Principles and practices of EU external representation - TMC Asser ...

CLEER WORKING PAPERS 2012/5
Casolari
since the obligation to take all appropriate steps to eliminate incompatibilities
(including renegotiation and denunciation of the pre-existing agreements) cannot
be considered as a best efforts obligation. 68
As Lavranos rightly pointed out, this ‘hypothetical incompatibility’ test elaborated
in the BITs rulings, which echoes the Court’s reasoning in the Inland
Waterways cases, particularly expands the scope of application of Article 351(2)
TFEU; 69 on the other hand, it also drastically reduces the discretion which
Member States may exercise in fulfilling the obligations stemming from that. It
is undeniable that such an approach may contribute to enhancing the international
identity of the Union in the field of free movement of capital and of investments.
On the other hand, it is questionable whether the test elaborated by the
Court represents the most appropriate solution in this respect: its abstract
nature shows indeed a less ‘international law-friendly’ attitude of the EU legal
order which may easily entail the responsibility of Member States for not having
fulfilled their international pre-existing commitments, and, ultimately, risks
excessively undermining their foreign-policy interests.
That being said, to appreciate fully the impact of the loyalty clause on the
pre-existing commitments of the Member States, one needs to mention the
Kadi and Al Barakaat Foundation cases, decided by the Court in 2008. 70 In this
judgment, the Court assessed the relationship between UN law and EU law 71
and, thus, indirectly, the role played by the EU Member States in the UN.
Yet, the judgment does not contain any explicit reference to the Member
States’ loyalty to the Union when implementing UN law. This notwithstanding,
it implies that, according to the principle of loyalty, Member States should act
in the ambit of other international organizations whose competences may affect
the scope of application of EU law (including the UN), taking into account the
need to respect EU law (in particular, EU primary law and the constitutional
principles of the EU legal order).
Of particular interest in that regard is the reference to Article 351 TFEU
(former Article 307 TEC), which is contained in the judgment. Indeed, like the
Court of First Instance, 72 the Court assumed that this Article may be invoked
in assessing the relationship between EU law and UN law. 73 In considering
68 Ibid. at 344.
69 N. Lavranos, ‘European Court of Justice – infringement of Art. 307 – failure of member
states to adopt appropriate measures to eliminate incompatibilities between the Treaty Establishing
the European Community and bilateral investments treaties entered into with third countries
prior to accession to the European Union’, 103 American Journal of International Law (2009) 716,
at 720.
70 Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council of the European Union and Commission of the European Communities
[2008] ECR I-06351.
71 See F. Casolari,‘La Corte di giustizia e gli obblighi convenzionali assunti dall’insieme degli
Stati membri verso Stati terzi: obblighi comuni o ...obblighi comunitari?’, 14 Il Diritto dell’Unione
europea (2009) 267, at 273.
72 Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of
the European Communities [2005] ECR II-3649, para. 196.
73 Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council of the European Union and Commission of the European Communities,
supra note 70, para. 301.
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