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

The principle of loyal co-operation: A ‘master key’ for EU external representation?
such a relationship, Gaja maintained that, ‘even if the requirements for applying
Article 307 appear to be met, it does not seem appropriate to consider that
the relations between obligations under the UN Charter and obligations under
EC law are governed by this provision’. 74 Actually, it is difficult (or ‘inconceivable’,
as Gaja further noted) to conclude, as acknowledged by the Court in the
BITs cases, that, to the extent that UN law is not compatible with EU law, Member
States should automatically take all the appropriate steps to eliminate the
incompatibilities established: such a conclusion would, indeed, risk undermining
the primary responsibility with which the UN is invested for the maintenance
of peace and security. 75 In fact, to properly understand the reference by the
Court to Article 351 TFEU, it should be recalled that in Kadi and Al Barakaat
Foundation such a provision is mentioned, together with other Treaty norms,
to demonstrate the desire of Member States to bind the Union to the UN obligations
dealing with subject-matters falling within the scope of application of EU
law. 76 It is exactly in this vein that the Court holds that: ‘Observance of the
undertakings given in the context of the United Nations is required just as much
in the sphere of the maintenance of international peace and security when the
Community gives effect, by means of the adoption of Community measures ...,
to resolutions adopted by the Security Council under Chapter VII of the Charter
of the United Nations’. 77
The Court then proceeds to examine the consequences stemming from this
clarification and concludes that: ‘Article 307 EC [Article 351 TFEU] may in no
circumstances permit any challenge to the principles that form part of the very
foundations of the Community legal order, one of which is the protection of
fundamental rights, including the review by the Community judicature of the
lawfulness of Community measures as regards their consistency with those
fundamental rights’. 78 This extract marks a significant shift from the approach
taken by the Court in its previous case-law to the interplay between EU law
and UN law. In particular, it is worth mentioning here the Centro-Com case,
where the Luxembourg judges, without imposing any limitation to its scope of
application, invoked Article 351(1) TFEU to justify the primacy of UN law. 79
Viewed from this angle, it is possible to maintain that, according to Kadi and
Al Barakaat Foundation, the specific loyalty duty which is codified by Article
351(2) 80 should first impose upon the Member States an obligation to imple-
74 G. Gaja, ‘Are the Effects of the UN Charter under EC Law Governed by Art. 307 of the EC
Treaty?’, 28 Yearbook of European Law (2009), at 611.
75 Note that the primary role played by the UN Security Council in this respect has also been
emphasised by the Court in its judgment: 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. 294.
76 F. Casolari, supra note 71, at 280.
77 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. 293 [emphasis added].
78 Ibid. para. 304.
79 Case C-124/95 The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England
[1997] ECR I-00081, para. 56. See also J. Klabbers, supra note 60, at 157-158.
80 As it has been clarified in the BITs cases.
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CLEER WORKING PAPERS 2012/5