2002/628). . . . . . . . . . . . . . . . . .122 Certain Aspects of Bankruptcy, Convention ETS No 136 (1990) Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Charter of Paris . . . . . . . . . . . . . . . . . . . . . . 73 Chemical Weapons Convention. . . . . . . . . 101 CITES Convention, 1973 . . . . . . . . . . . . .122 Civil Liability for damage resulting from activities dangerous to the environment, Convention ETS 150 (1993)

Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Climate Change Convention 1992 (see also Council Dec 94/69) . . . . . . . . . . . . . .122 Common Funds for Commodities Agreement, 1980 (COMESA, AU, EC) . . . . . . . . . . . . . . . . . . . . . . . . 79 Commonwealth Sugar Agreement, 1951 . . 148 Comprehensive Nuclear Test-Ban Treaty . . . . . . . . . . . . . . . . . . . . . . . . 101 Congo Basin Treaties, 1883 . . . . . . . . . . . . 131 Contact with Children, Convention ETS 192 (2003) . . . . . . . . . . . . . . . . . . 67 Art 20(3) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Convention Against Torture (CAT) Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Convention of Association between the EEC and the Associated African and Malagasy States . . . . . . . . . . . . . . . . .134 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1998, UNECE (Aarhus Convention). . . . . . . . . . . . . . . . . . . . 123 Convention on Combating Desertification (see also Council Dec 93/98) . . . . . . . .122 Convention on Enforced Disappearances, 2006 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Art 17(1). . . . . . . . . . . . . . . . . . . . . 110, 111 Art 17(2)(c) . . . . . . . . . . . . . . . . . . . . . . 110 Art 17(2)(d) . . . . . . . . . . . . . . . . . . . . . . 111 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1980 . . . . . . . . . . . . . . . . . 102 Convention on the Elimination of all discrimination against Women (CEDAW) . . . . . . . . . . . . . . . . . . . . . . 71 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction . . . . . . . . . . . . . . . . . . . . 256 Cooperation Agreements with Tunisia and Morocco 1976 . . . . . . . . . . . . . . 271, 273 Copyrights in the framework of transfrontier broadcasting by satellite ETS No 153 (1994)

Table of Legislation Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Cotonou Agreement, 2000 (Partnership Agreement between members of the African, Caribbean and Pacific Group of States and the EC) OJ [2000] L317/3 . . . . . . . . 4, 91, 94, 129, 147–153, 158, 162, 163, 164, 168, 267 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 36(1) . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 36(4) . . . . . . . . . . . . . . . . . . . . . . . . 169 Art 36(5) . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 37(1) . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 37(6) . . . . . . . . . . . . . . . . . . . . 165, 168 Art 37(7) . . . . . . . . . . . . . . . . . . . . 165, 169 Art 37(8) . . . . . . . . . . . . . . . . . . . . . . . . 169 Art 37(9) . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 41(4) . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 55. . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Art 96 . . . . . . . . . . . . . . . . . . . . . . 153, 267 Annex II, Art 12 . . . . . . . . . . . . . . . . . . . 153 Annex V, Arts 1–2 . . . . . . . . . . . . . . . . . 148 Annex V, Art 8(1) . . . . . . . . . . . . . . . . . . 148 Annex V, Art 13 . . . . . . . . . . . . . . . . . . . 169 Annex V, Prot 3 . . . . . . . . . . . . . . . . . . . 169 Annex VII . . . . . . . . . . . . . . . . . . . . . . . 153 Prot 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Prot 4 and Dec XXII - Beef Protocol . . . 150 Rum Protocol . . . . . . . . . . . . . . . . . . . . 150 Second Bananas Protocol . . . . . . . . . . . . 150 Sugar Protocol (Annex V Prot 3) . . . . . . 150 Cotonou Amending Agreement OJ [2005] L209/27 . . . . . . . . . . . . . 117, 153 Art 11(6) . . . . . . . . . . . . . . . . . . . . . . . . 117 Council of Berlin, Mar 1999 . . . . . . . . . . . .97 Council of Europe Convention 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (1992) 31 ILM 1486 . . . . . . . . . . . . . . . . . . . . 73 Declaration on the Promotion of the Trade of Less-Developed Countries, GATT Doc L/1657, 1961 . . . . . . . . . . . . 138, 144 Declaration on the Middle East Process, European Council, Brussels Summit, 23/24 March 2004 . . . . . . . . . . . . . . . . 76

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Declaration on Yugoslavia 31 ILM (1992) 1485 . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 EC–Algeria Regional Trade Agreement OJ [1978] L263/2 . . . . . . . . . . . . . . . . 160 EC–Argentina Agreement on Trade and economic cooperation, 1990 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 EC–Armenia PCA OJ [1999] L239/3 . . . . . . . . . . . .246, 252, 267, 268, 269, 290 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . .269 Art 43(4) . . . . . . . . . . . . . . . . . . . . . . . .269 EC–Azerbaijan PCA OJ [1999] L246/3 . . . . . . . . . . . .246, 252, 267, 268, 269, 290 EC–Chile Association Agreement, 2002 OJ [2002] L352/3. . . . . . . . 161, 181, 182, 205, 212, 214 Title III . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 94(1) . . . . . . . . . . . . . . . . . . . . . . . .207 Art 95(1) . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 95(2) . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 96(d) . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . .208 Art 98 . . . . . . . . . . . . . . . . . . . . . . . . . .208 Art 99 . . . . . . . . . . . . . . . . . . . . . . . . . .209 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art 130 . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 131(d) . . . . . . . . . . . . . . . . . . . . . . . 182 Art 135. . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 135(2) . . . . . . . . . . . . . . . 206, 207, 208 Annex VII . . . . . . . . . . . . . . . . . . . 209, 211 Schedule of Specific Commitments . . . . . . . . . . . . . . . . . .209 EC–Cyprus Association Agreement. . . . . . . 61 EC–Egypt Regional Trade Agreement OJ [1978] L266/2 . . . . . . . . . . . . . . . . 160 EC–Georgia PCA OJ [1999] L205/3 . . . . . . . . . . . .232, 246, 252, 267, 268, 269, 290 EC–Hungary Wine Agreement, 1993 OJ [1993] L337/93 . . . . . . . . . . . . . . . . 63 EC–India Cooperation Agreement . . . . 63, 94 EC–Israel Regional Trade Agreement OJ [1970] L183/2 . . . . . . . . . . . . . . . . 160 EC–Israel Regional Trade Agreement OJ [1975] L136/3 . . . . . . . . . . . . . . . . 160 EC–Jordan Regional Trade Agreement OJ [1978] L268/2 . . . . . . . . . . . . . . . . 160 EC–Lebanon Regional Trade Agreement OJ [1978] L267/2 . . . . . . . . . . . . . . . . 160

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EC–Mexico Agreement, 1997 OJ [2000] L276/44 . . . . . . . . . . . . . . . . . . . 161, 180 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 EC–Moldava PCA OJ [1998] L181/1 . . . . . . . . 246, 252, 267, 268, 290 EC–Morocco Fisheries Agreement 1996 OJ [1996] L306/7 . . . . . . . . . . . . . . . . 78 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 78 EC–Morocco Fisheries Agreement 2006, OJ [2006] L141/4. . . . . . . . . . . . . . . . . 78 Art 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Art 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Protocol, Art 6 . . . . . . . . . . . . . . . . . . . . . 78 EC–Morocco Regional Trade Agreement OJ [1969] L197/3 . . . . . . . . . . . . . . . . 160 EC–Morocco Regional Trade Agreement OJ [1978] L264/2. . . . . . . . . . . . . . . . 160 EC–Russia Partnership and Cooperation Agreement (PCA) . . . . . . . . . . . . . . . 180 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 23(1) . . . . . . . . . . . . . . . . . . . . . 62, 269 Art 104 . . . . . . . . . . . . . . . . . . . . . . . . . . 65 EC–Singapore Aviation Agreement, 2006 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . .120 EC–South Africa Trade, Development and Cooperation Agreement (TDCA) OJ [1999] L311/3 . . . . . . . . . . . . 161, 168 EC–Spain Regional Trade Agreements OJ [1970] L182/2 . . . . . . . . . . . . . . . . 160 EC–Syria Regional Trade Agreement OJ [1978] L269/2 . . . . . . . . . . . . . . . . 160 EC–Tunisia Regional Trade Agreement OJ [1969] L198/3 . . . . . . . . . . . . . . . . 160 EC–Tunisia Regional Trade Agreement OJ [1978] L265/2 . . . . . . . . . . . . . . . . 160 EC–Turkmenistan PCA, signed 1998, not in force . . . . . . . . . . . . .246, 252, 267, 268, 290 EC–Ukraine Agreement on Science and Technology OJ [2003] L267/24 . . . . . 274 EC–Ukraine Galileo Agreement on access to Satellite Navigation . . . . . . . . 274, 276 EC–Ukraine Initial aviation agreement, Oct 2006 . . . . . . . . . . . . . . . . . . . . . . 274 EC–Ukraine Nuclear Energy/Energy Cooperation Commission Dec 2006/ 635/Euratom OJ [2006] L261/26 . . . 274 EC–Ukraine PCA OJ [1998] L49/1 . . . . . . . . . 246, 252, 267, 268, 290 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . .269

Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . .269 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . .269 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . .269 EC–Ukraine Steel Agreement OJ [2007] L178/24 . . . . . . . . . . . . . . . . . . . . . . . 274 EC–Ukraine Textiles Agreement OJ [2007] L17/17 . . . . . . . . . . . . . . . . . . . . . . . . 274 EC–Ukraine Readmission agreement/ visa facilitation agreement, June 2007 . . . . . . . . . . . . . . . . . 275, 276 EC–US competition agreement, 1991 . . . . . 63 EC–Yugoslav Agreement (1980) . . . . . . 64, 94 EC Association and Stabilisation Agreements with countries of the Balkans . . . . . . . . . . . . . . . . . . . . . . . 180 EEC Association Agreement with EAC 8 ILM (1968) 741 . . . . . . . . . . . . . . . . . 141 EEC Association Agreement with Greece, 1961 . . . . . . . . . . . . . . . . . . . . . . . 46, 140 EEC Association Agreement with Morocco [1969] JO L197/3 . . . . . . . . . . . . 141, 271 EEC Association Agreement with Nigeria 5 ILM (1966) 828 . . . . . . . . . . . . . . . . . 141 EEC Association Agreement with Tunisia [1969] JO L198/3 . . . . . . . . . . . . 141, 271 EEC Association Agreement with Turkey, 1963 . . . . . . . . . . . . . . . . . . . 46, 140, 232 EEC–India Agreement on Cane Sugar OJ [1975] L190/36 . . . . . . . . . . . . . . . . . 149 EEC–India Cooperation Agreement . . . . . 161 EEC–USSR Trade and Economic and Commercial Cooperation Agreement, Dec 1989 . . . . . . . . . . . . . . . . . . . . . .268 Espoo Convention on Transboundary Environmental Impact Assessment, 1997 . . . . . . . . . . . . . . . . . . . . . . . 69, 122 Art 17(5) . . . . . . . . . . . . . . . . . . . . . . . . . 69 Art 27(3)(2) . . . . . . . . . . . . . . . . . . . . . . . 69 EU Status of Forces Agreement (SOFAs) EU–DRC SOFA . . . . . . . . . . . . . . . . . . .88 EU–Gabon SOFA . . . . . . . . . . . . . . . . . .88 EU–FYROM SOFA . . . . . . . . . . . . . . . .88 EU–Chile Association Agreement/ Council . . . . . . . . . . . . . . . . . . . . . . . 154 EU–Israel Action Plan, 2004 . . . . . . . . . . .234 EU–Israel Association Agreement . . . . . . . 225 Art 2 . . . . . . . . . . . . . . . . . . . . . . . 225, 232 Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . .238 Protocol 5 . . . . . . . . . . . . . . . . . . . . . . .238 EU–Mexico Joint Council Decision 2/2001 . . . . . . . . . . . . 180, 181, 205, 208

Table of Legislation Preamble . . . . . . . . . . . . . . . . . . . . . . . .207 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . .208 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . .208 Art 29(2) . . . . . . . . . . . . 205, 206, 207, 208 EU–Ukraine Border Mission – memorandum of understanding, Oct 2005. . . . . . . . . . . . . . 274, 286, 296 EU–US Extradition Treaty, 2003 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 115 EU–US Passenger Name Record Agreement see Council Dec 2007/551 EURATOM Treaty . . . . . . . . . . . . . . . . . . . 69 Art 102. . . . . . . . . . . . . . . . . . . . . . . . . . .46 Euro-Mediterranean Agreement with Algeria OJ [2005] L265/2 . . . . . 161, 270 Euro-Mediterranean Agreement with Egypt OJ [2004] L304/39 . . . . . 161, 270 Euro-Mediterranean Agreement with Israel OJ [2000] L147/3 . . . . . . . . .47, 76, 161, 270 Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Euro-Mediterranean Agreement with Jordan OJ [2002] L129/3 . . . . . . . . . . . . . . . . 161, 270, 273 Euro-Mediterranean Agreement with Lebanon OJ [2006] L143/2 . . . . 161, 270 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art 69 . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Euro-Mediterranean Agreement with Morocco OJ [2000] L70/1 . . . . . 161, 270 Art 52. . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Euro-Mediterranean Agreement with Syria, Oct 2004, not yet signed . . . . . . 161, 270 Euro-Mediterranean Agreement with the Palestinian Authority OJ [1997] L187/3 . . . . . . . . . . . . . . . . . 77, 161, 270 Euro-Mediterranean Agreement with Tunisia OJ [1998] L97/1 . . . . . . . 161, 270 Euro-Mediterranean Interim Association Agreement on trade and co-operation, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Europe Agreement with Romania OJ [1994] L357 Preamble . . . . . . . . . . . . . . . . . . . . . . . .262 European Coal and Steel Community (ECSC) Treaty, 1952 . . . . . . . . . . . . . 128 European Code of Conduct on Arms Exports, 1998. . . . . . . . . . . . . . . . . . . 102 European Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . 70

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Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Protocol No 6. . . . . . . . . . . . . . . . . . . . . 115 Protocol No 13. . . . . . . . . . . . . . . . . . . . 115 European Economic Area Agreement, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 European Energy Community OJ [2006] L198/18 . . . . . . . . . . . . . . . . .288 European Landscape, Convention ETS 176 (2000) . . . . . . . . . . . . . . . . . .66 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Europol Convention Arts 10, 18, 42 . . . . . . . . . . . . . . . . . . . . 275 FAO Constitution Art II(8)-(11) . . . . . . . . . . . . . . . . . . . . . . 79 Final Act of Helsinki . . . . . . . . . . . . . . . . . . 73 Financing of Terrorism Convention (ETS No 196–98) Art 52(4) . . . . . . . . . . . . . . . . . . . . . . . . .68 Franco-Belgian memorandum 11 Oct 1956 . . . . . . . . . . . . . . . . . . . . . . . . . . 132 General Agreement on Trade in Services (GATS), WTO . . . . . .5, 53, 172, 173, 174, 175, 176, 177–180, 183, 184, 185, 186, 187, 189, 191, 196, 201, 203–205, 209, 211, 212, 213, 214, 215, 272 Art I.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Art I.2 . . . . . . . . . . . . . . .177, 178, 181, 195 Art I.2(a) . . . . . . . . . . . . . . . . . . . . . . . . 179 Art I.2(b) . . . . . . . . . . . . . . . . . . . . . . . . 179 Art I.2(c) . . . . . . . . . . . . . . . . . . . . . . . . 179 Art I.2(d) . . . . . . . . . . . . . . . . . . . . . . . . 179 Art 1.3 . . . . . . . . . . . . . . . . . . . . . . . . . .206 Art I.3(b) . . . . . . . . 177, 203, 204, 206, 207 Art 1.3(c) . . . . . . . . . . . . 203, 204, 205, 207 Art II (MFN) . . . . . . . . . . . . . . . . . . . . . . 83 Art III (transparency) . . . . . . . . . . . . . . . . 83 Art V . . . . . . . . . . . . . . . . . . . . . . . 149, 207 Art V(3)(a) . . . . . . . . . . . . . . . . . . . . . . . 169 Art VI:4 . . . . . . . . . . . . . . . . . . . . . . . . .200 Art XVI . . . . . . . . . . . . . 177, 178, 208, 209 Art XVII (national treatment) . . . . .83, 177, 208, 209 Art XIX:1. . . . . . . . . . . . . . . . . . . . . . . . 214 Art XX:2 . . . . . . . . . . . . . . . . . . . . . . . .209 Art XXI . . . . . . . . . . . . . . . . . . . . . . . . .209 Art XXVIII . . . . . . . . . . . . . . . . . . . . . . 182 Art XXVIII(d) . . . . . . . . . . . . . . . . . . . . 179 Art XXVIII.1 . . . . . . . . . . . . . . . . . . . . .204

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General Agreement on Tariffs and Trade (GATT) . . . . . . . . . . . . . . . . . 4, 134, 269 Part IV Trade and Development . . 145, 149 Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art I:2 . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Art XVIII . . . . . . . . . . . . . . . . . . . . . . . 149 Art XXI . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art XXII . . . . . . . . . . . . . . . . . . . . . . . . 143 Art XXIV. . . . . . . . 138, 142, 143, 149, 160, 167, 168, 169, 170 Art XXIV:5 . . . . . . . . . . . . . . . . . . . . . . 142 Art XXIV:8 . . . . . . . . . . . . . . 142, 161, 169 Art XXIV:10 . . . . . . . . . . . . . . . . . . . . . 167 Art XXVI:8 . . . . . . . . . . . . . . . . . . . . . . 145 Art XXVIII . . . . . . . . . . . . . . . . . . . . . . 149 Art XXVIII bis . . . . . . . . . . . . . . . . . . . 149 Art XXXIII . . . . . . . . . . . . . . . . . . . . . . 149 Art XXXVI:8. . . . . . . . . . . . . . . . . 145, 149 Art XXXVII(1)(c)(i) . . . . . . . . . . . . . . . . 138 GATT DSU, Art 12.12 . . . . . . . . . . . . . 83, 84 GATT Uruguay Round . . . . . . . . . . . 189, 214 GATT Working Party Reports on Agreements with Israel and the Maghreb (Tunisia, Algeria, Morocco) 31 Oct 1977 . . . . . . . . . . . . 160 GATT Working Party Reports on Agreements with the Mashreq (Egypt, Syria, Jordan, Lebabon) 5 May 1978 . . . . . . . . . . . . . . . . . . . . 160 Geneva Convention (Third) Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Geneva Convention (Fourth) . . . . . . . . . . . 106 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 First Additional Protocol, Art 75 . . . . . . 106 Second Additional Protocol, Arts 4–6 . . . 106 Geneva Convention on Transboundary Air Pollution, 1979 (see also Council Dec 81/462) . . . . . . . . . . . . . . . . . . . .122 Georgetown Agreement (ACP Group) 6 June 1975, as amended Nov 2003 . . . . . . . . . . . . . . . . . . . . . . 147 German-Czech declaration, 1997 . . . . . . . 114 Hague Code of Conduct against Ballistic Missile Proliferation Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Arts 3–8. . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

ILC Articles on State Responsibility Art 47(1) . . . . . . . . . . . . . . . . . . . . . . . . .64 Implementing Convention (IC) to the EEC Treaty . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 10. . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 11. . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Protocols . . . . . . . . . . . . . . . . . . . . . . . .134 Annexes A, B . . . . . . . . . . . . . . . . . . . . . 139 Insider Trading, ETS 130/133 (1989) Art 16bis(2) . . . . . . . . . . . . . . . . . . . . . . . 67 Instrument establishing a Global Environmental Facility, Geneva (1994) 33 ILM 1273 . . . . . . . . . . . . . . . . . . .122 Internal Agreement between member states on implementation of ACP-EC Partnership Agreement OJ [2000] L371/367 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 International Court of Justice, Rules of Procedure Art 43(2) . . . . . . . . . . . . . . . . . . . . . . . . .88 International Court of Justice, Statute Art 36(2) . . . . . . . . . . . . . . . . . . . . . . . . . 89 Art 36(5) . . . . . . . . . . . . . . . . . . . . . . . . . 89 Art 38(1)a, b . . . . . . . . . . . . . . . . . . . . . . .54 International Covenant on Civil and Political Rights (ICCPR) . . . . . . . . . . 70, 108, 110 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 107 International Criminal Court, Statute see Rome Statute International Validity of Criminal Judgments, ETS 73 (1972) Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Kyoto Protocol, 1999 (see also Council Dec 2002/358) . . . . . . . . . . . . . . . 37, 122 Art 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Legal Protection of services based on, or consisting of, conditional access ETS No 178 (2001) Art 11(4) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Lomé I Convention, 1975 OJ [1976] L25/1 94, 147–153, 171 Arts 2–3 . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Table of Legislation Prot 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Prot 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Lomé II Convention, 1981 OJ [1980] L347/1 . . . . . . . . . . . . . 94, 147–153, 171 Arts 2–3 . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Prot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Lomé III Convention, 1986 OJ [1986] L86/3 . . . . . . . . . . . . . . 94, 147–153, 171 Arts 130–131 . . . . . . . . . . . . . . . . . . . . . 148 Art 136 . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Prot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Lomé IV Convention, 1990 OJ [1989] L229/1, amended OJ [1988] L156/3 . . . . . . . 91, 94, 147–153, 168, 171 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Art 5(1)(3) . . . . . . . . . . . . . . . . . . . . . . . 152 Arts 168–169 . . . . . . . . . . . . . . . . . . . . . 148 Art 174 . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 366a. . . . . . . . . . . . . . . . . . . . . . . . . 152 Prot 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Prot 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Prot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Prot 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Marrakesh Agreement establishing the WTO Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Montevideo Convention on the Rights and Duties of States, 1933 Art 1a–c . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Mutual administrative assistance in tax matters, Convention ETS 127 (1998). . .66 Mutual assistance in criminal matters, Convention ETS 30 (1959) . . . . . 66–67 Art 26(4) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Nuclear Non-Proliferation Treaty and Safeguards Agreements (NPT) . . . . . 101 IAEA Additional Protocols . . . . . . . . . . 101 Offences Relating to Cultural Property, Convention ETS 117 (1985) . . . . . . . . . 67 Art 34(3) . . . . . . . . . . . . . . . . . . . . . . . . . 67 OSPAR Convention, 1992 (Convention for the Protection of the Marine environment of the North-East Atlantic) Art 9 . . . . . . . . . . . . . . . . . . . . . . . 122, 123 Ottawa Convention on the prohibition of the Use, Stockpiling, Production and

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Transfer of Anti-Personnel mines and on their Destruction, 1997 . . . . . . . . . 102 Passenger Name Record (PNR) Agreement with US, 2004 . . . . . . . . . . . . . . . . 43, 63 Potsdam Agreement August 1945 . . . . . . . 113 Prevention of Terrorism Convention Art 26(3) . . . . . . . . . . . . . . . . . . . . . . . . .68 Promotion of a trans-national long-term voluntary service for young people, ETS 175 (2000) Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Protection of Audiovisual Heritage, ETS No 183 Art 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Punishment of Road Traffic Offences, Convention ETS 52 (1964) . . . . . . . . . 67 Art 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Readmission agreement with Hong Kong as SAR of People’s Republic of China . . . . 58 Rio Conference on Environment and Development 1992 . . . . . . . . . . . . 80, 123 Principle 10 . . . . . . . . . . . . . . . . . . . . . . 123 Rome Statute establishing the ICC . . . . . . . . . . . . . . . . . . . . 51, 117, 118 Art 7(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . 110 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 98 . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Schengen Agreement with Switzerland . . . . 47 Single European Act (SEA) Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 12 Art 30(5) . . . . . . . . . . . . . . . . . . . . . . . . . 12 Stablisation and Association Agreement with Croatia Preamble . . . . . . . . . . . . . . . . . . . . . . . . 261 Stabilisation and Association Agreement with FYROM . . . . . . . . . . . . . . . . . . . . . . .88 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 261 Statute of the Court of Justice Protocol 6, Arts 62, 62b . . . . . . . . . . . . . . 13 Statute of the ESCB and ECB . . . . . . . . . . . 13 Supervision of Conditionally Sentenced or Conditionally Released Offenders, Convention ETS No 51 (1964) Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Sustainability Pact for Central and Eastern Europe, 1995 . . . . . . . . . . . . . . . . . . . 218 Temporary importation, free of duty, of medical equipment, Convention ETS 33 (1960) . . . . . . . . . . . . . . . . . . . . . . .66 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .66

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Additional Protocol, ETS 110 . . . . . . . . .66 Trafficking in Human Beings Convention Art 40(3) . . . . . . . . . . . . . . . . . . . . . . . . .68 Transfer of sentenced persons, Convention ETS 112 (1983) . . . . . . . . . . . . . . . . . .66 Art 22(2) . . . . . . . . . . . . . . . . . . . . . . . . .66 Treaty of Guarantee binding on Cyprus, Turkey, Greece and the UK, 1960 . . . . 72 Trans-frontier television, Convention ETS 132 (1989) Art 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . 67 Treaty of Sèvres, 1920 . . . . . . . . . . . . . . . .230 TRIPS Agreement . . . . . . . . . . 53, 59, 63, 119 Art 31. . . . . . . . . . . . . . . . . . . . . . . . . . . 118 UK Act of Accession, 1972 Prot 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 147 UN Charter . . . . . . . . . . . . . . . . . . . . . 73, 125 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . .97 Art 41. . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 51. . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Art 73 . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Art 103. . . . . . . . . . . . . . . . . . . . . . . . . . . 91 UN Conference on Trade and Development (UNCTAD), 1964 . . . . . . . . . 4, 143, 144 Agreed conclusions . . . . . . . . . . . . . . . . 154 Final Act . . . . . . . . . . . . . . . . . . . . . . . . 145 Principle 8 . . . . . . . . . . . . . . . . . . . . . . . 145 Resolution 21(II) . . . . . . . . . . . . . . . . . . 146 Resolution 96 (IV) GSP preferences. . . . 159 Second Conference, 1968 . . . . . . . . . . . 146 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Art 17. . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Art 30(3) . . . . . . . . . . . . . . . . . . . . . . . . .66 UN Convention on Cultural Diversity . . . . 69 UN Declaration Against Disappearances (GA Res 47/133), 1992 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 110 UN General Assembly Resolutions 1541 (XV) Decolonisation of Western Sahara . . . . . . . . . . . . . . . . . . . . . . . . .77 2625 (XXV), 24 Oct 1970 Territorial acquisition resulting from aggression . . . . . . . . . . . . . . . . . . . . . . 74 41/120 Right to development . . . . . . . . . 121 56/83, 28 Jan 2002, Annex . . . . . . . . . . . 65 60/1 2005 World Summit Outcome . . . .98

60/148 2005 . . . . . . . . . . . . . . . . . . . . . 110 61/177 2006. . . . . . . . . . . . . . . . . . . . . . 110 UN Security Council Resolutions 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 661 (1990) . . . . . . . . . . . . . . . . . . . . . . . .92 678 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 757 (1992) . . . . . . . . . . . . . . . . . . . . . . . .92 820 (1993) . . . . . . . . . . . . . . . . . . . . . . . .92 1160 (1998) . . . . . . . . . . . . . . . . . . . . . . . 95 1306 (2000) . . . . . . . . . . . . . . . . . . . . . . . 91 1368 (2001) . . . . . . . . . . . . . . . . . . . . 98, 99 1373 (2001) . . . . . . . . . . . . . . . . . . . 93, 103 1378 (2001) . . . . . . . . . . . . . . . . . . . . . . .99 1422 (2002) ICC Immunity for UN soldiers . . . . . . . . . . . . . . . . . . . . . . . . 118 1441 (2002) . . . . . . . . . . . . . . . . . . . . . . .99 1593 (2005) Darfur . . . . . . . . . . . . . . . . 118 1696 (2006) . . . . . . . . . . . . . . . . . . . . . . 102 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 UNCLOS (UN Convention on the Law of the Sea) 1982 . . . . . . . . . . . . . . . . . .88 Art 287 . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Annex IX, Art 6(2) . . . . . . . . . . . . . . . . . . 65 UN Minimum Rules . . . . . . . . . . . . . . . . . 110 UN Straddling Stocks Convention . . . . . . .48 Venice Declaration of the Nine 1980 . . . . . . 76 Vienna Convention on the Law of Treaties, 1969 . . . . . . . . . . . . . . . . . . .2, 55–64, 96 Part I . . . . . . . . . . . . . . . . . . . . . . . . . 57–58 Part II . . . . . . . . . . . . . . . . . . . . . . . .58–59 Part III . . . . . . . . . . . . . . . . . . . . . . . .59–62 Part IV . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Part V . . . . . . . . . . . . . . . . . . . . . . . 62–64 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 2(1)(a . . . . . . . . . . . . . . . . . . . . . . . . .44 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 Art 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 18. . . . . . . . . . . . . . . . . . . . . . . . . 55, 58 Art 19(c). . . . . . . . . . . . . . . . . . . . . . . . . . 69 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . 59, 68 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . 59, 68 Art 30(2) . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 30(4) . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 31. . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Art 31(1). . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 31(3) . . . . . . . . . . . . . . . . . . . . . . 56, 61 Art 31(3)(b) . . . . . . . . . . . . . . . . . . . . . . . 57 Art 31(3)(c) . . . . . . . . . . . . . . . . . . . . . .120

Table of Legislation Art 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 46(1) . . . . . . . . . . . . . . . . . . . . . . . . . 62 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Art 59(1)(b) . . . . . . . . . . . . . . . . . . . . . . 119 Art 60 . . . . . . . . . . . . . . . . . 56, 63, 94, 114 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . 55, 64 Art 65. . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Art 67. . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Vienna Convention on the Law of Treaties 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Vienna Convention on the Ozone Layer 1985 (see also Council Dec 88/540) . . . . . . .122 Montreal Protocol 1987 . . . . . . . . . . . . .122 Vienna World Conference on Human Rights, Final Declaration 1993 . . . . . . . . . . . 121 WTO Agreement on Rules of Origin . . . . . 162 WTO Doha Declaration, 2001. . . . . . . . . . . . . 4, 129,158, 169, 191 WTO Hong Kong Declaration Annex F . . . . . . . . . . . . . . . . . . . . . . . . . 158 WTO Plurilateral Government Procurement Agreement Arts VIII(B), X, XII . . . . . . . . . . . . . . . . .84 WTO Uruguay Round . . . . . . . 173, 175, 176, 177, 268 Yaoundé Convention I, 1966 . . . . . . . . . . 134, 135–137, 138, 141, 143, 169, 171 Declaration VIII . . . . . . . . . . . . . . . . . . 139 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 3(2)(2) . . . . . . . . . . . . . . . . . . . . . . .134 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art 17(c), (d). . . . . . . . . . . . . . . . . . . . . . 139 Prot 1 . . . . . . . . . . . . . . . . . . . . . . . 134, 136 Prot 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Prot 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . 136

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Yaoundé Convention II, 1969 . . . . . . . . . 134, 135–137, 139, 141, 143, 145, 147, 169, 171 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . 136 Arts 12–14 . . . . . . . . . . . . . . . . . . . . . . . 137 Art 16. . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art 58 . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Prot 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Prot 2 . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Prot 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 N AT ION A L L E G I S L AT ION Czechoslovakia Law 115/1946. . . . . . . . . . . . . . . . . . . 113, 114 Beneš Decrees, Nos 12, 28, 33, 108 . . . . . . 113 Croatia Fisheries zone legislation, 2008 . . . . . . . . . 87 France Constitution 27 Oct 1946 . . . . . . . . . . . . . 129 Constitution 4 Oct 1958 . . . . . . . . . . . . . . 129 United Kingdom Anti-terrorism Crime and Security Act 2001 . . . . . . . . . . . . . . . . . . . . . . 104 United States of America Constitution Eighth Amendment . . . . . . . . . . . . . . . . 116 Alien Tort Statute (ATS), 1789 . . . . . . 84–86 Cuban Liberty and Democratic Solidarity Act (Helms-Burton legislation) . . . . . . 82 Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Titles III, IV. . . . . . . . . . . . . . . . . . . . 82, 83 Trade Expansion Act 1962 . . . . . . . . . . . . . 144 Massachusetts Burma Law, 1996 . . . . . . . . . . . . . . . . . . . . .84

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1 Introduction Marise Cremona

The essays collected here had their genesis in a series of lectures given as part of the Academy of European Law annual summer school in European Union (EU) law. In planning both the lectures and the book we decided not to present a general overview of the subject, but rather to identify a number of areas (although certainly not exhaustive) where current developments are particularly interesting, telling us something about the developing nature of the EU constitutional order, its role within the international legal order, and the direction of current policy developments in some central fields of EU external relations. Chapters 2 and 3 are concerned in different ways with the constitutional principles underlying EU external relations law and with the ways in which these affect the EU’s projection of its ‘identity’—one of the objectives of its international action identified in Article 2 of the Treaty on European Union (TEU). Christophe Hillion examines one of the most fundamental constitutional questions for the Union’s external relations today: the legal principles which ensure coherence between different strands of European Community (EC) external action, between the pillars of the Union and between the EC, the EU and its Member States, reflecting the complexity of the ‘internal’ legal rules which govern the EU as an international actor. As he says, ensuring the coherence of the Union’s multifaceted external action is ‘a central and indeed recurring concern in the EU external relations narrative’. Somewhat ironically, the use of the concepts of consistency and coherence in the different language versions of the Treaties lacks consistency and even coherence, and the different language versions of European Court of Justice (ECJ) judgments add complexity rather than clarity. Hillion argues that consistency must mean more than merely avoiding contradiction and that in demanding synergy and added value between policy domains it is a component of, but not identical to, the concept of coherence. Although policy coherence is in part a practical and procedural issue, Hillion here focuses on the contribution of EU law to achieving coherence, and starting with an exploration of the meaning of coherence and its relationship to consistency he then traces the links between the principle of coherence and other ‘organizing principles’ of the system, especially those relating to the distribution

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of powers, primacy, pre-emption, and the duty of cooperation under both EC and EU law. These organizing principles operate in an institutional context, the ‘single institutional framework’, although as he points out, ‘while it is single in terms of the institutions it involves, the institutional framework is however plural in terms of the interactions taking place within it’. This is not just a question of the different roles of the institutions in policy formation and decision-making; Hillion demonstrates the way in which the institutions including the ECJ and indeed the national courts have differing roles to play in giving effect to the principle of coherence in its different dimensions. Here the positive nature of the duty of cooperation is important; it is not concerned only with policing boundaries but rather is designed to ensure that the EU’s multiplicity of actors are each cooperating, within their powers, to achieving overall Union objectives and that the Union’s various external policies should cohere. In the following chapter we turn from ‘internal’ rules and principles to the interaction between the European Union and the international legal order. Frank Hoffmeister examines the Union’s role in the practice and development of international law, what has traditionally been called ‘state practice’ but which is increasingly engaging the EU and its institutions. The chapter starts with the legal basis for the EU’s activity in international law and practice, its objectives and the types of Union act relevant for the application, interpretation, and development of international law (including agreements, unilateral declarations, internal acts such as regulations, decisions and common positions, and ECJ judgments). Against the background of this constitutional framework we can then look at the way in which the principle of coherence developed in chapter 2 operates, as both the Community and the Union engage in internal coordination and the establishment of Community and Union positions, and the issue of external representation. The imperative of coherence does not—as we saw in chapter 2—remove the need to respect the different institutional balance within the Community and the second and third pillars. Despite these differences, as Hoffmeister points out, all these categories of first, second, third, and cross-pillar practice are ‘Brussels-driven’ with the result that the Union is increasingly contributing to the practice and development of international law, both generally and in specific fields. In some areas (treaty law and the 1969 Vienna Convention on the law of treaties, international law aspects of mixed agreements, the membership and responsibility of international organizations) the interaction is one which demonstrates the specific nature of the Community/Union as an international actor. In others we can see the processes whereby the sometimes different national approaches to particular international law issues are brought together and discussed in COJUR¹ with a view to exchanging information (for example, the ¹ COJUR is the Council working group on public international law. It brings together representatives of the Member States—normally Legal Advisers in the Foreign Ministry—and the relevant Legal Advisers in the Council and Commission.

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question of third country reservations to multilateral conventions), achieving a common position (for example, on the recognition of states, or the exercise of extra-territorial jurisdiction by third states), agreeing a Union public statement or position to be adopted, or agreeing ‘guidelines’ on an issue of public international law (such as the EU guidelines on international humanitarian law adopted in 2005). It is also possible to identify areas of law where the EU is attempting to make a positive contribution to legal development; in at least some of these cases it seems that the impetus comes as much if not more from the Union institutions as from the Member States. We are beginning to see not only a formation of common (national) positions which may be expressed by a single Union voice, but also a deliberate attempt by the Union as such to play a part in this process, albeit that the Union stance on, for example, the responsibility of international organizations, will be discussed with Member State representatives in COJUR. Furthermore, the Union voice is influenced not only by different national legal and political histories but also by the experience of the Union (or more particularly the Community) in its evolving integrative process. Alongside this more general influence we can see the Union’s growing role in the development of particular branches of international law, especially on humanitarian intervention and the use of force, the guidelines on international humanitarian law, counter-terrorism, international human rights and international criminal law. Hoffmeister sketches out the EU’s approach to and action in these fields and in bringing together a number of areas of practice reveals the considerable extent of Union involvement in the domains of international law which used to be regarded as the preserve of the state as well as its more ‘traditional’ fields of activity such as international economic and environmental law. What kind of international actor does this practice reveal? Hoffmeister points to the Union’s support for international law and in particular for judicial dispute settlement and effective enforcement of international law and multilateral treaty norms, support for international organizations and in particular the UN, arguing that the Union has contributed to the ‘constitutionalization’ of international law. His evidence supports the argument that in its increasing use of bilateral relations to promote international norms (for example, through insertion of standard clauses in bilateral agreements) the EU is not only engaging in the promotion of its own interests through the use of conditionality but is also acting as a ‘champion’ for international norms in the interests of the wider international community. The next three chapters represent three major policy areas of EU external action: first development policy, with Lorand Bartels looking in particular at the relationship between development policy and trade policy; second, external trade policy, with Markus Krajewski discussing trade in services and the link between external and internal policy issues; and third the Common Foreign and Security Policy (CFSP), with Nathalie Tocci providing an assessment of an important aspect of the evolving CFSP, the EU’s role in conflict prevention and conflict

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settlement. The aim in each case is to explore specific issues, initiatives, and policy directions, rather than providing a summary of EU external policy in the each field. The EU’s trade and development policy is shaped by a number of factors, notably its historical basis in the relationships between the Member States and their former colonies and dependencies, the central importance of trade in the emerging external policy of the European Community in its formative years, and the external constraints imposed by membership of the World Trade Organisation (WTO). The very notion of a ‘trade and development’ policy implies the integration of different areas of external action; here we have a specific example of the need for policy coherence. Bartels’ chapter explores the evolution of trade and development policy and in particular recent changes which increasingly seek to incorporate broader concepts of sustainable development into external policy as a whole and to place Union trade and development policy within global development strategies, including the Millennium Development Goals and the Doha Development Round of negotiations within the WTO. As expressed by Bartels, ‘The main challenge for the EU is how to achieve a trade and development policy that can be justified in terms of economic needs, is WTO compatible, and at the same time takes account of the needs of those countries which have become dependent on historical preferences.’ The historical analysis which Bartels provides allows us to see how EEC, then EC and now EU policy originated from and has been shaped by the interests of the Member States, individually and as a group, and how these interests have evolved over time. In addition, and highly relevant for current trade and development policy, is the discussion of EC policy within the framework of GATT and then the WTO and UNCTAD, in particular the use of reciprocity and the interplay between selective and general preferences. As Bartels shows, not only were (and are) there tensions between the EC approach and GATT/WTO disciplines, but also EC policy has developed against a wider debate over the integration of development needs into trade policy. Significantly, the EU’s strategy of reciprocal free trade in negotiating the Economic Partnership Agreements (EPAs) within the framework of the Cotonou Convention ‘brings the EU’s trade and development policy back full circle to its free trade ambitions in Part IV of the EEC Treaty’. In this chapter, then, we find an example of the way in which an important policy has evolved over time, responding to enlargement, changing Member State interests and priorities, deepening internal integration, the widening of foreign policy concerns, external legal constraints and the changing terms of the debate at an international level, which the Union itself has helped to shape. More specifically Bartels argues that the significant shift in the EU’s trade and development policy over the last decade, and still ongoing, is a result of a change in rationale. From a policy based on maintaining historical economic links with certain developing countries, the EU, influenced not only by WTO pressures but also by changing views as to the desirability of maintaining special links

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with former colonies, is shifting towards a policy based on non-discrimination, although as he also argues, there is still some way to go to achieve this. In chapter 5, Markus Krajewski takes a look at an increasingly important part of EU trade policy, that of trade in services. His aim is to examine first the links between internal and external policy on trade in services, the impact of the former on the latter, and second the relationship between multilateral and bilateral dimensions to EU external policy on services. The concept of ‘services’ is itself problematic and Krajewski explores the differences between the EU’s own internal and external approaches as well as that of the WTO/GATS, concluding that ‘even though there seems to be an increased convergence of the different concepts of trade in services, the substantial scope and approaches to liberalization remain different’. He argues that there is an increasing tendency on the part of the EU to focus on sectoral distinctions, in particular when addressing the important issue of competence (‘Who is in charge of trade in services within the EC?’) and illustrates this by examining the position of public services, a particularly contested issue for the EU both internally and externally. The shift in emphasis in EU external policy from modes of supply to a sectoral approach to services, exemplified here in the treatment of public services, appears to run counter to the approach of the EC Treaty, which bases policy orientation and allocation of competence according to movement of persons, rights of establishment, and provision of services. However within the internal market too, ‘horizontal’ liberalizing measures (such as the Services Directive of 2006 which also covers the establishment of service providers) are accompanied by sectoral regimes and a desire to approach important and sensitive sectors (for example, energy, transport, telecommunications) from a policy perspective that bridges such distinctions as those between establishment and services, between free movement and competition, as well as between the external and internal dimensions of policy. As Krajewski points out, barriers to trade in services are in general not border measures (unlike trade in goods) but rather often involve the domestic regulatory regime (measures such as licensing, monopolies, or exclusive service supply systems): ‘reducing barriers to trade in services therefore implies domestic regulatory reform’. This both makes multilateral liberalization more contentious and, for the EU, necessitates a close relationship between external and internal policy-making. We turn next to an aspect of EU external action which, although rooted in the common foreign and security policy, with its objectives of preserving peace and strengthening international security (Art 11(1) TEU), nevertheless also encompasses EC competences and instruments, including contractual relations. Nathalie Tocci, in chapter 6, engages in a comparative study of EU approaches to conflict resolution, examining five conflicts in the European neighbourhood: Cyprus, Turkey (and the Kurds), Serbia and Montenegro, Israel–Palestine and Georgia (Abkhazia and South Ossetia). Tocci establishes three ‘channels of influence’ through which, in the context of contractual relations, the EU may impact

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on these neighbourhood conflicts. First is conditionality (both positive and negative), defined ‘as a policy whereby a reward is granted or withheld depending on the fulfilment of an attached condition’ and which may operate either directly or indirectly on conflicts. Second, Tocci identifies social learning, the process whereby as a result of institutional, political, economic, and societal contact ‘change occurs through a transformation of perceived interests (and possibly identities), as domestic actors voluntarily internalize the norms and logic underpinning the EU framework and policies’. The third channel of influence, termed here passive enforcement, depends on the rule-based nature of the Union’s contractual relationships and its ability to enforce those rules. As Tocci argues, the process of experiential learning which this implies gives rise to a subtler process of influence and change than conditionality and may be perceived as less of an external imposition, embedded as it is in legal commitments voluntarily undertaken. Clearly these techniques are not mutually exclusive and they may be mutually reinforcing. Their effectiveness in a particular situation will depend on a number of variables, and Tocci identifies in particular value, credibility, and political management. Value (the value of the Union ‘offer’) has objective and subjective dimensions and may of course vary for the different political actors in a conflict situation. Credibility depends on the EU’s track record in enforcement and implementation of obligations as well as clarity and transparency in defining expectations and obligations. The influence of the political and economic interests of the various actors involved in the EU’s decision-making process impacts on its effectiveness by making it more difficult to achieve a common stance and to respond quickly to changing circumstances. In a comparative analysis of the effectiveness of the EU’s contribution to conflict resolution in the five selected cases in terms of value, credibility, and political management, Tocci paints a picture of mixed achievements, some success, and often unfulfilled potential. Unsurprisingly, it is when the contractual relationship forms part of a credible accession process that influence is more effective; however Tocci argues that ‘This is not to say that accession is a necessary requirement for an effective EU involvement in conflict resolution’; aid and non-accession-oriented integration can play an important part. The case studies, especially Cyprus, Turkey, and the Western Balkans, also illustrate the critical importance of timing as EU actions interact with other external and domestic political pressures and changing attitudes of domestic policy-makers. In this respect ‘divisible’ benefits which may be graduated and delivered over time may be effective even where they do not include membership, and ex ante conditionality may offer more scope for flexibility of response than ex post conditionality. Further, both ex post conditionality and the impact of legally binding obligations are likely to lose credibility and effectiveness if they are not enforced, or where enforcement relies on political rather than legal mechanisms. As she concludes, conflicts between different EU foreign policy goals may lead to inconsistent pursuit of different policy objectives.

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This potential for inconsistency between different objectives, and challenges to the coherence of EU external policy objectives and instruments is also addressed in the final chapter on the European Neighbourhood Policy (ENP). This policy, announced repeatedly as a strategic priority for the EU, illustrates well many of the challenges facing the EU in seeking to evolve a coherent external policy that reflects the EU’s own priorities and responds effectively to those of its partners, while working within the inevitable institutional constraints. Unlike trade, development, or the CFSP the ENP does not have a specific Treaty basis; it represents a growing trend in EU policy directed at regional groupings, bringing together different policy instruments from across all three Union pillars in an attempt to develop a coherent structure for broad policy objectives. Chapter 7 starts by briefly looking at the genesis of the ENP before attempting to ‘unpack’ the concept, to explore what it means for the policy to be European, a policy, directed at, or for, the EU’s neighbourhood. We then turn to the ENP’s objectives, summarized in the EU’s own words as ‘stability, security and prosperity’, and the tension created by the refusal of the EU to link the ENP to an enlargement perspective (the EU argues that the ENP is neutral with respect to accession, but may more properly be characterized as a non-enlargement policy) while leaving the content of its ultimate goal—some form of ‘deep integration’—vague. This vagueness is not an entirely negative feature: it reflects a desire for flexibility, of the refusal to impose specific objectives, but rather to allow for a degree of ‘pick and choose’ on the neighbours’ side, so that the integration objectives in each case can reflect each State’s priorities. And although the ENP appears to be a policy where more attention has been paid to methodology than to goals, some substantive results have nevertheless been achieved. The second part of the chapter turns to the ENP’s instruments and methodologies, in particular its use of ‘soft’ instruments, such as the Action Plans, its ‘borrowing’ from enlargement methodologies, and its cross-pillar dimension. A number of weaknesses can be identified, among them the need to develop a stronger institutional framework, and the current absence of an effective regional dimension to the policy, which remains largely bilateral. Despite its potential, coherence between objectives, instruments, and methodologies is often lacking. The ENP is designed to provide a single and coherent policy framework, but its very inclusiveness as a policy, its attempt at comprehensiveness, and the resulting multi-dimensional nature of its objectives create problems as different objectives suggest different, sometimes competing, instruments and methodologies. The ENP may thus provide an object-lesson or testing ground for the effectiveness of the legal principles underpinning the aim of coherence in external policy which were explored in chapter 1. Can any overall lessons be drawn or judgments made as to the nature or direction of EU foreign policy on the basis of these six essays? First we may point to the central importance of the concept of coherence. It is not a coincidence that the Commission’s 2006 Communication to the European Council on

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Introduction

‘Europe in the World’ was subtitled ‘Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’.² This is not only a rallying call or a piece of rhetoric, nor is coherence only an undefined objective of good practice. As Hillion shows in chapter 2, it provides a rationale for the operation of fundamental legal principles governing the relations between Member States and the EU institutions and between the institutions themselves, including the duty of cooperation. Chapters 6 and 7 raise the issue of coherence in specific policy areas, and draw attention to the importance of coherence between different levels and types of objective, and between objectives and instruments, as well as between policy sectors, in addition to the dangers of incoherence in terms of policy outcomes and unfulfilled potential. Coherence does not of course mean that policies do not change. Krajewski in chapter 5 demonstrates the inevitable links in a system that aims to be coherent between internal and external dimensions of policies and the impact of evolution at the internal level for external policy priorities. Bartels in chapter 4 shows how the rationale for a specific external policy or combination of policies, in this case trade and development, is evolving from being primarily historically based to a principle-based approach founded on non-discrimination, a transition which would enhance the coherence of external policy. The Treaty of Lisbon, by providing for a single set of principles and objectives for the EU’s external action, and by requiring coherence between external and other policies, will emphasize the importance of coherence. Nevertheless, despite the simplification offered by the Lisbon Treaty in establishing a single European Union with a single legal personality, the structural complexity inherent in the Union system will largely survive. Coherence will still be needed as a guiding principle and will remain an elusive goal. Second we can identify the increasingly active, visible, and self-conscious role played by the EU as a participant in the international legal order. As Hoffmeister shows in chapter 3, this is not only a question of giving effect to international legal norms in the Union’s own internal and external policies, but also a matter of playing a part in the formation and development of those norms, contributing to ‘state practice’ and rule-making at the global level. A number of features of this international participation emerge from the papers collected here. First perhaps is the specificity of the EU as an international actor and of the EU legal system as part of the international legal order, a specificity which flows from the institutional complexity already mentioned, from the nature of the EU as an international organization of limited attributed powers, and from the way in which the Union and its Member States operate alongside each other in a way which should be, but is not always, mutually supportive. ² Commission Communication to the European Council, ‘Europe in the World—Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’, 8 June 2006, COM (2006) 278. For further discussion see chapters 2 and 7.

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What we might call this institutional or systemic specificity is accompanied by specificity of an ideational kind: the Union is developing a distinctive ‘voice’ which is not merely the voice of its Member States speaking in unison. We can hear this voice in EU trade policy, in its balance between liberalization and public service objectives, in its development policy, in its distinctive (and not always successful) style of conflict resolution, in its commitment to regional integration, and in its emphasis on relationships (such as the ENP) based on common values including human rights and the rule of law. In this voice with its institutional specificity the Union’s international identity is evolving, albeit gradually and with hesitations. It is an identity which, as well as being undoubtedly the creation of its Member States, is firmly placed within and derives its legitimacy from the international legal order. Hence one of its distinctive characteristics: the Union’s commitment to and championing of international norms and a rule-based approach to international relations, and the importance it places on multilateral and regional alongside bilateral relations and unilateral approaches to problems. There is a bias, inherent perhaps in the EU system, towards institutionalizing relationships and policy-making to a degree with which we are familiar in the regulatory state but less so in the sphere of foreign policy. Whether the EU does indeed develop a distinctive voice, and whether that voice can make an effective contribution to the international legal order is the key challenge to the Union’s external relations policy. The following essays will help us to understand a little better the nature and functioning of this complex and fascinating system.

2 Tous pour un, un pour tous! Coherence in the External Relations of the European Union Christophe Hillion¹

1. Introduction Asserting its identity on the international scene is one of the core objectives of the European Union (EU).² It is also a difficult task in view of the number of actors and means involved in achieving this grand ambition.³ Under the present version of the Treaty on European Union (TEU), the EU external action is served by the external relations of the European Community (EC), the Common Foreign and Security Policy (CFSP) and the external dimension of the Police and Judicial Cooperation in Criminal Matters (PJCCM), not to forget the foreign relations of its Member States.⁴ Ensuring the coherence of this multifaceted external action is therefore a central and indeed recurring concern in the EU external relations narrative.⁵ Hence, the Inter-Governmental Conference (IGC) called in June 2007 ¹ Many thanks to Anne Myrjord, Jacco Bomhoff and Christian Bomhoff for their helpful comments, and to the participants of the 2006 Academy of European Law (European University Institute) for their useful remarks. All remaining mistakes are mine. ² Article 2 TEU. Unless indicated otherwise, all Articles referred to in this essay are Articles of the Treaty on European Union or Treaty establishing the European Community, as amended by the Treaty of Nice. ³ J Monar, ‘The Foreign Affairs System of the Maastricht Treaty: A Combined Assessment of the CFSP and EC External Relations Elements’ in J Monar, W Ungerer, and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (1993); CWA Timmermans ‘The Uneasy Relationship between the Community and the Second Pillar of the Union: Back to the Plan Fouchet?’ (1996) 1 LIEI 66; M Cremona, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 137. ⁴ In this sense, see the communication from the Commission, ‘Europe in the World—Some practical proposals for greater coherence, effectiveness and visibility’ (2006) COM 278. ⁵ Article 27 A TEU on enhanced cooperation in the field of CFSP establishes an explicit connection between the assertion of the EU identity and coherence: ‘Enhanced cooperation in any of the areas referred to in . . . title [V] shall be aimed at safeguarding the values and serving the

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was mandated ‘to draw up a Treaty amending the existing Treaties with a view to enhancing the efficiency and democratic legitimacy of the enlarged Union, as well as the coherence of its external action’.⁶ In the same vein, and following an earlier Commission communication on ‘Europe in the World—Some practical proposals for greater coherence, effectiveness, and visibility’,⁷ the European Council invited: the Presidency, the Council, the Secretary-General/High Representative and the Commission to examine . . . further measures, on the basis of the existing treaties, with a view to improving inter alia strategic planning and coherence between the Union’s various external policy instruments as well as cooperation between the EU institutions and between the latter and the Member States (emphasis added).⁸

Various practical ways have indeed been mooted to enhance the coherence of the Union’s external action.⁹ This essay examines the role of EU law in promoting and guaranteeing such coherence. A first part attempts to shed light on the notion of coherence in the context of EU primary law, notably by relating it to the TEU concept of ‘consistency’ (2). A second part argues that achieving coherence in the EU external action depends on the degree of deference, by EU institutions and Member States, to other organizing principles of the EU system of external relations, and notably to the rules governing the distribution of

interests of the Union as a whole by asserting its identity as a coherent force on the international scene.’ Further on the connection between EU external action and coherence: N Neuwahl, ‘Foreign and Security Policy and the Implementation of the Requirement of “Consistency” under the Treaty on European Union’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Maastricht Treaty (1994) 227; H-G Krenzler and HC Schneider, ‘The Question of Consistency’ in E Regelsberger, P de Schoutheete de Tervarent, and W Wessels (eds), Foreign Policy of the European Union. From EPD to CFSP and Beyond (1997) 133; C Tietje, ‘The Concept of Coherence in the TEU and the CFSP’ (1997) 2 EFARev 211; U Schmalz, ‘The Concept of Coherence in the Amsterdam Treaty— Bridging the Union’s Dual External Policy Structure’ (1998) 3 EFARev 421; S Duke, ‘Consistency as an Issue in EU External Activities’ (1999) EIPA Working Paper 99/W/06 ; P Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 ELJ 23. ⁶ Draft IGC Mandate, annexed to the Presidency Conclusions, 22–23 June 2007. The resulting Treaty signed in Lisbon by the Heads of State or Government also underlines in its Preamble the parties’ desire ‘to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action’ (emphasis added); see OJ [2007] C306/3 (17 December 2007). ⁷ Communication from the Commission to the European Council of June 2006, ‘Europe in the World—Some practical proposals for greater coherence, effectiveness, and visibility’; COM (2006) 278 final. ⁸ Presidency Conclusions, 15/16 June 2006, pt 32. ⁹ For examples of such practical measures, see the Commission Communication ‘Europe in the World’, COM (2006) 278 final; the Presidency Stocktaking Reports ‘on the implementation of measures to increase the efficiency, coherence and visibility of EU external policies and future work’ (16419/06, 8 December 2006) and on ‘Measures to increase the effectiveness, coherence and visibility of EU external policies’ (8909/07, 13 June 2007); as well as House of Lords EU Committee, Report 48th Report (2005–2006): ‘Europe in the World’ (HL 268).

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powers within that system, as well as the multi-dimensional duties of cooperation compelling its actors (3).

2. Defining Coherence in the Context of EU Primary Law Against the background of ambiguous treaty provisions, the notion of ‘coherence’ ought to be distinguished from that of ‘consistency’. It is suggested that the latter is a necessary but insufficient condition for achieving the former (A). Moreover, as indicated by the European Council’s conclusions mentioned above, the coherence of the EU external action has to be sought not only between the different policy instruments of the EU, but also between Member States’ external actions, on the one hand, and those of the EC and EU on the other hand (B).

A. The Ambiguity of the Notion of Coherence As pointed out by several authors,¹⁰ the various linguistic versions of the Treaty on European Union appear to refer to different concepts when evoking coherence. The French and German texts use the term cohérence and Kohärenz, respectively, whereas the English version generally refers to ‘consistency’,¹¹ rather than to the English notion of ‘coherence’. Thus, in the ‘Common Provisions’ of the TEU, Article 1 foresees that the Union’s task shall be ‘to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples’ (emphasis added). In addition, Article 3 TEU states, in its first paragraph, that the Union shall be served by ‘a single institutional framework which shall ensure consistency’ of the Union’s activities in general. Its second paragraph further specifies that the Union shall ‘ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies’,¹² and requires that the Commission and the Council cooperate to this end. In the specific Title on the CFSP, Article 13(3) TEU asks the Council to ‘ensure the unity, consistency and effectiveness of action by the Union’ (emphasis added). Furthermore, Article 27a TEU foresees that any enhanced cooperation ¹⁰ For example P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001), at 39–44; Wessel, The European Union’s Foreign and Security Policy—A Legal Institutional Perspective (1999), at 297; Tietje, supra n 5. ¹¹ The concept of ‘consistency’ predates the TEU. It was first introduced by the Single European Act (SEA), whose Preamble refers to the ‘responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more effectively to defend its common interests and independence’ (emphasis added). Moreover, Article 30(5) SEA stipulated that ‘the external policies of the European Community and the policies adopted by the European Political Cooperation must be consistent’. ¹² This expression was inserted on the request of the then President of the Commission: J Cloos et al, Le Traité de Maastricht—Genèse, analyse, commentaries (1993), at 117.

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in the field of the CFSP shall notably respect the ‘consistency of the [CFSP] and the decisions taken within the framework of that policy’, as well as ‘the consistency between all the Union’s policies and its external activities’. Indeed, Article 27c TEU requires that the Commission ‘give its opinion particularly on whether the enhanced cooperation proposed is consistent with Union policies’.¹³ Each time the English version of the Treaty refers to the notion of ‘consistency’, the French text uses the concept of ‘cohérence’.¹⁴ But does ‘consistency’ correspond to ‘cohérence’? While no specific substantive clarification may be expected from the Court of Justice given its lack of jurisdiction over the TEU provisions concerned,¹⁵ two judgments of 2005 relating to the external relations of the Community, are worth evoking here.¹⁶ In these two cases, involving enforcement proceedings against Germany and Luxembourg respectively, the Court of Justice underlines the need for the Member States to cooperate with the Community institutions to ensure ‘the coherence and consistency of the action and [ . . . ] international representation [of the Community]’ (emphasis added).¹⁷ The Court thus suggests that the two notions cannot be used interchangeably, and that they should instead be understood as distinct concepts though, arguably, equally important and complementary. Such distinction echoes the general position of legal scholarship which, on the whole, submits that the notion of ‘coherence’ differs from that of ‘consistency’.¹⁸ ¹³ Exceptions to the use, in the Treaty, of the word ‘consistency’ can be found in Article 299(2) EC, 4th indent, which relates to Community measures in relation to the outermost regions. It foresees that ‘[t]he Council shall adopt the measures [ . . . ] without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies’ (emphasis added); also, the Maastricht ‘Declaration on the implementation of Community law’ and the Amsterdam ‘Declaration on the establishment of a Policy Planning and Early Warning Unit’ refer in their English version to the concept of ‘coherence’. In particular the latter Declaration foresees in point 1 that: ‘A policy planning and early warning unit shall be established in the General Secretariat of the Council under the responsibility of its Secretary-General, High Representative for the CFSP. Appropriate cooperation shall be established with the Commission in order to ensure full coherence with the Union’s external economic and development policies.’ ¹⁴ The reference to the English notion of consistency can be found elsewhere in EU primary law, although not in the specific context of EU external relations: eg Art 45 TEU (enhanced cooperation), Arts 99 EC (Economic and Monetary Union), Art 165 EC (on Research and Technological Development); Art 225 EC (on the Court of Justice); in Arts 62 and 62b of the Protocol 6 on the Statute of the Court of Justice; in Art 31 of Protocol 18 on the Statute of the ESCB and ECB; at point 11 of Protocol 30 on Subsidiarity and Proportionality. ¹⁵ See in this regard: Case C-167/94 Juan Carlos Grau Gomis and others [1995] ECR I-1023, para 6; Case T-584/93 Roujansky [1994] ECR II-585 and appeal C-253/94 [1995] ECR I-7; Case T-201/99 Royal Olympic Cruises Ltd and others v Council and Commission [2000] ECR II-4005; Case T-228/02 Organisation des Modjahedines du peuple d’Iran [2006] ECR II-4665 (para 49); C-354/04, P Gestoras Pro Amnistía and Others v Council (judgment of 27 February 2007) (para 50); on the other hand the Court has jurisdiction over the provisions of eg Arts 99, 165 and 225 EC, which could offer it a possibility to interpret the notion of consistency. ¹⁶ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805; C-433/03, Commission v Germany [2005] ECR I-6985. ¹⁷ Case C-266/03 Commission v Luxembourg, para 60; Case 433/03 Commission v Germany, para 66. ¹⁸ Further eg: P. Koutrakos, supra n 10, at 39–44; Tietje supra n 5, at 211.

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It is mostly contended that consistency refers to the absence of contradiction,¹⁹ whereas coherence relates to ‘positive connections’²⁰ or ‘the construction of a united whole’.²¹ Consistency is said to encapsulate ideas of compatibility and of making good sense, whereas coherence relates more to synergy and added value.²² Hence, coherence in law would be a matter of degree, whereas consistency would be a static notion in the sense that concepts of law can be more or less coherent but cannot be more or less consistent. They are either consistent or not.²³ Eileen Denza, on the other hand, points out that in the English language ‘consistency’ can indicate degrees of interconnection.²⁴ In the same vein, Panos Koutrakos suggests that the consistency referred to in the TEU should be given broad interpretation, so as to imply more than simply absence of contradictions between different instruments and actions. He notably refers to the provisions of Article 301 EC on sanctions to support the contention that the TEU requirement of ‘consistency’ set out in Article 3 TEU entails that interaction between the suborders of the Union should not be merely envisaged as a non-contradictory one, but should be conceived as a relationship based on synergy.²⁵ Further support for this proposition can indeed be found in the judgments of the Court of First Instance in the Yusuf and Kadi cases, where the CFI held that: There are therefore good grounds for accepting that, in the specific context contemplated by Articles 60 EC and 301 EC, recourse to the additional legal basis of Article 308 EC is justified for the sake of the requirement of consistency laid down in Article 3 of the Treaty on European Union, when those provisions do not give the Community institutions the power necessary, in the field of economic and financial sanctions, to act for the purpose of attaining the objective pursued by the Union and its Member States under the CFSP.²⁶

The concept of ‘consistency’ to which the Treaty refers in several instances should therefore be understood broadly, indeed perhaps closer to the French notion of ‘cohérence’. At this stage, it is worth returning to the above mentioned Court’s judgments of 2005 concerning Luxembourg and Germany.²⁷ A comparison of the different linguistic versions of the rulings indicate that, while the term ‘consistency’ ¹⁹ The WTO Appellate Body also uses the term ‘consistency’ in the sense of absence of legal clash; see P Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (2005), at 652. ²⁰ Tietje, supra n 5, at 212. ²¹ Koutrakos, supra n 10, at 39. ²² A Missiroli, ‘European Security Policy: The Challenge of Coherence’ (2001) 6 EFARev 177, at 182. ²³ Tietje, supra n 5, at 211, citing W Van der Velden, ‘Coherence in Law: A Deductive and a Semantic Explanation of Coherence’ in B Brouwer et al (eds), Coherence and Conflict in Law (1992) 257; R Torrent, Derecho y práctica de las relaciones económicas exteriores en la Unión Europea (1998). ²⁴ E Denza, The Intergovernmental Pillars of the European Union (2002), at 289–90. ²⁵ Koutrakos, supra n 10, at 39. ²⁶ Cases T-306/01 Yusuf et al v Council and Commission [2005] ECR II-3533, para 164; T-315/01, Kadi v Council and Commission [2005] ECR II-3649, para 128. ²⁷ Case C-266/03 Commission v Luxembourg, para 60; Case 433/03 Commission v Germany, para 66.

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used in the English version is generally translated as ‘cohérence’ (French) or ‘Kohärenz’ (German), the phrase ‘coherence’ found in the same sentence of the rulings has been interpreted in other languages as ‘unité’ (French), and ‘Einheitlichkeit’ (German).²⁸ Coherence in English would thus encapsulate the notion of ‘united whole’ suggested earlier, signifying that in the context of EU primary law, the term ‘consistency’ should indeed be understood more restrictively than coherence.²⁹ Considering this haziness, one may wonder what the TEU ultimately requires from the institutions and the Member States when calling for the ‘consistency’ (in English) or ‘cohérence’ (in French) of EU external activities. Do references to ‘consistency’ in EU primary law only call for absence of legal contradiction between different norms, or do they entail an active quest for positive connections? Although there is no established rule of linguistic majority in EU law,³⁰ it could be observed that most official versions of the TEU refer to coherence conceived as a quest for synergy and complementarity rather than ‘consistency’ understood in its sense of absence of contraction. Hence, the requirement of ‘consistency’ foreseen in Article 3 TEU, or Article 27a TEU, would entail not only avoiding legal contradictions between the different EU external instruments, but also the quest for synergy and complementarity. If this holds true, the provisions of the TEU could entail positive obligations for the different actors involved in the EU system of external relations.³¹ Indeed, the use of the notion ‘coherence’ when talking about the requirement of Article 3 TEU has become more systematic³² also in the English version of official policy documents. This is notably the case of the documents relating to the establishment of the European Security and Defence Policy (ESDP), where the requirement of ‘inter-pillar coherence’ is taken account of ‘in conformity with ²⁸ Paragraph 60 of Case C-266/03 Commission v Luxembourg and para 66 of Case 433/03 Commission v Germany refer in the Spanish version to ‘la unidad y la coherencia’, in the Italian version to ‘l’unità e la coerenza’, in the Dutch version to ‘eenheid en de samenhang’; in the Swedish version to ‘enhetlighet och konsekvens’, in the Polish version to ‘jedność i spójność’, but in the Danish version to ‘konsekvens og sammenhæng’. ²⁹ The combination ‘cohérence’ and ‘unité’ used in the Court’s judgments of 2005 can also be found in various linguistic versions of Art 13(3) TEU which in its French version provides that the Council ‘veille à l’unité, à la cohérence et à l’efficacité de l’action de l’Union’. In its English version, Art 13(3) TEU however refers to ‘ensur[ing] the unity, consistency and effectiveness of action by the Union’ (emphasis added), and does not therefore translate ‘unité’ by ‘coherence’ as this is done in the judgments, but by ‘unity’, alongside ‘consistency’! ³⁰ On the contrary, each and every version is in principle authentic. This has been confirmed by the Court of Justice, eg in Case 283/81 CILFIT [1982] ECR 3415, para 18. See also Opinion of Stix Hackl AG in Case C-265/03 Simutenkov [2005] ECR I-2579. ³¹ RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CMLRev 1135, Duke, supra n 5, at 4. ³² The text submitted by the Irish Presidency to the December 1996 Dublin European Council as a general outline for a draft revision of the Treaties included a section entitled ‘An effective and coherent foreign policy’ (The European Union today and tomorrow: adapting the European Union for the benefit of its peoples and preparing it for its future, CNF 2500/96, Part A, Section III).

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Article 3 TEU’.³³ In the same vein, the 2000 ‘Common Strategies Report’ of the High Representative for CFSP underlined that ‘proper articulation between the CFSP area and the other “pillars” and adequate cross-pillar coherence is essential, and indeed obligatory under Article 3 TEU’.³⁴ More recently, the ‘Europe in the World’ Communication of the Commission refers in its title to ‘greater coherence’,³⁵ while not mentioning the term ‘consistency’ at all. The European Council’s response to that Communication appears to follow the same approach.³⁶ Indeed, since the European Council endorsed that Communication, each Presidency has produced ‘stocktaking reports’ on measures to increase the effectiveness, coherence, and visibility of EU external policies. Such reports provide an inventory of techniques and practical ways to improve cooperation and co-ordination among actors involved in the EU external action, rather than mechanisms to deal with legal conflicts between them and/or between their activities.³⁷ Perhaps more importantly, there is a functional argument to support the proposition that the requirement of ‘consistency’ encapsulated in the TEU provisions entails more than merely tackling legal contradictions between the different actions of the Union. Simply, the provision of Article 3 TEU would be deprived of any raison d’ être if it were merely for that purpose. As will be seen in further detail below, EU law foresees other devices to handle such legal contradictions, under judicial supervision. In particular, Article 47 TEU guarantees that EC law is not encroached upon by measures adopted on the basis of the TEU, and notably Titles V and VI. Moreover, as mentioned earlier, Article 3 TEU establishes an obligation of cooperation between the Commission and the Council to ensure consistency between EU external activities as a whole.³⁸ Arguably, the function ³³ For example, the Presidency Progress Report to the 1999 Helsinki European Council on Common European Policy on Security and Defence stated that: ‘[t]he Council decides upon policy relevant to Union involvement in all phases and aspects of crisis management, including decisions to carry out Petersberg tasks in accordance with Art 23 of the EU Treaty. Taken within the single institutional framework, decisions will respect European Community competences and ensure inter-pillar coherence in conformity with Article 3 of the EU Treaty’ (Emphasis added); report available at . Also the ‘Action Plan for Civilian Aspects of ESDP’, adopted by the European Council on 17–18 June 2004, insists under the heading ‘synergies’ on the ‘complementarity and coherence’ between all the instruments it has at his disposal; document available at . Indeed, ‘coherence’ is also used by the legal service of the Council, for example, in Note of 28 November 2000 of the legal service for the attention of M Solana: Commission’s views on crisis management procedures and of the use of Joint Actions (unpublished). ³⁴ High Representative for CFSP, ‘Common Strategies Report—An evaluation report’, Brussels, 21 December 2000, pt 25. ³⁵ COM (2006) 278 final. ³⁶ Presidency Conclusions—15/16 June 2006; esp pt 32. ³⁷ The ‘Stocktaking Reports’ are mentioned in supra n 9; see also the House of Lords EU Committee, 48th Report (2005–2006): ‘Europe in the World’ (HL 268). ³⁸ Article 3 TEU foresees that ‘[t]he Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers’. In the same vein, the provisions

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of such cooperation is less to solve legal conflict, a task left to the judiciary, than to ensure positive connections and synergy between the external actions of the EU. The foregoing indicates that the TEU requirement of ‘consistency’ between the external activities of the Union, foreseen in particular in Article 3 TEU, entails more than avoiding contradiction between the EU and the EC external activities, as a restrictive reading of the notion would otherwise imply. A functional interpretation of the notion of ‘consistency’ in EU primary law and particularly in the law of EU external relations suggests that it involves, beyond the assurance that the different policies do not legally contradict each other, a quest for synergy and added value in the different components of EU policies. In this sense, guaranteeing consistency stricto sensu between the external activities of the Union contributes to achieving the coherence of its external action.³⁹

B. The Multifarious Dimensions of Coherence in EU External Relations The coherence of the EU external action implies not only the consistency and coherence of the external activities of the Union as a whole, in the context of its external relations, security, economic and development policies, in conformity with Article 3 TEU (‘horizontal coherence’). Coherence of its external action is also dependent on the consistency and coherence of the action of the Community which, as the Court’s case law suggests,⁴⁰ derive from the cooperation between the Community institutions and the Member States (‘vertical coherence’).⁴¹ It equally depends on the consistency and coherence between the Member States’ actions and those of the Union qua CFSP and PJCCM,⁴² as well as between the internal and external dimensions of each Union policy, and of the Union’s activities within each of its sub-orders.⁴³ of Art 45 TEU foresee that ‘[t]he Council and the Commission shall ensure the consistency of activities undertaken on the basis of . . . title [VII on enhanced cooperation] and the consistency of such activities with the policies of the Union and the Community, and shall cooperate to that end ’ (emphasis added). ³⁹ Gauttier (supra n 5, at 26) suggests that consistency and coherence are mutually reinforcing, referring to the Irish Presidency proposal on foreign policy in 1996, underlining the need for its political and economic aspects to be ‘consistent, coherent and mutually reinforcing’; see also Cremona, supra n 3, at 169. ⁴⁰ Paragraph 60 of Case C-266/03 Commission v Luxembourg; and para 66 of Case 433/03, Commission v Germany. ⁴¹ Further on the distinction between horizontal and vertical coherence, see S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the EU (2005) 91; from the same author: ‘Consistency and the CFSP: a Categorization and its Consequence’, at: ; Krenzler and Schneider, supra n 5; Tietje, supra n 5. ⁴² See COM (2006) 278, esp p 6; Presidency Conclusions—15/16 June 2006; pt 32; and Presidency Stocktaking Reports (supra n 9). ⁴³ COM (2006) 278, Stocktaking Reports, supra n 9.

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It is against the background of these broad notions of coherence and consistency that the legal ways in which they can be attained have to be examined. As hinted at by the Court in its 2005 Germany and Luxembourg judgments,⁴⁴ coherence and consistency are achieved through the fulfilment of other principles of EU law, such as the principle of cooperation between the Community institutions and the Member States. The next section unpacks the constitutive rules and principles of coherence in EU external relations.

3. Coherence as a Function of other EU Legal Principles EU law includes two categories of principles whose observance arguably contributes to achieving coherence. First, coherence is determined by the principles aimed at ensuring consistency. While the avoidance of legal contradiction between different EU external activities constitutes an essential tenet of coherence (negative coherence) (A), it does not, in itself, suffice to achieve full coherence of the EU external action. A second category of principle involving multi-dimensional duties of cooperation thus supplements the TEU rules on allocation of powers. Such principle of cooperation compels the actors of the EU system of external relations to exercise their respective external powers in a harmonious fashion (positive coherence), with a view to ensuring the overall coherence of the EU external action (B).

A. Negative Coherence: Absence of Contradictions in the External Activities of the Union In the EU system of external relations, the European Community and the European Union co-exist with the Member States. The latter have retained their full ability to act on the international scene, as subjects of international law.⁴⁵ Ensuring consistency, understood as absence of contradiction, presupposes clear rules on distribution of powers among the various actors of the system, including mechanisms to resolve potential conflicts of norms. In EU external relations, allocation of competences between the EC, the EU (qua CFSP and PJCCM), and the Member States is based on two key organizing principles, enshrined in the Eu Treaties. First, the principle of attributed powers which governs, although in a differentiated fashion, the distribution of competence between the Member States and the Union (1). Secondly, the principle of the preservation of the acquis communautaire organizes the allocation of powers between the EU (qua CFSP and PJCCM) and the EC (2). ⁴⁴ Case C-266/03 Commission v Luxembourg (para 60); Case 433/03, Commission v Germany (para 66). ⁴⁵ Further: Denza, supra n 24, at 6ff.

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1. The Distribution of Powers between the Member States and the EU The Union being based on the Community supplemented by other policies and forms of cooperation,⁴⁶ the distribution of competence between the Member State and the Union is multifarious. Reflecting the latter’s complexity, the distribution of powers must be envisaged first, between the Member States and the EC (a), and second, between the Member States and the Union, qua CFSP and PJCCM (b). (a) Competence allocation between the Member States and the EC On the basis of the ‘principle of attributed powers’ envisaged in Article 5(1) EC, the Community only acts within the limits of the powers conferred upon it by the EC Treaty. In other words, the Community can only intervene, either internally or externally,⁴⁷ where the Member States have allowed it to act, either explicitly or implicitly, on the basis of Treaty provisions.⁴⁸ Outside its conferred powers, the Community is not entitled to take action, as indeed recalled by the Court of Justice.⁴⁹ In principle, the Community powers are shared with the Member States, but may exceptionally be exclusive by nature, or become exclusive as a result of Community legislative action. Thus, the Member States are not allowed a priori to act in areas of Community competence such as the management of the biological resources of the sea.⁵⁰ They may also be prevented from taking action in areas where the Community has adopted common rules which could be affected by Member States’ international action,⁵¹ is in the process of developing ⁴⁶ Article 1 TEU. ⁴⁷ Opinion 2/94 ECHR [1996] ECR I-1759. ⁴⁸ Express competence refers to the express attribution of competence by the EC Treaty itself. This is the case in the field of Commercial Policy (Art 133 EC); the conclusion by the Community of association agreements with third states or international organizations (Art 310 EC); environmental protection (Art 174 EC); development cooperation (Art 177 EC), etc. External competence can also be conferred to the Community implicitly, as established by the ECJ, notably in its judgment in Case 22/70 Commission v Council (AETR) [1971] ECR 263. Indeed, the EC Treaty offers, on the basis of Article 308, the subsidiary possibility for the Community to act on the international stage when such measure is necessary for the achievement of an objective of the Community. On the limits to the use of Article 308 EC in the context of external relations: see Opinion 2/94 ECHR [1996] ECR I-521; Opinion 1/94 WTO [1994] ECR I-5267; Cases T-306/01 Yusuf et al v Council & Commission [2005] ECR II-3533, para 164; T-315/01 Kadi v Council & Commission [2005] ECR II-3649, para 128. Further on the attribution of competence, see eg A Dashwood, ‘The Attribution of External Relations Competence’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (2000), 115; K Lenaerts and E de Smijter, ‘The European Community’s Treaty Making Competence’ (1996) 16 YEL 1; more generally: P Eeckhout, External Relations of the European Union—Legal and Constitutional Foundations (2004); P Koutrakos, EU International Relations Law (2006); M Dony and JV Louis, Commentaire J. Mégret: Le droit de la CE et de l’Union européenne—Relations extérieures, vol 12 (2005). ⁴⁹ Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419 (internally), and Opinion 2/94 ECHR [1996] ECR I-1759 (externally). ⁵⁰ Joined Cases 3, 4, and 6/76, Kramer [1976] ECR 1279; Case 804/79 Commission v United Kingdom [1981] ECR 1045. ⁵¹ Case 22/70 Commission v Council (AETR) [1971] ECR 263. On the details of the implied power doctrine; see eg A Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in

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them,⁵² or where international action is the only way for it to adopt such common rules.⁵³ The Court also pointed out that exclusivity is determined not only by the scope of Community rules, but also by their nature.⁵⁴ Exclusivity thus implies that Member States are deprived of their ability to act in specific areas, unless authorized by the Community. Potential conflict is thus avoided and consistency in the external action of the Union secured.⁵⁵ Outside its exclusive powers, the Community shares competence with the Member States. It is in these policy areas that overlaps may occur, and where conflict of norms may ensue. Binding Community instruments of external action, be they autonomous or contractual,⁵⁶ become part of the EC legal order. Such EC instruments are thus covered by the principle of primacy,⁵⁷ so that inconsistent Member States’ norms have to be reviewed to ensure consistency with EC law. Member States may otherwise be brought to the Court of Justice by the Commission on the basis of Article 226 EC in case they fail to comply with obligations derived from those instruments of external action.⁵⁸ Indeed, Community instruments entail obligations which may be invoked before a national court against the Member States, if they were acting, or failing to act, in violation of those obligations.⁵⁹ This EC-specific system of monitoring and remedies guarantees compliance with EC law,⁶⁰ including the rules governing the distribution of powers between the Member States and the Community.⁶¹ Yet, as illustrated notably by the A Dashwood and C Hillion (eds), supra n 48, at 3; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competences’ in Dashwood and Hillion, supra n 48, at 179. ⁵² Opinion 1/03 Lugano Convention [2006] ECR I-1145. ⁵³ Opinion 1/76 Laying-up Fund [1977] ECR 741; Case C-467/98 Commission v Denmark (Open Skies) [2002] ECR-9519. R Holdgaard ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 EFARev 365. ⁵⁴ Opinion 1/03 Lugano Convention [2006] ECR I-1145. ⁵⁵ See in this regard the Court’s reasoning in its Opinion 1/75 Local cost standard [1975] ECR 1355 and in Case 22/70 Commission v Council (AETR) [1971] ECR 263. ⁵⁶ Article 300(7) EC provides that they bind the institution as well as the Member States; Case 181/73 Haegeman [1974] ECR 449; Case 104/81 Kupferberg [1982] ECR 3641. ⁵⁷ Case 6/64 Costa v ENEL [1964] ECR 585; Case 10/61 Commission v Italy [1962] ECR 1. ⁵⁸ Case C-13/00 Commission v Ireland (Berne Convention) [2002] ECR I-2943; Case C-239/03 Commission v France [2004] ECR I-9325; Case C-465/01 Commission v Austria (judgment of 16 September 2004); as foreseen by Art 307(2), pre-accession Member States’ international commitments have to be aligned with Community law, as confirmed by the Court in eg Case C-170/98 Commission v Belgium [1999] ECR I-5493; Case C-62/98 Commission v Portugal [2000] ECR I-5171; Case C-84/98 Commission v Portugal [2000] ECR I-5215; further: M Cremona, ‘The Impact of Enlargement: External Policy and External Relations’ in M Cremona (ed), The Enlargement of the European Union (2003) 161; C Hillion ‘New Membership Bids into the EU and their Impact on Trade with Australia and Asia’ in C Saunders and G Triggs (eds), Trade and Cooperation with the European Union in the Next Millennium (2002) 63. ⁵⁹ Case C-268/99 Jany [2001] ECR I-8615; Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, Case C-171/01 Wählergruppe Gemeinsam [2003] ECR I-4301. ⁶⁰ Further: K Lenaerts and T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU law’ (2006) 31 ELRev 287. ⁶¹ Further: G de Baere, The Legal Organisation of EU External Relations: An Examination of Certain Key Concepts and Principles, PhD dissertation, Cambridge, 2006.

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WTO Opinion,⁶² the division of powers envisaged by the Treaty, and the guarantees to their effectiveness, does not suffice to ensure coherence, particularly in areas of shared competence involving joined action of the Community and the Member States.⁶³ (b) Competence allocation between the Member States and the EU Like the EC, the Union may act only where it is empowered to do so. The principle of conferred powers thus also governs the interaction between the Member States and the EU qua CFSP and PJCCM.⁶⁴ However, it does not play as significant a role as in the EC context, given the largely intergovernmental character of these other sub-orders, and its corollary, the remaining strong Member States’ autonomy.⁶⁵ A distinction may therefore be made between the way in which competence is distributed and guaranteed between the Member States and the EC on the one hand, and between the Member States and the EU on the other. It would be beyond the scope of this contribution to expose all the differences between the EU pillars.⁶⁶ For the sake of the current discussion, suffice to recall that Title V TEU relating to the CFSP and Title VI on PJCCM establish a set of general objectives that the Member States take into account, and which can be pursued by the adoption, in principle by unanimity, of specific CFSP and PJCCM instruments.⁶⁷ The decision-making within these sub-orders generally involves the Council and the European Council, the supranational institutions, particularly the Court of Justice, playing a minor role.⁶⁸ The differentiated operation of the principle of attributed powers in the context of the EU is typified by the terminology of Articles 24 TEU and 300 EC. These provisions establish the procedure whereby the Union (Article 24 TEU) and the Community (Article 300 EC), respectively, may conclude agreements with third ⁶² Opinion 1/94 WTO [1994] ECR I-5267. ⁶³ Opinion 1/94 WTO, paras 107ff. ⁶⁴ G de Búrca and B de Witte, ‘The Delimitation of Powers between the EU and Its Member States’ in A Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 201, at 202. ⁶⁵ Further on this point: A Dashwood, ‘States in the European Union’ (1998) 23 ELRev 201; cp M Brkan, ‘Exploring the EU competence in CFSP: Logic or Contradiction?’ (2006) 2 Croatian Yearbook of European Law and Policy 173. ⁶⁶ Further: eg Denza, supra n 24; B de Witte. ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?’ in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam—A Legal Analysis (1998) 51; D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in Craig and de Búrca, supra n 3, at 83. ⁶⁷ On CFSP: see eg Wessel, supra n 10, and R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 43 CMLRev 337; on PJCCM, see eg S Peers, EU Justice and Home Aff airs Law (2007). ⁶⁸ Though the Court’s role in the context of the third pillar should not be underestimated as suggested by its judgments in Case C-105/03 Pupino [2005] ECR I-5285, Cases C-355/04 P Segi and Others v Council and C-354/04, P Gestoras Pro Amnistía and Others v Council (judgment of 27 February 2007). Further: see C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under the CFSP’ in M Cremona and B de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (2008).

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countries or international organizations. While the former provision appears to be modelled on the latter, the two articles nevertheless differ significantly, not least with respect to the element that triggers the procedure they foresee. Article 300 EC stipulates that ‘where this treaty provides’, the Commission ‘shall make recommendations to the Council, which shall authorize the Commission to open the necessary negotiations’. Article 24 TEU, by contrast, provides that the EU treaty-making procedure is activated when the conclusion of an EU agreement is deemed ‘necessary . . . in implementation of [the CFSP and/or PJCCM] title’. Only then ‘may’ the Council ‘authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect.’⁶⁹ Article 300 EC is thus used on the initiative of the Commission in areas where the Community has been given competence, implicitly or explicitly, whereas Article 24 TEU provides for a procedure which may be used if the Council finds it necessary to conclude an agreement. In other words, while the decision to set off the procedure of Article 300 EC is first and foremost governed by the principle of attributed powers, the procedure of Article 24 TEU seems essentially determined by a subsidiarity assessment, the scope and nature of EU powers not being as relevant an element as in the EC context, at least not in relation to Member States’ powers.⁷⁰ Furthermore, without dwelling upon the question of whether EU rules are covered by the EC principle of primacy,⁷¹ the EC system of monitoring encapsulated in the enforcement procedure of Article 226 EC has no equivalent, either in the context of the CFSP, or that of the PJCCM. Arguably, only national courts, if national laws so allow, could guarantee that Member States comply with their CFSP obligations. In the PJCCM title, the Court of Justice plays a limited role, in cooperation with some national courts,⁷² to ensure harmony between the interpretation of national rules and third pillar rules, by interpreting the PJCCM provisions on the basis of Article 35 TEU,⁷³ though nothing prevents the national courts from ignoring the Court’s interpretation given the absence of any EU enforcement procedure.⁷⁴ ⁶⁹ Article 38 TEU foresees that Agreements referred to in Art 24 TEU may cover matters falling under Title VI TEU. ⁷⁰ Indeed, should the Court have jurisdiction to control the legality of CFSP acts, it appears unlikely that an EU act could be successfully challenged on the ground that the Union acted ultra vires, following a Tobacco Advertising approach (Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419), especially in view of the open-ended character of the scope of the CFSP (Art 11 TEU) and PJCCM objectives (Art 29 TEU). Such proceedings would be successful if it were shown that the Community should have acted instead of the Union, in view of Art 47 TEU, as examined below. ⁷¹ See Lenaerts and Corthaut, supra n 60. See also the Declaration included in footnote 1 of the IGC Mandate, attached to the Presidency Conclusions, 21–22 June 2007. ⁷² Th is cooperation only concerns national courts of Member States that have made the declaration foreseen in Art 35 (2) TEU whereby they accept the jurisdiction of the Court of Justice to give preliminary rulings in the context of Title VI TEU. ⁷³ Case C-105/03, Pupino [2005] ECR I-5285. ⁷⁴ Cp Case C-224/01 Köbler [2003] ECR I-10239; Case C-173/03 Traghetti del Mediterraneo SpA [2006] ECR I-5177.

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The foregoing suggests that while the principle of attributed powers also governs the interaction between the Member States and the Union, the TEU does not include specific mechanisms to guarantee its effectiveness, as it does in the context of the EC Treaty. Consistency between Member States’ and Union (qua CFSP and the PJCCM) actions is thus more complex to secure legally under the TEU than under EC law.⁷⁵ At the same time, since most CFSP and PJCCM instruments are in principle adopted by unanimous decision, conflict seems less likely to occur, for a Member State that disagrees with a planned EU decision would simply prevent its adoption. Indeed, inconsistencies are more likely to occur between EU and EC actions.

2. The Distribution of Powers in the EC–EU Relationship Consistency in the EU external action does not only depend on the rules on distribution of powers between the Member States, on the one hand, and the EU and the EC, on the other. Absence of contradiction between actions of the EU and the EC, respectively, also has to be guaranteed. The Treaty foresees that the distribution of competence between the Community and the Union is governed by the principle that the acquis communautaire should be preserved (a). From the point of view of consistency, it entails that in principle, the EU cannot act through the CFSP or PJCCM in areas where the action ought to be taken by the Community because it has been endowed with the relevant competence. This primacy of EC action over CFSP/PJCCM actions is guaranteed by the Court of Justice on the basis of Article 47 TEU (b). (a) The preservation of the acquis communautaire The principle that the acquis communautaire should be preserved in full and built upon is enounced in Article 2 TEU as one of the Union’s objectives.⁷⁶ Indeed, Article 3 TEU emphasizes that the institutions ‘should ensure the consistency and the continuity of the Union’s activities in order to attain its objectives while respecting and building upon the acquis communautaire’ (emphasis added). The TEU thereby appears to establish a hierarchical superiority of the acquis communautaire over the rules of the other EU sub-orders.⁷⁷ The emphasis ⁷⁵ Further: Hillion and Wessel, supra n 68. ⁷⁶ On the interpretation of the acquis communautaire, see for instance S Weatherill, ‘Safeguarding the Acquis Communautaire’ in Heukels, Blokker and Brus, supra n 66, at 153; or CC Gialdino, ‘Some Reflections of the Acquis Communautaire’ (1995) 32 CML Rev 1089. ⁷⁷ The provisions of Art 2 TEU also provide that the Union ‘should maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by the TEU may need to be revised with the aim of ensuring the eff ectiveness of the mechanisms and the institutions of the Community’ (emphasis added). These provisions were interpreted as further indication of the primacy of the Community acquis over the other forms of cooperation, deemed to be transitional, and of the possibility of increasing Community powers; see eg P Demaret, ‘Le Traité de Maastricht ou les voies diverses de l’Union’ in Monar, Ungerer, and Wessels, supra n 3, at 42–43; P Demaret, ‘The Treaty Framework’ in O’Keeffe and Twomey, supra n 5, at 6–7; P Willaert and C Marqués-Ruiz Willaert, ‘Vers une politique étrangère et de sécurité commune’ (1995) 3 RMUE 35, at 37.

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put on the ‘continuity of the activities’, mentioned in Article 3 TEU, further expresses the prime importance of the acquis,⁷⁸ and the supplementary character of Titles V and VI, as indeed suggested in the provisions of Article 1 TEU. The latter defines the Union as ‘founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty’. The requirement that the acquis should be preserved aims at ensuring that Community norms and method are not ‘contaminated’ or substituted by other instruments adopted under a TEU procedure,⁷⁹ following a less ‘integrationist’ methodology.⁸⁰ It aims at ensuring that the powers attributed to the Community are not ‘taken back’ through the back door, by Member States acting in the context of other TEU procedures. The principle thereby supplements and consolidates the principle of attributed powers that governs the relationship between the Member States and the Community. In effect, it is designed to preserve the position and the autonomy of the Community in the EU system, particularly in relation to the other EU sub-orders, and indirectly in relation to the Member States.⁸¹ Placed in the Common Provisions of the Treaty, the principle that the acquis should be preserved guides the conduct of both institutions and Member States while acting in the framework of the TEU in general, and informs the functioning of the EU system of external relations in particular.⁸² This guiding principle is echoed and reinforced by the provisions of Article 47 included in the Final Provisions of the TEU, and which stipulate that ‘nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying and supplementing them’.⁸³ (b) The rule of conflict enshrined in Article 47 TEU Article 47 TEU gives teeth to the rule of preservation of the acquis communautaire. For Article 46 TEU provides in its subparagraph (c) that this Article falls within the jurisdiction of the Court of Justice. The Court can thereby police the boundaries between the EC and the EU competence, and ensure that the requirement of primacy of Community law over other TEU norms is observed.⁸⁴ ⁷⁸ V Constantinesco, R Kovar and D Simon, Traité sur l’Union européenne—Commentaire article par article (Economica, 1995) 73. ⁷⁹ Cloos et al, supra n 12; Timmermans, supra n 3; Wessel, supra n 31, at 1147; Eeckhout, supra n 48, at 146; Gosalbo Bono, supra n 67, at 351. ⁸⁰ J Weiler, ‘Neither Unity nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in Monar, Ungerer and Wessels, supra n 3, at 54. ⁸¹ On the autonomy of the Community legal order, see K Lenaerts and P van Nuffel, Constitutional Law of the European Union (1999), at 666. ⁸² In this regard, see ‘Report of the Reflection Group IGC 1996’, 2 June 1995; Edwards, ‘Common Foreign and Security Policy’ (1994) 14 YEL 541; Koutrakos, supra n 10, at 44. ⁸³ In the same vein, the provisions of Art 29 TEU foresee that the Union acts in the context of Title VI TEU ‘without prejudice to the powers of the European Community’. ⁸⁴ Denza, supra n 24, at 319. It has been suggested that these provisions were designed specifically to ensure that the jurisdiction of the Court over the Community Treaties would not be limited by the initial ‘non-justiciability’ of the CFSP and JHA. JL Dewost, ‘Les problèmes posés par la structure des Traités: quatre points particuliers’ in Monar, Ungerer and Wessels, supra n 3, at 64.

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The Court’s control has been exercised on several occasions. For instance, in the Environmental Penalties case,⁸⁵ the Court annulled a Council Framework Decision adopted under Title VI TEU. The impugned decision laid down environmental offences in respect of which the Member States were required to establish criminal penalties. The Court found that ‘on account of both their aim and their content, Articles 1 to 7 of the framework decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC’. Since the Framework Decision encroached upon powers conferred to the Community, it infringed Article 47 EC and was therefore annulled. Article 47 TEU thus allows the Court to shield the acquis communautaire from PJCCM encroachment and if need be to annul an act based on an erroneous legal basis included in Title VI TEU.⁸⁶ This mechanism ensures consistency between Community and EU actions, by preventing the EU from acting in areas where the Community is empowered to take action. The Court may also be asked to review CFSP measures to ascertain that they do not encroach upon Community powers, as confirmed by the ECOWAS judgment.⁸⁷ In this case, the Commission challenged the legality of two Council acts adopted in the context of title V TEU, notably a Decision implementing a Joint Action on the Union’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons, with a view to the European Union contribution to the West African organization ECOWAS. The Court emphasized that Since Article 47 EU precludes the Union from adopting, on the basis of the EU Treaty, a measure which could properly be adopted on the basis of the EC Treaty, the Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a competence conferred by the EC Treaty on the Community.

In the event, the Court found that taking account of its aim and its content, the contested CFSP measure contained two components, one falling within the Community development cooperation policy and the other within the CFSP, neither of which could be considered to be incidental to the other. The Court concluded that the Council had infringed Article 47 TEU by adopting the contested Decision on the basis of Title V TEU and annulled the impugned Decision.

⁸⁵ C-176/03 Commission v Council (Environmental Penalties) [2005] ECR I-7879. See also Case C-170/96 Commission v Council (Airport Transit Visa) [1998] ECR I-2763. ⁸⁶ See also Case C-440/05 Commission v Council (ship-source pollution) (judgment of 23 October 2007) where the Court found that Council Framework Decision 2005/667/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, encroached on the competence which Art 80(2) EC attributes to the Community, thereby infringing Art 47 TEU. ⁸⁷ Case C-91/05, Commission v Council (ECOWAS) (judgment of 20 May 2008).

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As mentioned above, the distribution of powers between the EC and the Member States is determined not only by the scope of Community competence but also by its nature.⁸⁸ In particular, the Court has recognized that in areas where the Community shares powers with the Member States, viz. development cooperation, Member States ‘are accordingly entitled to enter into commitments themselves vis-à-vis non-member States, either collectively or individually, or even jointly with the Community’.⁸⁹ Similarly the Court pointed out that since the Community does not have exclusive competence in the field of humanitarian aid, ‘Member States are not precluded from exercising their competence in that regard collectively in the Council or outside it.’⁹⁰ The Court thus admits that in those areas, Member States’ and Community’s acts may co-exist. In the light of this case law, it has been wondered whether the distribution of powers between the Community and the Union could be determined by the same logic. In particular, since development cooperation is an area where Member States are entitled to act including within the Council, alongside the Community, it has been contended that the Council should also be entitled to act on the basis of Title V TEU in that area, instead of the Member States acting collectively.⁹¹ The Council appeared to make that point in ECOWAS when arguing that the complementary nature of the competence conferred on the Community in the field of development cooperation ought to be taken into account in order to determine whether action by the Union affects Community competence. The Court however brushed that argument aside, emphasizing that ‘the question whether the provisions of . . . a measure adopted by the Union fall within the competence of the Community relates to the attribution and, thus, the very existence of that competence, and not its exclusive or shared nature. Indeed, allowing the Council to act through the CFSP machinery where the Community is also entitled to act under the EC Treaty would not sit easily with the principle underpinning the provisions of Article 47 TEU, namely that the acquis should be preserved and developed as an objective of the Union foreseen in Article 2 and 3 TEU. The Court explicitly acknowledged that connection for the first time in ECOWAS. It could further be suggested that such an EU act could jeopardize the achievement of Community objectives, in violation of Article 10 EC, and could put at risk the coherence of the EU external activities, required by Article 3 TEU. The next section intends to examine the principle underpinning these two sets of provisions. ⁸⁸ Opinion 1/03 Lugano Convention [2006] ECR I-1145. ⁸⁹ Case C-316/91 European Parliament v Council of the European Union (EDF) [1994] ECR I-625, para 26. ⁹⁰ Joined Cases C-181/91 and 248/91 European Parliament v Council of the European Communities and Commission of the European Communities (Bangladesh) [1993] ECR I-3685. ⁹¹ A Dashwood, ‘The Interface between EC External Relations and the CFSP’, in A Dashwood and M Maresceau (eds), Recent Trends in the External Relations of the Union (2008); cp Opinion Mengozzi AG in Case C-91/05 Commission v Council (19 September 2007).

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B. Achieving Positive Coherence: The Principle of Cooperation Policing the allocation of competence in the EU system of external relations, and tackling legal conflict therein, does not suffice to bring about harmony and synergy between the different instruments and policies of EU external action. Beyond the rules on and enforcement of power allocation, EU law envisages rules compelling each actor in the system to exercise its powers in cooperation with others. The principle of cooperation is multifarious.⁹² It governs the interactions between the Member States and the EU institutions, for the purpose of ensuring the coherence and consistency of the action and representation of the Community and the Union (1). It also applies to the interplay between the Commission and the Council in order to ensure the coherence and consistency of the Union’s external activities (2).

1. Cooperation between Member States and EU Institutions The principle of cooperation governs the interactions between the Member States and the Community, based on Article 10 EC (a). The principle also applies in the interplay between the Member States and the EU, qua CFSP and/or PJCCM (b). (a) The principle of cooperation expressed in Article 10 EC On the basis of the principle of cooperation, expressed in Article 10 EC, Member States are expected to take all appropriate measures, whether general or particular, to ensure the fulfilment of obligations arising out of the EC Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks, and they shall abstain from any measure which would jeopardize the attainment of the objectives of the EC Treaty. Falling within the jurisdiction of the Court of Justice, these provisions have been further articulated and elaborated in the case law.⁹³ In particular, the Court has emphasized the wide scope of application of Article 10 EC, pointing out that Member States are bound by the positive and negative obligations derived therefrom ‘in all areas corresponding to the objectives of the EC treaty’.⁹⁴ The ⁹² See generally: D Halberstam, ‘Of Power and Responsibility: The Political Morality of Federal Systems’ (2004) 90 Virginia Law Review 731; S Bitter, ‘Loyalty in the European Union—A Review’ (2002) German Law Journal; K Mortelmans, ‘The Principle of Loyalty to the Community (Article 5 EC) and the Obligations of the Community Institutions’, (1998) 5 Maastricht Journal of European and Comparative Law 67; J Temple Lang, ‘The Core of the Constitutional Law of the Community—Article 5 EC’ in L Gormley (ed), Current and Future Perspectives on EC Competition Law (1997) 41; M Blanquet, L’article 5 du traité C.E.E.—Recherches sur les obligations de fidélité des Etats membres de la Communauté (1994). ⁹³ See eg Case C-339/00 Ireland v Commission [2003] ECR I-11757, paras 71 and 72 and case law cited. ⁹⁴ Opinion 1/03 Lugano Convention [2006] ECR I-1145.

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Court also held that the ‘duty of genuine cooperation is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries’.⁹⁵ Hence, Member States must comply with their obligations under the principle of cooperation expressed in Article 10 EC even when acting in the context of their reserved powers, viz. foreign policy.⁹⁶ Not only do they have to act consistently with, and respect, Community law,⁹⁷ they also have ‘to abstain from any measure which could jeopardise the attainment of the objectives of the [EC] Treaty’ (emphasis added).⁹⁸ In relation to the conclusion and implementation of international agreements in particular, recent case law suggests that various procedural obligations of cooperation and consultation between the Member States and the institutions can be derived from Article 10 EC. For instance, Member States have an obligation to consult the institutions when they negotiate bilateral agreements in a sphere where the Community has not yet concluded an agreement—and does not have exclusive powers—but where ‘there is a start of a concerted Community action at international level’.⁹⁹ Procedural obligations flowing from Article 10 EC in relation to Member States’ international commitments also encompass, within the specific framework of a mixed agreement, a duty to inform and consult the competent Community institutions.¹⁰⁰ It becomes apparent that the principle of cooperation does not organize the allocation of powers within the EU legal order. Rather, it influences the exercise of each actor’s competence. By requiring the Member States and the institutions to cooperate, and specifically to inform and consult one another, it not only aims at preventing potential conflict, it also seeks to stimulate mutually reinforcing actions. In the words of the Court, which controls compliance with this principle, the ‘duty of close cooperation between the [Member States] and the ⁹⁵ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 58. ⁹⁶ See in this regard, Case 235/87 Annunziata Matteucci [1988] ECR I-5589. On the application of Art 10 EC beyond the scope of Community competence, see eg Blanquet, supra n 92, at 306; CWA Timmermans, ‘Organising Joint Participation of EC and Member States’ in Dashwood and Hillion, supra n 48, at 239. ⁹⁷ On this point, see Cremona, supra n 3; see also Opinion of AG Jacobs in Case C-124/95 Centro-Com Srl [1997] ECR I-81, paras 40–44. ⁹⁸ Emphasis added. Cases C-266/03 Commission v Luxembourg [2005] ECR I-4805, and C-433/03 Commission v Germany [2005] ECR I-6985. ⁹⁹ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, Case C-433/03 Commission v Germany [2005] ECR I-6985. ¹⁰⁰ Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. See also Opinion 2/91 ILO [1993] ECR I-1061; Opinion 1/94 WTO [1994] ECR I-5267; Case C-25/94, FAO [1996] ECR I-1469; Case C-53/96 Hermès [1998] ECR I-3603; Case C-300/98 Christian Dior [2000] ECR I-11307. Further: J Heliskoski, ‘The “Duty of Cooperation” between the European Community and its Member States within the World Trade Organisation’, (1996) VII Finnish Yearbook of International Law 59; J Heliskoski, ‘Joint Competence of the European Community and its Member States and the Dispute Settlement Practice of the World Trade Organization’ (1999) 2 CYELS 61; J Heliskoski, ‘Internal Struggle for International Presence: The Exercise of Voting Rights within the FAO’ in Dashwood and Hillion, supra n 48, at 79.

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Community institutions [aims] to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation’.¹⁰¹ (b) The principle of cooperation between the Member States and the EU The principle of cooperation not only organizes the relations between the Member States and the Community, it also influences the interactions between the Member States and the EU both qua CFSP and PJCCM, albeit on the basis of different provisions. With respect to the Member States’ duty to cooperate with the EU in the sphere of PJCCM, the Court has played an essential role by establishing that the principle of loyal cooperation, expressed particularly in Article 10 EC, could be applied also in the context of the third pillar. In its Pupino ruling in particular, the Court held that: [i]t would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions (emphasis added).¹⁰²

In this case, the Court transplants one specific application of the principle of cooperation developed in the EC context to that of the third pillar, namely the duty for national courts to interpret national law in the light of a framework decision, developed in the Von Colson line of case law.¹⁰³ Arguably, other established obligations deriving from Article 10 EC could also be imported into the context of the interactions between the Member States and the PJCCM. For instance, in line with the Court’s ruling in Commission v Luxembourg,¹⁰⁴ the Member States could be expected to inform and consult with the institutions as soon as a concerted EU action emerges at international level, in order to facilitate the achievement of the Union tasks and to ensure the coherence and consistency of the action and its international representation. More generally, one could foresee that, applied in the context of external relations, the duty of cooperation entails that Member States ought not only to exercise their powers in a way that is consistent with PJCCM norms, but also to refrain from acting in a way that would make the Union’s fulfilment of its tasks more difficult, in line with the Court’s pronouncement in Opinion 1/03.¹⁰⁵ ¹⁰¹ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, Case C-433/03, Commission v Germany [2005] ECR I-6985. ¹⁰² Case C-105/03 Pupino [2005] ECR I-5285, para 42. ¹⁰³ Case 14/83 Von Colson and Kamann [1984] ECR 1891, also: Case C-106/89 Marleasing [1990] ECR I-4135; Joined Cases C-397/01 to C-403/01 Pfeiff er and Others [2004] ECR I-8835. Further: Spaventa, ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) 3 EuConst 5. ¹⁰⁴ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, Case C-433/03 Commission v Germany [2005] ECR I-6985. ¹⁰⁵ Opinion 1/03 Lugano Convention [2006] ECR I-1145.

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Arguably, the same holds true in the CFSP context, in view of the inclusion in Title V of a specific principle of cooperation. Article 11(2) TEU provides that: The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.

According to the CFSP principle of cooperation, Member States are bound by a positive obligation actively to develop the Union’s CFSP, which since the Amsterdam Treaty encompasses the Member States’ duty to ‘work together to enhance and develop their mutual political solidarity’. In addition, Article 11(2) TEU contains a negative obligation compelling the Member States not to undertake ‘any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations’. It is notable that these positive and negative obligations echo those stemming from the principle of cooperation expressed in Article 10 EC, in the light of which Article 11(2) could thus be interpreted. Support for this transposition can be found in the Pupino case.¹⁰⁶ Indeed, the inclusion of ‘shall’ makes Member States’ loyalty and cooperation clearly mandatory, while suffering little exception, as suggested by the expressions ‘actively’ and ‘unreservedly’. On the other hand, Article 11(2) TEU does not fall within the jurisdiction of the Court of Justice. Control that the CFSP obligation of cooperation is complied with is ensured only by the Council, hence by the Member States themselves. The foregoing suggests that on the basis of the principle of cooperation, Member States and EU institutions are expected to cooperate with a view notably to facilitating the achievement of the Community and Union’s tasks. The multifaceted principle of cooperation entails procedural obligations compelling the actors of the EU system of external relations to inform and consult one another.¹⁰⁷ The purpose of such cooperation is to enhance the overall coherence between Member States’ external actions and those of the Union, be that through the Community, the CFSP, or the PJCCM.

2. Cooperation between the Council and the Commission Alongside, and supplementing the mutual duty of cooperation between the Member States and the EU institutions, the TEU foresees in its Article 3 a duty of the Commission and the Council to cooperate with a view to ensuring the positive coherence between EC and EU external activities (a). Falling outside ¹⁰⁶ Further: Hillion and Wessel, supra n 68. ¹⁰⁷ It should be recalled that this duty of cooperation also binds the institutions in relation to the Member States: Case 230/81 Luxembourg v European Parliament [1983] ECR 255, see also Case C-246/07 Commission v Sweden (PFOS) (pending, OJ [2007] C183/19). Further: S Hyett, ‘The Duty of Cooperation: A Flexible Concept’ in Dashwood and Hillion, supra n 48, at 248.

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the Court’s jurisdiction, the requirement of Article 3 TEU is supported by the EU single institutional framework, a ‘singleness’ which would be enhanced by the Treaty signed in Lisbon by the EU Heads of State or Government in 2007, a Treaty inspired by the innovations envisaged by the defunct 2004 Constitutional Treaty (b). (a) The principle of cooperation enshrined in Article 3 TEU As mentioned earlier, Article 3 TEU foresees in its paragraph 2 that the ‘Union’ shall ensure the consistency of its external activities. Placed at the beginning of the TEU, the requirement guides the activities of the EU as a whole. In more practical terms, the Council and the Commission are made responsible for ensuring that coherence¹⁰⁸ and, since the Treaty of Amsterdam, they are under an obligation to cooperate to this end. This addition seemingly strengthens the operational feature of Article 3 TEU, which thus mirrors and supplements the principle of cooperation binding the Member States and Community institutions under Article 10 EC.¹⁰⁹ Yet, in contrast to Article 10 EC, Article 3 TEU does not fall within the jurisdiction of the Court of Justice whose role in relation to the interface between the EU and the EC is instead restricted to the control of consistency (viz absence of contradiction between the different EC and EU external actions),¹¹⁰ on the basis of Article 47 TEU.¹¹¹ Indeed, it is uncertain whether judicial control of coherence (harmony and synergy of EU external actions) would be expedient. After all, coherence essentially implies a political assessment that may be better left to the political decision-making entities. However, this contention does not mean that any judicial control over Article 3 TEU would be inappropriate, or impossible to exercise. Article 3 TEU could generate procedural obligations comparable to those derived from Article 10 EC, for example obligation of information and consultation, compelling the Commission and the Council. Observance of those procedural requirements could be guaranteed by the Court, as is done in the ¹⁰⁸ Article 3(2) TEU. ¹⁰⁹ The complementarity between Art 10 EC and Art 3 TEU has been pointed out by R Frid, The Relations between the EC and International Organisations. Legal Theory and Practice (1995), at 149. J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001), at 64, has equally highlighted the link between the duty of cooperation and Art 3 TEU; see also Eeckhout, supra n 48, at 154 (footnote 60). ¹¹⁰ In accordance with Art 46 TEU, the Court does not have jurisdiction on the Common Provisions. The only exceptions concern first, ‘Article 6(2) with regard to actions of the institutions, insofar as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty’; and second ‘the purely procedural stipulations in Article 7, with the Court acting at the request of the Member State concerned’. The limits to the Court’s jurisdiction, particularly to interpret the TEU Common Provisions, was recalled by the Court of Justice itself in eg Case C-167/94 Grau Gomis [1995] ECR I-1023, para 6. Further: Neuwahl, supra n 5, at 235ff. ¹¹¹ The intervention of the Court under the heading of consistency could also occur in situations of conflict between EC rules and national rules implementing an EU measure based on title V or VI TEU. The issue here would be of supremacy of EC law, and the Court of Justice could ask the national court to set aside the contentious national measure.

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context of Article 10 EC.¹¹² Moreover, however politically charged coherence may be, one could still envisage a control similar to the one developed by the Court in relation to subsidiarity, also a highly political notion.¹¹³ (b) The importance of the single institutional framework In addition to the obligation of cooperation between the Commission and the Council, the Treaty foresees that coherence may be ensured by the Union’s single institutional framework. According to Article 3(1) TEU: The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

This Union institutional framework is thus conceived as an additional factor of consistency and coherence of the Union’s activities. While it is single in terms of the institutions it involves, the institutional framework is however plural in terms of the interactions among institutions which take place within it. Article 5 TEU foresees that: the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by other provisions of this Treaty (emphasis added).

In other words, the interplay between the institutions takes different forms, for the powers and role of each institution vary depending on the EU sub-order in which it acts, and on the subject-matter of the action within each of these sub-orders.¹¹⁴ The differentiated institutions’ powers have generated inter-institutional squabbling within and across the different EU sub-orders.¹¹⁵ This state of affairs has partly contributed to increased fragmentation of EU external relations in the course of the 1990s, particularly following the Treaty of Amsterdam.¹¹⁶ Frictions and ¹¹² Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469. ¹¹³ Case C-491/01 British American Tobacco [2002] ECR I-11453; Case C-110/03 Belgium v Commission [2005] ECR I-2801; and Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653. ¹¹⁴ As pointed out by Joseph Weiler, differentiation in the roles and powers of the institutions can be as significant within a sub-order, notably the EC Treaty, as in the context of the TEU, without questioning the existence of a Community institutional framework; Weiler, supra n 80, at 58ff; see also A Von Bogdandy and M Nettesheim, ‘Ex pluribus unum: Fusion of the European Communities into the European Union’ (1996) 2 ELJ 267; and evidence of J-C Piris before the Working Group III (Legal personality; WG III–WD3) of the European Convention 26 June 2002, 9–10. ¹¹⁵ See in this regard: House of Lords EU Committee, 34th Report (2005–2006): ‘The EU and Africa: Towards a Strategic Partnership’, para 439; Timmermans, supra n 3. ¹¹⁶ Further: C Hillion, ‘Institutional Aspects of the Partnership between the EU and the Newly Independent States of the Former Soviet Union—Case Studies of Russia and Ukraine’ (2000) 37 CMLRev 1211; from the same author, The European Union and its East-European Neighbours—A Laboratory for the Organisation of EU External Relations (2009).

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tensions have occasionally been resolved before the Court,¹¹⁷ while inter-institutional arrangements have been adopted to clarify the powers of each institution.¹¹⁸ But beyond this legal and/or judicial clarification of competences, there appears to be momentum for enhancing coherence, by finding new ways to enhance synergy, including at the judicial level.¹¹⁹ The innovations proposed by the ill-fated Treaty establishing a Constitution for Europe (TCE) were remarkable in this regard, particularly the proposal to establish the post of a Union Minister for Foreign Affairs (UMFA), destined to embody both the functions of the Commissioner for external relations and that of the High Representative for CFSP.¹²⁰ The Treaty signed in Lisbon in 2007 maintains the function and profile of the UMFA, albeit with the different title of ‘High Representative of the Union for Foreign Affairs and Security Policy’.¹²¹ Hence, based on the original text of Article I-28 TCE, the new HR is set to conduct the CFSP and Common Security and Defence Policy of the Union, contributing through the submission of proposals to the development of those policies, which s/he carries out as mandated by the Council.¹²² Also, s/he is set to preside over the Foreign Affairs Council,¹²³ and be also one of the Vice-Presidents (VP) of the Commission, within which s/he is responsible for external relations, and for co-ordinating other aspects of the Union’s external action.¹²⁴ In other words, the ‘double-hatting’ formula foreseen by the TCE is also part of the new constitutional complexion, a formula that ¹¹⁷ Eg Case C-170/96 Commission v Council (Airport Transit Visa) [1998] ECR I-2763; C-176/03 Commission v Council (Environmental Penalties) [2005] ECR I-7879; Case C-440/05 Commission v Council (ship-source pollution) (judgment of 23 October 2007); Case C-91/05 Commission v Council (ECOWAS) (judgment of 20 May 2008); Joined Cases C-317/04 and C-318/04 Parliament v Council (30 May 2006); Case C-94/03 Commission v Council (Rotterdam Convention) [2006] ECR I-1; Case C-178/03 Commission v Parliament and Council [2006] ECR I-107. ¹¹⁸ Heliskoski, supra n 100. ¹¹⁹ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805; Case C-433/03 Commission v Germany [2005] ECR I-6985; Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. ¹²⁰ Article I-28(4) TCE foresaw that: ‘The Union Minister for Foreign Affairs shall be one of the Vice-Presidents of the Commission. He or she shall ensure the consistency of the Union’s external action. He or she shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union’s external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the Union Minister for Foreign Affairs shall be bound by Commission procedures to the extent that this is consistent with paras 2 and 3.’ ¹²¹ Article 18 (3) and (4) of the consolidated version of the Treaty on European Union OJ [2008] C115 (hereinafter ‘TEU (Lisbon)’). See also point 3 of the IGC Mandate, annexed to the Presidency Conclusions, 21–22 June 2007. ¹²² Article 18(2) TEU (Lisbon). See also Art 27 TUE (Lisbon). ¹²³ Article 18(3) TEU (Lisbon). This formula, also foreseen in Article III-296(1) TCE, was seen by the WG on external action as advantageous from the point of view of continuity and consistency (Final report of Working Group VII on external action; CONV 459/02, 16 December 2002: pt 26). ¹²⁴ Article 18(4) TEU (Lisbon), which also stipulates that ‘[i]n exercising these responsibilities within the Commission, and only for these responsibilities’, s/he is to be ‘bound by Commission procedures to the extent that this is consistent’ with his or her other functions within the Council.

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may also be regarded as a consolidation of the increasing collaboration between the Commission and the current HR.¹²⁵ With one foot in the Commission and the other in the Council, the new HR/VP is expected to incarnate the consistency and coherence of the Union’s external action, as indeed stipulated by Article 18(4) of the new Treaty. Whether the competence bickering between the Council and the Commission is going to engender a schizophrenic double-hatted HR/VP remains to be seen.¹²⁶ The hope of course is that with only one head, the HR/VP could effectively keep a sense of direction for the EU external action. In this task, the HR/VP is to be assisted by a European External Action Service (EEAS) that should work in cooperation with the diplomatic services of the Member States, thereby fostering the coherence between the Member States and the Union’s actions. In addition to staff seconded from the national diplomatic services of the Member States, the EEAS would also consist of officials from relevant departments of the General Secretariat of the Council and of the Commission,¹²⁷ thus potentially enhancing coherence between the various external policies of the Union.¹²⁸ Under the new dispensation, the HR/VP should take part in the work of the European Council.¹²⁹ S/he would thus be a powerful figure, insofar as s/he would have a say in all the key institutions shaping the external action of the Union.¹³⁰ It should be pointed out that the Treaty of Lisbon keeps intact the office of ¹²⁵ In the form of eg HR and Commissioner ‘Joint-Papers’ or ‘double-hatting’ in the field, viz EU Special Representative being at the same time Head of the Commission Delegation, as tested in Macedonia (see House of Lords EU Committee, Report 48th Report (2005–2006): ‘Europe in the World’ (HL 268)); for further examples of cooperation: see COM (2006) 278; the Presidency Stocktaking Reports (supra n 9). The development of the European Neighbourhood Policy also typifies this collaboration between the HR and the Commissioner for external relations; further M Cremona and C Hillion, ‘L’Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy’ (2006) EUI Law Working Papers 39. ¹²⁶ On this point, see J Wouters and D Coppens, ‘A Global Actor in the Making? Reforming the EU’s External Relations Machinery with or without the Constitution’ (2005) Institute for International Law Working Paper 79; B Crowe, ‘The Significance of the New European Foreign Minister’ (2004) 2 Fornet—CFSP Forum 1, available at: ; M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CMLRev 1347. ¹²⁷ See in this regard, the joint progress report by the Secretary-General/High Representative and the Commission to the European Council on the European External Action Service, 9956/05, 9 June 2005. For a concise analysis of this EEAS, see F Cameron, ‘Towards an EU Diplomatic Service’ (2004) European Policy Centre (2004); C Hill, ‘A Foreign Minister without a Foreign Ministry—Or With Too Many?’ (2003) 1 Fornet—CFSP Forum 1, available at . ¹²⁸ Article 27 TEU (Lisbon), which also foresees that the organization and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the HR/VP after consulting the European Parliament and after obtaining the consent of the Commission. ¹²⁹ Article 15(2) TEU (Lisbon). ¹³⁰ A Arnull, ‘The Member States of the European Union and Giscard’s Blueprint for its Future’ (2004) 27 Fordham International Law Journal 503, at 524ff.

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President of the European Council who, ‘at his level and in that capacity, [shall] ensure the external representation of the Union on issues concerning its [CFSP], without prejudice to the powers of the [HR/VP]’.¹³¹ Given this potential overlap of functions between these two big wigs of the Union external action, it is crucial that the division of tasks be clarified, and that cooperation between the two be real, also with the President of the European Commission.¹³² Loyalty and institutional logics are likely to remain pivotal to the functioning of the system.¹³³

4. Conclusion This essay has attempted to unpack the notion of coherence in the context of EU external relations, by distinguishing it from the concept of consistency, and by examining the legal principles, contained in the TEU, which may contribute to its achievement. It was suggested that ‘consistency’, understood as absence of legal contradiction, is an essential element of coherence. Such consistency is ensured notably through the observance of EU rules on distribution of powers, and thanks to mechanisms to handle conflicts between acts adopted by each actor of the EU system of external realtions. In the Member States–EC interface, the principles of attributed powers and primacy of EC law play a key role in ensuring consistency, and so does the preservation of the acquis communautaire in the EU–EC interface. Importantly, observance of these principles is guaranteed by the European Court of Justice, in cooperation with national courts. By contrast, consistency between the actions of the Member States and those taken under the other sub-orders of the EU is guaranteed by the Council and thus by the Member States themselves, given the limited supranational nature of the CFSP and PJCCM. The only nuance to this point is that the Court has jurisdiction to ensure the effectiveness of PJCCM law throughout the Union,¹³⁴ while national courts may play a role in ensuring that Member States comply with their EU obligations, if their domestic law so permits, thereby contributing to the consistency between EU external actions and Member States’ foreign policy.¹³⁵ It was also contended that coherence in EU external relations does not only depend on the absence of legal contradiction between the different instruments of EU external action. Coherence also stems from the degree of cooperation between the different actors in the system, and particularly cooperation between ¹³¹ Article 15(6) TEU (Lisbon). ¹³² Further: Editorial Comments, ‘Mind the Gap!’ (2008) 45 CMLRev 317; ‘New EU Foreign Minister to Complicate Institutional Power Balance’ EUobserver, 13 August 2004. ¹³³ J-P Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383. ¹³⁴ As suggested by Cases C-355/04 P Segi and Others v Council and C-354/04 P Gestoras Pro Amnistía and Others v Council, judgments of 27 February 2007, not yet published. ¹³⁵ Further, Hillion and Wessel, supra n 68.

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the Member States, on the one hand, and the Union’s institutions, on the other; as well as cooperation between the institutions themselves when acting in the different EU procedural frameworks. In its respective field of power, each actor is bound by a multifarious principle of cooperation. In essence, this principle entails procedural obligations, whose purpose is to ensure that each actor’s competence is exercised with the ultimate purpose of contributing to the general Union’s objective of asserting its identity on the international scene. Rather than aiming at policing the boundaries between the different areas of competences, the duty of cooperation aims at moderating the implications of such division. It has a more positive undertone, suggesting that the Union’s external action is not a zero sum game.

3 The Contribution of EU Practice to International Law Frank Hoff meister¹

1. Introduction About fifty years after the signature of the Treaty of Rome (1957), the European Union (EU) has become well-established as a global actor. There is rarely any field of international policy without an EU dimension. Europe is an important player in the global network of multilateral and bilateral economic and trade relations, enjoys a high environmental profile as a promoter of the Kyoto Protocol, is one of the main sponsors of the International Criminal Court (ICC), frequently addresses disarmament issues and has even carried out military operations with a UN mandate. This essay will try to give a systematic overview of EU practice relevant to international law. Like traditional national reports on the international law practice of certain Member States, its purpose is to share relevant information.² And inspired from comparable articles on the contribution of UN practice to international law,³ this EU practice will be set in context within the broader framework of international law, whilst trying to assess its impact on the development of international law at large. Accordingly, this essay will first recall the constitutional foundations in European law which entrusts the EU with powers to act under international law. It will then focus on questions of general international law such as sources, subjects, jurisdiction, responsibility, and enforcement. There will then follow an ¹ I would like to express my sincere thanks to PJ Kuijper, JA Frowein, M Cremona, M Wood, J Czuczai, and P Scullion for their prompt and detailed remarks on earlier drafts. Their valuable comments significantly improved the piece. ² The essay will follow by-and-large the structure proposed for national reports by the Council of Europe Committee of Legal Advisors (CAHDI). See Resolution (64) 10, adopted by the Council of Europe’s Minister’s Deputies on 6 October 1964, ‘Publication of digests of State Practice in the field of public international law’ as last revised by Recommendation R (97) 10 by the Committee of Ministers. ³ JA Frowein, ‘Der Beitrag der internationalen Organisationen zur Entwicklung des Völkerrechts’ (1976) 36 ZaöRV 147.

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analysis of the EU’s contribution to certain specialized branches of international law. The conclusion will try to bring all of these themes together.

2. The EU as an Actor under International Law A. The Notion ‘European Union’ Under Article 1(3) EU, the European Union is ‘founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty’. That establishes the well-known three-pillar structure. The European Community (EC) constitutes the first pillar, whereas the Common Foreign and Security Policy (CFSP) and the European Security and Defence Policy (ESDP) are regarded as the second pillar. Police and Judicial Cooperation in Criminal Matters (PJCCM) constitutes the ‘third pillar’. The three pillars together are then labelled as the European Union (the ‘cross-pillar EU’). However, that original concept of the Treaty establishing the European Union, done at Maastricht in 1992, underwent significant changes in practice. Particularly after the revision of the CFSP Chapter in the Treaty of Amsterdam in 1997, the EU developed more and more into an autonomous organization, which would have to be separated from the European Community. Such an EU does not coincide with the definition in Article 1(3) EU (comprising three pillars), but could rather be referred to as ‘the second-pillar Union’, meaning the European organizational framework entrusted with conducting CFSP and ESDP matters only. Likewise, when the European Union acts in the field of police and judicial cooperation in criminal matters, one may call this action ‘the third-pillar Union’. Accordingly, the present legal situation is characterized by three different levels. Either the European Community (‘first pillar’) acts or the ‘second-pillar’ viz. ‘third-pillar’ EU is the relevant entity. In some cases, the pillars work together in addressing certain international issues, thereby acting as the ‘cross-pillar’ EU. The relevant rules on powers, coordination, and representation of these three levels need to be distinguished.

B. External Powers 1. European Community As provided in Article 281 EC, the European Community enjoys international legal personality. As a subject of international law, it may conduct international relations with other subjects of the same legal order. (a) Legal Basis Unlike States the Community does not, however, enjoy unfettered external powers. According to the fundamental principle of attributed powers (Art 5(1) EC),

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it may only act in those areas where Member States have conferred powers on it. In the external sphere two distinct questions arise:⁴ First, does the Community have external power in a given policy field? Second, what is the nature of that power? The EC Treaty contains a variety of express provisions on external Community competence. First, there are policy fields specifically dedicated to external relations. The Community may conduct trade policy (Art 131 et seq EC), development cooperation (Art 177 et seq EC) and economic, financial, and technical cooperation with developed countries (Art 181a EC). Second, there are Treaty provisions that emphasize the external dimension of a predominantly internal policy. This is the case with the economic and monetary union (Art 111(4) EC), research policy (Art 170(2) EC) and environmental policy (Art 174(4) EC). Third, there are procedural provisions relating to the treaty-making power of the Community (Art 133(3), 300, 310 EC). Fourth, external Community powers may also be implied from other Treaty provisions. In the well-known ERTAjudgment the European Court of Justice (ECJ) deduced from Article 281 (ex 210) EC that a Community power to conclude international agreements ‘arises not only from an express conferment by the Treaty [ . . . ] but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions’.⁵ While that quotation refers only to an implied treaty-making power, there is no indication that its reasoning could not apply generally for all sorts of external powers. Indeed, in practice there was never any doubt that the Community also enjoyed an implied power to adopt unilateral international acts (whether binding or not) relating to the external dimension of an internal policy field. Affirming the existence of an external Community power is a sufficient legal basis for Community action on the international plane. However, in many cases additional inquiry is necessary into how such Community action relates to possible Member State action in the same field. To respond to this question the nature of the relevant Community power must be clarified. Broadly speaking, exclusive and shared competences can be distinguished. An exclusive competence of the Community has the effect that Member States may only act in the same area with an authorization from the Community.⁶ Such exclusivity is acknowledged for trade policy,⁷ the conservation and management of marine living resources,⁸ and monetary issues (for those States ⁴ A Dashwood, ‘Implied External Competence of the EC’ in M Koskenniemi (ed), International Law Aspects of the European Union (1998) 113, at 113. ⁵ Case 22/70 ERTA [1971] ECR 263, at 274, Rec 16 of judgment. ⁶ Case 41/76 Donckerwolcke v Procureur de la République, [1976] ECR 1921, Rec 32 of judgment; Case 174/84 Bulk Oil v Sun International [1986] ECR 559, Rec 31 of judgment; Case 83/94 Leifer [1995] ECR I-3235, Rec 12 of judgment. ⁷ Opinion 1/75 [1976] ECR 1355, at 1364. ⁸ Case 3, 4, 6/1976, Kramer [1976] ECR 1279, at 1311, Rec 44–45 of judgment.

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participating in the Eurozone).⁹ It may also exist ‘where the conclusion of an international agreement is necessary in order to achieve Treaty objectives which cannot be attained by the adoption of autonomous rules’.¹⁰ Th is so-called ‘1/76 rule’, has, however, not played a significant role in subsequent practice.¹¹ Much more important is the second jurisprudential cas de figure, namely the so-called ‘ERTA rule’: (17) Each time the Community, with a view to 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. (18) As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system.¹²

Hence, the relevant test is whether or not Community law would be ‘affected’ by a Member State agreement with a third State. Subsequent case law on that point has been summarized by the Court in the open-skies cases.¹³ Exclusive Community competence may exist when (1) a secondary Community act contains express provisions regulating the external dimension of the matter; or (2) a secondary Community act empowers a Community institution to conclude an agreement on the matter; or (3) a number of Community acts has largely covered the matter. Certainly, the consistent application of these principles in practice is a constant challenge. The Court itself may give divergent signals over time. Recent case law, according to which (133) account must be taken not only of the area covered by the Community rules and by the provisions of the agreement envisaged, insofar as the latter are known, but also of the nature and content of those rules and those provisions, to ensure that the agreement is not capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system which they establish,¹⁴

seems to indicate that the third principle in particular may be in vogue at present.¹⁵ Once it is established that the Community enjoys such exclusive competence, Member States are not only under the substantive obligation to abstain

⁹ Article 111(3) EC. ¹⁰ Opinion 2/92 OECD [1995] ECR I-521, Rec 32 of judgment; Opinion 1/94 WTO [1994] ECR I-5267, Rec 85 of judgment. ¹¹ Opinion 1/94 WTO [1994] ECR I-5267, Rec 83 and 100 where the Court rejected the Commission’s view that the 1/76 principle was relevant for the GATS. ¹² Case 22/70 ERTA [1971] ECR 263, at 274, Rec 17–18 of judgment. ¹³ C-471/98 Commission v Belgium [1998] ECR 9690, Rec 94–97 of judgment. ¹⁴ Opinion 1/2003 Lugano Convention [2006] ECR I-1145, Rec 133 of the opinion, not yet published. ¹⁵ M Petite, ‘Current Legal Issues in the External Relations of the European Union’ EUI Working Papers, Law No 2006/38 p 14.

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from national action. As illustrated by recent cases,¹⁶ Article 10 EC also imposes important procedural constraints on them.¹⁷ In contrast, a shared competence means that both the Community and the Member States may act in the same policy area. That is the rule for environmental policy,¹⁸ research policy,¹⁹ development policy,²⁰ cooperation policy with developed States,²¹ and the external dimensions of internal policy, such as transport policy or migration policy. However, the division of shared competences is not static. As already explained, the adoption of internal legislation fulfilling the characteristics described above may lead to the creation of exclusive competence in many areas. As an exception to that rule, Member States will never lose their right to conduct development cooperation policy next to the Community.²² Because of this, Community powers for development cooperation policy are sometimes said to constitute ‘parallel competence’.²³ Finally, the Community enjoys residual power ‘if action should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and the Treaty has not provided the necessary powers’ (Article 308 EC). Reflecting the parallelism between express internal and implied external powers, the Article may serve as the legal basis for external action as well.²⁴ However, Article 308 EC may not substitute for the lack of a complete Community policy field. For example, it does not empower the Community to adopt a cross-cutting human rights charter or become party to a general international human rights convention.²⁵ In the same vein, Article 308 EC does not provide the legal basis for a general Community policy to promote the observance and development of international law or to promote international peace and security.²⁶ On the other hand, Article 308 EC may serve as a reminder that the Community may well address international law aspects connected to its policies. The Community is therefore competent to address jurisdictional questions affecting its trade and internal market policy,²⁷ or questions ¹⁶ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805; Case C-433/03 Commission v Germany [2005] ECR-I 6985. ¹⁷ M Cremona, ‘Community Report’ in FIDE (ed), FIDE 2006 National Reports, Topic 3— External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility and Eff ects of International Law (2006) 319, at 326. ¹⁸ Article 174(2) 2nd subpara EC. ¹⁹ Article 170(2) EC. ²⁰ Article 181 2nd subpara EC. ²¹ Article 181a 3rd subpara EC. ²² C-316/91 European Parliament/Council of the European Union [1994] ECR I-625, Rec 26–27 of judgment. ²³ A Rosas, ‘Mixed Union—Mixed Agreements’ in Koskenniemi (ed), supra n 4, at 129. ²⁴ For example, in line with Declaration No. 10 to the Treaty of Nice, the Council regularly adopts decisions on macroeconomic financial assistance for third States on the basis of Article 308 EC. See, inter alia, Council Decision 2003/825/EC, OJ [2003] L311/28 (Serbia and Montenegro) and Council Decision 2004/580/EC (Albania), OJ [2004] L261/116. ²⁵ Opinion 2/94 [1996] ECR I-1659 with annotation by Kokott/Hoffmeister (1996) 90 AJIL 664. ²⁶ T-306/01 Al Yusuf ECR 2005 II-3533, Rec 153–56 of judgment (pending on appeal). ²⁷ Lowe, ‘Can the European Community Bind the Member States on Questions of Customary International Law?’ in Koskenniemi (ed), supra n 4, at 160 note 37.

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of international liability arising out of its acts. Similarly, the Community may address international law issues related to the implementation and interpretation of its agreements with third States or the maintenance of relations with them.²⁸ (b) Tasks and goals The general Community tasks enumerated in Article 2 EC do not contain any external dimension. Rather, such external tasks and goals are laid down for specific policy fields only. Accordingly, the Community’s trade policy shall strive for the harmonious development and further liberalization of world trade (Article 131(1) EC). Environmental policy aims at promoting measures at the international level to deal with regional or worldwide environmental problems (Article 174, 4th indent EC). Finally, cooperation with developing countries should foster their sustainable development and integration into the world economy (Article 177(1) EC). Community policy both vis-à-vis developing and developed countries should promote democracy, the rule of law and human rights protection (Article 177(2) and 181a (2) second sentence EC). (c) Categories of Community acts with relevance to international law A variety of Community acts are relevant for the application, interpretation, and development of international law. Certainly, the most prominent category is the one concerning Community agreements. At present, the Community has concluded several hundred bilateral agreements and has become a party to an ever-increasing number of multilateral conventions. In addition, unilateral declarations of the Council or the Commission may address international law questions. They may be made to the public or specifically dedicated to foreign courts (amicus curiae briefs). Domestic EC legal acts (regulations, directives, decisions) may also have a bearing on a certain international law question, such as jurisdictional issues. Finally, a very important category of Community acts are ECJ judgments on international law matters.

2. The ‘Second-Pillar’ viz ‘Third-Pillar’ European Union Absent an express provision about its international legal personality, the European Union’s status on the international sphere is less clear. However, by applying the test of the International Court of Justice (ICJ) in the Reparation for Injuries case²⁹ it may well be argued that the EU nowadays enjoys international legal personality as well. Member States have entrusted it to carry out certain tasks, it is endowed with institutions that facilitate effective decision-making, and has instruments at its disposal to act internationally. Indeed, over seventy agreements have now ²⁸ S Talmon, Kollektive Nichtanerkennung Illegaler Staaten (2006), at 71. ²⁹ Reparation for Injuries Suff ered in the services of the United Nations, ICJ Reports (1949) 173, at 178–79. For a discussion of this case with respect to the EU see Gautier, ‘The Reparation for Injuries Case Revisited: The Personality of the European Union’ (2000) 4 Max Planck Yearbook of United Nations Law 331.

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been concluded by the Council ‘on behalf of the EU’. This development started with the conclusion of agreements with third States on the status of EU missions in their territory.³⁰ Nowadays, Union agreements broadly cover five areas.³¹ Article 24 EU agreements deal with the participation of third States in EU missions, relations to NATO and confidentiality. Articles 24 and 38 EU serve as the legal basis for third-pillar Union agreements on cooperation in criminal matters (including with the ICC), and cooperation on exchange of data (PNR agreement with the United States). Thus, there is ample evidence of legal action implying the existence of a Union with separate legal personality.³² (a) Legal basis Under Article 11(1) EU, the Union shall define and implement a common foreign and security policy covering ‘all areas’ of foreign and security policy. Because of this ‘catch-all’ clause Union powers are potentially very far-reaching. In this respect, the Union institutions enjoy a large margin of appreciation which policy field to treat as a CFSP matter; only Article 17 EU sheds further light on the ‘security policy’ dimension. Articles 37 and 38 EU provide for an express legal basis for the external dimension of PJCCM. The nature of Union powers differs from Community powers. Member States were careful in excluding any ERTA-effect with regard to Union agreements. Whilst these legally commit the Union, Declaration No. 4 to the Amsterdam Treaty recalls that ‘the provisions of Articles 24 and 38 of the Treaty on European Union and any agreements resulting from them shall not imply any transfer of competence from the Member States to the European Union’. The same seems to be true for unilateral Union acts as well. In other words, Union powers have no potential of exclusivity. Member States retain the power to act in the same policy area nationally. Once a CFSP act is adopted national action must, however, be supportive (Article 11(2) EU) or at least neutral under the hypothesis that the Member State in question constructively abstained in the relevant decision (Article 23(2) EU). A duty of loyalty also exists with respect to PJCCM acts.³³ ³⁰ Council Decision No 2001/352/CFSP of 9 April 2001, OJ [2001] L125/1 (Agreement between the EU and Yugoslavia on the EU monitoring mission in Yugoslavia); Council Decision No. 2001/682/CSFP of 30 August 2001, OJ [2001] L241/1 (Agreement between the EU and the former Yugoslav Republic of Macedonia on the EU monitoring mission in FYROM). ³¹ D Thym, ‘Die völkerrechtlichen Verträge der Europäischen Union’ (2006) 66 ZaöRV 863, at 875–900. ³² A Dashwood, ‘The European Union—A New International Actor (Editorial Comment)’ (2001) 38 CMLRev 825; Trüe, ‘Rechtspersönlichkeit der Europäischen Union nach den Vertragsänderungen von Amsterdam: Wer handelt in GASP und PJZ?’ (2000) 2 ZeuS 127; RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CMLRev 1135 et seq; S Marquardt, ‘La Capacité de Conclure des Accords Internationaux dans le Domaine de la Coopération Policière et Judiciaire en Matière Pénale’, in G de Kerchove and A Weyembergh (eds), Sécurité et Justice: Enjeu de la Politique Extérieure de l’Union Européenne (2003), at 179. ³³ Case C-105/03 Maria Pupino [2005] ECR I-5285, Rec 42 of judgment.

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CFSP decisions are not subject to the direct jurisdiction of the European Court of Justice (Article 46 EU). However, the Court is not prevented from adjudicating on these provisions indirectly.³⁴ For example, in Svenska Journalistförbundet,³⁵ the Court of First Instance assumed jurisdiction over matters concerning public access to CFSP documents by reviewing the legality of Council measures taken under Community legislation.³⁶ Similarly, the Court of First Instance reviewed in Abuja³⁷ arrangements between the Member States taken under Title V of the EU Treaty when Greece attacked a Commission decision to offset debts under those arrangements pursuant to the Community’s Financial Regulation³⁸. Another area where the Court may not be prevented from assuming jurisdiction is agreements on matters of police and judicial cooperation in criminal matters with third states. Under Article 35(1) EU the Court is competent to interpret framework decisions, decisions and ‘conventions established under this title’. On the one hand, this sentence seems to refer to the three measures enumerated in Article 34b–d EU with the consequence that only conventions recommended to Member States for their adoption may fall under the jurisdiction of the Court; that link was expressly made by the Court of First Instance.³⁹ On the other hand, the wording ‘conventions’ (as used in Article 34d EU) and ‘agreements’ (as used in Article 38 EU) are interchangeable from an international point because they both relate to international treaties within the meaning of Article 2(1)a of the 1969 Vienna Convention. Furthermore, Article 35(1) EU refers to conventions established ‘under this title’. This reference is not restricted to Conventions established under Article 34d EU. Unlike the relevant reference in Article 35(7) second sentence EU it can also include agreements concluded under Article 38 EU since these also fall under Title VI. Finally, the object and purpose of Article 35 EU is to ensure uniform interpretation of Union law in the sensitive area of police and judicial cooperation in criminal matters and to secure human rights. From that perspective, it would be logical to extend the jurisdiction of the Court to give preliminary rulings on the validity and interpretation of Union agreements in the third pillar since there is an equal need for uniform interpretation and human rights protection. The fact that such agreements are concluded with third States rather than between Member States does not change this analysis. ³⁴ M Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common and Security Policy’ (2006) 55 ICLQ 77, at 83. ³⁵ Case T-174/95 Svenska Journalistförbundet [1998] ECR II-2289, Rec 85 of judgment. ³⁶ When the CFI decided Svenska Journalistföbundet, access to documents was provided by Council Decision 93/731/EC of 20 December 1993, OJ [1993] L340/43. Nowadays, the legal basis for such requests is the ‘transparency’ regulation of the Council and the European Parliament No. 1049/2001, OJ [2001] L145/43. ³⁷ Case T-231/04 Greece v Commission [2007] ECR II-63, Rec 74 of judgment (pending on appeal, C-203/07 with conclusions of the AG Mazák of 8 May 2008). ³⁸ Council Regulation 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ [2002] L248/1. ³⁹ Case T-228/02 OMPI, judgment of 12 December 2006, Rec 52 of judgment.

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Finally, Article 47 EU provides for an important basis for the Court to review Union acts. Under that provision nothing in the Treaty on European Union is to affect the EC Treaty. The Council of the Union may therefore not adopt acts that encroach upon the powers conferred by the EC Treaty on the Community. In that respect the Court may verify whether the borderline has been transgressed under Article 47 EU. The Court has first decided two important cases concerning the relationship between the first and third pillars⁴⁰ and then extended this principle to the CFSP area as well.⁴¹ (b) Tasks and goals Article 11(1) EU spells out five major CFSP objectives. The Union’s common foreign and security policy shall safeguard the common values, fundamental interests, independence, and integrity of the Union; strengthen the security of the Union; preserve peace and international security; promote international cooperation; and develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. In this context, it is noteworthy that Article 11(1) EU refers twice to the principles of the UN Charter. Insofar as the Charter contains fundamental rules of international law, like the self-determination of peoples (Art 1 para 2), the principle of non-intervention (Art 2 paras 1 and 7), the peaceful settlement of disputes (Art 2 para 3), and the prohibition on the use of force (Art 2 para 4), the Union’s objectives include the observance of these principles. The third-pillar objectives are laid down in Article 29 EU; although they are primarily dedicated to internal aspects of that policy they may well be valid for the external dimension of the PJCCM as well. (c) Categories of ‘second-pillar’ or ‘third-pillar’ EU acts with relevance to international law Union agreements concluded under Article 24 (and Art 38) EU may include important standard clauses, for example clauses on weapons of mass-destruction, counter-terrorism, or cooperation with the International Criminal Court. A variety of formal CFSP acts laid down in Article 12 EU (strategies, joint actions, common positions) may specifically address international law questions. In addition, one may identify highly relevant informal CFSP acts such as conclusions of the General Affairs and External Relations Council, ad hoc Presidency statements on behalf of the EU, thematic EU statements, explanations of votes, guidelines, or press statements. As in the case of the Community, interventions in foreign ⁴⁰ ECJ, Case C-170/96 Commission v Council [1998] ECR I-2763; ECJ, Case C-176/03 Commission v Council [2005] ECR I-7879. ⁴¹ Case-91/05 Commission v Council (ECOWAS—Small Arms and Light Weapons) 20 May 2008, nyr, Rec 32–34 of judgment. On the interpretation of Article 47 EU more generally see P Eeckhout, External Relations of the European Union, Legal and Constitutional Foundations (2004) 147–51.

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courts on international law issues constitute another important source of EU practice. Furthermore EU statements in international organizations (Article 19 and 37 EU) may touch upon international law issues relating to second-pillar or third-pillar matters.

3. The ‘Cross-Pillar’ European Union Finally, certain international action can be attributed to the ‘cross-pillar’ European Union when a certain subject falls within Community competence, but at the same time transcends it. Traditionally, such subject-matters were then addressed by ‘the Community and its Member States’. While that possibility still exists, they could nowadays also be dealt with by the Community and the ‘second-pillar’ or ‘thirdpillar’ EU together. In that kind of situation the expression ‘European Union’ is used as the umbrella for coordinated action using two or three pillars together. For the time being it is unclear whether the ‘cross-pillar’ Union enjoys (in addition to the legal personality of the Community and the ‘second-pillar’ viz ‘third-pillar’ EU) its own legal personality. In most cases that question does not need to be resolved as the ‘cross-pillar’ EU only adopts legal acts very infrequently. (a) Legal basis Traditional mixity between the Community and its Member States was mentioned in Article 102 of the Euratom Treaty. That provision referred to agreements concluded between the European Atomic Energy Community and third States to which ‘in addition one or more Member States are parties’. Although a similar provision does not exist in the EC Treaty, even the first Association Agreements of the Community with Greece and Turkey (1961 and 1963 respectively) were concluded together with the Member States. Nowadays, Article 133(6), 2nd subparagraph EC embodies the concept of an international agreement to be concluded jointly by the Community and the Member States. Inter-pillar mixity is generally foreseen in Article 1(3) EU. In addition, Article 301 and 60 EC provide for an explicit linkage between Union and Community action. Trade and financial sanctions against third States are first decided in the CFSP framework by a common position under Article 15 EU, and then implemented by way of a Community regulation. Whilst only the Community action is formally subject to the Court’s scrutiny, the Court may also be compelled to consider the CFSP dimension of the action.⁴² (b) Tasks and goals Tasks and goals of the ‘cross-pillar’ Union are inspired by the relevant objectives of the Community and the ‘second-pillar’ or ‘third-pillar’ Union. Insofar as these coincide, as for example with regard to the promotion of democracy, the rule of law and respect for human rights, no conceptual conflicts arise. In addition, ⁴² T-228/02 OMPI [2006] ECR II-4665, Rec 45–60 and 89–113 of judgment.

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Article 2, second indent EU, calls upon the Union to ‘assert its identity on the international scene’. That objective may have a bearing on procedural issues like the need to increase the status of the European Union in other international organizations. However, due to Article 46 EU, the common provisions under Title I of the EU Treaty are not subject to judicial review. Accordingly, the Court dismissed a request for a preliminary ruling concerning the obligations of Member States under Article 2 EU as inadmissible.⁴³ (c) Categories of cross-pillar EU acts with relevance to international law ‘Cross-pillar’ action with relevance for international law includes agreements concluded by ‘the European Community and its Member States, of the one part’, or ‘by the European Community and the European Union’, like the Schengen Agreement with Switzerland. Also unilateral legal acts may spread over the pillars. This is the case for EU positions taken in the institutions established by such mixed agreements. There are, for example, numerous Council ‘decisions on the position to be adopted by the Communities in their Member states’ touching upon cross-pillar issues. For example, the EU positions with regard to the adoption of the European neighbourhood programmes setting out priorities for the countries included in the EU’s neighbourhood policy are based on a derived first-pillar legal basis and Article 15 EU alike.⁴⁴ Sometimes other important political statements are explicitly expressed in the name of the Community and its Member States as well, like recognition statements. The Barcelona Declaration on Mediterranean Partnership was made by the Council, the Commission, and each Member State.⁴⁵ Nowadays, the simple reference to the European Union in the cross-pillar sense is constant practice in particular in multilateral fora.⁴⁶

C. Internal Coordination and External Representation Because the European institutional set-up is so difficult to understand, many international partners prefer to refer to the European Union as a shortcut. ⁴³ Case C-167/94 Grau Gomis [1995] ECR I-1203, Rec 6 of the Order. ⁴⁴ See, for example, Commission proposal for a Council decision on the position to be adopted by the Communities and their Member States within the Association Council established by the Euro–Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, with regard to the adoption of a Recommendation on the implementation of the EU–Israel Action Plan, COM (2004) 790 final of 9 December 2004. The legal basis for the Council decision is Article 2(1) of the Council and Commission Decision 2000/384/EC, ECSC of 19 April 2000 on the conclusion of a Euro–Mediterranean Agreement between the European Communities and their Member States, of the one part, and Israel, of the other part, OJ [2000] L147/1 and Article 15 EU. ⁴⁵ Barcelona Declaration adopted at the Euro-Mediterranean Conference, 27–28 November 1995 . ⁴⁶ F Hoff meister and PJ Kuijper, ‘The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities’, in J Wouters, F Hoffmeister, and T Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (2006) 1, at 13.

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However, that practical approach cannot be adopted by the Community institutions themselves because the rules on internal coordination and external representation differ substantially. Hence, it is important to consider how international-law-related EU practice is actually brought about. In this respect, one should distinguish between internal coordination and external representation.

1. Community Positions (a) Establishment of Community positions Article 300(2) EC establishes the principle that the Council adopts positions with legal effects for the Community. According to the first subparagraph decisions to conclude international agreements are vested in the Council. Similarly, the Council establishes positions to be adopted on behalf of the Community in a body set up by an agreement when that body is called upon to adopt decisions having legal effects with the exception of decisions supplementing or amending the institutional framework of the agreement (Article 300(2) 2nd subparagraph EC). Depending on the subject matter, voting within the Council may require unanimity or a qualified majority. The Treaty is silent on the correct procedure for non-legally binding acts. If it were the same for all Community positions, the qualifying phrase in Article 300 (2) 2nd subparagraph EC about the binding nature of treaty body decisions would have been unnecessary. A contrario, the establishment of Community positions to be taken in a treaty body whose decisions have no legal effect for the Community is covered by the Commission’s general role to formulate positions on matters dealt within the Treaty (Article 211, 2nd indent EC). Of course, under the duty of inter-institutional cooperation as laid down in Article 10 EC, the Commission shall strive to co-ordinate such positions with the Council, wherever possible. In practice, this means that important Community positions should be discussed with the Council in advance. However, the final position is taken by the Commission itself. Sometimes that procedure is further spelt out in secondary legislation. For example, the Council decision approving the UN Straddling Stocks Convention calls upon the Commission to consult with the Council before taking action with regard to dispute settlement procedures under the Convention.⁴⁷ In the EC’s international law practice, the Commission takes decisions to initiate international proceedings against other States.⁴⁸ This is normally the case in the WTO,⁴⁹ but may also be the case in relation to other bilateral or multilateral agreements to which the Community is a party. ⁴⁷ Article 3 of Council Decision 98/414/EC of 8 June 1998, OJ [1998] L189/14. ⁴⁸ A Rosas, ‘International Dispute Settlement: EU Practices and Procedures’ (2004) 47 GYIL 284, at 317. ⁴⁹ Under Article 14 of the Trade Barrier Regulation 3286/94, OJ [1994] L349/71, the Council has given itself the right to overrule a Commission decision to initiate a WTO case against another

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(b) Representation of the Community The Community is generally represented by the European Commission, as long as the Treaty does not provide otherwise. Th is principle may be deduced from a variety of provisions. Article 300(1) EC entrusts the Commission with the negotiation of agreements—in doing so the Commission must necessarily represent the Community. Article 302 EC specifically entrusts the Commission to entertain all appropriate relations with the UN and other international organizations. Furthermore, Article 282 2nd sentence EC provides that the Commission represents the Community in legal proceedings in the Member States. The Court has recently confirmed⁵⁰ that this provision expresses the general principle that the Community has legal capacity and is, to that end, to be represented by the Commission; accordingly, the Commission may also represent the Community before the courts of third states. Finally, the Commission’s function as external representative would be codified in Article 17(1) 6th sentence TEU, as amended and renumbered by the Treaty of Lisbon: ‘With the exception of the common foreign and security policy, and other cases provided for in the Constitution, it [the Commission] shall ensure the Union’s external representation.’ In practice, this means that the Commission presents formal Community positions in bilateral or multilateral fora. For that reason the Commission maintains many delegations around the world. The Commission also puts forward the Community’s views in international disputes. For example, the Commission represents the Community before WTO panels and the Appellate Body of the WTO. It also defended the Community against the claim brought by Chile under UNCLOS (Swordfish case).⁵¹ In cases before the European Court of Human Rights (ECHR), where applicants challenge individual Member States for the implementation of European law or Member States collectively for the decision of an institution, the Commission intervenes on behalf of the Community as an observer in the proceedings. The Commission has also put amicus curiae briefs before foreign courts on international law matters linked to the exercise of Community powers. In practice, such tasks have led to an increase of expertise in international law in the Commission’s Legal Service which is entrusted with preparing and conducting European and international litigation. An exception to the role of the Commission as the Community spokesman can be found in the final stages of treaty-making. As the internal power is vested in the Council under Article 300 (2) 1st subparagraph EC to decide both about signature and conclusion of Community agreements, it can also designate the person empowered to actually sign the draft treaty or to express the Community’s consent to be bound. In practical terms, the Council often designates the acting WTO member upon request of a Community industry. However, in practice, such a case has not occurred yet. ⁵⁰ See Case C-131/03 P, Reynolds Tobacco [2006] I-7795, Rec 94 of judgment. ⁵¹ Rosas, supra n 48, at 318.

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Presidency and the Commissioner responsible for the subject matter of the agreement. Finally, representation of Community positions may also be delegated to the Member States in cases where the Community itself does not have a formal status in an international organization. Member States are then acting as quasi-agents of the Community. An original solution to overcome such status problems could be observed in a dispute before the Council of the International Civil Aviation Organization (ICAO) concerning Regulation (EC) No. 925/99 (Hushkits case).⁵² The United States brought the claim against the EU Member States collectively because only they are members of the ICAO. As the subject matter fell into Community competence, it would have been for the Commission to defend the case. Absent Community membership in the ICAO, the Community position was defended by the Member States who in turn authorized the Director-General of the Commission’s Legal Service to act as their agent ‘in his personal capacity’.⁵³

2. ‘Second- Pillar’ and ‘Third-Pillar’ EU Positions (a) Establishment of EU positions Formal CFSP positions are established according to Article 23 EU. Upon preparation in its working bodies, the Council generally decides acting unanimously (with the possibility of constructive abstention). Decisions may be adopted with qualified majority when the Council acts on the basis of a common strategy or implements a joint action or common position (Art 23(2) EU). In contrast to Community decision-making, the Commission is only ‘associated’ with that process (Article 27 EU). In CFSP matters, every Member State and the Commission may submit proposals to the Council (Art 22 EU).⁵⁴ In practice, the Council has created a number of CFSP working groups dealing with international law questions. One can mention, for example, the thematic working groups on the law of the sea, international aspects of terrorism, human rights, non-proliferation of weapons, consular protection, export control or the working groups on certain international organizations like the UN or the OSCE and the Council of Europe (CoE). External aspects of PJCCM are occasionally discussed in one of the over twenty relevant working groups in the area. General international law questions are dealt with in a separate Council working group (COJUR). As COJUR’s work is central to preparing a wide range of the EU’s international law practice, an explanation on its role is required. (b) The Council working group on public international law Under the old framework of European Political Cooperation, legal consultations took place in the ‘judicial cooperation’ working group (in criminal law or ⁵² OJ [1999] L120/47. ⁵³ (2001) 95 AJIL 411, at note 7. ⁵⁴ For more details on the inter-institutional dynamics of CFSP see Thym, ‘Die Neue Institutionelle Architektur Europäischer Außen- und Sicherheitspolitik’ (2004) 42 Archiv des Völkerrechts 44.

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civil law formation). Although that working group was focused on justice and home affairs which later became the ‘third pillar’, it occasionally addressed CFSP issues as well. In 1988, the EPC Political Committee expressed the view that the then twelve experts should have an exchange of views in the field of international law, for example on questions dealt within the UN General Assembly’s sixth Committee, ‘as the need arises on an ad hoc basis’. On that basis, the ad hoc Working Group on Public International Law has met since May 1990. It dealt with, inter alia, questions surrounding the establishment of the International Tribunal for the former Yugoslavia and the legal consequences of the dissolution of the USSR. After the entry into force of the Maastricht Treaty, the working group became permanent. From the 1995 French Presidency onwards it started to meet regularly twice per Presidency. It is nowadays composed of Member State representatives sent from the capitals, in principle by the Foreign Ministry’s Legal Adviser, plus the Commission’s and Council’s Principal Legal Advisers in the area. COJUR usually examines reservations to multilateral treaties by third States, international humanitarian law issues, and recent developments in general international law. The latter topic can include such diverse areas as international responsibility of States and international organizations, immunity, succession issues, the death penalty, diplomatic protection, etc. After the entry into force of the Rome Statute, COJUR also developed a specific interest in the International Criminal Court (ICC). In May 2002, COJUR established a sub-area (sub-group) dedicated to the ICC. It assembles specialists on international criminal law matters. They prepare a common EU approach to the items of the agenda of the Assembly of States Parties and the relevant study groups to complement the Rome Statute (eg on the elements of crime and the crime of aggression). COJUR-ICC also exchanges regular and updated information (‘fact-sheets’) on the position of all third countries on the ICC, providing the EU with all relevant data for its initiatives and démarches in the area. The outcome of COJUR’s work can be manifold. Member States may simply proceed to an exchange of information, which may have an impact on their national practice. That can be demonstrated in particular in the field of third State treaty reservations, where objections from certain Member States may induce others to follow their example. Another example may be the review of the Member State acceptance of ICJ jurisdiction. Again, the simple exchange of information may trigger a dynamic where individual Member States put a certain topic on their political agenda which could otherwise be of less priority. In some cases COJUR prepares genuinely common EU action in relation to international law matters. As well as preparing EU statements to be read out in international organizations or common positions within the meaning of Article 15 EU for the Council’s adoption, it can elaborate so-called ‘guidelines’. These inform EU policy-makers and embassies in a comprehensive way on the international law background and EU approach to a particular subject-matter. In 2005, COJUR

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acted upon a Swedish initiative to write the EU guidelines on international humanitarian law.⁵⁵ (c) Representation Under Article 18 EU, the representation of formal CFSP positions is generally entrusted to Presidency (para 1), assisted by the CFSP High Representative (para 3). The Commission is associated in the representational task of the Presidency (para 4, first sentence), which may also be assisted by the next Member State to hold the Presidency (para 4, second sentence). This complicated set-up leads to the famous ‘Troika’, which may in practice add up to a ‘Quartet’ in situations, where both the High Representative and the next Presidency are participate in a meeting next to the Presidency and the Commission. In the multilateral arena the alternative option arises that CFSP positions are also represented by each Member State. The second sentence of Article 19(1) EU calls upon them to ‘uphold common positions in international organisations and international conferences’. In practice, it may therefore happen that either only the Presidency puts forward an EU position, or that, in addition, a number of Member States intervene to support the commonly agreed line. Finally, informal elements of EU positions may be presented by each Member State and the Commission in the appropriate way in their own contacts with third States or other institutions. These rules are equally valid for PJCCM positions. Under Article 37(1) EU Member States shall uphold common positions on third-pillar matters in international organizations and conferences; the rules of representation under Articles 18 and 19 EU apply mutatis mutandis (Art 37(2) EU).

3. ‘Cross-Pillar’ Positions (a) Establishment of ‘cross-pillar’ positions Traditionally, the Community and its Member States established mixed positions for the purpose of treaty consultations. In particular, when meetings took place in the framework of a bilateral mixed agreement, the intervention of the European representative was co-ordinated in the relevant Council working group. For the Community part, the Council acted upon a proposal from the Commission, and for the Member States part, representatives of the Member States, united in the Council, decided unanimously. In practice that meant that the Council had before it a Community proposal for the entire position on which it usually marks its consent (with or without modifications). One noteworthy exception concerns sanctions under Articles 96 and 97 of the Cotonou Agreement with the

⁵⁵ European Union Guidelines on promoting compliance with international humanitarian law (IHL), OJ [2005] C-327/4.

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ACP States. In the implementing agreement, Member States agreed to adopt the Member States’ part of a ‘cross-pillar’ position by majority.⁵⁶ That system is also applied for multilateral conventions where both the Community and its Member States are a party. As the Court of Justice has emphasized, in such a situation the duty of cooperation necessitates close coordination in the implementation phase.⁵⁷ To facilitate their daily work the Commission and the Council may agree on ‘Codes of Conduct’. Such Codes would normally spell out the relevant procedure to establish positions on matters falling both within Member State and Community competence. Such a Code exists, for example, in relation to the FAO and the Codex Alimentarius.⁵⁸ The establishment of common positions of the Community and the ‘second-pillar’ or the ‘third-pillar’ EU follows the same pattern, the only difference being that (theoretically) the Council could adopt a CFSP part with the constructive abstention of one or several Member States. Nowadays, more and more policy papers, letters, and other unilateral acts are coordinated between the Commission and the Council regarding ‘cross-pillar’ issues, like democracy promotion, peace-building, or conflict management. (b) Representation of ‘cross-pillar’ positions The representation of EU positions under a mixed bilateral agreement towards the third State was usually two-fold. In the main political body, such as an Association Council, the EU position is put forward by a Minister of the State holding the Presidency. In the technical bodies, such as the Association Committees, the Commission acts as the representative of the EU at large. A difficulty may arise when it comes to dispute settlement, as there is a need to have one representative only. In the WTO, it is agreed practice that the Commission takes over this task, defending the Member States interests in GATS and TRIPS cases falling under shared competence. ‘Cross-pillar’ positions involving the first and the second (or third) pillar trigger a bicephalous representation under Article 3(2) EU. The Presidency should represent the CFSP, while the Commission covers the Community part of such a position. If only one person must speak it is for the institutions to agree on the appropriate means of representation.⁵⁹ The most important example is the UN ⁵⁶ Article 3 and Annex of the Internal agreement between the representatives of the governments of the Member States, meeting within the Council, on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement, OJ [2000] L371/367. ⁵⁷ Opinion 1/94 WTO [1994] ECR I-5267, Rec 108 of judgment. ⁵⁸ For a description of the relevant practice see JM Pedersen, ‘FAO–EU Cooperation: An Ever Stronger Partnership’ in Wouters, Hoff meister, and Ruys (eds), supra n 46, 63–92, at 82. ⁵⁹ See for example Council Common Position 2006/244/CFSP of 20 March 2006 on the participation of the European Union in the Korean Peninsula Energy Development Organization (KEDO), OJ [2006] L88/73 (not in force any longer). Recital 6 records: ‘The existing detailed arrangements for the representation of the European Union on KEDO’s Executive Board should be kept in place. In that connection, the Council and the Commission agreed that if KEDO’s

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Peacebuilding Commission, where ‘cross-pillar’ EU positions will be put forward by a de facto single delegation composed of representatives of the Commission and the Council Presidency, and assisted by the High Representative.

D. Conclusions The EU is a ‘multilayered’ international actor.⁶⁰ Based on a potentially growing set of conferred external powers, the EC’s practice may have a bearing on the development of international law, in particular in those fields where it has taken over the role that Member States have played hitherto. That shift is symbolized by exclusive Community competence and representation by the Commission rather than the Council or individual Member States. But the EU’s external practice is not limited to those classical economic, financial, commercial, and other regulatory areas. Since 1993, there is a growing importance of the EU’s CFSP and the external dimension of police and judicial cooperation in criminal matters. In these areas, relevant practice can be identified and attributed to the ‘second-pillar’ or the ‘third-pillar’ EU, working internally under the intergovernmental method and externally represented by the Presidency, assisted by the CFSP High Representative. Furthermore, some practice can also be attributed to all levels alike, either as traditional mixity between the Community and its Member States or as new inter-pillar mixity. All these categories—Community, ‘second-pillar’, ‘third-pillar’, or ‘cross-pillar’ EU practice have the common feature that they are ‘Brussels-driven’.⁶¹ More and more positions with relevance to international law are established through the institutional set-up in Brussels and carried out in bilateral dialogues and initiatives or presented in multilateral fora. These ‘executive’ positions offer a wide array of EU practice under international law. In addition, the jurisprudence of the European Court of Justice and some Community legislation may offer specific contributions to the overall development of international law, to which we now turn.

3. The EU’s Contribution to General International Law A. Sources of International Law Following the classical approach under Article 38(1)a and b of the ICJ-Statute, one may distinguish between different sources of international law. From a practical Executive Board was to address any matter falling outside Euratom’s competence, it was the Presidency of the Council which should take the floor to express a position on such matters.’ ⁶⁰ D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 83. ⁶¹ G Müller-Brandeck-Bocquet, ‘Die Europäische Union als Akteur in den Internationalen Beziehungen’ in S Kadelbach (ed), Die Außenbeziehungen der Europäischen Union (2006) 19, at 31.

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point of view, treaty law is certainly most relevant, as international law questions on treaty-making, interpretation or application frequently occur. However, before analysing the relevant practice, the significance of customary international law for the Community shall be briefly recalled for the sake of completeness.

1. Customary International Law There is no mention of the significance of customary international law in either the EU Treaty or the EC Treaty. With respect to the Community the ECJ has clarified that it is binding on the Community without any need of formal incorporation.⁶² Absent a detailed explanation for that proposition, one may assume that it came to that conclusion by reference to a general principle of Community law common to the Member States.⁶³ Customary international law must therefore be observed in the Community legal order. In particular, it enjoys precedence over secondary law. In practical terms customary international law played a particularly important role in relation to jurisdictional issues. It assisted the ECJ when drawing the Community’s maritime boundaries⁶⁴ or verifying the territorial scope of the Community’s regulatory powers in competition cases.⁶⁵ Customary international law has also been cited in relation to the obligation not to defeat the object and purpose of a treaty prior to its entry into force and the clausula rebus sic stantibus codified by Articles 18⁶⁶ and 62⁶⁷ of the Vienna Convention on the Law of Treaties (hereinafter the ‘Vienna Convention’) respectively. With respect to the second-pillar, third-pillar, or cross-pillar European Union the situation is less evident. One may deduce from the reference to the UN principles in the catalogue of CFSP objectives (Article 11(1) EU) that the Union cannot, legally, engage in actions that are in breach of them. In practice, the internal rules of engagement for EU military missions recall the legal obligations of military staff under international humanitarian law in the event that the EU becomes a party to an armed conflict.

2. Treaty Law (a) EC Practice under the Vienna Convention on the Law of Treaties As the European Economic Community was established by the conclusion of an international agreement between the six founding members in 1957, one might have expected that international law would have been the primary tool ⁶² Case C-162/96 Racke, ECJ Reports [1998] I-3688, 3704, Rec 45 of judgment. ⁶³ F Hoffmeister, ‘Die Bindung der Europäischen Gemeinschaft an das Völkergewohnheitsrecht der Verträge’ (1998) 9 Europäisches Wirtschafts- und Steuerrecht 365, at 367; W Wormuth, Die Bedeutung des Europarechts für die Entwicklung des Völkerrechts (2004), at 169. ⁶⁴ Case C-286/90 Poulsen, ECJ Reports, [1992] I-6048, Rec 9 of judgment. ⁶⁵ See below part 3C (Jurisdiction). ⁶⁶ Case T-115/94 Opel Austria [1997] ECR II-39, Rec 90 of judgment. ⁶⁷ Case C-162/96 Racke, ECJ Reports [1998] I-3688, 3704, Rec 45 et seq of judgment.

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in interpreting it. Indeed, as Article 5 of the Vienna Convention puts it, international treaty law is applicable to a treaty which is the constituent instrument of an international organization. However, that very provision also acknowledged that such application is ‘without prejudice to any relevant rules of the organisation’. From the beginning, the EC Treaty bore some special characteristics.⁶⁸ Member States conferred on the Community public powers in a wide range of areas, thereby limiting their sovereignty. Member States also endowed the Community with political institutions which are different from traditional international organizations, marked by a high degree of autonomous decision-making (Council, Commission, Parliament). In addition, the Court of Justice has exclusive competence with regard to all Community law matters (Article 292 EC).⁶⁹ Finally, secondary EC law may be directly applicable in all Member States and have to be implemented by the Member States, subject to sanctions from Community authorities. Against that background, it was not surprising that the Court of Justice found that the EC Treaty had created an autonomous legal order that was distinct from general public international law.⁷⁰ Accordingly, the Court held that many public international law principles could not apply in the relationship between Member States governed by EC law.⁷¹ For example, as early as 1964 the Court ruled that the exceptio non adempleti contractus (Article 60 of the Vienna Convention) is not acceptable inside the Community.⁷² In contrast to the rule of Article 31(3) of the Vienna Convention, the Court also denied that subsequent practice could change the interpretation of the EC Treaty.⁷³ There was also no reference to the EC Treaty’s trauvaux préparatoires. In other words, as the EC Treaty was not subject to ordinary international treaty rules, but rather interpreted from a constitutional perspective,⁷⁴ the Community isolated itself from public international law to a certain degree in its ‘early strive for autonomy’.⁷⁵ ⁶⁸ See in detail, E Paasivirta and PJ Kuijper, ‘Does One Size Fit All?: The European Community and the Responsibility of International Organizations’ (2005) 36 NYIL 169, at 174–83. ⁶⁹ Case C459/03 Commission v Ireland, judgment of 30 May 2006, not yet published. ⁷⁰ Case 26/62 Van Gend en Loos, [1963] ECR 1, at 12. ⁷¹ KM Meessen, ‘The Application of Rules of Public International Law within Community Law’ (1976) 13 CMLRev at 485–501; J Schwarze, ‘Das Allgemeine Völkerrecht in den Innergemeinschaftlichen Rechtsbeziehungen’ (1983) 18 Europarecht 1. ⁷² Cases 90/63 and 91/63 Commission v Luxemburg and Belgium [1964] ECR 1331, at 1334; confirmed in Case 232/89 Commission v France [1979] ECR 2729, Rec 9 of Judgment; Case C-5/94, Hedley Lomas [1996] ECR I-2553, Rec 20 of judgment. In the latter case, at 2560, para 27, AG Léger summarized the relevant jurisprudence with the words that ‘nothing would be more alien to Community law than the principle of retaliation or reciprocity, as it applies under classical international law’. ⁷³ Case C-327/91 France v Commission, ECR 1994, I-3641, Rec 36 of judgment; Opinion 1/94 [1994] ECR I-5267, Rec 52 and Rec 61 of judgment. ⁷⁴ PJ Kuijper, ‘The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties’ (1998) 25 Legal Issues of European Integration 1, at 10. ⁷⁵ C Timmermans, ‘The EU and Public International Law’ (1999) 4 European Foreign Affairs Review 181, at 182 et seq.

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However, the same cannot be said for the EU Treaty. That Treaty is still mainly characterized by the intergovernmental method. In particular, the practice of Member States shapes its interpretation and application to a considerable extent. For that reason, there are good reasons for the view that the EU Treaty is subject to a classical international law interpretation.⁷⁶ In particular, practice under Title V and VI may guide the interpretation according to Article 31(3)b of the Vienna Convention.⁷⁷ There are many jurisprudential statements with respect to Community agreements concluded under the EC Treaty. It is true that the Community has not so far decided to ratify the 1986 Vienna Convention on the law of treaties between States and international organizations or between international organizations. However, the reason for the abstention was not a general position against international treaty law as such, but an assessment that the specific Convention rules do not fit the Community structure.⁷⁸ For that reason the Community rather refers to the 1969 Vienna Convention although it is not formally bound by it either. However, as the Convention codifies a number of customary international law rules, there is no practical difference. Accordingly, not only the political institutions⁷⁹ but also the Court refers to the 1969 Convention, as for example in Metalsa,⁸⁰ Danisco Sugar,⁸¹ and Racke.⁸² i) Part I Interesting Community practice focuses on the definition of a treaty within the meaning of Article 2 of the Vienna Convention. As seen above, international agreements are concluded by the Council, whereas the signing of administrative arrangements or non-legally binding Memoranda of Understanding may fall within the power of the Commission. In several cases, the Court clarified that the delimitation under European law requires an analysis of the relevant document from an international law perspective. In that respect, the Court confirmed—in line with the ICJ’s jurisprudence in the Aegean Sea case⁸³—that the title of an instrument is not decisive. Rather, one has to verify whether or not binding commitments are taken⁸⁴ whose non-fulfilment would trigger the international responsibility of the Community.⁸⁵ Applying this test the Court confirmed that ⁷⁶ M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in Koskenniemi (ed), supra n 4, at 30. ⁷⁷ Eeckhout, supra n 41, at 143. ⁷⁸ P Manin, ‘The European Communities and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations’ (1987) 24 CMLRev 457–81. ⁷⁹ Kuijper, supra n 74, at 22; Rosas, supra n 48, at 287, note 17. ⁸⁰ Case C-312/91 Metalsa [1993] ECR I-3769. ⁸¹ Case C-27/96 Danisco Sugar [1997], ECR I-6653, Rec 31 of judgment. ⁸² Case C-162/96 Racke [1998] ECR I-3688, at 3704, Rec 45 of judgment. ⁸³ Aegean Sea Continental Shelf case (Greece v Turkey) [1978] ICJ Reports 3, at 40, Rec 96 of judgment. ⁸⁴ Opinion 1/75, [1975] ECR 1355, at 1359–1360. ⁸⁵ Case C-327/91 France v Commission [1994] ECR, I-3641, Rec 25 of judgment.

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the guidelines which had been negotiated between the Commission and the US government on regulatory cooperation were not intended to be binding between the two sides.⁸⁶ Community practice also offers some insights on a related theme that is outside the scope of the Convention itself, namely the treaty-making capacity of non-State entities. As is well known, in some EU Member States, federal entities enjoy such powers (eg the German and Austrian Bundesländer or the Belgian regions⁸⁷). In that respect, the Community has not refrained from concluding international agreements with non-state entities as well, as long as the entity is competent for the subject-matter of the agreement. For example, in the case of Palestine, the Community concluded a ‘Euro-Mediterranean Interim Association Agreement on trade and cooperation’ in 1997.⁸⁸ The contracting partner was ‘the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip’. The Community also concluded a readmission agreement with Hong Kong in its capacity as Special Administrative Region of the People’s Republic of China.⁸⁹ ii) Part II The provisions relating to the conclusion and entry into force of treaties did not yield particular international law controversies—the Community relies on them in its daily practice. When it concludes international agreements, the Community usually uses the two-step procedure under Articles 11 and 14 of the Vienna Convention (signature followed by formal confirmation), given that the European Parliament regularly has the right to be heard or to give its assent under Article 300(3) EC. In that respect, it is worth mentioning that the Amsterdam Treaty of 1997 amended Article 300(2) EC in order to allow the Community to declare provisional application of an agreement in line with Article 24 of the Vienna Convention. Moreover, as noted above, the Court referred to the obligation not to defeat the object and purpose of a treaty that has been signed prior to its entry into force (Article 18 of the Vienna Convention) in the Opel Austria case. In that case the Austrian applicant successfully challenged a Community decision to impose an extra customs levy in response to alleged Austrian state aid. That decision was adopted in December 1993, ie after the exchange of the instrument of ratification, but still before the entry into force of the European Economic Area Agreement in 1994. The EEA Agreement did away with the possibility to adopt such decisions between the parties. The Court accepted the applicant’s argument that the Community was bound by the principle as codified under Article 18 of the Vienna Convention. However, as it was uncertain whether an

⁸⁶ Case C-233/02 France v Commission [2004] ECR I-2759, Rec 43–44 of judgment. ⁸⁷ For a succinct account of the treaty-making powers of these entities see A Aust, Modern Treaty Law and Practice (2000), at 48 et seq. ⁸⁸ OJ [1997] L187/3. ⁸⁹ OJ [1999] L151/20.

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individual could rely directly on the principle, it finally based its reasoning on the Community principle of legitimate expectation.⁹⁰ iii) Part III There is rich Community practice in relation to Part III of the Vienna Convention. Two issues will be discussed here: domestic application and interpretation. In line with Articles 26 and 27 of the Vienna Convention the Community implements international agreements in good faith and cannot invoke domestic law as a ground for non-implementation. Under Article 300 para 7 EC, they are binding on the institutions of the Community and on Member States. The Court has deduced from early on that Community agreements form an integral part of Community law and enjoy primacy over secondary acts.⁹¹ Less evident is what the effects on Member States are. In this regard, two elements of the Community system are noteworthy. First, there is an explicit duty of Member States under Article 300(7) EC to implement Community agreements. Importantly, that duty is not of an international law character—attempts to conceptualize this Article as providing direct links between the Member States and the treaty partner of a Community agreement failed in the 1986 draft convention on the law of treaties of international organizations.⁹² Rather, Article 300(7) EC constitutes a duty of Member States under Community law with the consequence that breaches may be sanctioned through the general Community law enforcement machinery. In particular, the Commission may bring an infringement case against a Member State not properly fulfilling its duties vis-à-vis the Community under Article 226 EC. A prominent recent example is the Etang de Berre case, where France was condemned by the Court of Justice for not having implemented a mixed environmental Convention.⁹³ It is also possible for the institutions to bring annulment proceedings against each other under Article 230 EC. The European Parliament, for example, sued the Council and the Commission⁹⁴ with respect to the first-pillar EC–US Agreement on the transfer of passenger name records of 2004.⁹⁵ Second, Member States’ domestic courts may well receive guidance from the European Court of Justice in the interpretation of mixed agreements as well. For example, in Dior, the Court interpreted the TRIPS agreement (which is binding on the Community and its Member States) irrespective of the fact of whether ⁹⁰ T-115/94 Opel Austria [1997] ECR II-39, Rec 94–95 of judgment. ⁹¹ Case 181/73 Haegeman [1974] ECR 448, at 460. For an excellent summary of the relevant case law see K Lenaerts and E De Smijter, ‘The European Union as an Actor under International Law’ (1999–2000) YEL 95, at 97. ⁹² For an overview over the relevant discussions on the draft Article 36bis of the 1986 Convention see Wormuth, supra n 63, at 118–21. ⁹³ Case C-239/03 Commission v France [2004] ECR I-9325 with case note Kuijper (2005) 42 CMLRev 1491–1500. ⁹⁴ Case C-317/04 and C-318/04 European Parliament v Council and Commission, [2006] ECR I-4721. ⁹⁵ Council Decision 2004/496/EC, OJ [2004] L183/83.

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or not the particular provision fell into Community and Member States competence. The Court reasoned that this is necessary for a uniform application of the Agreement in the Community and its Member States.⁹⁶ In this way, preliminary references may also be seen as a mechanism to strengthen the domestic application of mixed agreements.⁹⁷ In contrast, these features are absent for the Union. Under Article 24(6) EU and Article 38 EU, ‘second-pillar’ and ‘third-pillar’ agreements bind the institutions of the Union. As part of the Union’s legal order, such agreements also trigger the duty of loyalty of Member States. For ‘second-pillar’ agreement this flows directly from Article 11(2) EU. A similar provision is lacking for ‘third-pillar’ agreements. However, the Court held that: it would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions . . . ⁹⁸

It appears that this reasoning may well be applied for Article 38 EU agreements as well. Accordingly, in both the second and third pillars Member States must take the steps that are necessary to implement Union agreements in their domestic legal order.⁹⁹ Community agreements have been in principle interpreted in accordance with the rules of Article 31 of the Vienna Convention; sometimes the Court even explicitly refers to them.¹⁰⁰ When determining the direct effect of a provision, the Court regularly analyses its wording, viewed in context and in light of the overall object and purpose of the Community agreement at issue. That is reflected in the well-known formula put forward ever since the Demirel case on the Association Agreement with Turkey: A provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.¹⁰¹

In addition, the Community courts have accepted that international agreements may have indirect effect on Community secondary law. Even if a particular ⁹⁶ Case C-300/98 and C-392/98 [2000] ECR I-11307, Rec 32–40 of judgment. For the limits of that approach see Case C-431/05, Merck Genericos, [2007] I-7001, Rec 29–38 of judgment. ⁹⁷ C Hermes, TRIPS im Gemeinschaftsrecht (Berlin Duncker & Humblot 2002) 102. ⁹⁸ Case C-105/03 Maria Pupino, [2005] ECR I-5285, Rec 42 of judgment. ⁹⁹ D Thym, ‘Die völkerrechtlichen Verträge der Europäischen Union’ (2006) 66 ZaöRV 863, at 905. ¹⁰⁰ Opinion 1/91 [1991] ECR I-6079, Rec 14 of judgment; C-312/91 Metalsa [1993] ECR I-3769, Rec 10 of judgment; Case C-268/99 Jany and Others [2001] ECR I-8615, Rec 35 of judgment. ¹⁰¹ Case 12/86 Demirel [1987] ECR 3719, Rec 14 of judgment.

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international law provision may not be directly applicable, there is a duty to interpret Community acts in accordance with the Community’s international commitments: The primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.¹⁰²

Certainly, the application of these two methods in particular cases may give rise to controversies, as is witnessed in particular by the debate over the interpretation of WTO law by the Community courts.¹⁰³ Nevertheless, for the purpose of this article, one may retain that the interpretation of Community treaties follows established international law methods. In one case, subsequent practice within the meaning of Article 31(3) of the Vienna Convention played a particularly interesting part. Under the EC–Cyprus Association Agreement the question arose whether Community customs authorities may recognize certificates of origin from the self-declared Turkish Republic of Northern Cyprus (TRNC). The Commission argued before the Court that the de facto recognition of these documents by most of the Member States should be an important factor when interpreting the agreement.¹⁰⁴ The Court declined to attach legal significance to that practice given that Greece had never accepted TRNC certificates, and only the United Kingdom openly confessed to having done so in the course of the proceedings. Accordingly, the Community has difficulties in establishing subsequent practice within the meaning of Article 31(3)b of the Vienna Convention in its treaty relations.¹⁰⁵ In contrast, Community practice regularly takes account of Article 33(1) of the Vienna Convention, according to which several authentic language versions have the same bearing on treaty interpretation. If the authentic languages differ substantially from each other, the object and purpose of the treaty shall be decisive under paragraph 4. In the recent Simutenkov case, the Court could have elaborated on this. The applicant, a Russian soccer professional, invoked a provision under the Community Partnership and Cooperation Agreement with Russia to challenge the so-called ‘foreigner quota’ in the Spanish second division. The English version of Article 23 of the PCA is worded as follows: Subject to the laws, conditions and procedures applicable in each Member State, the Community and its Member States shall ensure that the treatment accorded to Russian nationals, legally employed in the territory of a Member State shall be free from any ¹⁰² Case C-61/94 COM v Germany (International Dairy Agreement) [1996] ECR I-4006, Rec 52 of judgment; confirmed in Bettati, Case C-341/95 [1998] ECR I-4355, Rec 20 of judgment; Case C-76/00 P Petrotub SA v Council [2001] ECR I-79, Rec 57 of judgment. ¹⁰³ C-149–96, Portugal v Council [1999] ECR I-8395. For a recent overview of this complex see PJ Kuijper and M Bronckers, ‘WTO Law in the European Court of Justice’ (2005) 42 CMLRev 1313. ¹⁰⁴ Case C-432/92 Anastassiou [1994] ECR I-3087, Rec 42 of judgment. ¹⁰⁵ Kuijper, supra n 74, at 9.

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discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals.

Five other authentic Community languages and the Russian version were worded similarly. In contrast, the Spanish and Dutch versions used the more noncommittal expression that Member States ‘shall watch/take care that’ there is not discriminatory treatment, whereas the Greek version even went down to the ‘use of every endeavour’. Against the background that all the ten Community languages and Russian had been declared authentic under the PCA, the Court had to find a criterion which language version(s) to favour. Citing the Permanent International Court of Justice’s finding in the Mavrommatis Case,¹⁰⁶ the Commission proposed to give greater weight to English as the negotiating language: it exhibited an English negotiating document, according to which the Russian side had insisted on the specific wording ‘shall ensure’ in the text. While Advocate-General Stix-Hackl showed sympathy for that approach,¹⁰⁷ the Court simply found that Article 23(1) of the PCA contained a clear prohibition giving rise to direct effect.¹⁰⁸ The Court thereby effectively applied the negotiated text version, without, however, explaining the reasoning behind its choice. iv) Part IV With regard to Part IV of the Vienna Convention on amendments and modifications Community practice does not offer much insight. The Community can agree to simplified amendment procedures. Internally, that may be coupled with an empowerment of the Commission under Article 300(4) EC to conclude such amendments instead of the lengthy procedure involving a Council decision upon a Commission proposal and a parliamentary vote under Article 300(2) and (3) EC. For example, when the Council concluded several framework agreements with the States of the Western Balkans providing for their participation in Community programmes,¹⁰⁹ it authorized the Commission to conclude the relevant modalities agreements in the name of the Community under Article 300(4) EC. v) Part V Following Article 46(1) of the Vienna Convention, the Community has never invoked a violation of its internal law as a ground for invalidating a Community Treaty, given that a violation of internal procedures would rarely be manifest to third parties.¹¹⁰ The Court has confirmed in several cases that the ¹⁰⁶ Mavromatis Palestinian concessions, PICJ Series A, No. 2, at 19. ¹⁰⁷ Opinion of Advocate-General Stix-Hackl of 11 January 2005, Case C-265/03 Simutenkov ECR I-2579, para 27 of the Opinion. ¹⁰⁸ Case C-265/03 Simutenkov [2005] ECR I-2579, Rec 22 of judgment. ¹⁰⁹ See, for example, Council Decisions 2005/525, 2005/526, 2005/527, 2005/528 on the conclusion of Framework Agreements between the European Community and Albania, Bosnia and Hercegovina, Croatia and Serbia and Montenegro, OJ [2005] L192/78–84. ¹¹⁰ PJG Kapteyn, ‘Quelques Réflexions sur le Contrôle de la Constitutionnalité des Accords Conclus par la Communauté avec des Pays Tiers’ in GC Rodriquez Iglesias et al, Mélanges en Hommage à Ferdinand Schokweiler (1999) 275, at 283.

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use of an incorrect legal basis for concluding an international agreement under Community law voids the Council decision, but does not invalidate the treaty.¹¹¹ The same is true, if a Council decision suffers from a substantive default.¹¹² Finally, a Community agreement is not void under international law when concluded by the wrong institution. For example, when the Court found in 1994 that the EC–US competition agreement of 1991 should have been concluded by the Council rather than by the Commission,¹¹³ that judgment did not have an effect on the treaty. Following a communication from the Commission that it considered the agreement as being continuously in force,¹¹⁴ the EC and the US renegotiated the agreement. As a result, the Council and the Commission concluded the renewed agreement (with an annexed exchange of interpretative letters) in April 1995 with retroactive effect as from 1991.¹¹⁵ In contrast, when the Court found in 2006 that the Community lacked competence for the Passenger Name Record Agreement with the United States of May 2004,¹¹⁶ the only way forward was to terminate the Community agreement¹¹⁷ and to sign, in July 2007, a new third-pillar EU–US agreement under Articles 24 and 38 EU.¹¹⁸ Other grounds for suspension or termination have occasionally played a role before the Court with respect to Community agreements. In one Italian case, the referring judge asked whether a bilateral EC–Hungary wine agreement of 1993¹¹⁹ had been superseded by virtue of Article 59 of the Vienna Convention through the conclusion by both Hungary and the Community of the WTO TRIPS Agreement in 1995. Since the Court did not find a conflict between the two, it did not have to respond to that question.¹²⁰ In a case concerning the EC–India cooperation agreement, the Court confirmed that the so-called ‘human rights’ clause, according to which the respect for human rights constitutes an essential element of the agreement, empowers the Community to suspend the agreement in accordance with Article 60 of the Vienna Convention.¹²¹ The same reasoning could nowadays be applied with respect to the non-proliferation clause, which is equally framed as constituting an essential element of the respective treaty. ¹¹¹ Case 165/87 Commission v Council, International Convention on the Harmonised System [1988] ECR 5545; Case C-360/93 Parliament v Council, Public Procurement [1996] ECR I-11951. ¹¹² Case C-122/95 Germany v Council [1998] ECR I-973. ¹¹³ Case C-327/91 France v Commission [1994] ECR I-3641. ¹¹⁴ Communication of the Commission to the Council COM (94) 430, at 3, point 2. ¹¹⁵ Decision of the Council and the Commission of 10 April 1995 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, OJ [1995] L95/45–46. ¹¹⁶ Case C-317/04 Parliament v Council and Commission [2006] ECR I-4721. ¹¹⁷ See Council notice concerning the denunciation of the Agreement between the European Community and the United States of America 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, OJ [2006] C219/1. ¹¹⁸ Council Decision 2007/551/CFSP/JHA of 23 July 2007, OJ [2007] L204/16. ¹¹⁹ OJ [1993] L337/93. ¹²⁰ Case C-347/03 ERSA [2005] ECR I-3785, Rec 116 of judgment. ¹²¹ Case C-268/94 Portugal v Council [1996] ECR I-6177, Rec 26–27 of judgment.

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Finally, the Court accepted that the Council had not overstepped its wide margin of appreciation under Article 62 of the Vienna Convention when it suspended and later terminated the EC–Yugoslav agreement in view of the ongoing war between the successor states.¹²² References to the procedural provisions of Part V are usually sparse in international practice as they lack a customary law foundation. Against that background it is interesting to note that the Court of First Instance recently referred to Articles 65 and 67 of the Vienna Convention for the proposition that a party is obliged to notify the other parties of its intention to withdraw from an international agreement.¹²³ As Greece had not done so with respect to an arrangement it had concluded with other Member States and the Community on the common construction of facilities for their respective representations in Abuja (Nigeria), but rather conducted itself as a full participant in the project, the Court dismissed the Greek action against a Commission decision offsetting the relevant debts under the Community’s financial regulation. (b) International law aspects of ‘mixed agreements’ A different category of questions arises when both the Community and its Member States are party to an international agreement. That was frequently the case, when a bilateral agreement with a third State was concluded by the ‘Community and its Member States of the one hand’ and the third State ‘of the other hand’. The mixed nature of these agreements can be triggered in different situations:¹²⁴ either the agreement covers a policy field where the Community is not competent at all (not even ancillary); or the Community could exercise a part of its shared competence by concluding a pure Community agreement, but the Council declines to do so because Member States prefer to conclude a mixed agreement. A mixed situation can, however, also occur in the multilateral arena, when both the Community and its Member States become parties to the same Convention. Whereas this phenomenon has already given rise to much academic debate which can hardly be summarized here,¹²⁵ a few comments on two current controversies may be warranted. i) International responsibility From an international law point of view the question arises as to which entity may be liable for the non-implementation of an agreement to which both the EC and its Member States are parties. With respect to the plurality of States, Article 47(1) of the ILC Articles on State Responsibility ¹²² Case C-162/96 Racke [1998] ECR I-3688. ¹²³ Case T-231/04, Hellenic Republic v Commission [2007] ECR II-63 (pending on appeal C-203/07 with conclusions of the AG Mazák of 8 May 2008). ¹²⁴ For practical examples of the different categories of mixed agreements see Rosas, ‘Mixed Union—Mixed Agreements’ in Koskenniemi (ed), supra n 4, at 128 et seq. ¹²⁵ For a comprehensive analysis see J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States (2001).

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states: ‘Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked to that act.’¹²⁶ In its commentary, the ILC takes note of the EU practice related to mixed agreements. It emphasizes that the rule neither recognizes a general rule of joint and several responsibility, nor excludes that several States may be responsible for the same act. For the ILC, that depends on the circumstances and the international obligation.¹²⁷ Indeed, in a bilateral context, the mixed agreement may contain a clause, setting out or suggesting separate responsibility for different parts of the agreement. That is the case in most association agreements and related mixed agreements. For example, Article 104 of the EC–Russia Partnership and Cooperation Agreement provides that ‘the term Parties shall mean the Community, or its Member States, or the Community and its Member States, in accordance with their respective powers, of the one part, and Russia of the other part’. In that situation, non-implementation of a section relating to Community competence may only be attributed to the Community. In return, non-implementation of a section relating to Member States’ competences triggers the liability of the Member State concerned. It is only for the non-implementation of a section relating to shared competence that both the Community and its Member States could be liable. If, however, the bilateral mixed agreement is silent about these issues, the contracting party may bring its claims for any violation of the agreement against both the Community and the Member State alike.¹²⁸ In a multilateral context, there may also be special regimes covering the liability of the Community and its Member States. The most prominent examples are Article 6(2) of Annex IX of UNCLOS 1982 and Article 4(5) of the Kyoto Protocol 1999. Absent such specific treaty provisions, the Community’s declaration of competence, notified to the other contracting parties at the time of ratification, may have repercussions on the respective responsibility. If a breach of the Convention would fall into a field that is designated as Community competence in that declaration, the Community would have to bear its consequences, whereas other breaches would be attributable to the Member States only. A subsidiary liability of the Member States for possible international law breaches of the Community would seem to be excluded.¹²⁹ Absent such a declaration of competence, like for example in the WTO, the Community may face a situation where it is internationally responsible for the proper implementation of all the covered agreements.¹³⁰

¹²⁶ GA Res 56/83, 28 January 2002, Annex. ¹²⁷ ILC Report, A/56/10, 317. ¹²⁸ Case C-316/91 Parliament v Council [1994] ECR I-625, Rec 29 of judgment. ¹²⁹ See J Nolte, Die völkerrechtliche Vertragspraxis der EG und die Haftung der Mitgliedstaaten am Beispiel der Fischereipolitik (2004), at 103–88. ¹³⁰ For a discussion of this question see Cremona, supra n 17, at 344–46 with further references.

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ii) Disconnection clauses and statements A related issue is so-called ‘disconnection clauses’, which have recently attracted the ILC’s attention¹³¹ and triggered some critical commentary.¹³² Different models of such disconnection clauses have evolved in the Council of Europe framework. If a Convention establishes minimum rules of substantial protection, a general disconnection clause may allow higher domestic law standards to be applied. That has been the technique in Convention ETS 33 (1960) on the temporary importation, free of duty, of medical equipment¹³³ and in Convention ETS 176 (2000) on European landscape.¹³⁴ Sometimes, a Convention establishes minimum rules of procedural cooperation between the parties. In such a case, another general disconnection clause does not prejudge cooperation in the same subject-matter on the basis of other international agreements. Examples of this technique can be found in Convention ETS 112 (1983) on the transfer of sentenced persons,¹³⁵ in Convention ETS 127 (1998) on mutual administrative assistance in tax matters,¹³⁶ or in Convention ETS 156 (1995) on Illicit Traffic by Sea implementing Article 17 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.¹³⁷ A third general disconnection clause allows certain countries to rely on their already established uniform legislation or special treaty arrangements, in order to achieve the object of a Convention. That has been accepted in Convention ETS 30 (1959) ¹³¹ See the Report of the ILC Study Group: ‘Fragmentation of international law: Difficulties arising from the diversification and expansion of international law’, A/CN.4/L.682, paras 219 and 289–94. ¹³² CP Economidès and AG Kolliopoulos, ‘La Clause de Déconnexion en faveur du Droit Communautaire: une Pratique Critiquable’ (2006) 110 RGDIP 273. ¹³³ The Community was allowed to become a party to that Convention in 1983 (see the participation clause in the Additional Protocol, ETS 110). The disconnection clause in Article 4 reads: ‘The provisions of this Agreement shall not prejudice more favourable provisions for the temporary importation of the equipment referred to in Article 1, contained in the laws or regulations of any Contracting Party or in any convention, treaty or agreement in force between two or more Contracting Parties.’ ¹³⁴ The Community can become a party upon invitation by the Committee of Ministers of the Council of Europe (Article 14). The disconnection clause in Article 12 reads: ‘The provisions of this Convention shall not prejudice stricter provisions concerning landscape protection, management and planning contained in other existing or future binding national or international instruments.’ ¹³⁵ Article 22(2) of that Convention reads: ‘If two or more Parties have already concluded an agreement or treaty on the transfer of sentenced persons or otherwise have established their relations in this matter, or should they in future do so, they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention.’ ¹³⁶ The Community cannot become a party to this Convention. The disconnection clause in Art 27 reads: ‘The possibilities of assistance provided by this Convention do not limit, nor are they limited by, those contained in existing or future international agreements or other arrangements between the Parties concerned or other instruments which relate to co-operation in tax matters.’ ¹³⁷ Article 30(3) of that Convention reads: ‘If two or more Parties have already concluded an agreement or treaty in respect of a subject dealt with in this Agreement or have otherwise established their relations in respect of that subject, they may agree to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Agreement, if it facilitates international co-operation.’

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on mutual assistance in criminal matters,¹³⁸ in Convention ETS 52 (1964) on the Punishment of Road Traffic Offences,¹³⁹ or in Convention ETS 117 (1985) on Offences relating to cultural property.¹⁴⁰ There are also more specific EC disconnection clauses. They exclude intra EC relationships from the scope of the Convention insofar as there are EC rules on the same subject-matter. The model was drafted by the CoE Secretariat and used in many Conventions. It reads: In their mutual relations, Parties which are members of the European Economic Community shall apply Community rules and shall therefore not apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.

This clause can be found in a number of CoE Conventions since 1989.¹⁴¹ More recent examples include the Convention ETS No. 183 on the Protection of Audiovisual Heritage¹⁴² and the Convention No. 192 (2003) on contact with children.¹⁴³ These clauses had originally been introduced into Council of Europe Conventions by the EU Member States to put other parties on notice that they had concluded between themselves (further-reaching) EC instruments on the same subject or could be expected to do so in the near future. Since in most cases the relevant conventions did not provide for the accession of the EC itself, the clause enabled the Member States to become parties to the convention without ¹³⁸ Article 26(4) of that Convention reads: ‘Where, as between two or more Contracting Parties, mutual assistance in criminal matters is practised on the basis of uniform legislation or of a special system providing for the reciprocal application in their respective territories of measures of mutual assistance, these Parties shall, notwithstanding the provisions of this Convention, be free to regulate their mutual relations in this field exclusively in accordance with such legislation or system. Contracting Parties which, in accordance with this paragraph, exclude as between themselves the application of this Convention shall notify the Secretary General of the Council of Europe accordingly.’ A practical identical provision can be found in Article 37 of Convention ETS No. 51 (1964) on the Supervision of Conditionally Sentenced or Conditionally Released Offenders; in Art 64 of Convention ETS No. 70 (1970) on the International Validity of Criminal Judgments; in Art 43 of Convention ETS No. 73 (1972) on the transfer of proceedings in criminal matters. ¹³⁹ Article 27 (1) of that Convention reads: ‘If two or more Contracting Parties establish their relations on the basis of uniform legislation or on special arrangements for reciprocity, they shall have the option of regulating their mutual relations in the matter solely on the basis of such systems, notwithstanding the provisions of the present Convention.’ ¹⁴⁰ Article 34(3) of that Convention reads: ‘However, if two or more Parties have already established their relations in this matter on the basis of uniform legislation, or instituted a special system of their own, or should they in the future do so, they shall be entitled to regulate those relations accordingly, notwithstanding the terms of this Convention.’ ¹⁴¹ Article 16bis(2) added to the Convention ETS No. 130/133 (1989) on insider trading; by the Protocol; Art 27(1) of the Convention ETS No. 132 (1989) on trans-frontier television; Art 38(2) of the Convention ETS No. 136 (1990) on certain aspects of bankruptcy; Art 2(2) of the Convention ETS 150 (1993) on civil liability for damage resulting from activities dangerous to the environment; Art 9(1) of the Convention ETS No. 153 (1994) on copyrights in the framework of trans-frontier broadcasting by satellite; Article 19(2) of the Convention ETS No. 175 (2000) on the promotion of a trans-national long-term voluntary service for young people; Article 11(4) of the Convention ETS No. 178 (2001) on the legal protection of services based on, or consisting of conditional access. ¹⁴² Article 21 of the Convention. ¹⁴³ Article 20(3) of the Convention.

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infringing EC law or hindering Community legislative autonomy. Without a disconnection clause, the Member States would be bound via Article 26 of the Vienna Convention to apply Convention law instead of Community law. Such international commitments by Member States could jeopardize the integrity and development of Community law in the area covered by the Convention.¹⁴⁴ Therefore, a disconnection clause made clear in the international Convention itself that, as between Member States, Community law would apply rather than the law of the multilateral Convention in line with Article 30(2) of the Vienna Convention.¹⁴⁵ In analogy to Article 30(4) of the Vienna Convention, these disconnection clauses may also safeguard the development of future Community law (as the applicable law between Member States) without impairing the rights of other contracting states, as far as such future modifications are in line with the object and purpose of the Council of Europe Convention.¹⁴⁶ Newer formulations of the disconnection clause in Council of Europe Conventions take account of this analysis. Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.¹⁴⁷

However, it may be questioned whether it is necessary to insist on a disconnection clause when the Community is allowed to become a party alongside its Member States. As a party to the Convention, the Community itself is bound by it and it can certainly not escape from its own obligations.¹⁴⁸ In such a situation, it does not make much sense to stipulate that Member States will apply Community law as between themselves rather than the law of the Convention. Rather, it follows directly from the mixed ratification of the Convention that the Community will implement, through Community law, those parts of the Convention that relate to its competence, whereas the other parts are applied by the Member States ¹⁴⁴ Compare Case C-222/94 Commission v United Kingdom [1996] ECR I-4025, Rec 52–53 of judgment. In that infringement case the Commission claimed that the UK had not properly implemented Council Directive 89/552 (‘television sans frontiers’). The UK defence relied, inter alia, on the Council of Europe Convention of 1989. The Court rejected that argument by pointing to the disconnection clause in Art 27 of the Convention. ¹⁴⁵ ILC Fragmentation Study, supra n 131, para 292. ¹⁴⁶ ILC Fragmentation Study, supra n 131, paras 293–94. ¹⁴⁷ Article 26(3) of the Prevention of Terrorism Convention; Art 40(3) of the Trafficking in Human Beings Convention; Art 52(4) of the Financing of Terrorism Convention (ETS No. 196–98). ¹⁴⁸ In contrast, Economidès and Kolliopoulus, supra n 132, at 279 and 288 consider that the Community itself could escape from treaty obligations through the operation of the disconnection clause. That overlooks the crucial fact that the clause allows ‘Member States’ to apply Community law in their mutual relations. Once the Community becomes a party to a Convention, it is bound by the Convention and cannot invoke Community law as a justification not to implement the Convention rules under Art 27 of the Vienna Convention.

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themselves through national law. If there is a conflict between Convention law and Community law, secondary Community law has to abide by Convention law. Accordingly, a disconnection clause to protect the status and future development of Community law in the text of the Convention does not seem to be strictly necessary. The same legal result can be deduced from the mixed ratification of the Convention and may be confirmed through a declaratory statement to that effect. This technique was used with regard to the UN Convention on Cultural Diversity, where the Community made a ‘disconnection’ declaration upon ratification, using the (only) precedent so far, namely a similar declaration made by the Community with respect to the Espoo Convention.¹⁴⁹ The statement reads: As regards Community competences described in the Declaration pursuant to Article 27(3)(c) of the Convention, the Community is bound by the Convention and will ensure its due implementation. It follows that the Member States of the Community which are party to the Convention in their mutual relations apply the provision of the Convention in accordance with the Community’s internal rules and without prejudice to appropriate amendments being made to these rules’.¹⁵⁰

(c) EU practice as regards reservations of third States Following the long-standing practice of the Council of Europe Ad Hoc Committee of Legal Advisors (CAHDI), COJUR members regularly review reservations from non-EU Member States to multilateral Conventions. Countries who have traditionally taken on the role of a ‘watchdog’ for the integrity of, in particular, human rights treaties, use this exchange of information to encourage partners to follow their example and to make objections against certain categories of reservations. For example, EU Member States often share the same assessment as to the incompatibility of • general reservations (not made with respect to specific Convention provisions); • domestic or religious law reservations (providing for implementation of the Convention in line with domestic or religious law); • political reservations (providing for implementation of the Convention in line with a certain political doctrine); with the object and purpose of an international Convention under Article 19(c) of the Vienna Convention. ¹⁴⁹ As regards the Espoo Convention on transboundary environmental impact assessment, ratified by the Community in 1997, the following declaration was made (alongside the usual declaration on competences under Article 17(5) of that Convention): ‘2. Declaration on other aspects of the application of the Convention: ‘The European Community reiterates its statement presented at the signature of the Convention. In fact, it is understood that the Community Member States, in their mutual relations, will apply the Convention in accordance with the Community’s internal rules, including those of the EURATOM Treaty, and without prejudice to appropriate amendments made to those rules.’ ¹⁵⁰ Council Decision 2006/515/EC, OJ [2006] L 201/15, Annex II, trait d’union.

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This ‘observatory system’ in COJUR has the important consequence that the number of objecting States is on the rise. While, traditionally, only a few States such as the UK, France, Germany, the Netherlands, and the Scandinavian countries used to regularly object to such reservations, more and more EU Member States are following suit. This is the case, for example, for the southern EU Member States and, more recently, several of the twelve new Member States, such as, for example, Estonia, the Czech Republic, Poland, and Romania. In some politically sensitive cases, like the Turkish reservation to the International Covenant on Civil and Political Rights (ICCPR), it seems essential for smaller States to know that more EU Member States will assume the role of an international ‘watchdog’. However, EU coordination with respect to reservations also has its limits. Whereas the Presidency has been asked on several occasions to seek clarification from the reserving State about the meaning and scope of its reservation, it was never entrusted to make an objection on behalf of all EU Parties to the Convention. COJUR has not been able to agree on a ‘model reservation’ which could be used as a blueprint for national objections. That is partly due to the fact that there is a historical disagreement between Member States as to the legal consequences of an objection. Following the reasoning of the European Court of Human Rights in Belilos with respect to the European Convention on Human rights¹⁵¹ and the respective view of the Human Rights Committee in relation to the International Covenant on Civil and Political Rights¹⁵² a considerable number of the old fifteen EU Member States take the view that an inadmissible reservation is void; a survey from 1998 counted among them Belgium, Denmark, Finland, Ireland, Portugal, and Sweden.¹⁵³ However, others, such as the United Kingdom and France, have criticized the general comment of the Human Rights Committee as being incompatible with traditional treaty law.¹⁵⁴ In addition, for a long time the United Kingdom maintained the traditional position¹⁵⁵ that a Convention will not enter into force at all between the reserving and the objecting State due to a lack of corresponding will.¹⁵⁶

¹⁵¹ Belilos v Switzerland ECHR (1988) Series A, No. 132, at 28, para 60. ¹⁵² Human Rights Committee, General Comment No. 24, CCPR/C/21/Rev. 1/Add. 6, 11 November 1994, at 7, para 18. ¹⁵³ B Simma, ‘Reservations to Human Rights Treaties—Some Recent Developments’, in G Hafner et al, Festschrift Seidl-Hohenveldern (1998) 659, at 666, note 19. ¹⁵⁴ Observations by the United Kingdom on General Comment 24, reprinted in CM Chinkin, JP Gardner, R Higgins (eds), Human Rights as General Norms and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions (1997), at 197–98; Observations by France on General Comment 24, ibid, at 204. ¹⁵⁵ R Kühner, Vorbehalte zu Multilateralen Völkerrechtlichen Verträgen (1986), at 221–22 with further references. ¹⁵⁶ Aust, supra n 87, at 118. For a lucid critique of this position see J Borek, ‘Book Review’ (2001) 95 AJIL 468, at 470.

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Against that background, it is interesting to review recent practice as emerging from relevant exchanges in COJUR. When one compares, for example, the objections made between 2006 and 2007 by EU Member States to certain Sharia reservations from Oman to the Convention on the Elimination of all Discrimination Against Women (CEDAW), the following picture arises:¹⁵⁷ Austria, the Czech Republic, Denmark, Estonia, Finland, Greece, Latvia, Romania, Slovakia, and Sweden emphasize that their objection does not preclude the entry into force of the convention in its entirety without the reserving State benefiting from the reservation. In addition, some of the mentioned Member States ask the reserving State to reconsider its reservation. In contrast, when France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, Portugal, Spain, and the United Kingdom objected to the same reservations as being incompatible with the object and purpose of a Convention these Member States considered that their objection does not preclude the entry into force of the Convention between the reserving State and themselves. Unlike the Member States of the first group they do not specify whether the reserving State may benefit from its inadmissible reservation or not. This review seems to reveal two tendencies. First, there is overall agreement between EU Member States that an inadmissible reservation cannot preclude the entry into force of the Convention between the reserving and the objecting State. With the United Kingdom having accepted that position as well, European States generally prefer that a Convention is binding on the reserving State over ‘loosing’ the reserving State as a Party to the Convention. Second, EU Member States remain split with respect to the question whether an inadmissible reservation is void or not. However, the group of those who reject reservations as being invalid is growing: for example, Latvia and Romania, which had objected to the comparable Sharia reservations to CEDAW of the United Arab Emirates in 2005 and Syria in 2003, respectively, without specifying its consequence (and which therefore formed part of the second group at that time), have now joined the first group. That tendency again is of a larger significance, as the position to treat objectionable reservations to treaties as being void can be understood as recognition of the paramount importance of ordre public in public international law.¹⁵⁸

B. Subjects of International Law 1. Recognition of States Although recognition of States has traditionally been used as a matter of every state’s foreign policy, the subject matter is also apt for coordination at EU level. ¹⁵⁷ UN Treaty Office, Status of Multilateral Treaties as of 1 January 2007. (entries on the CEDAW). ¹⁵⁸ JA Frowein, ‘Reservations and the International Ordre Public’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century—Essays in Honour of Krysztof Skubiszewski (1996) 403, at 411.

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Nowadays EU partners usually consult each other on this question and may even agree on a common position. Three major cases will be examined: Cyprus, the former Soviet Union, and the former Yugoslavia. (a) Cyprus After the proclamation of independence of the self-declared Turkish Republic of Northern Cyprus (TRNC) on 15 November 1983, the UN Security Council called upon all States not to recognize this entity.¹⁵⁹ The Security Council opined that secession was outlawed by the 1960 Treaty of Guarantee, binding on Cyprus, Turkey, Greece, and the United Kingdom. While this resolution remains relevant today, it is less known that the then ten Member States made a similar declaration under the framework of the European Political Cooperation, reaffirming the sovereignty of the Republic of Cyprus.¹⁶⁰ On the same day, the European Community, represented by the Commission, regretted the proclamation and did not recognize it as valid under international law.¹⁶¹ That was the first instance in which the Community took a position on a recognition issue next to its Member States.¹⁶² When the Republic of Cyprus became an EU Member in 2004, the legal status of the northern part of Cyprus again came to the fore. The EU had to take account of the situation that the Republic of Cyprus is the only de jure recognized State on the island, and the de facto situation that the Turkish Cypriot community has organized a separate political system in the northern part of the island. Under Article 1 of Protocol 10 to Accession Treaty,¹⁶³ the application of the acquis communautaire is suspended in those areas of Cyprus where the Government of Cyprus does not exercise effective control. That formula indicates that European law would have normally been applicable throughout Cyprus by the accession of the Republic of Cyprus, but that this application is temporarily suspended in view of the de facto situation.¹⁶⁴ On the basis of this legal premise, the EU may also engage with the Turkish Cypriot community without recognizing the TRNC as a state. Article 3 of Protocol 10 to the Accession Treaty expressly stipulates that nothing in the Protocol shall preclude measures with a view to promoting the economic development of the areas. Indeed, under the 2006 direct aid regulation adopted under Article 308 EC, the Community provides financial assistance to facilitate the reunification of Cyprus by encouraging the economic development of the Turkish Cypriot community with particular emphasis on the economic integration of the island, on improving contacts between the two communities and with ¹⁵⁹ SC Res. 541 (1983). ¹⁶⁰ European Council, Declaration of 16 November 1983, EC Bulletin-11–1983, 2.4.1. ¹⁶¹ J Groux and P Manin, Die Europäischen Gemeinschaften in der Völkerrechtsordnung (1984), at 27. ¹⁶² Talmon, supra n 28, at 70. ¹⁶³ OJ [2003], L236/955. ¹⁶⁴ For an interpretation of the suspension clause see F Hoff meister, Legal Aspects of the Cyprus Problem—Annan Plan and EU Accession (2006), at 207–14.

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the EU, and on preparation of the Turkish Cypriot community for the acquis communautaire. That support does not amount to recognition of any public body other than the Government of Cyprus, as two explicit references in the regulation confirm.¹⁶⁵ (b) The former Soviet Union When the former Soviet Union collapsed in December 1991, the Community and its Member States adopted a set of ‘recognition guidelines’ for the successor States. They required in particular • respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; • guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; • respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; • acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; • commitment to settle by agreement, including where appropriate by recourse to arbitration, all question concerning state succession and regional disputes.

The Community and its Member States also underlined that they ‘will not recognise entities which are the result of aggression’ and that they would ‘take account of the effects of recognition on neighbouring states’.¹⁶⁶ From an international law point of view, this declaration is remarkable for a number of reasons. First, it departed from the well-established practice that recognition of States is only declaratory of the fact that a certain entity fulfils the objective criteria of Statehood (territory, population, independent government).¹⁶⁷ The recognition guidelines expressly provide for additional substantive elements relating to the internal political system and the effect on neighbours; they thereby introduced a legitimacy element into the instrument of recognition.¹⁶⁸ Second, the guidelines incorporate OSCE documents as reference points, thereby giving those commitments an importance that may not have been foreseen when leaders put their signature to such political declarations. Third, the guidelines go further than the customary law rule on non-recognition of territorial acquisition

¹⁶⁵ Preamble, Recital No. 10 and Art 1(3) of Council Regulation (EC) 389/2006, OJ [2006] L65/5. ¹⁶⁶ Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (1992) 31 ILM, at 1486. ¹⁶⁷ Article 1a–c of the 1933 Montevideo Convention on the Rights and Duties of States. ¹⁶⁸ JA Frowein, ‘The Contribution of the European Union to Public International Law’ in A von Bogdandy, P Mavroides, Y Mény, European Integration and International Co-ordination, Studies in Honour of Claus-Dieter Ehlermann (2002) 171, at 172.

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resulting from aggression.¹⁶⁹ While the former would only prohibit annexation of land by an occupying power, the guidelines would also impede the recognition of a new entity (claiming independent Statehood) resulting from aggression. In practice, all members of the Commonwealth of Independent States committed themselves to the guidelines by 15 January 1992. Hence, the guidelines served as a basis for the recognition of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, the Kyrgyz Republic, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. The Russian Federation is the continuation of the Soviet Union. The Community and its Member States have concluded Partnership and Cooperation Agreements with most of these new states. In contrast, the secessionist entities of Naghorny-Karabach and Transniestria have not been recognized by the Community and its Member States. (c) The former Socialist Federal Republic of Yugoslavia Faced with the first phase of the break-up of the Socialist Federal Republic of Yugoslavia (SFRY) in 1990/1991, the EU was split on how to deal with the Republics of Slovenia and Croatia. After a long period of political disagreement, the then twelve Member States finally agreed to subject each of the successor States to the same objective criteria for recognition. In another declaration of 16 December 1991, the Community and its Member States agreed to recognize the independence of all Yugoslav Republics, again on the condition that they fulfil the above-mentioned criteria of the recognition guidelines.¹⁷⁰ In addition, the declaration in relation to Yugoslavia also provided the opportunity to deploy an innovative procedural technique.¹⁷¹ The Community and its Member States invited all Yugoslav Republics to state whether they wished to be recognized as independent States. Their ‘applications’ were to be submitted to the ‘Arbitration Commission’ for advice. That Commission was, on the one hand, not an ‘arbitration’ tribunal in the legal sense. There was no dispute which the Yugoslav parties could have submitted to arbitration for a legally binding decision. On the other hand, the Commission was composed of constitutional judges (not, strangely, international lawyers) from EU member States,¹⁷² advising the ¹⁶⁹ GA Res. 2625 (XXV), 24 October 1970, Section I, para 10: ‘No territorial acquisition resulting from the threat or use of force shall be recognized as legal’; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004), 136, at para 87. ¹⁷⁰ Declaration on Yugoslavia, 31 ILM (1992), 1485. ¹⁷¹ See Charpentier, ‘Les Déclarations des Douze sur la Reconnaissance des Nouveaux Etats’ (1992) 96 RGDIP 343; D. Türk, ‘Recognition of States: A Comment’ (1993) 4 EJIL 66. ¹⁷² The EC and its Member States had appointed the President of the French Conseil Constitutionnel, the President of the German Federal Constitutional Court and the President of the Italian Constitutional Court. Two more members should have been appointed by the Yugoslav Federal Presidency. As this body did not agree on the appointment, the three members of the Commission chosen by the EC appointed two other members, namely the President of the Spanish Constitutional Court and the President of the Belgian Conflicts Court (Cour d’Arbitrage). See M Ragazzi, ‘Conference, on Yugoslavia Arbitration Commission, Opinions on Questions arising from the Dissolution of Yugoslavia’ (1992) 31 ILM 1488.

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‘Conference on Yugoslavia’ on the basis of international law after hearing the Yugoslav parties. This body could therefore been seen as giving some sort of legal advice for responding to the legal elements arising from the application of the recognition guidelines, while leaving it for the political institutions to finally decide on the recognition of individual states. Interestingly, the Commission not only considered the individual applications for recognition from Bosnia-Hercegovina (Opinion No. 4), Croatia (No. 5), the former Yugoslav Republic of Macedonia (No. 6) and Slovenia (No. 7). It also made observations with respect to certain controversial issues under general international law. In this respect, Opinions No. 2, 3 and 10 merit some attention. In its second opinion, the Commission tackled the question of whether the Serbian people in Croatia and Bosnia-Herzegovina had the right to self-determination. The Commission responded in the negative. However, in its view, the Serbian people enjoy the rights of a minority and an ethnic group under—‘now peremptory’—norms of international law.¹⁷³ That seems to be a rare case where minority rights protection has been designated as ius cogens. Going even one step further in Opinion No. 10, the Commission found that the violation of the rights of ethnic, religious, or ethnic minorities would trigger an obligation on States under international law not to recognize such an entity as a state. Clearly, that obligation had previously not been identified as flowing from customary international law.¹⁷⁴ In opinion No. 3 the Commission found that the administrative boundaries between the Yugoslav Republics could be regarded as international boundaries after the dissolution of the Federation. It argued that this would flow from the principle of respect for the territorial status quo and the principle of uti-possidetis.¹⁷⁵ This statement is surprising insofar as the uti-possidetis principle had only been applied in the post-colonial context. Former colonial boundaries should not be touched after the exercise of self-determination by the colonized people. Whether the same legal force could be given to administrative boundaries in a federal State that may have undergone several changes for either political or technical reasons is, however, open to question. The affirmation that ‘frontiers would remain unchanged’¹⁷⁶ in a situation of self-determination under all circumstances may be wise from a political perspective as it underpinned the chances for a peaceful resolution;¹⁷⁷ whether it reflects a legally binding rule would need some more widespread practice. ¹⁷³ Arbitration Commission, Opinion No. 2, para 2, 31 ILM (1992) 1497, at 1498. ¹⁷⁴ MCR Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 BYIL 333, at 363. ¹⁷⁵ Arbitration Commission, Opinion No. 3, para 3 (1992) ILM 1499, at 1500. ¹⁷⁶ A Pellet, ‘The Opinions of the Badinter Arbitration Committee—A Second Breath for the Self-determination of Peoples’ (1992) 3 EJIL 178, at 180. ¹⁷⁷ JA Frowein, ‘Self-Determination as a Limit to Obligations under International Law’ in C. Tomuschat (ed), Modern Law of Self-Determination (1993) 211, at 216.

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2. State Territory and the Right to Self-determination In some of its external relations, the need arises for the EU to clarify its position with regard to the territorial reach of another State. A partner State may exercise territorial control over certain territorial parts that are at the same time subject to a claim of self-determination of another people. This complex plays a practical role in particular with regard to Israel/Palestine and Morocco/Western Sahara. (a) Israel and the Palestinian Territories Since the Venice Declaration of the Nine in 1980, the EU bases its position on the Middle East Conflict on UN Security Council resolutions 242 and 338; it also affirms the right to self-determination of the Palestinian people. That entails a prohibition on Israel to annex parts of the occupied territories. In its Conclusions of the March 2004 summit, the Presidency stated that: The European Council renewed its commitment to a negotiated agreement resulting in two viable, sovereign and independent states, Israel and Palestine, based on the borders of 1967, living side by side in peace and security, in the framework of a comprehensive peace in the Middle East. The European Union will not recognize any change to the pre-1967 borders other than those arrived at by agreement between the parties (emphasis added).¹⁷⁸

After the International Court of Justice had rendered its opinion on the Wall,¹⁷⁹ the EU called upon Israel to dismantle the Wall on the basis that it contravened international law.¹⁸⁰ The legal position of the occupied territories also has bearing on first-pillar practice. According to its Article 83, the EU–Israel Euro–Mediterranean Agreement¹⁸¹ applies to the ‘territory of the State of Israel’. As a free trade area is established between the Community and Israel, only products of Israeli origin may benefit from trade privileges. In that context, Community customs authorities had repeatedly discovered that goods from the occupied territories had been declared as coming from Israel. The Community rejected these certificates, as the West Bank and the Gaza strip are not part of Israel and informed importers that they could be liable for customs duties for products obtained in those areas.¹⁸² In 2004, the parties agreed that Israel would identify the exact origin of the goods so as to avoid the use of certificates of origin on goods coming from the Palestinian territories. That arrangement was later endorsed by a decision of the EU–Israel Association Committee and entered into force in February 2005.¹⁸³ ¹⁷⁸ European Council, Brussels Summit, 23/24 March 2004, Declaration on the Middle East Process. ¹⁷⁹ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004), 136. ¹⁸⁰ General Affairs and External Relations Council Conclusions of 12/13 July 2004, Declaration on the Middle East Process. ¹⁸¹ OJ [2000] L147/3. ¹⁸² Commission notice to importers, OJ [2001] C238/6. ¹⁸³ Revised Commission notice to importers, OJ [2005] C20/2.

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The Community’s legal position that Israel does not have sovereignty over the Palestinian territories is confirmed by the direct relations it has built up with the Palestinian Authority. Next to the already mentioned 1997 Interim Agreement with the Authority,¹⁸⁴ the newly adopted European Neighbourhood Instrument explicitly refers to the ‘Palestinian Authority of the Gaza Strip and the West Bank’ as a ‘partner country’ eligible to receive EC financial assistance.¹⁸⁵ (b) Morocco and the Western Sahara Morocco and the Community have a common interest in exploiting fisheries resources. To that effect, a fisheries agreement provides for fishing rights to the Community fishermen, for which Morocco receives substantial financial payments in return. In that context, the question arises whether Morocco can also dispose of fisheries rights related to those fishing zones that would belong to the Western Sahara if the Saharawi people were to establish their own State. As is well known, the ICJ stated in its Advisory Opinion of 1975 that The materials and information presented [ . . . ] do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1541 (XV) on the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.¹⁸⁶

The Western Sahara has been listed by the UN General Assembly (UNGA) as a Non-Self-Governing Territory since 1963, but the right of its people to self-determination has not as of yet been exercised. At the moment no country has been listed by the UNGA as the administering power of Western Sahara. However, Morocco exercises de facto control over most of the territory and adjacent maritime zones of Western Sahara, as confirmed by the former UN Legal Counsel, Hans Corell.¹⁸⁷ Hence it bears the rights and obligations of a de facto administrating power, which include international humanitarian obligations. As such it bears at least the same obligations as a de jure administering power, including the duty to: ‘recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost [ . . . ] the well-being of the inhabitants of these territories’.¹⁸⁸ Against that international law background, Community practice is instructive. As confirmed by the Court of First Instance with regard to a case concerning Guinea-Bissau and Senegal, the Community institutions enjoy a broad margin ¹⁸⁴ OJ [1997] L187/3. ¹⁸⁵ Article 1(1) and Annex to Regulation 1638/2006 of the European Parliament and the Council laying down general provisions establishing a European Neighbourhood and Partnership Instrument, OJ [2006] L301/1. ¹⁸⁶ Western Sahara, ICJ Reports (1975) 25, at para 162. ¹⁸⁷ S/2002/161 (para 7) of 12 February 2002. ¹⁸⁸ Article 73 UN Charter.

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of discretion whether or not to include disputed fishing areas in Community agreements.¹⁸⁹ With regard to Morocco it decided to do so, but making clear at the same time that this does not amount to recognition of the country’s claim to exercise territorial sovereignty over the area. Accordingly, both the EC-Morocco Fisheries Agreements of 1996¹⁹⁰ and 2006¹⁹¹ state that Morocco’s fishing zone relate to ‘the waters of which Morocco has sovereignty or jurisdiction’. Under Article 6 of the Protocol to the agreement, one-third of the EC’s financial contribution is earmarked for the implementation of a fisheries policy based on responsible fishing and on the sustainable exploitation of fisheries resources in Moroccan waters. The Agreement also provides in Chapter X point 1 of the Annex for an obligation to land 25 per cent of captures in areas belonging to the Western Saharan coast. In addition economic incentives are foreseen to encourage vessels to land more than the obligatory 25 per cent of fish in local ports. In the EC’s analysis these provisions make sure that the economic benefits of the agreement will also be felt by the Western Saharan people. Morocco’s international law obligations as the de facto administering power could also be raised in the joint committee established under Article 10 of the Agreement, and—in case of disagreement in respect of implementation—the Community could suspend the Agreement according to its Article 15. The Community also distinguished between the territory of Morocco and Western Sahara under its financial European Neighbourhood Policy Instrument (ENPI).¹⁹² When the Commission adopted the Strategy Paper for 2007–2013 on Cross-Border cooperation, it stated that it applies for ‘Morocco (including territories under Moroccan jurisdiction or administration): Guelmin-Es-Smara, LaâyouneBoujdour-Sakia El Hamra.’ A footnote clarifies that On the basis of consultation with its Legal Service, the Commission deems that the regions in question might benefit from the co-operation provided that it is made clear in writing that this does not imply recognition by the Community of the Moroccan claims over the territory of Western Sahara and that projects shall benefit the local population of the region concerned. Moreover, these qualifications should be accepted by the Moroccan side.

The legal basis under Community law for this approach could be found in Article 27 ENPI, according to which cross-border programmes may not only include listed partner countries, but also ‘other countries, territories or regions’. The approach again applies the principle that Morocco only acts as a de facto administering power and bears certain international law obligations vis-à-vis the non-self-governing territory. ¹⁸⁹ Case T-572/93 Odigitria [1995] ECR II-2025, Rec 38 of judgment. ¹⁹⁰ Article 1(2) of the EC-Morocco Fisheries Agreement of 1996, OJ [1996] L306/7. ¹⁹¹ Article 2(a) of the EC-Morocco Fisheries Agreement of 2006, OJ [2006] L141/4. ¹⁹² Regulation 1638/2006 of the European Parliament and the Council laying down general provisions establishing a European Neighbourhood and Partnership Instrument, OJ [2006] L301/1.

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3. International Organizations The EC’s international practice also has a certain influence on the law of international organizations. Leaving aside the question of whether the Community’s own institutional arrangements may be regarded as providing a useful example to the doctrinal discussions in the field,¹⁹³ the most obvious example relates to the EC’s membership in other international organizations.¹⁹⁴ Whereas, traditionally, international organizations were only founded by States, nowadays the EC is often among the members or founders. That is particularly true for the WTO¹⁹⁵ and a few specialized organizations of the UN, like the FAO¹⁹⁶ and the Codex Alimentarius. Newer cases, like EC membership in the Energy Community, in several fisheries organizations or the Hague Conference on Private International Law can also be reported.¹⁹⁷ To accommodate the EC’s wish for membership, the constitutional arrangements of these organizations had to be adapted, providing for new clauses as regards the (alternate) exercise of rights and obligations of the Community and its Member States.¹⁹⁸ In the long run, that practice may also serve as a precedent for other similar regional organizations. A possible spill-over could be thought of in particular in international trade and commodity organizations, where, following the EC’s example, other free-trade areas or customs unions could become additional members or replace their Member States. For example, the common market for Eastern and Southern Africa (COMESA) and the African Union (AU) became a party to the 1980 Agreement establishing the common funds for commodities. Accordingly, EC practice contributes to overcome the traditional perception that international organizations can only be founded by States.¹⁹⁹ Below the level of membership, the EC’s practice has also contributed to shape a particular kind of enhanced observer status. The EC may sometimes be granted the right fully to participate in the work of an organization. This entails the right to negotiate on an equal footing with states under the auspices of an international organisation, but excludes the right to vote. That has been seen in the UN’s Commission on Sustainable Development since the aftermath of the Rio

¹⁹³ For an early attempt see Pescatore, ‘L’Apport du Droit Communautaire au Droit International Public’, 1 CDE (1970) at 501–25; more recently Wormuth, supra n 63, at 33–112. ¹⁹⁴ For an account of early practice see J Sack, ‘The European Community’s Membership of International Organizations’ (1995) 32 CMLRev 1127. ¹⁹⁵ Article XI of the Marrakesh Agreement establishing the WTO. ¹⁹⁶ Articles II (8)–(11) FAO Constitution. See in detail R Frid, ‘The European Economic Community: A Member of a Specialized Agency of the United Nations’ (1993) 4 EJIL 239. ¹⁹⁷ For more details see F Hoff meister, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies’ (2007) 44 CMLRev 41, at 43 et seq. ¹⁹⁸ P Koutrakos, EU International Relations Law (2006), at 165–75 with further references. ¹⁹⁹ Wormuth, supra n 63, at 242.

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Summit in 1992,²⁰⁰ and more recently with regard to the ILO, UNESCO and the WHO.²⁰¹

C. Jurisdiction 1. The Exercise of Jurisdiction by the Community and the Union Public international law questions on the reach of the Community’s jurisdiction were first raised in regard to competition policy. In the Dyestuff s case of 1969, the Commission took the view that it could fine a company located outside the Community if it had established a cartel with effects on the internal market; the Court avoided tackling the issue as it could solve the case on the ground of the ‘enterprise unity’ doctrine.²⁰² In the Woodpulp case, Advocate General Darmon explicitly accepted the ‘effects doctrine’, but the Court again emphasized the fact that subsidiaries had actually implemented the cartel in the EC, that situation being covered ‘by the territoriality principle as universally recognized in public international law’.²⁰³ The Court of First Instance was less cautious in that respect. In Gencor, it held that a merger decision against a company located outside the Community was compatible with public international law when that merger had ‘an immediate and substantial effect in the Community’.²⁰⁴ On that basis, the Commission was also competent to take a decision with regard to the merger of the two American companies Boeing and McDonald Douglas. An interesting modern tendency can also be observed in the EU’s practice under the third pillar. The Framework Decision on combating terrorism²⁰⁵ not only calls upon Member States to criminalize certain offences, but prescribes ²⁰⁰ ECOSOC Decision 1995/201, 8 February 1995. The relevant part reads: ‘(a) The European Community, while not being a member of the Commission on Sustainable Development, shall be entitled to participate fully, within its areas of competence, in the work of the Commission or any subsidiary body thereof, in accordance with the present decision. Such full participation shall include the right to speak and the right of reply, as well as the right to introduce proposals and amendments. Such full participation shall also include the right to raise as a point of order the fact that consultations are continuing among the Community and its member States on a matter on which a final decision is about to be made and for which the Community is the representative on the Commission in accordance with the present decision, provided that the right to raise this point of order shall not include the right to challenge the decision of the Chairman in response to that order. The Community shall not have the right to vote but may submit proposals that shall be put to the vote if any member of the Commission so requests. The participation of the representatives of the Community shall in no case entail an increase in the representation to which the member States of the Community would otherwise be entitled’. ²⁰¹ F Hoff meister and PJ Kuijper, ‘The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities’ in Wouters, Hoffmeister and Ruys, supra n 46, at 24. ²⁰² Case 48/69, ICI v Commisison [1972] ECR 619. ²⁰³ Joined Cases 89, 104, 114, 116, 117, 125–129/85 Ahlström Osakeyhtiö v Commission [1988] ECR 5193, Rec 18 of judgment. ²⁰⁴ Case T-102/96 Gencor v Commission [2001] ECR II-753, Rec 90 of judgment. ²⁰⁵ Council Framework Decision on combating Terrorism, OJ [2002] L164/3.

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exact conditions and limitations for the exercise of national jurisdiction. Article 9 (1) of that Decision reads: Each Member State shall take the necessary measures to establish jurisdiction over the offences referred to in Articles 1–4, where (a) the offence is committed in whole or in part in the territory of the Member State. The Member State may also extend its jurisdiction if the offence is committed in the territory of another Member State; (b) the offence is committed on board of a vessel flying its flag or an aircraft registered there; (c) the offender is one of its nationals or residents; (d) the offence is committed for the benefit of a legal person established in its territory; (e) the offence is committed against the institutions or people of the Member State in question or against an institution of the European Union or a body set up in accordance with the Treaty establishing the European Community or the Treaty on European Union and based in that Member State.

From an international law point of view, Article 9 (a)–(c) echo the well-accepted principles of territorial jurisdiction and jurisdiction over vessels, aircraft and citizens. But it also contains the not undisputed rules of jurisdiction over residents committing a crime abroad (lit. (c) second alternative) and non-citizens acting abroad for the benefit of a domestic terrorist organisation (lit. (d)). Finally, the Framework decision may be seen as confirmation of the so-called ‘protective’ or passive personality principle (lit. (e)). In contrast, the Framework decision does not incorporate universal jurisdiction over terrorist offences. What is the legal effect of the above-mentioned Community and EU practice? As a subject of international law, the Community may have an impact on the development of relevant international customary rules through its practice like any other act of an international person.²⁰⁶ Indeed, with reference to inter alia relevant EC and US practice many international lawyers nowadays conclude that the effects doctrine is either a variant of the territorial doctrine²⁰⁷ or simply represents a newly developed doctrine where the link to the State is close enough.²⁰⁸ In contrast, it remains to be seen what influence this EU practice will have on the development of acceptable titles of jurisdiction in the criminal justice field.

2. EC Action against Extraterritorial Jurisdiction of Third States A related practice concerns the exercise of extraterritorial jurisdiction of third States where those third States try to extend their jurisdiction into the EU. Here, the Community and the Union have reacted with different means to counter ²⁰⁶ AV Lowe, ‘Can the European Community Bind the Member States on Questions of Customary International Law?’ in Koskenniemi (ed), supra n 4, at 158. ²⁰⁷ ILA, Report of the 55th Conference, New York (1974), Article 5 of the Resolution on jurisdiction, p. xix. ²⁰⁸ For an overview of the different nuances see W Meng, Extraterritoriale Jurisdiktion im öff entlichen Wirtschaftsrecht (1994), at 526–40.

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such activity. Several important cases can be reported where strong views on the relevant rules of international law were expressed. (a) The Soviet Pipeline embargo In June 1982 the US government tried to impose a ‘Pipeline embargo’ against the Soviet Union. An amendment to the US Export Administration Act prohibited the delivery of relevant material to US persons, goods of US origin and technology of US origin.²⁰⁹ The definition of a US person included subsidiary companies of US holdings, including those that were established under the laws of an EU Member State. In September that year, the Presidency of the Council and the Commission jointly presented a démarche to the US State Department.²¹⁰ The Community considered that the US could not interfere with the legitimate trade of Community operators with a third State and cited the ICJ’s Barcelona Traction judgment.²¹¹ As long as a company was registered under the laws of a Member State the fact that it was controlled by a US corporation could not bring it under US jurisdiction. Furthermore, goods and technology do not have a ‘nationality’. According to the EC’s analysis, there was no accepted base in international law for exercising US jurisdiction and it called upon the US to withdraw the measure,²¹² which eventually occurred shortly thereafter. (b) The Helms-Burton Act A second case occurred in 1996 when the US Congress adopted the so-called ‘Cuban Liberty and Democratic Solidarity Act’ (what is also known as the ‘Helms-Burton’ Act).²¹³ Under its Title I no goods of Cuban origin could be imported directly or through third States into the United States; moreover, no goods could be traded via Cuba. Titles III and IV prohibited ‘trafficking’ of assets that had previously been the property of US citizens but had been confiscated by the Cuban government. Persons who engaged in such activity could be held liable before US courts or denied access to US territory (including their spouses and children). In the EU’s analysis these provisions were incompatible with international law, as they attempt to bring the conduct of European companies in Cuba, or those trading in Cuban goods under US jurisdiction. The purported protection of (former) US interests in Cuba was not seen as a sufficient link for targeting every ²⁰⁹ For a succinct analysis see KM Meessen, ‘Extraterritoriality of Export Control: A German Lawyer’s Analysis of the Pipeline Case’ (1984) 27 GYIL, at 97–108 with further references. ²¹⁰ The text of the demarche is reprinted in (1982) 21 ILM, at 891; for the procedural details see PJ Kuijper, ‘The European Community and the US Pipeline Embargo: Comments on Comments’ (1984) 27 GYIL, at 72. ²¹¹ Démarche, p 4 (1982 21 ILM, at 894); Barcelona Traction, Light and Power Company (Second Phase) (1970) ICJ Reports, 3. ²¹² Démarche, p 14 (1982 21 ILM, at 904). ²¹³ On this dispute in general see for example AF Lowenfeld, ‘Congress and Cuba: The Helms-Burton Act’ (1996) 90 AJIL, at 419–34.

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investment in Cuba. The Union reacted in two ways. First, the Council adopted a (first-pillar) Regulation providing for protection against the extraterritorial application of the US legislation,²¹⁴ accompanied by a (second-pillar) Joint Action.²¹⁵ Whereas the Commission had proposed a single Regulation based on Article 113 (now 133) and 235 (now 308) EC, the Council split the act,²¹⁶ arguing that the Joint Action was necessary to coordinate national enforcement measures going beyond Community competence.²¹⁷ Both the Joint Action and the Regulation explicitly found that ‘a third State’ had violated international law by adopting legislation which regulates the conduct of natural and legal persons that fall under the jurisdiction of the EU Member States.²¹⁸ Whilst the Joint Action called upon Member States to take all necessary measures, the Regulation prohibited the recognition and enforcement of US decisions based in the incriminated legislation (Article 4 of the Regulation); furthermore, no EU operator is allowed to comply with the relevant provisions of the US law (Article 5 of the Regulation), unless an authorization is granted by the Commission. Whereas the practical effect of this ‘blocking statute’ proved to be more symbolic than real, the second part of the EU’s reaction was more significant. In May 1996, the Community brought a case against the United States for breaching Articles V (freedom of transit) and IX (prohibition of import restrictions) of the GATT and Articles II (MFN), III (transparency), and XVII (national treatment) of the GATS. In the EC’s view any US attempt to invoke reasons of national security as a defence under Article XXI of the GATT could be countered with the argument that no such reasons could be deemed ‘necessary’ within the meaning of that provision if they blatantly contravene international law. As the consultations failed, a panel was established in October 1996 and composed in February 1997.²¹⁹ Only then did the US President waive the application of Title III and announce a similar move in relation to Title IV of the Helms-Burton Act. Accordingly, the GATT case was suspended in April 1997 for a year by virtue of Article 12.12 of the DSU.²²⁰ That enabled the parties to negotiate the ‘Understanding’ of 18 May 1998, according to which Titles III and IV of the Act were waived whereas the EC committed to apply certain disciplines when EU operators dealt with former US property in Cuba.²²¹ The GATT case was thereupon discontinued, and the compromise is still in effect today. ²¹⁴ Council Regulation 2271/96, OJ [1996] L309/1. ²¹⁵ Joint Action 96/668/CFSP, OJ [1996] L309/7. ²¹⁶ For a summary of the discussions in the Council see J Huber, ‘The Helms-Burton Blocking Statute of the European Union’ (1997) 20 Fordham Int L J 699, at 707. ²¹⁷ M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in Koskenniemi (ed), supra n 4, at 34 note 30. ²¹⁸ Joint Action 96/668/CFSP, recitals 1 and 2; Council Regulation 2271/96/EC, recitals 3 and 4. ²¹⁹ See the EC request for the establishment of a Panel, WT/DS38/2 of 4 October 1996. Composition of the Panel took place on 12 February 1997 (WT/DS38/3) of 20 February 1996. ²²⁰ WT/DS38/5 of 25 April 1997. ²²¹ See the decisions and statements of the EU–US Summit of 18 May 1997, EU-Bulletin 5–1997.

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(c) The Massachuchetts legislation on Mynmar In 1996, the US State of Massachusetts adopted the ‘Burma Law’. The statute generally barred state entities from buying goods or services from any person (defined to include a business organization) identified on a ‘restricted purchase list’ of those doing business with Burma. The EU formally protested against this act at the Department of State, and brought a case before the WTO in June 1997. It alleged an infringement by the US of Articles VIII (B), X and XII of the plurilateral Government Procurement Agreement.²²² And again, the case did not have to be pursued. In November 1998, the US District Court for the District of Massachusetts found that the law was unconstitutional because it encroached on federal powers to regulate foreign relations. The judge also referred to an amicus curiae brief of the EC and its Member States as evidence that the law had a ‘disruptive effect’ on foreign relations²²³. In the light of this judgment the EC suspended the WTO case in February 1999 according to Article 12.12 of the DSU. As the Supreme Court confirmed this ruling in June 2000 again with an explicit reference to the EU’s (and Japan’s) position,²²⁴ this episode came to an end without major political repercussions for EU–US relations. (d) The Alien Tort Statute The latest case on jurisdictional issues involved the US Alien Tort Statute (ATS).²²⁵ That piece of legislation, dating from 1789, provides for US civil jurisdiction where an alien brings a civil action for a tort only, committed in violation of the ‘law of nations’ or a treaty of the United States. Whilst dormant for centuries,²²⁶ the statute came to prominence following the Filartiga case. On that occasion, the Court of Appeals for the second circuit entertained the claim of a Paraguayan citizen against another Paraguayan who had tortured the plaintiff ’s son in Paraguay.²²⁷ As both the plaintiff and the defendant were living in the United States, such exercise of US jurisdiction is of no concern to other nations. However, the situation may change, when the ATS is used by plaintiffs living abroad against foreign companies for events occurring outside the United States. Indeed such cases increased in the 1990s. One may cite, for example, a claim by South African victims of Apartheid against European banks for having supported the government at the time. Lacking any link to the United States, the US courts would exercise a sort of universal civil jurisdiction in such scenarios. ²²² WT/DS88. ²²³ Brief for the European Communities and their Member States, as amici curiae in support of respondent, 2000 WL 177175 (US), p 3. ²²⁴ Crosby v National Foreign Trade Council, Supreme Court of the United States, 530 US 363, 120 Sct 2288, Para 22. ²²⁵ 28 US Code, Chapter 85, Section 1350. ²²⁶ For an overview of subsequent amendments to the judiciary Act of 1789 see JK Elsea, ‘The Alien Tort Statute: Legislative History and Executive Branch Views’, CRS Report for Congress (2 October 2003), at 4–7. ²²⁷ Filartiga v Pena-Irala, 630 F.2d 876.

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In 2004, the Supreme Court accepted certiorari in the Sosa v Alvarez-Machain case. The plaintiff had been kidnapped in Mexico by US agents and brought to American soil. Although the facts did not reveal the exercise of extraterritorial jurisdiction, the Community seized the opportunity to file an amicus curiae brief before the Supreme Court to develop its international law position with respect to the ATS in general. After due coordination with COJUR members, the Commission put before the Court two main considerations on how to construe the ATS in conformity with emerging customary international law.²²⁸ First, universal civil jurisdiction could only be acceptable where the tort concerns a core crime that equally triggers universal jurisdiction under criminal law. That parallelism was already provided for in those European systems where the victim of a criminal offence could also bring a civil action against the perpetrator before the same judge (action civile). Furthermore, parallelism would respond to the same rationale of deterrence, when the perpetrator would not only face a possible public prosecution but also a tort action. Second, even if a core crime was at issue, US jurisdiction should only be exercised where there is no effective local remedy available. Hereby, the US would respect that the States having a traditional link to the case (such as the State where the tort was committed or the State of the perpetrator’s or victim’s nationality) could provide for a better-suited forum. Only where such States were unable or unwilling to provide for redress, could the US ‘step in’ to make sure that there is no safe haven for universally condemned crimes. In addition, the United Kingdom, supported by Switzerland and Australia, filed an amicus curiae brief arguing against universal civil jurisdiction in toto. Those states held the view that the exercise of such jurisdiction would undermine the legitimate choice of other States as to how to bring about redress for grave violations that had occurred on their territory, such as the Truth and Reconciliation Commissions in South-Africa. Although the Supreme Court did not have to rule on these propositions in view of the facts before it, it made affirmative references to both briefs in a footnote: This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this case. For example, the European Commission argues as amicus curiae that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other fora such as international claims tribunals . . . . We would certainly consider this requirement in an appropriate case. Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in federal district court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. . . . The ²²⁸ Brief of Amicus Curiae, the European Commission in Support of Neither Party, Sosa v Alvarez-Machain, 542 US 692 (2004) (No 03–339).

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Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which ‘deliberately avoided a ‘victors’ justice’ approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’ . . . In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.²²⁹

Furthermore, Justice Breyer discussed the Commission brief in some length in his separate opinion. One may safely conclude that this amicus has not gone unnoticed in the relevant international law discussions on universal civil jurisdiction²³⁰ and may have a further impact on the development of US case law in the future.

D. Responsibility, Dispute Settlement, and Enforcement of International Law 1. The EU’s Contribution to the ILC Project on the Responsibility of International Organizations In 2002, the ILC decided to incorporate the topic ‘responsibility of international organizations’ into its work programme. It appointed the Italian member, Professor Gaja, as its Special Rapporteur (SR). As the topic touched upon the international practice of the Community, the Commission prepared a detailed analysis of the SR’s draft article with a view to forming a ‘three-pillar’ EU position for the UNGA’s Sixth Committee. Indeed, such positions were agreed in COJUR and read out by the Presidency and the Commission together in New York.²³¹ The EU’s views form an important part of the ILC’s considerations of the topic, as is reflected by the numerous examples cited in the SR’s report drawing from Community practice. The project raised some important questions from a Community perspective.²³² Under Draft Article 3, every internationally wrongful act of an international organization entails the international responsibility of the international organization if it fulfils two criteria. First, the wrongful act must be attributable ²²⁹ Supreme Court, 542 US 692 (2004) 331 F.3d 604, footnote 21 (citations omitted and emphasis added). ²³⁰ Compare DF Donovan and A Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 99 AJIL, 142–63 with many references to the Community brief; for a critical comment as to the Commission’s power to fi le the brief and C Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’, Institute for International Law of the KU Leuven, Working Paper No 117 (November 2007), suggesting at p 47 that, arguably, diplomatic protest by the European Commission, as contained in the Sosa brief, could give rise to customary international law formation . ²³¹ Hoff meister and Kuijper, supra n 46, at 9. ²³² See S Talmon, ‘Responsibility of International Organisations: Does the European Community Require Special Treatment?’ in M. Ragazzi (ed), International Responsibility Today (2005), at 405–21.

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to the organization under international law; second, it must constitute a breach of an international obligation of that international organization. While the principle as such makes sense, the more intriguing question is how attribution is operated. In the case of the Community, it acts not only by its own institutions, but also through its Member States. That decentralized implementation of Community law (eg the Common Customs Code by the customs authority of a Member State) should be attributable to the Community rather than to the Member State. However, unfortunately, the ILC draft does not address this problem in a detailed manner. Rather, the SR has presented the more doubtful construction of ‘responsibility without attribution’.²³³ That is, however, difficult to square with the wording of Article 3 of the Draft Articles.²³⁴

2. Dispute Settlement As subjects of international law, both the Community and the Union are liable for the wrongful acts under international law. Accordingly, the victim may use all diplomatic means available to claim cessation or compensation, as the case may be. Diplomatic negotiations and consultations, arbitration, or judicial settlement constitute part of Community practice.²³⁵ Sometimes, the Community may also play a positive role in the settlement of disputes of others. In the enlargement process, the Commission exercised some sort of informal mediation between several candidate countries in the field of minority protection. The most prominent example is the regular contacts with Hungary, Romania and Slovakia on so-called Hungarian ‘status law’ involving preferences for ethnic Hungarians living abroad. Following interventions from the Commission Hungary accepted that discrimination between the future EU citizens from Slovakia or Romania on the basis of ethnic origin should be avoided under Article 12 EC. Accordingly, the status law was modified.²³⁶ Similarly, a bilateral dispute between Slovenia and Croatia about the delimitation of their maritime zones was brought to the political attention of the Community institutions in the enlargement negotiations with Croatia. In a Brussels brokered agreement of 4 June 2004 the Croatian government promised provisionally not to apply the ‘ecological and fisheries zone’ to vessels from EU Member States, and in spring 2008 the dispute was finally settled by a revision of the relevant Croatian law.

²³³ UN Doc A/CN.4/541, p 6. ²³⁴ See Paasivirta and Kuijper, supra n 68, at 40. ²³⁵ For a discussion of early practice see M Hilf, ‘Europäische Gemeinschaften und Internationale Streitbeilegung’ in R Bernhardt et al, Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler (1983) 387, at 396 et seq; for a recent account see Rosas, supra n 48, at 284–322. ²³⁶ For details see F Hoffmeister, ‘Monitoring Minority Rights in the Enlarged European Union’ in G Toggenburg, Minority Protection and the Enlarged European Union: The Way Forward (2004) 85, at 96–100.

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Where the Community has agreed to binding dispute settlement, that avenue will usually be open for the complaining State as well. In that regard, the Court has confirmed that the Community may submit itself to the jurisdiction of international arbitration or standing Courts (as long as they are not empowered to interpret EC law in place of the ECJ).²³⁷ In practice, the Community has been quite open to accepting binding third-party settlement. For example, it is bound by many bilateral arbitration clauses in its agreements with third States, the WTO Dispute Settlement Understanding, and the arbitration procedure under UNCLOS. The latter has given rise to the famous Swordfish case, which was later settled with Chile. However, the Community may not become a party to a case before the International Court of Justice as long as the Statute reserves this right to States only. However, formal EC participation before the Court is open under Article 43(2) of the Court’s Rules of Procedures, as amended in September 2005. Under that provision the Court may notify a public international organization of cases where the interpretation of a convention is at stake to which the organization is a party. In view of the fact that the Community is a party to UNCLOS, the Court asked it in October 2005 whether it would like to submit observations in the case Nicaragua/Honduras. Since the case only concerned maritime delimitation where no EC competence was involved, the EU High Representative and the Commission declined that offer after internal discussions in COJUR.²³⁸ Interestingly, the ‘second-pillar’ EU is moving towards the acceptance of third-party settlement as well. Traditionally, EU status of forces agreements (SOFAs) with third States stipulate that liability for wrongful acts of the EU mission is determined by a bipartite Commission. In case of disagreement, the dispute shall be settled by diplomatic negotiations.²³⁹ In the EU–Gabon SOFA, the EU for the first time subjects itself to arbitration for claims exceeding €40,000. One arbitrator is to be determined by EUFOR Congo, the second by Gabon, and the third by the President of the European Court of Justice, if the former two cannot agree on the appointment.²⁴⁰ The situation is different when it comes to individual claims against either the Community or the Union. If such claims are brought before foreign courts, the Community claims immunity like other subjects of international law. In return, individuals may validly bring cases against the Community under Article 288(2) EC, as the breach of an international law norm amounts to a breach of Community law triggering compensation according to the principles common to the EU Member States. However, a similar legal avenue does not exist for claims against CFSP actions by virtue of the prohibition of Article 46 EU. As such claims are

²³⁷ Opinion 1/91 [1991] ECR I-6079, Rec 47–53; and Opinion 2/00 [2002] ECR I-3493. ²³⁸ Hoff meister and Kuijper, supra n 46, at 22. ²³⁹ See Article 13(2) of the EU–fyROM SOFA of 21 March 2003 (OJ [2003] L82/45); Article 14(2) of the EU-DRC SOFA of 1 September 2005 (OJ [2005] L256/56). ²⁴⁰ Article 15(4)–(6) of the EU–Gabon SOFA of 16 June 2006, OJ [2006] L187/42.

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inadmissible before Community courts,²⁴¹ a remedy must therefore be sought before national Courts. However, where a CFSP common position, setting up for example a ‘terrorist list’, has a scope going beyond that assigned to it by the EU Treaty to that kind of act, national courts are obliged to refer such cases to the ECJ under the conditions fi xed in Article 35 EU.²⁴² Sometimes Community law may also have a bearing on international disputes between Member States. As the Court has recently confirmed with reference to Article 292 EC, they are not entitled to bring claims against each other before an international tribunal, if these relate to the application and interpretation of Community law, including international Conventions to which the community is a party.²⁴³ Accordingly, Ireland had to withdraw its case brought before an Arbitral Tribunal under Article 287 UNCLOS against the United Kingdom, as the dispute over the Mox plant located in Sellafield fell into the scope of Community law. Conversely, an arbitral tribunal in the Iron Rhine case was competent to adjudicate in the dispute between Belgium and the Netherlands, after having carefully found that Community environmental acquis was not determinative or conclusive for the Tribunal.²⁴⁴ Finally, one may note that EU Member States are supportive of the International Court of Justice. As of 2006, the majority of 18 out of 27 Member States had made a declaration under Article 36(2) of the ICJ-Statute. Certain missing Member States such as France or Germany had accepted the jurisdiction of the Court under certain jurisdictional clauses in multilateral Conventions or agreed ad hoc on cases under Article 36(5) of the Statute of the ICJ. While not leading to a formal EU position, this survey also encouraged the minority of nine Member States to consider such options. For example, German academics called upon the government to make a circumscribed Article 36(2) declaration, arguing that there is a need to follow the example of the other 18 EU Member States in order to avoid isolation in the circle of like-minded States.²⁴⁵ Indeed, largely inspired by these discussions, the German Government accepted the ICJ’s jurisdiction by virtue of a declaration made on 1 May 2008, thereby increasing the number of EU Member States subject to the ICJ’s jurisdiction to 19. In addition, the EU (together with the Council of Europe, Iceland, Liechtenstein, Norway and Switzerland) also filed an amicus curiae brief in the case Medellin v Dretke ²⁴¹ Case T-338/02 Segi/Council [2004] ECR II-1647, Rec 34 et seq of judgment, discussed by MG Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common and Security Policy’ (2006) 55 ICLQ 77, at 113 et seq. ²⁴² Case C-354/04 P, Gestoras Pro Amnisticia [2007] I-1579, Rec 54 of judgment. ²⁴³ Case C459/03 Commission v Ireland [2006] ECR I-4635. ²⁴⁴ Arbitration regarding the Iron Rhine (‘ijzeren rijn’) railway, Award of the Arbitration Tribunal of 24 May 2005, paras 121–41, in (2007) 27 RIAA 35. ²⁴⁵ See for example CJ Tams and A Zimmermann, ‘Deutschland und der Internationale Gerichtshof—Zeit für eine Allgemeine Unterwerfungserklärung’ in Deutsche Gesellschaft für die Vereinten Nationen (Policy Paper 2/2007), at 3 .

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arguing for the full implementation of the ICJ’s Avena judgment before the US Supreme Court.²⁴⁶ In May 2005, the Supreme Court dismissed the writ on the ground that a proceeding in Texas could reconsider the Vienna Convention claim and the finding of the ICJ.²⁴⁷ In the two recent EU amicus curiae briefs before the US Supreme Court relating to a consular cases under Article 36 of the Vienna Convention, the EU states that respect for ICJ judgments by States that are party to litigation is a basic principle of the international legal order as articulated in Article 94 of the UN Charter.²⁴⁸ And when the ICJ celebrated its 60th anniversary in 2006, the Austrian Presidency issued the following statement of 12 April on behalf of the EU: The EU reaffirms its strong support for the ICJ as the principal judicial organ of the United Nations and acknowledges its contribution to the peaceful settlement of numerous disputes between States. The Court has proven to be a cornerstone to the international legal order. It has created a corpus of judicial decision and advisory opinions of the highest quality, which has become an indispensable and reliable means for the determination of the rules of international law. The EU notes with satisfaction that an increasing number of cases and legal questions has been brought before the ICJ in the last decades. This clearly demonstrates the thrust of the international community in the work of the ICJ, the increased reliance on international law and the commitment to the peaceful settlement of disputes by judicial means. While the establishment of specialised international courts, tribunals and other dispute settlement institutions confirm the increasing acceptance of the judicial settlement of disputes, the ICJ remains the principal judicial institution and at the heart of an international order based on the rule of law. The EU takes the opportunity to call upon all States to refer their disputes that cannot be settled by other peaceful means to the ICJ, and strongly urges all States to comply with decisions of the ICJ.²⁴⁹

3. Coercive Measures Short of the Use of Force The most coercive measure short of the use of force at the EU’s disposal to react against a breach of international law by another actor is sanctions. In this respect,

²⁴⁶ Brief of Amicus Curiae the European Union and members of the international community in support of petititioner, in the US Supreme Court, José Ernesto Medellin v Doug Dretke (No 04–5928). The amicus can be found at the website of the European Commission delegation in the United States () under the rubric ‘death penalty’—Action 2005. ²⁴⁷ US Supreme Court José Ernesto Medellin v Doug Dretke 544 US 600. ²⁴⁸ Brief of Amicus Curiae the European Union and members of the international community in support of petitioner, in the US Supreme Court, Krishna Maharaj v Secretary of the Department for Corrections of the State Florida, p 5; Brief of Amicus Curiae the European Union and members of the international community in support of petitioner, in the US Supreme Court, Sanchez-Llamas v Oregon, p 4. Both briefs can be found at the website of the European Commission delegation in the United States () under the rubric ‘death penalty’—Action 2005 and 2006, respectively. ²⁴⁹ Declaration by the Presidency on behalf of the European Union on the occasion of the 60th anniversary of the International Court of Justice, 12 April 2006. The statement is archived on the Council’s webpage () under CFSP Statements, 2006.

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one may distinguish between the implementation of UN sanctions at EU level, and the adoption of unilateral sanctions.²⁵⁰ (a) Implementation of multilateral sanctions The Community faithfully implements Security Council sanctions adopted under Article 41 of the UN Charter. The Court of First Instance held that these are binding on the Community by virtue of the EC Treaty with the somewhat daring interpretation that the Member States had intended to bind the Community and could not have conferred powers on it in contravention of their treaty obligations under the Charter.²⁵¹ The better explanation would be to assume a Community law obligation to implement UN sanctions under Article 307 and 10 EC: under their duty of loyalty²⁵² Community institutions shall do their utmost to avoid Member States breaching their obligations under the UN Charter, these being international commitments predating their EC membership. In any case, EU implementation of UN sanctions is nowadays well-established. Under Article 301 EC, a common position under Article 15 EU paves the way for the adoption of a Council regulation. The advantage of this procedure is that the regulation becomes directly binding on economic operators in all EU Member States, thereby generally securing quick implementation.²⁵³ The fact that contractual relations may have been established with the sanctioned State does not change the analysis in view of Article 103 of the UN Charter. For example, when the Security Council resolution 1306 (2000) on the importation of rough diamonds originating from Sierra Leone in 2000 was implemented, the Council reasoned as follows: (3) The Security Council has also called upon the United Nations Member States and international and regional organisations to apply these measures notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement signed, any contract entered into or any licence or permit granted before the adoption of the aforementioned Resolution. (4) The ACP-EC Lomé Convention and the new ACP-EC partnership agreement signed in Cotonou, Benin on 23 June 2000, to which the Community and its Member States and Sierra Leone are Parties, do not pose an obstacle to the application of the said Security Council Measures.²⁵⁴ ²⁵⁰ For an overview of Community law framework see PJ Kuijper, ‘Les Mesures Commerciales à l’Encontre d’Etats Tiers’ in I Pingel (ed), Les Sanctions contre les Etats en Droit communautaire (Université de Paris I, Paris 2006, Actes du colloque du 8 avril 2005) 83, at 84–90. ²⁵¹ T-315/01 Kadi v Council and Commission, Kadi [2005] ECR II-3649, Rec 193–200 of judgment. ²⁵² While the wording of Article 10 EC only refers to a duty of loyalty of Member States, the Court has confirmed that there is a corresponding duty of the institutions vis-à-vis the Member States. See ECJ, Case 2/88 [1990] ECR I-3365, at 3372; C-2341/89 [1991] ECR I-935, at 994. ²⁵³ D Bethlehem, ‘International Law, Community Law, National Law: Three Systems in Search of a Framework’ in Koskenniemi (ed), supra n 4, at 193 et seq. ²⁵⁴ Council Regulation 1745/2000 (EC), OJ [2000] L200/21.

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Just as any other Community law, these regulations may be open for interpretation by the Court of Justice, thereby fostering uniform application throughout the EC. As regards the UN embargo on trade with Iraq under Security Council resolution 661 (1990), the CFI rejected an application under Article 288 (ex 215) paragraph 2 EC by the German company Dorsch Consult for compensation for the damage allegedly suffered as a result of the adoption of the implementing Council Regulation (EEC) No 2340/90 of 8 August 1990. The CFI,²⁵⁵ whose judgment was upheld by the ECJ on appeal,²⁵⁶ elaborated on the conditions of non-contractual liability of the Community. It rejected the application because the applicant had not demonstrated that it had suffered actual and certain damage. Council Regulation No 1432/1992 of 1 June 1992 implementing the UN trade embargo against Serbia and Montenegro under Security Council resolution 757 (1992) gave rise to two cases. In Centro Com, the ECJ held that this Regulation had established a system of mutual confidence between Member States as regards the issuing of certificates allowing the transport of goods that had been qualified by the UN Committee on Sanctions as serving humanitarian or medical purposes in Serbia and Montenegro. Accordingly, a Member State was prevented under Community law from giving instructions to its banks not to release from its accounts Yugoslav financial means that could be used for paying for such imports from another Member State to Serbia and Montenegro.²⁵⁷ In the other case— Aulinger—the Court determined that Article 1d of the said regulation prohibited so-called ‘broken traffic’, ie the commercial transport of persons from the EU to the border of Serbia and Montenegro by an EU company, while another company located in Serbia and Montenegro would ensure the transport of these persons from the border to a destination inside the latter’s territory.²⁵⁸ UN Security Council resolution 820 (1993), tightening the above-mentioned embargo against Serbia and Montenegro, was implemented by Council Regulation No 990/1993 of 26 April 1993. Upon reference by an Irish Court, the ECJ in Bosphorus interpreted Article 8 of this Regulation in the light of the abovementioned UNSC resolution as covering aeroplanes that are owned by a company located in Serbia and Montenegro, even if they are leased to a non-related third company situated outside Serbia and Montenegro for four years.²⁵⁹ In Ebony Maritime, a tanker flying the Maltese flag which had set course towards the coastline of Montenegro was stopped from doing so by NATO/WEU forces on the high seas and handed over to the Italian authorities in Brindisi. The latter ordered the vessel to be impounded and the cargo to be confiscated. Upon reference the ECJ held that under Article 9 of Regulation No 990/993 the competent authorities of a Member State must detain all vessels suspected of having breached sanc²⁵⁵ ²⁵⁶ ²⁵⁷ ²⁵⁸ ²⁵⁹

T-182/95 Dorsch Consult v Council and Commission [1998] ECR II-667. C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4941. C-124/95 Centro Com [1997] ECR I-114. C-371/03 Aulinger v Federal Republic of Germany [2006] ECR I-2207. C-84/95 Bosphorus v Minister for Transport, Energy and Communications [1996] ECR I-3953.

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tions imposed against the Federal Republic of Yugoslavia, even if they were flying the flag of a non-member country, belonged to non-Community nationals or companies, or if the alleged breach of sanctions occurred outside the Community. Likewise, national authorities might, under the second paragraph of Article 10 of the Regulation, confiscate those vessels and their cargoes once the infringement has been established. Articles 9 and 10 of the Regulation were found to be applicable once a vessel was within the territory of the Member State und thus under the territorial jurisdiction of that State, even if the alleged infringement occurred outside its territory.²⁶⁰ A particularly sensitive issue concerns targeted sanctions against terrorist suspects and the judicial control thereof. In line with UN Security Council Resolution 1390 (2002) and the relevant UN list, Regulation (EC) 881/2002 lists persons with links to the Al-Qaida/Taliban. In two important judgments the CFI has confirmed the substantive legality of these acts²⁶¹. Moreover, implementing UN Security Council Resolution 1373 (2001), the EU’s Common Position 2001/931/CFSP on combating terrorism²⁶² provides for an autonomous EU list of persons, groups, or entities involved in terrorist acts. With respect to that list, the CFI has emphasized the need to apply procedural safeguards in the listing procedure. In the OMPI case it held that the right to a fair hearing, the duty to state reasons, and the right to an effective remedy are applicable in this context.²⁶³ Finally, Member States must still take action insofar as they have to define the penalties for an eventual breach of the sanction. Furthermore, Member States cannot rely on Article 301 EC in order to implement arms embargoes or travel bans. These shall be coordinated through a CFSP common position, but must in any case be adopted at national level for reasons of competence. (b) Unilateral sanctions The Community and its Member States may also decide to act without UN coverage. Such unilateral sanctions do not pose a problem under international law where there is discretion to engage or to terminate economic, commercial, or other relations with other states. However, the situation becomes more complicated if such sanctions were to interfere with the contractual rights of the sanctioned party. In that respect, practice is instructive. In April 1980, the Foreign Ministers of the European Community decided to suspend all contracts concluded after 4 November 1979 with Iran in view of the taking of hostages in the US Embassy in Teheran.²⁶⁴ As this decision was ²⁶⁰ C-177/95 Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others [1997] ECR I-1111. ²⁶¹ T-306/01 Al Yusuf [2005] ECR II-3533; T-315/01 Kadi [2005] ECR II-3649—pending on appeal; T-253/02 of 12 July 2006, Ayadi—pending on appeal. ²⁶² OJ [2001] L344/93. ²⁶³ Case T-228/02 OMPI [2006] ECR II-4665, Rec 108–59 of judgment. ²⁶⁴ Bulletin EC 1980–84, 20, at 25.

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taken in the then existing framework of European Political Cooperation, it was implemented at Member States level. The legal justification is most interesting. The Ministers stated that the situation had created a threat to international peace and security; only because of the Soviet veto could the UN Security Council not impose sanctions on Iran. However, as the situation was a cause of concern for the whole international community, the EC Member States had decided to act unilaterally. Related legal questions arose in the EC–ACP cooperation under the Lomé (now Cotonou) Agreement. Th is imposes a contractual obligation on the Community and its Member States to provide a certain amount of development aid over several years. The system is designed to foster economic stability and investment in the partner country and to allow for mid-term planning. On the other hand, development cooperation may need to be suspended during a period in which the political situation in the partner country seriously deteriorates, for example after a military coup or a wave of political oppression. In such a situation the Community needs to justify the suspension of its development aid under international law. Because the former Lomé Agreements I–IV, running from 1975 to 1989, did not provide for specific grounds of justification, the Community resorted to countermeasures under general international law. Th is was interesting insofar as the Community was normally not directly affected by the grave human rights breaches of the other side—the Community action had then to be construed as ‘third-party’ countermeasures against the breach of an erga omnes norm of international law.²⁶⁵ With the conclusion of the mid-term review of Lomé IV (1995) and the new Cotonou Agreement (2000), that practice was superseded by the application of a human rights clause into the agreement. Under that clause, the protection of human rights constitutes an essential element of the development cooperation. Breaches thereto therefore trigger a suspension right under Article 60 of the Vienna Convention, as the Court confirmed with regard to the human rights clause in the EC–India Agreement.²⁶⁶ A similar legal construction was put forward by the Commission in the Racke case concerning the termination of the EC–Yugoslavia agreement (1980) in November 1991. The Commission argued before the Court that suspension was not only lawful under the clausula rebus sic stantibus, it also justified this action as a reaction of the not directly affected Community against the use of force by Serbia against Croatia and Slovenia, thereby again claiming the existence of third-party countermeasures under international law.²⁶⁷

²⁶⁵ F Hoff meister, Menschenrechts- und Demokratieklauseln in den vertraglichen Außenbeziehungen der Europäischen Gemeinschaft (1998), at 208–42. ²⁶⁶ Case C-268/94 Portugal v Council [1996] ECR I-6177, Rec 26–27 of judgment. ²⁶⁷ See description of the Commission position in the Conclusions of the Advocate-General Jacobs, Case C-162/96 Racke [1998] ECR I-3688, Rec 65 of the opinion.

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Finally, the Council of the European Union imposed a flight ban against the former Yugoslavia in 1998²⁶⁸ to counteract the grave human rights violations in Kosovo. The Community regulation contains the following two recitals: (3) Whereas the Government of the FRY has not stopped the use of indiscriminate violence and brutal repression against its own citizens, which constitute serious violations of human rights and international humanitarian law, and has not taken effective steps to find a political solution to the issue of Kosovo through a process of peaceful dialogue with the Kosovar Albanian Community in order to maintain the regional peace and security; (4) Whereas, therefore, Common Position 98/426/CFSP foresees a ban on flights by Yugoslav carriers between the Federal Republic of Yugoslavia (FRY) and the European Community as a further measure to obtain from the Government of the FRY the fulfilment of the requirements of UNSC Resolution 1160 (1998) and of the said Common Positions.

This reasoning is remarkable given that the suspension of the air traffic directly interfered with the rights of Yugoslav air carriers under bilateral air service agreements with some Member States.²⁶⁹ In sum, EU practice in this field can be cited in support of the proposition that international law permits, under certain circumstances, reactions of States or international organizations where obligations erga omnes have been violated by States even where this violation is not of direct concern to the States or international organizations reacting in this manner.²⁷⁰ Indeed, this practice had some effect on the relevant discussions in the ILC on the State responsibility project. The ILC made specific reference to EU examples when discussing third-party reprisals. However, it noted that the practice of third-party reprisals was ‘sparse and involves only a limited number of States’.²⁷¹ Accordingly, the ILC draft finally abstained from codifying them as constituting customary international law, because they inter alia involve a ‘due process’ issue from the perspective of the targeted State.²⁷²

E. Conclusion EU practice increasingly touches upon manifold questions of general international law. Its contribution to the development thereof may be seen as four-fold. ²⁶⁸ Common Position 1998/426 OJ [1998] L190/3 and Regulation (EC) 1901/98 OJ [1998] L248/1. ²⁶⁹ Frowein, ‘The Contribution of the European Union to Public International Law’, supra n 168, at 176. ²⁷⁰ JA Frowein, ‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’ in R Bernhardt (ed), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler (1983) 241, at 251 et seq. ²⁷¹ Report of the International Law Commission (2001) A56/10, at 350–55. ²⁷² M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ 72 BYIL (2002) 337, at 346.

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First, as a rule of law-based organization, the EU attaches great importance to the correct application of existing international law. That is evidenced in its practice vis-à-vis the non-recognition of the TRNC, or the respect for the right to self-determination of the peoples of the Palestinian territories or the Western Sahara in its dealings with Israel and Morocco respectively. It is also apparent in its faithful application of the Vienna Convention rules on the law of treaties. Encouraged through consultations in COJUR, EU Member States are also increasingly acting as watchdogs against objectionable reservations to multilateral conventions. Second, through its general willingness to subscribe to third-party dispute settlement, the European Community (and the ‘second-pillar’ EU may follow this path) supports international case law. It thereby supports the jurisprudential strain of international law, strengthening its authority as a whole. Consultations in COJUR may also have the indirect effect of promoting the acceptance of binding third-party dispute settlement by Member States. Third, the EU also contributes in some areas to the development of new concepts and norms of international law. That can be seen in its positions on (extraterritorial) jurisdiction. Furthermore, its requests for membership or full participant status in specialized UN agencies and its active contribution to the ILC’s codification project on the responsibility of international organizations may be seen as important input into the organization and work of the United Nations. Finally, its value-based recognition practice can be seen as a contribution to the constitutionalization of public international law in general.²⁷³ Fourth, the EU strengthens international law rules by making the powerful Community system (direct effect, supremacy, enforcement machinery) available for domestic enforcement of treaty norms²⁷⁴ or UN sanctions. Finally, the EU is a proponent of the possibility of taking third party reprisals, which could be either interpreted as an arrogation of power or as a form of enforcement of the international public order.

4. The EU’s Contribution to Particular Branches of International Law In tandem with the expansion of its external competences, EU practice is becoming more and more influential in particular branches of international law. Whereas details may be discerned from contributions dealing with the relevant specialised field, the following pages try to summarise some broader points. This overview certainly does not—and cannot—claim to be exhaustive. However, the ²⁷³ Frowein, ‘The Contribution of the European Union to Public International Law’, supra n 168, at 172. ²⁷⁴ Wormuth, supra n 63, at 128–29.

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present contribution would be incomplete if it did not briefly address at least some of the recent EU practice in this area.

A. Jus contra bellum, ius in bello, and the Law of Disarmament 1. The Prohibition of the Use of Force As a fundamental principle of the UN Charter, the prohibition of the use of force in international relations under its Article 2(4) is of paramount importance for the EU. That does not only follow from the references to the UN Charter in Article 11 EU, but also from the European Security Strategy of December 2003. EU leaders confirmed that: We are committed to upholding and developing International Law. The fundamental framework of international relations is the United Nations Charter. The United Nations Security Council has the primary responsibility for the maintenance of international peace and security. Strengthening the United Nations, equipping it to fulfil its responsibilities and to act effectively, is a European priority.²⁷⁵

The affirmation of the principle cannot of course ensure uniform implementation in all situations. In this respect, one may take note of considerable differences between Member States as to the interpretation and application of the right to self-defence under Article 51 of the Charter. Three recent cases shed light on the practical aspects of these discussions. (a) Kosovo First, with respect to NATO use of force against Serbia as a response to massive crimes committed by Serbian troops and paramilitary units in Kosovo, EU leaders agreed on a common text. In the extraordinary Council of Berlin (23/24 March 1999), the Heads of State and Governments observed: The international Community has done its utmost to find a peaceful solution to the Kosovo conflict [ . . . .] Finally, the Yugoslav security forces are conducting military operations against the civilian population in contravention of the provisions of UN Security Council Resolution 1999. On the threshold of the 21st century, Europe cannot tolerate a humanitarian catastrophe in its midst. It cannot be permitted that, in the middle of Europe, the predominant population of Kosovo is collectively deprived of its rights and subjected to grave human rights abuses. We, the countries of the European Union, are under a moral obligation to ensure that indiscriminate behaviour and violence, which became tangible in the massacre at Racan in January 1999, are not repeated. We have a duty to ensure the return to their homes of the hundreds of thousands of refugees and displaced persons. Aggression must not be rewarded. An aggressor must know that he ²⁷⁵ European Security Strategy, 12 December 2003, p. 9, archived at the Website of the Council http://www.europa.consilium.eu.

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will pay a high price. That is the lesson to be learnt from the 20th century. Nor will the international community tolerate crimes against humanity.²⁷⁶

As proposed in detail elsewhere,²⁷⁷ these declarations may be seen as contributing to an opinio iuris that a humanitarian intervention is lawful under international law in strictly defined exceptional circumstances. Four cumulative conditions are referred to, namely (1) the magnitude of the crimes, (2) the exhaustion of peaceful means of dispute settlement, (3) the purely humanitarian purpose of the intervention, and (4) its collective character. Whether or not, the Kosovo intervention could already have been covered by customary law or only triggered the development of a new rule, remains, of course, a matter of discussion.²⁷⁸ One may note, however, that the idea of a collective responsibility to provide for protection against grave human rights abuses found their way into the subsequent UN discourse.²⁷⁹ In 2005, world leaders affirmed the existence of a responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity,²⁸⁰ giving further support for the view that the responsibility to protect may develop into an emerging norm of international law.²⁸¹ (b) Afghanistan In the immediate aftermath of the terrorist attacks on the United States on 11 September 2001, the Security Council adopted Resolution 1368. It recalled in its preamble the inherent right of individual and collective self-defence. The United States attacked Afghanistan and eventually removed the Taliban regime from power, in close cooperation with some EU Member States. In the meantime, NATO has established a broad mission there to contribute to the stabilization of the Karsai government and economic growth in the country. Whilst the EU has not formally taken a position on the Afghan intervention, the interpretation of Security Council 1368 is nevertheless subject to debate between Member States. The open issue is whether the Security Council had accepted that self-defence could be exercised directly against a non-state actor (the Al-Qaeda), or whether it had attributed the terrorist attack to the Afghan ²⁷⁶ EC Bulletin 3–99, para I.40, p 20. ²⁷⁷ F Hoff meister, ‘Les Relations entre l’Union Européenne et les Etats-Unis après le 9 Novembre 2001: Aspects de Droit International et Européen’ in Publications de la Revue Marocaine d’Administration Locale et de Développement, Série ‘Thémes Actuels No. 48: Le Devenir du Droit International (2004), 91ff, at 95. ²⁷⁸ Compare the relevant discussions from US scholars (Henkin, Wedgwood, Charney, Chinkin, Falk, Franck, Reisman) in (1999) 93 AJIL, 842–63 and from European scholars (Simma, Cassesse) in (1999) 10 EJIL, 1–30. ²⁷⁹ See report of the High-Level Panel for Challenges, Threats and Change of 2 December 2004, UN/A/59/565, paras 199–204. ²⁸⁰ GA Res. 60/1, 24 October 2005 (World Summit Outcome), paras 138–40. ²⁸¹ I Winkelmann, ‘Responsibility to Protect, Die Verantwortung der Internationalen Gemeinschaft zur Gewährung von Schutz’ in PM Dupuy et al, Völkerrecht als Wertordnung— Common Values in International Law, Festschrift für/Essays in Honour of Christian Tomuschat (2006) 449ff, at 460.

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government, as having harboured the terrorist group on its territory. The latter interpretation is supported by other observations of the Security Council,²⁸² explicitly condemning the Taliban-regime for not taking effective measures against the Al-Qaeda. If the Taliban had handed bin Laden over to the United States, it would have been more problematic to use force against Afghanistan— because it was not the Taliban who had attacked the United States. However, no unanimous EU view seems to have crystallized on this salient point.²⁸³ (c) Iraq An even greater disagreement between EU Member States on the use of force could be seen with respect to the invasion of Iraq. Th is is not the place to go into detail on the exact nature of the rifts between Member States;²⁸⁴ for the purpose of this essay one may note that the EU did neither have a meaningful discussion, nor elaborate a common position or even adopt a common action. On 27 January 2003, the General Affairs and External Relations Council merely urged the Iraqi authorities to engage in full and active cooperation with the United Nations inspectors and concluded that ‘the responsibility of the UNSC in maintaining international peace and security must be respected’.²⁸⁵ Covered by Article 19(2), second subparagraph EU, the two European permanent members of the Security Council did not seek EU coordination on the point, but acted as sovereign states with their own assessments of the international situation.²⁸⁶ Accordingly, no EU contribution to the international law dimension of this case can be recorded. In particular, the UK justification for the invasion was not shared by some of its EU partners. On the contrary, in the Security Council France directly opposed the British assertion²⁸⁷ that the UN Security Council Resolution 1441 of 8 November 2002 had ‘revived’ the old authorization to use force against Iraq contained in Security Council Resolution 678.

²⁸² SC Res 1368 (2001), para 3; SC Res 1378 (2001), rec 4. ²⁸³ For discussions of this point see TM Franck, ‘Terrorism and the Right to Self-Defence’ (2001) 95 AJIL, at 839–43; M Kohen, ‘The Use of Force by the United States after the End of the Cold War and its Impact on International Law’ in M Byers and G Nolte (eds), United States Hegemony and the Foundations of International Law (2003), at 197–231; C Stahn, ‘Nicaragua is Dead, Long Live Nicaragua—the Right to Self-defence under Article 51 of the UN-Charter and International Terrorism’, in C Walter et al, Terrorism as a Challenge for National and International Law: Security versus Liberty? (2004) 827, at 848 et seq. ²⁸⁴ For a political account of the discussions in the EU see C Patten, Not Quite the Diplomat (2005), at 102–103 and 162. ²⁸⁵ General Affairs and External Relations Council, Conclusions of 27 January 2003, at 14. For a discussion of the rift between Member States on the Iraq war for CFSP see Koutrakos, supra n 198, at 409–11. ²⁸⁶ C Tomuschat, ‘Die EU als Akteur in den Internationalen Beziehungen’ in J Frowein et al, Verhandeln für den Frieden—Liber Amicorum Tono Eitel (2003) 799, at 808. ²⁸⁷ Opinion of Lord Goldsmith of 17 March 2003, see .

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2. Peace-keeping Missions Traditionally, European nations made a significant contribution to UN peacekeeping operations.²⁸⁸ However, after the experience with the downsides of the ‘two-key’ principle of UNPROFOR-command in Bosnia and Herzegovina, EU Member States prefer to keep peace-keepers under national or EU control.²⁸⁹ Besides this policy issue, there are usually no international law controversies when the EU itself decides to send a military mission to a third country under its security and defence policy. All of those missions are either carried out under a UN mandate or upon invitation of the local government, or both. Accordingly, the international legality of the EU missions in the former Yugoslav Republic of Macedonia, in Bosnia-Hercegovina or in the Democratic Republic of Congo are beyond doubt. Due to the lack of EC competence, first-pillar practice in the field is of course missing. Nevertheless it may be noteworthy that development aid under Article 55 of the (mixed) Cotonou-Agreement can nowadays also be used to finance peace-keeping tasks from the African Union (see so-called ‘African peace facility’²⁹⁰). As these financing decisions are taken by the Commission, the EC and its Member States indirectly contribute to peace-keeping missions on that continent.

3. The EU Guidelines on International Humanitarian Law EU practice with respect to international humanitarian law (IHL) is inevitably spread over a number of CFSP declarations in relation to various armed conflicts. As these conflicts are dealt with in geographical working groups, international law expertise and input may vary considerably. In order to provide for more consistency and to highlight the legal framework, in 2005 COJUR elaborated and the Council adopted a set of guidelines. They are largely a restatement of the present state of the law, but also contain a number of paragraphs on how the EU should react to breaches of international humanitarian law. In this respect, the guidelines represent the common legal understanding of EU Member States on this field of law and a political reference paper. Some particularly interesting parts of the IHL guidelines will be presented in the next section, when discussing the EU’s position on the international legal framework in the fight against terrorism.

²⁸⁸ R Higgins, The EC and the United Nations, EUI Working papers RSC No 94/7, Florence (1994), at 8. ²⁸⁹ J Wouters and T Ruys, ‘The European Union and Crisis Management—The Road to Partnership’ in Wouters, Hoff meister, and Ruys, supra n 46, at 258. ²⁹⁰ Decision 3/2003 of the ACP-EC Council of Ministers of 11 December 2003, on the use of resources of the 9th European Development Funds to create an African Peace Facility, OJ [2003] L345, p 108.

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4. Non-proliferation of Weapons of Mass Destruction Disarmament is another issue where EU consensus is traditionally hard to find. Partly due to the fact that the interests between the nuclear armed and non-nuclear armed EU powers are not always identical, EU voting in the UNGA’s First Committee on certain nuclear weapons resolutions remains split.²⁹¹ Nevertheless, the EU was able to adopt some important acts by unanimity. In this regard, the EU strategy on non-proliferation of weapons of mass destruction (WMD) of 12 December 2003 is of interest. It not only contains a political threat analysis, but also calls to strengthen multilateral control regimes. In that respect, it builds on common position 2003/805/CFSP of 17 November 2003 ‘on the universalisation and reinforcement of multilateral agreements in the field of non-proliferation of weapons of mass destruction and means of delivery’.²⁹² The objective of that position is to promote the universal ratification of the Nuclear Non-Proliferation Treaty²⁹³ and Safeguards Agreements (NPT), the IAEA Additional Protocols,²⁹⁴ the Chemical Weapons Convention,²⁹⁵ and the Biological and Toxin Weapons Convention.²⁹⁶ Furthermore, States are encouraged to adhere to the (non-binding) Hague Code of Conduct against Ballistic Missile Proliferation (Article 1). The EU and its Member States will pay particular attention to enforcement and make best use of existing verification missions as well as strengthening the role of the UN Security Council in the field (Article 2). Specific diplomatic action with regard to all the five instruments mentioned in Article 1 is then provided for in Articles 3–8. Finally, the EU also promotes an early entry into force of the Comprehensive Nuclear Test-Ban Treaty (Article 9). Whilst being useful to co-ordinate the EU position in relevant diplomatic conferences, the Strategy has not proven to be very effective in that respect so far.²⁹⁷ What else than diplomatic démarches can the EU do to underline its commitment to these non-proliferation issues? A newer practice tries to link the issue with bilateral treaty-making. In that respect so-called ‘WMD-clauses’ are proposed for inclusion in future agreements with third States.²⁹⁸ Technically, such ²⁹¹ J Wouters, ‘The European Union as an Actor within the United Nations General Assembly, in V Kronenberger (ed), The European Union and the International Legal Order: Discord or Harmony? (2001), at 389. ²⁹² Council Common Position 2003/805/CFSP of 17 November 2003, OJ [2003] L302/34. ²⁹³ On this treaty and the EU position for the Review Conference 2005, see specifically Common Position 2005/329/CFSP of 25 April 2005, OJ [2005] L106/32. ²⁹⁴ On this treaty see specifically Council Joint Action 2004/495/CFSP, OJ [2004] L182/46 and Council Joint Action 2006/418/CFSP, OJ [2006] L165/20. ²⁹⁵ On this treaty see specifically Council Joint Action 2005/913/CFSP, OJ [2005] L331/34. ²⁹⁶ On this treaty see specifically Council Joint Action 2006/184/CFSP, OJ [2006] L65/51. ²⁹⁷ For a discussion see M Alvarez-Verdugo, ‘Mixing Tools Against Proliferation: The EU’s Strategy for Dealing with Weapons of Mass Destruction’ (2006) 11 European Foreign Affairs Review 417, at 427. ²⁹⁸ See Council Conclusions of 17 November 2003 on the non-proliferation clause.

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as clause can either appear in a separate Article 24 EU agreement or be inserted in a traditional mixed agreement between the EC and its Member States and the third State in question. From the point of view of international law, these clause give the EU the right to suspend an agreement where the partner country does not live up to its commitment to combat the proliferation of WMDs. Finally, in line with Article 2 of the Common Position 2003/805/CFSP, the EU may consider bringing a matter before the UN Security Council. As is well known, Iran’s decision to resume activity at some uranium conversion facilities in early 2006 led to intensive negotiations between the EU and Iran. When it became clear that no negotiated solution was in reach, the EU supported the adoption of Security Council Resolution 1696 (2006), which in turn referred to the special efforts undertaken by China, France, Germany, the Russian Federation, the United Kingdom and the United States, ‘with the support of the European Union’s High Representative’.²⁹⁹ In addition, there are plenty of initiatives to combat the dissemination of land mines, or small arms and light weapons.³⁰⁰ The EU supports the ratification of the 1997 Ottawa Convention on the prohibition of the Use, Stockpiling, Production and transfer of Anti-Personnel Mines and on their Destruction and the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto. Under EU law, these initiatives may either fall under Community or Union competence, the exact delimitation between the two pillars being difficult to identify.³⁰¹ Another matter split over the pillars is export control. Whereas the dual-use export regime operates under Community Regulation 1334/2000,³⁰² the European Code of Conduct on Arms Exports of June 1998 is a soft-law regime for the export of conventional arms, making its implementation a matter for discretion for the Member States.³⁰³

B. The International Law Framework for the Fight against Terrorism International terrorism is not only a challenge to liberal-democratic societies, it also puts pressure on responsible leaders as to how best to protect their population against possible future attacks. Hence, many questions arise to the international legal framework for conducting preventive and repressive action ²⁹⁹ SC Res 1696 (2006), para 4. ³⁰⁰ For an account of relevant EU practice see fifth annual report on the implementation of the Council Joint Action of 12 July 2002 on the EU’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons (2002/589/CFSP), OJ [2006] C171/1. ³⁰¹ Case C-403/05 Commission v Council (ECOWAS, Small Arms and Light Weapons), pending. ³⁰² Council Regulation 1334/2000/EC, OJ [2000] L59/1. ³⁰³ Koutrakos, supra n 198, at 450.

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against suspected terrorists. In that respect, 11 September 2001 was a catalyst for a variety of third-pillar EU action in the field,³⁰⁴ involving action plans and a Framework Decision on combating terrorism.³⁰⁵ In the meanwhile, the EU adopted a counter-terrorism strategy in December 2005,³⁰⁶ created the office of an anti-terrorism coordinator, implemented relevant UN sanctions,³⁰⁷ and agreed to include anti-terrorism clauses in agreements with third States.³⁰⁸ However, Member States did not elaborate a systematic, formal EU position on the international legal questions involved. Nevertheless, having had a dialogue with the United States on international law and counter-terrorism since 2006,³⁰⁹ discussions in COJUR have revealed that there is consensus between EU Member States on a number of crucial issues, subsequently recorded in a variety of public statements.

1. The Applicable Law Terrorist offences are crimes under national law. Any political motivations cannot take away from the act the fact that innocent victims are murdered or injured. In that respect, prosecution under the criminal laws of the Member States is the primary response when a terrorist act has occurred. Against that backdrop the EU framework decision on combating terrorism³¹⁰ provides for the approximation of terrorist offences in the criminal law of Member States. The main EU approach is therefore based on the assumption that the application and modification of criminal law is usually the most appropriate response to terror³⁰⁴ For a comprehensive overview see N Vennemann, ‘Country Report on European Union’ in Walter et al, supra n 283, at 229 et seq. ³⁰⁵ Council Framework Decision 2002/475/JHA on combating terrorism. ³⁰⁶ For a detailed discussion see A Bendiek, EU Strategy on Counter-Terrorism—Step towards a Coherent Network Policy, Research Paper of the Stiftung Wissenschaft und Politik . ³⁰⁷ I Thomas, ‘La mise en oeuvre en droit européen des dispositions internationales de lutte contre le terrorisme’ (2004) 108 RGDIP, at 463–80. ³⁰⁸ European Council of 21 September 2001, Action Plan to Combat Terrorism. The counter-terrorism clause reads: The parties reaffirm the importance of the fight against terrorism, and in accordance with international conventions and with their respective legislation agree to cooperation in the prevention and suppression of terrorist acts. They shall do so in particular: • in the framework of full implementation of Resolution 1373 of the UN Security Council and other relevant UN resolutions, international conventions and instruments; • by exchange of information on terrorist groups and their support networks in accordance with international law and national law; • by exchanges of views on means and methods used to counter terrorism, including in technical fields and training, and by exchange of experiences in respect of terrorism prevention’. ³⁰⁹ EU–US Vienna summit declaration 21 June 2006, p 5: ‘Consistent with our common values, we will ensure that measures taken to combat terrorism comply fully with our international obligations, including human rights law, refugee law and international humanitarian law. We attach great importance to our ongoing in-depth dialogue on our common fight against terrorism and our respective domestic and international legal obligations’ (emphasis added). ³¹⁰ Council Framework Decision 2002/475/JHA on combating terrorism.

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ist threats. Criminal law may also take account of preventive needs insofar as national legislation criminalizes membership of a (domestic or foreign) terrorist organization. A Joint Action of December 1998 required Member States to make the participation in a criminal organization based in an EU country a criminal offence.³¹¹ On the basis of such criminal statutes, the law-enforcement authorities may under broad powers investigate terrorist suspects, thereby also contributing to the prevention of terrorist crimes. The same rationale is behind the EU’s support for a widespread ratification of anti-terrorist Conventions elaborated in the Council of Europe and the United Nations. Just as EU Member States are designing common rules in the third pillar, they support universal criminalization of terrorist offences through the adoption of the 13 UN Conventions in the fight against terrorism.³¹² EU Member States have stuck to this approach in practice. Countries which were already confronted with national terrorism during the recent decades, such as Germany, Italy, Spain, and the United Kingdom, based their responses almost completely on national criminal and criminal procedural law. Those legal instruments were only slightly amended after 11 September 2001;³¹³ indeed the UK House of Lords in December 2004 struck down a provision in the Antiterrorism, Crime and Security Act 2001 that allowed for indefinite detention of alien terrorist suspects as being discriminatory and inconsistent with the standards for derogation measures under Article 15 of the European Convention on Human Rights and other international obligations binding on the United Kingdom. The Hamburg suspects of 9/11 were tried by the German Federal Criminal Court, and the terrorist attacks in London and Madrid triggered relevant criminal prosecutions in the United Kingdom and Spain. Without prejudice to the validity of this general principle, national criminal law may, however, sometimes not constitute the applicable legal framework. Recital 11 of the Framework decision recalls: Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision.

Accordingly, the EU recognizes that international humanitarian law may be the applicable legal framework in place of national criminal law ‘during periods of armed conflict’. In that respect, the EU does not qualify the fight against ³¹¹ Joint Action 98/733/JHA of 21 December 1998, OJ [1998] L351/1. ³¹² See G de Vries, ‘Cooperation between the European Union and the United Nations in Counterterrorism’ in Wouters, Hoff meister, and Ruys, supra n 46, at 307. ³¹³ S Schmahl, ‘Specific Methods of Prosecuting Terrorists in National Law’ in Walter et al, supra n 283, at 83. Details on the changes in the domestic legislation of several European States can be found in the national reports on France, Germany, Italy, Spain, and the United Kingdom in that volume.

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non-state terrorist actors generally as an armed conflict. Rather than affirming a general ‘war against al Qaeda’ in the legal sense or the existence of a ‘universalised battlefield’,³¹⁴ the EU requires a case-to-case analysis. Paragraph 10 of the IHL guidelines³¹⁵ states in this respect: Whether a situation amounts to an armed conflict and whether it is an international or non-international armed conflict are mixed questions of fact and law, the answer to which depends on a range of factors. Appropriate legal advice, together with sufficient information about the particular context, should always be sought in determining whether a situation amounts to an armed conflict, and thus whether international humanitarian law is applicable.

Among the range of factors that need to be assessed are the parties to the conflict and the intensity thereof.³¹⁶ In the case of terrorist groups the level of organisation and territorial control over a certain area may become relevant. That analysis could establish that an armed conflict with a terrorist dimension is ongoing.³¹⁷ If the applicability of international humanitarian law to a given situation, such as in Afghanistan before the installation of the Karsai government (international armed conflict), or as in Iraq as at the date of writing (non-international armed conflict), is thus established, members of a terrorist organization may be treated either as combatants or civilians under IHL, according to the facts. That bears certain consequences for their legal status once they have been captured, to which we now turn.

2. Minimum Standards for the Treatment and Detention of Terrorist Suspects In a law-enforcement situation on one’s own territory the minimum standards for the treatment and detention of terrorist suspects are laid down in national criminal law, usually shaped by a set of constitutional and international human rights provisions. In particular, there are absolute limits for the treatment of suspects (prohibition of torture, cruel and inhuman or degrading treatment) in all phases of the investigation. Detainees also have a number of remedies available to challenge their detention before a judge and other rights of due process (contact with lawyers, family, and the right to a fair trial). The situation is different in an IHL scenario, giving rise to several possibilities.

³¹⁴ WM Reisman, ‘Comments on the Presentations by Nico Krisch and Carsten Stahn’ in Walter et al, supra n 283, at 912. ³¹⁵ EU guidelines on promoting compliance with international humanitarian law, OJ [2006] C327/4. ³¹⁶ S Vönecky, ‘The Fight against Terrorism and the Rules of the Law of Warfare’ in Walter et al, supra n 283, at 932. ³¹⁷ M Sassòli, ‘Terrorism and War’ (2006) 4 Journal of International Criminal Justice 959, at 964.

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In an international armed conflict a member of the regular forces, complying with the criteria of Article 4 of the Third Geneva Convention, enjoys the rights as a prisoner of war (POW). In contrast, civilians are protected under the Fourth Geneva Convention. The difficult question arises as to how to deal with persons that are not openly carrying arms and the other conditions to qualify as POW upon capture and nevertheless take active part in hostilities (and therefore are not ordinary civilians). The US has denoted this group as ‘unlawful enemy combatants’. In the initial view taken by the US administration they were neither protected by the Third nor the Fourth Geneva Convention; on the assumption that there is a ‘gap’ between these two texts, such unlawful combatants, captured in an international armed conflict, should nevertheless be treated humanely.³¹⁸ From an EU point of view, the analysis is different. Persons not covered by either the Third or the Fourth Geneva Convention in international armed conflict are entitled to the fundamental guarantees provided for by customary international law. In line with an overwhelming amount of European literature on the issue³¹⁹ and an ICRC statement to that effect,³²⁰ the minimum threshold for all detainees is reflected in Article 75 of the First Additional Protocol. However, in contrast to POWs and protected civilians, these persons may not only be prosecuted for war crimes but also for their participation in hostilities. In a non-international armed conflict, common Article 3 is sedes materiae for all captured persons. That has been forcefully recalled by the US Supreme Court in Hamdan, ruling against the view of the administration that the ‘war against al Qaeda’ was not covered by these provisions.³²¹ In such a conflict, the principles reflected in Articles 4–6 AP II might also apply. Not yet settled is whether Article 75 of the First Additional Protocol (which is literally only applicable to international armed conflicts) also provides additional protections in a non-international armed conflict. Another difficult question is whether complementary guarantees may be derived from international human rights law. In that respect section 12 of the EU IHL guidelines states: It is important to distinguish between international human rights law and IHL. They are distinct bodies of law, and, while both are principally aimed at protecting individuals, there are important differences between them. In particular, IHL is applicable in times of armed conflict and occupation. Conversely, human rights law is applicable to ³¹⁸ Contemporary Practice of the United States—‘Decision Not to regard Persons detained in Afghanistan as POWs’ (2002) 96 AJIL, at 475. For a discussion of the US position see J Fitzpatrick, ‘Jurisdiction of Military Commission and the Ambiguous War on Terrorism’ (2002) 96 AJIL, at 345 and R Wedgewood, ‘Al Qaeda, Terrorism and Military Commissions’ (2002) 96 AJIL, at 328. ³¹⁹ Vönecky, supra n 316, at 939; R Wolfrum, ‘Comments on the Presentation by Stefanie Schmahl’, in Walter et al, supra n 283, 119, at 121; JA Frowein, ‘Der Terrorismus als Herausforderung des Völkerrechts’ (2002) 62 ZaöRV, at 879, all with further references. ³²⁰ ICRC Official Statement of 21 July 2005: The relevance of IHL in the context of terrorism, , Section 4(a). ³²¹ US Supreme Court, Hamdan v Rumsfeld, 29 June 2006, 548 US, 126 S Ct 274.

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everyone within the jurisdiction of the State concerned in time of peace as well as in time of armed conflict. Thus while distinct, the two set of rules may both be applicable to a particular situation and it is therefore sometimes necessary to consider the relationship between them.

The last sentence alludes to the International Court’s finding that there may be three possible situations as regards the relationship between IHL and human rights law: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.³²² Therefore, certain procedural guarantees derived from international human rights law may need to be granted to terrorist suspects also in a non-international armed conflict.³²³ However, while affirming the possibility that human rights law may be complementary to IHL,³²⁴ the Guidelines are not elaborating the theme any further.

3. Extraterritorial Application of Human Rights Law Under Article 1 the European Convention on Human Rights, all persons within the jurisdiction of a Member State enjoy the rights flowing from the treaty. That article has given rise to an ever-growing body of case law before the European Court of Human Rights. While affirming territoriality as the primary basis of jurisdiction under the Convention,³²⁵ the Court has accepted that persons under the personal control of Member States’ forces outside their own jurisdiction may also enjoy Convention rights under certain circumstances. In particular, a State may be held accountable for violation of the Convention rights and freedoms of people who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State.³²⁶ The practical consequences of this principle for the international fight against terrorism may be far-reaching, as evidenced by the decision of the House of Lords of 12 December 2007 with respect to the conduct of UK forces in Southern Iraq (Al-Jedda). As this body of law is rooted in a regional convention, it cannot simply be transposed to the international level. Rather, the relevant international human rights conventions must be interpreted in their own right. In that respect, Article 2(1) of the International Covenant on Civil and Political Rights contains the obligation to respect and to ensure to all individuals ‘within its territory ³²² Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004), 136, at para 106. ³²³ J Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and other Situations of Violence’ (2005) 87 Int Rev of the Red Cross 375, at 377–78 and 384 seq. ³²⁴ For an in-depth discussion of complementarity see T Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL, at 239–78. ³²⁵ Bankovic and Others v Belgium and 16 other States ECHR 2001-XII, Rec 59 of judgment. ³²⁶ Issa v Turkey Application No. 31821/96, 16 November 2004, Rec 71 of judgment.

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and subject to its jurisdiction’ the Covenant rights. A literal interpretation, supported by the negotiating history, suggests that the Covenant does not require its extraterritorial application. However, in line with Article 31(1) of the Vienna Convention, the object and purpose of this human rights Convention weighs against such a narrow interpretation. Individual rights are not protected because they prevent abuses linked to the State territory, but abuses attributable to States which may also act outside their territory. Fifty years after its adoption, the Covenant cannot be interpreted so as to allow a State party to perpetrate violations of the Covenant on the territory of another State, which it could not perpetrate on its own territory. As confirmed by the UN Human Rights Committee³²⁷ and the International Court of Justice, the ICCPR does not therefore only apply when a State Party acts within its own territory, but also in respect of acts done by a State in the exercise of its jurisdiction over persons outside its own territory. This is the case, for instance, when a State exercises effective control over part of the territory of another State.³²⁸ The Austrian Presidency officially stated before the European Parliament in March 2006 that it regards the US detention facilities in Guantánamo Bay, Cuba, as an anomaly. Falling short of a number of guarantees for the detainees as provided by the Covenant, the official EU position is that this detention centre should be closed as soon as possible and that UN special rapporteurs should be granted access on the basis of their standard terms of reference.

4. Rendition Terrorist suspects are sometimes brought from one state to another for the purpose of interrogation for suspected terrorist offences. If such transfer takes place outside the legal framework of extradition treaties between the countries concerned, it is sometimes called ‘rendition’, as in the speech of US Secretary of State, Ms. Rice when describing US practice in the field, of 5 December 2005. Ms. Rice also claimed that European States have approved of this practice. Similarly, she cited case law from the former European Commission on Human Rights in support of her position.³²⁹ As to the latter, the Strasbourg case law is more nuanced. In the Carlos the Jackal case, the suspect had been transferred outside the extradition framework from Sudan to the French authorities. The European Commission on Human Rights held that the method of transferring him did not vitiate his subsequent ³²⁷ HRC, Lopez Burgos v Urugay and Celibertie de Casariego v Uruguay Nos 52/1979 and 56/1979 at paras 12.3 and 10.3 respectively; General Comment No 31 (March 2004), para 10. ³²⁸ Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004), 136, at para 111. ³²⁹ Secretary Rice stated: ‘One of the most infamous terrorists, best known as “Carlos the Jackal” had participated in murders in Europe and the Middle East. He was captured in Sudan in 1994. A rendition by the French government brought him to justice in France, where he is now imprisoned. Indeed, the European Commission of Human Rights rejected Carlos’ claim that this rendition from Sudan was unlawful.’

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process before the French judiciary. In that respect it was vital that an investigating judge had issued an arrest warrant and seen the suspect immediately upon his arrival in France.³³⁰ The Commission did not say that ‘rendition’ could justify holding the suspect without due process on European territory. In a similar vein, the European Court held in the Ocalan case that the Turkish authorities were responsible under the Convention to ensure due process rights once they had established effective control over him on board of the aeroplane flying from Kenya to Turkey.³³¹ Moreover, the European Convention organs cannot scrutinize the international law obligations of non-Convention States, and these are crucial for assessing the legality of any ‘rendition’ on their part. First, under Article 3 of the Convention against Torture, no State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture. The question arises whether this prohibition also extends to the danger of cruel, inhuman or degrading treatment. One may argue against this extension since the Convention itself does not fully assimilate the two prohibitions under Article 16. On the other hand, Article 3 CAT may also be read dynamically to encompass newer developments. What previously may have been qualified as constituting cruel, inhuman or degrading treatment may today constitute prohibited torture. Furthermore, in the EU guidelines on torture³³² third countries are called upon to ‘ensure that no one is forcibly returned to a country where he or she risks being subjected to torture or ill-treatment’³³³. Whether or not that statement can be seen as an interpretation of Article 3 CAT (given that the quoted sentence appears under the section where third countries are called upon to ‘adhere to international norms and procedures’) or as policy guidance only, may be subject to debate. In any case there is a European tendency to apply the broader standard. Under Article 18 of the EU Charter on Fundamental Rights,³³⁴ ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subject to the death penalty, torture or other inhuman or degrading treatment

³³⁰ Illich Sanchez Ramirez v France Application No. 28780/95 (‘Carlos’), DR 86, 155, at 163. ³³¹ ECtHR, Öcalan v Turkey Application No. 46221/99, Rec 93 of judgment. ³³² EU guidelines on torture and other cruel, inhuman or degrading treatment or punishment, reprinted in: Council of the European Union, EU Guidelines on Human Rights, Brussels 2005, at 13–21. ³³³ Ibid, at 16. ³³⁴ OJ [2000] C364/1. As a solemn proclamation of the Council, the Commission and the European Parliament of 7 December 2000, the Charter is not a legally binding instrument. However, as stated in the fifth recital of its preamble, the Charter reaffirms the rights as they result from constitutional traditions common to the EU Member States. As those traditions constitute an accepted source under Article 6(2) EU, the ECJ refers to the Charter when identifying the precise contents of the EU human rights standards. See, for example, Case C-540/03 European Parliament v Council of the European Union, judgment of 27 June 2006, nyr, Rec 38 of judgment. The Charter is referenced in Article 6(1) EU, as amended by the Treaty of Lisbon.

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or punishment’. Whether that European understanding will contribute to the development of universal standards, remains to be seen.

5. Secret Detention Another sensitive point concerns secret detention. In the view of the Human Rights Committee, the ICCPR requires States to hold detainees only in officially recognized places of detention.³³⁵ Paragraph 7 of the UN Minimum Rules further spells out that the State officials keep a bound registration book with numbered pages containing certain information about the prisoner, including the day and hour of his admission and release. Against that background, the UN General Assembly has declared that ‘detention in secret places’ can ‘facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment’ and that it can ‘in itself constitute a form of such treatment’.³³⁶ The EU guidelines on torture also call upon third States to ‘ban secret places of detention ensuring that all persons deprived of their liberty are held in officially recognised places of detention and that their whereabouts are known’. Furthermore, secret detention forms a key part of ‘enforced disappearance’. Under Article 2 of the 2006 Convention on Enforced Disappearance (not in force),³³⁷ such practice consists of an arrest, detention or abduction, followed by ‘concealment of the fate or whereabouts of the disappeared person, which place such person outside the protection of the law’. The Convention recalls the extreme seriousness of such practice; it further recalls the fact that the widespread or systematic practice of enforced disappearance constitutes a crime against humanity. As Article 5 makes clear, that prohibition already exists under customary international law—it is punishable under Article 7(1)i of the Statute of the International Criminal Court. Under the Convention, individual acts of enforced disappearance are also entirely outlawed. Article 17(1) states that ‘no one shall be held in secret detention’. State Parties must guarantee that ‘any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty’ (Article 17(2)c). IHL is less explicit on the matter. In an international armed conflict, all detainees must be registered with either the protecting power or the ICRC. The ICRC has the right to visit POWs and detained civilians and may freely select the places it wishes to visit.³³⁸ This presupposes that detention is carried out in an officially recognized place of detention. A similar duty does not exist in ³³⁵ HRC, General Comment 20 (Prohibition of Torture), para 11; see also application 440/1990 El-Megreisi v Libya. ³³⁶ GA Res 60/148, 16 December 2005, para 11. ³³⁷ International Convention for the Protection of all persons from disappearance, as opened for signature by General Assembly Resolution 61/177 of 20 December 2006. The relevant passage echoes the preamble of the UN Declaration against Disappearances of 1992 (GA Res. 47/133, 18 December 1992). ³³⁸ Article 126 GC III; Article 76(6) and Article 143 GC IV.

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non-international armed conflict, but States are encouraged to accept the services of the ICRC under Common Article 3(2) GC. However, this is a situation where the complementary function of human rights law vis-à-vis IHL may have its rightful place. Article 1(2) of that Convention on enforced disappearance is of utmost importance, stating that ‘no exceptional circumstances, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance’. It follows that, upon its entry into force, the Convention will also apply in a situation of armed conflict. Its standards are deemed to be non-derogable. In other words, the prohibition of incommunicado and secret detention in Article 17(1) and (2)d of the Convention may be regarded as being complementary to IHL. Against that legal background, several EU statements are instructive. Just two weeks after the public announcement of US President Bush in September 2006 that certain high-level suspected terrorists were held in undisclosed locations over an undetermined period of time, the Ministers assembled in the EU’s General and External Relations Council and: reiterated that, in combating terrorism, human rights and humanitarian standards have to be maintained. Accordingly, they acknowledged the intention of the United States administration to treat all detainees in accordance with the provisions of the Geneva Convention and the assurances about ICRC (International Committee of the Red Cross) access. The existence of secret detention facilities where detained persons are kept in a legal vacuum is not in conformity with international humanitarian law and international criminal law (emphasis added).³³⁹

In December 2006, the Ministers confirmed this view with some slightly improved wording. The conclusions of the General Affairs Council of 11 December contain the following passage in the section ‘human rights and democratization’³⁴⁰: the EU remains firmly committed to the absolute prohibition of torture, cruel, inhuman or degrading treatment and punishment. It guides our own actions and we raise our concerns with third countries. In this context, the Council reiterates that human rights, refugee law and international humanitarian law have to be respected and maintained when combating terrorism. The Council will continue to follow closely developments with regard to human rights in combating terrorism and take adequate measures for their protection. The existence of secret detention facilities where detained persons are kept in a legal vacuum is not in conformity with international humanitarian and human rights law.

On the basis of the final report of its Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of ³³⁹ General Affairs and External Relations Council of 14/15 September 2006, Conclusions, at p 17. ³⁴⁰ General Affairs and External Relations Council of 11 December 2006, Conclusions, at p 21.

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prisoners, the European Parliament formulated in its resolution of 14 February 2007 as follows:³⁴¹ Whereas extraordinary rendition and secret detention involve multiple violations of human rights, in particular the right to liberty and security, the freedom from torture, and cruel, inhuman and degrading treatment, the right to an effective remedy, and, in extreme cases, the right to life; whereas, in some case, where rendition leads to secret detention, it constitutes enforced disappearance.

Taking account of the above-mentioned statements one may safely conclude that secret detention is incompatible with international law in the EU’s view.

C. International Human Rights and Criminal Law 1. International Human Rights Law Under Article 6(2) EU fundamental rights and freedoms as enshrined in the European Convention on Human Rights form part of primary EU law. This reference, as well as the embracing case law of the European Court of Justice,³⁴² confers an ever-greater weight on the jurisprudence of the European Court of Human Rights. However, the Community itself does not actively influence Strasbourg case law as a respondent, given that it lacks competence under the present status of Community law³⁴³ to accede to the Convention.³⁴⁴ Therefore, the Commission has to intervene in cases with a Community dimension before the European Court of Human Rights in order to present the Community view. That has occurred in the Senator Lines and Emesa sugar cases, where a Commission decision and the role of the Advocate-General at the ECJ were at stake. But an intervention was also necessary in the Bosphorus case, where an application against an Irish measure under a Community sanctions regulation was found to be admissible by the judges.³⁴⁵ The EU’s commitment to the European human rights standards also has an important bearing on the enlargement process. Figuring as a part of the fundamental principles under Article 6(2) EU, accession to the EU is impossible for countries which do not follow that course (Article 49 EU). In that respect, the ³⁴¹ European Parliament, Report on the alleged use for European countries by the CIA for the transportation and illegal detention, Strasburg 26 January 2007, , Recital F. ³⁴² See Rosas, ‘With a Little help from my Friends: International Case-law as a Source of Reference for the EU Courts’, 5 The Global Community—Yearbook of International law and Jurisprudence 2005, Volume I (2006) 203, at 214 ff, demonstrating that the ECJ steadily refers to the jurisprudence from the European Court of Human Rights since the mid-1990s. ³⁴³ Under Article I-9 of the constitutional treaty, the EU would have a competence to accede to the Convention. ³⁴⁴ Opinion 2/94 [1996] ECR I-1659 with annotation by Kokott and Hoffmeister, 90 AJIL (1996) 664. ³⁴⁵ ECtHR, Bosphorus v Ireland, Application n. 45630/98, Judgment of 30 June 2005 with annotation by Hoff meister, 100 AJIL (2006) 442.

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EU contributes to the application and development of human rights and minority rights in candidate countries. Concrete effects can be demonstrated, for example, with respect to the situation of the Russian minorities in Estonia and Latvia.³⁴⁶ Another particularly sensitive issue was the compatibility of the so-called Beneš decrees with the EU’s accession requirements. These decrees had been issued by the exiled Czechoslovak President in 1945, and the provisional National Assembly confirmed their legal validity with retroactive effect in March 1946. They regulated four different aspects: (1) Decrees 12, 28, and 108 concerned the confiscation without compensation of property, particularly of people belonging to the German or Hungarian people; (2) Decree 33 provided for the loss of citizenship of Czechoslovak citizens belonging to the German or Hungarian nationality; (3) Several decrees on criminal law and procedure provided for trial in absentia against persons who had shown a lack of loyalty towards Czechoslovakia during German occupation; (4) Law 115/1946 stated that any act committed between September 1938 and October 1945 the object of which was to aid the struggle for the liberty of the Czechs and Slovaks or which represented just reprisals for actions of the occupation forces and their accomplices, is not illegal, even when such acts may otherwise be punishable by law. As the Czech Constitutional Court held in 1995 that they still formed part of the Czech legal order³⁴⁷ the question arose whether the EU could accept a new Member State with such a legacy.³⁴⁸ Upon request of the President of the European Parliament, an independent legal opinion, which drew from two other opinions of the Legal Services of the Parliament and the Commission, authoritatively settled the matter.³⁴⁹ Whereas the decrees were contrary to international law at the time of their adoption (and particularly not justified by the Potsdam agreement of August 1945) they could only be measured against the EU accession criteria. In that respect, the confiscation on the basis of the Beneš decrees and the decrees on citizenship were not caught by Community law. The EC treaty ³⁴⁶ G Sasse, ‘Minority Rights and EU Enlargement: Normative Overstretch or Effective Conditionality?’ in Toggenburg (ed), supra n 236, at 59–84. ³⁴⁷ Czech Constitutional Court ruling of 8 March 1995—Dreithaler (Pl Us 14/94), Collection of the decisions of the Constitutional Court 1995, p 73. ³⁴⁸ M Allstadt, Die off ene Völkerrechtslage im deutsch-tschechischen Verhältnis und ihre Bedeutung für die Osterweiterung der Europäischen Union (2000), at 53; M Nettesheim, Der EU-Beitritt Tschechiens: die Benes-Dekrete als Beitrittshindernis, Gutachten für die bayrische Staatsregierung (2002). ³⁴⁹ Legal Opinion on the Bene Decrees and the accession of the Czech Republic to the European Union, prepared by Prof Dr Dres hc Jochen A Frowein, Prof Dr Ulf Bernitz, The Rt Hon Lord Kingsland QC, European Parliament, October 2002. The opinion is available at .

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does not have retroactive effect. Nor does it interfere with the property regime of Member States (Article 295 EC) or with the right of Member States to determine their citizenship law. Conversely, European human rights standards would impede the enforcement of criminal convictions in absentia because such criminal procedures are in violation of Article 6 of the European Convention on Human Rights.³⁵⁰ Under European standards neither could it be tolerated that grave crimes like murder or persecution could bear impunity. However, it remained a matter of political assessment whether to require the formal abrogation of Law 115/1946³⁵¹ or to be satisfied with an official acknowledgement of regret by the Czech Government, as it had already done so in the bilateral German–Czech declaration of 1997. While criticism voiced in the European Parliament led to a comparably small majority vote in favour of the Czech Republic, no EU institution held the view that the maintenance of the legal effects of the post-war decrees amounted to breaches of international law of such a gravity that they would turn a basically bilateral issue into a European one. In its bilateral relations, the EU has developed a fully-fledged human rights policy.³⁵² For the purpose of this essay, Community practice under the human rights and democracy clauses is noteworthy.³⁵³ It has already been mentioned that these clauses enable the Community under Article 60 of the Vienna Convention to suspend either development aid that had been contractually committed or other treaty obligations. This empowerment is indeed used in practice, admittedly mostly against economically or politically weaker countries.³⁵⁴ Nevertheless, one may interpret the existence and application of these clauses as an indirect strengthening of international human rights standards, as they add another enforcement mechanism to the otherwise ‘toothless’ international supervisory bodies; with that system the European Union has contributed to the protection of democracy and human rights in parts of the world where they are particularly threatened.³⁵⁵ However, a general right to democracy under customary international law cannot be established by reference to these treaty clauses.³⁵⁶ ³⁵⁰ EctHR, Colozza v Italy, Series A, No 89; Krombach v France, Application No 29731/96; Osu v Italy, Application No 36534/97. ³⁵¹ For this view see C Tomuschat, ‘Reckoning with the Past in the Czech Republic: A Test for the Homogeneity Clause pursuant to Article 6 EU Treaty’ in A von Bogdandy, P Mavroidis and Y Mény, European Integration and International Co-ordination, Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann (2002) 451, at 470 et seq. ³⁵² For a detailed analysis see Eeckhout, supra n 41, at 465–84. ³⁵³ See B Brandtner and A Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’ (1998) 9 EJIL, at 468; T King, ‘Human Rights in European Foreign Policy: Success or Failure For Post-Modern Diplomacy?’ (1999) 10 EJIL, at 313–37. ³⁵⁴ For an account of recent practice see F Hoffmeister, ‘Les politiques de cooperation au développement et d’assistance économique, technique et les droits de l’homme’ in M Candela Soriano, Les droits de l’Homme dans les politiques de l’Union européenne (2006) 255, at 265–67 with further references. ³⁵⁵ Frowein, EU Contribution to International Law, supra n 168, at 175. ³⁵⁶ Wormuth, supra n 63, at 268.

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Another important development is the EU’s firm position on the abolition of the death penalty. That penalty is regarded as cruel and inhuman. It does not act as a deterrent and any miscarriage of justice—which is inevitable in any legal system—is irreversible. Declaration No 1 to the Treaty of Amsterdam of 1997 recalls that Protocol No 6 to the European Convention on Human Rights outlaws the death penalty in times of peace and that no Member State has applied that penalty since 1983. Furthermore, all EU Member States have signed Protocol No 13 on the complete abolition of the death penalty; ratification is pending in only five of them. The standard also has an impact on candidate countries. For example, Turkey abolished the death penalty for that reason despite the fact that it could have been applied against the PKK leader Öcalan. In addition, the extradition of a suspect from the EU to another country where there is a real risk that the death penalty will be applied can be blocked. That rule is laid down in Article 19(2) of the Charter of Fundamental Rights of the European Union; it was also inserted into Article 13 of the EU–US extradition treaty of 2003³⁵⁷ after long and difficult negotiations. It might therefore be argued that the abolition of the death penalty has become regional customary law in Europe. No European State may either reapply that penalty or assist other countries to apply it by handing convicts over to face that penalty. Against that background, the EU’s international practice is equally of interest, as there is a clear tendency to (1) strive also for the death penalty’s universal abolition and (2) to insist on certain minimum guarantees where it is still applied. Both objectives are clearly laid down in the EU Guidelines on the Death Penalty of 1998. As to the first point, the EU Guidelines on the Death Penalty³⁵⁸ set out a variety of EU instruments available to underline the EU position. The Presidency may deliver general démarches in its regular political dialogue, or confidential ones concerning individual cases. Sometimes an official CFSP declaration relates to the subject. The EU also supports resolutions against the death penalty in UN bodies, like the Human Rights Commission/Council. Finally, it may cooperate with civil society actors with a view to enhancing awareness in third countries. The practical impact of the Guidelines may be exemplified by relevant EU action in 2006.³⁵⁹ As recorded in the yearly human rights report, the EU made general démarches vis-à-vis Belarus, China, Indonesia, Jordan, Kenya, the Kyrgyz Republic, Malawi, Papua New Guinea, the Philippines, Russia, Sierra Leone, South Korea, Taiwan, Tajikistan, Tanzania, and Uganda. Individual démarches were carried out for the benefit of convicts in Afghanistan, Egypt, Indonesia, ³⁵⁷ Agreement on extradition between the United States and the European Union, OJ [2003] L181/27. ³⁵⁸ EU Guidelines on the death penalty, reprinted in Council of the European Union, EU Guidelines on Human Rights, Brussels 2005, 7. ³⁵⁹ EU Annual Report on Human Rights 2006, 4 October 2006, Doc 13522/1/06, 54–59. The report is published on the Council’s webpage: .

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Iraq, Iran, Kuwait, Libya, North Korea, Pakistan, Palestine, the Philippines, Sudan, the United States, Uzbekistan, Saudi-Arabia, and Yemen. The EU Foreign Ministers publicly deplored on 2 December 2005 the 1000th execution in the United States³⁶⁰ and the execution of Saddam Hussein at the end of 2006. With a fair degree of confidence the EU claims that its lobbying activities contributed to the then adopted moratorium in the Kyrgyz Republic and the abolition of the death penalty in Uzbekistan. The EU position also helped to move the dossier in the Parliament of the Philippines. Most recently, the EU welcomed the complete abolition of the death penalty in Moldova with the following statement: The European Union warmly welcomes the Moldovan parliament’s recent vote to remove from the Moldovan Constitution clause 3 of article 24, providing for the death penalty in extraordinary circumstances, as well as President Voronin’s approval of the amendment on 10 July 2006, thus abolishing the death penalty in law in Moldova. The European Union considers that the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. It reaffirms its objective of working towards universal abolition of the death penalty.³⁶¹

With respect to minimum guarantees, the EU Guidelines record a supplementary EU position for those cases where the application of the penalty is still maintained. The penalty shall only be applied to severe crimes which were punishable at the date of the offence (nulla poena sine lege). It shall not be applied against mentally retarded or juvenile offenders. A possible conviction shall be based on clear evidence heard in a fair trial. The delinquent must have the possibility to appeal the judgment and make applications before international treaty bodies. Finally, there should be guarantees that the penalty does not involve cruel treatment. In that respect, the EU has submitted two important amicus curiae briefs before US courts. In a case relating to the execution of a mentally retarded offender (Atkins v Virginia), the EU opposed that penalty.³⁶² The majority of the Supreme Court construed the prohibition of cruel punishment under the Eighth Amendment to the US Constitution accordingly, observing that the penalty was ‘disapproved within the world community’.³⁶³ Similarly, in a case involving the death penalty for juvenile offenders (Roper v Simmons³⁶⁴), the EU amicus curiae brief was taken into account by the US Supreme Court in its 2004 decision. ³⁶⁰ Declaration by the Presidency on behalf of the European Union on the 1000th execution in the US, Brussels, 2 December 2005. ³⁶¹ Declaration of the Presidency on behalf of the European Union on the complete abolition of the death penalty in Moldova, Brussels, 18 July 2006. ³⁶² Brief of Amicus Curiae the European Union and members of the international community in support of petitioner, in the US Supreme Court, Atkins v Virginia, 10 June 2001. The amicus can be found at the website of the European Commission delegation in the United States () under the section ‘death penalty’—Action 2001. ³⁶³ US Supreme Court, Atkins v Virginia, 536 US 304 (2002). ³⁶⁴ Brief of Amici Curiae the European Union and members of the international community in support of respondent, in the US Supreme Court, Roper v Simmons, 2004 WL 1619203 (US). The amicus can be found at the website of the European Commission delegation in the United States () under the section ‘death penalty’—Action 2004.

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Finally, the EC adopted a regulation in 2005 banning the export of instruments that can be used exclusively for the execution of the death penalty, and subjecting ‘dual-use’ instruments to an export licence system.³⁶⁵

2. International Criminal Law EU Member States have supported the establishment of the International Criminal Courts (ICC) for the former Yugoslavia and Rwanda in their individual capacity inter alia as members of the UN Security Council. Interestingly, intensive co-ordination within the EU has subsequently occurred with regard to the International Criminal Court. This has transpired not only in the negotiations on the Rome Statute. It also occurred following its entry into force. In this respect, a number of EU second-pillar common positions and third-pillar decisions merit attention. Internally, the EU created a European network of contact points in respect of persons responsible for genocide, crimes against humanity, and war crimes, ie the offences falling within the jurisdiction of the ICC.³⁶⁶ It also decided that its authorities should closely cooperate and assist each other in the investigation and prosecution of those crimes.³⁶⁷ Externally, the EU formally declared in 2001 its intention to lobby for an early entry into force of the Statute and to practically support the ICC inter alia through financial means under the human rights regulation 976/99.³⁶⁸ An action plan of May 2002 listed concrete steps of how to encourage ratification of the Rome Statute by third States, and to prepare EU coordination for the Assembly of States Parties. Parts of this action plan were then formalized in the revised common position of June 2002.³⁶⁹ From a legal point of view, the most noteworthy is the inclusion of ‘ICC-cooperation clauses’ in EC agreements with third States³⁷⁰ and the conclusion of an EU–ICC cooperation agreement under Articles 24, 38 EU.³⁷¹ In that respect, EU policy was diametrically opposed to US policy: rather than fostering cooperation with the ICC, the US government sought to conclude agreements with third States in which those third States would agree not to hand over US soldiers to the ICC. After preparations in COJUR, on 30 September 2002 the Council adopted criteria advising Member States how to react to possible US requests to that effect. The Council maintained that the US draft agreements were incompatible with Article 98 of the Rome Statute; solutions could only be acceptable where they do not lead to impunity—the US ³⁶⁵ Council Regulation 1236/2005 of 27 June 2005, OJ [2005] L200/1. ³⁶⁶ Council Decision 2002/494/JHA of 13 June 2002, OJ [2002] L167/1. ³⁶⁷ Council Decision 2003/355/JHA of 8 May 2003, OJ [2003] L118/12. ³⁶⁸ Common Position 2001/443/CFSP of 11 June 2001, OJ [2001] L155/19. ³⁶⁹ Common Position 2002/443/CFSP of 20 June 2002, OJ [2002] L164/1. ³⁷⁰ See Article 11(6) of the revised EC–ACP Cotonou agreement, OJ [2005] L209/27, at 37. ³⁷¹ Agreement between the International Criminal Court and the European Union on cooperation and assistance, OJ [2006] L115/50.

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would have to commit to trying its soldiers who were accused of committing crimes under the Rome Statute before US courts. Article 5(2) of the common position of June 2003³⁷² again confirmed that approach. In that respect it was important that candidate countries also declared their intention to comply with the EU position. That had the consequence, inter alia, that several agreements which had been signed by certain candidate countries were not ratified.³⁷³ Another challenge was the US attempt to condition its support for UN peacekeeping operations to the granting of ICC immunity for its soldiers. UN Security Council resolution 1422 (2002) contained the original compromise that such immunity would only last for a year. While that resolution had gained the support of the United Kingdom, France, and Spain, the successor resolution received more critical EU comments. Germany and France abstained, and the Greek EU Presidency made clear that there would not be any automatic prolongation of immunity. Furthermore, the EU Presidency questioned the US view that such Security Council resolutions were covered by Article 16 of the Rome State, stating: ‘In our view this article (Article 16 Rome Statute) should only be invoked in conformity with the Statute and its purposes and it is ultimately up to the ICC itself to determine whether this has been the case.’ More encouragingly, the United States accepted that the Security Council could refer the situation in Darfur to the ICC in March 2005 (Resolution 1593). That constituted the beginning of a more pragmatic attitude vis-à-vis the ICC, probably due to the constant, unanimous and firm EU support for this important international tribunal.³⁷⁴

D. International Economic Development and Environmental Law 1. Economic Law As a member of the WTO and a full participant in the OECD, the Community plays an important role in the law-making processes of these organizations.³⁷⁵ By way of example, one may quote the European role in the controversy about access to medicine under Article 31 of the TRIPS agreement. Here, the flexibility of the Community paved the way to the compromise between the interests of developing countries to allow for an exception to the compulsory licensing ³⁷² Common Position 2003/444/CFSP of 16 June 2003, OJ [2003] L150/67. ³⁷³ Progress Report Romania, COM (2002) 700 final. See also the response of Commissioner Patten to written question P-2502/02 of 2 September 2002, OJ [2003] C192 E/65. ³⁷⁴ G Pleuger, Permanent Representative of Germany at the United Nations, ‘Die Europäische Union als Macht und Makler in den Vereinten Nationen’, Speech of 28 September 2006 at the German Society for the UN