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

CLEER WORKING PAPERS 2012/5
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ment UN law in conformity with ‘the very foundations’ of the EU legal order. 81
It follows that, strictly speaking, the need to respect the fundamental values of
the Union should also lead to interpret the principle of loyalty in the sense that
Member States cannot assume UN obligations that are inconsistent with the
constitutional principles of the Union. Such an interpretation should prevent
the ‘sandwich effect’ highlighted by Eckes. 82 After the Kadi and Al Barakaat
Foundation ruling, indeed, the EU Member States have been placed before an
awkward choice: either the Member States ensure the implementation of UN
sanctions, and thus may be brought before the ECJ for failure to comply with
EU law; or they ensure the respect of EU law, with all the concomitant consequences
in terms of international responsibility vis-à-vis the UN legal order.
The reading of the cases which is proposed here exactly corresponds to the
position expressed by Advocate General Maduro in his Opinions. According to
AG Maduro, ‘[t]hat duty [i.e. the duty of loyalty] requires Member States to
exercise their powers and responsibilities in an international organisation such
as the United Nations in a manner that is compatible with the conditions set by
the primary rules and the general principles of Community law. As Members of
the United Nations, the Member States ... have to act in such a way as to
prevent, as far as possible, the adoption of decisions by organs of the United
Nations that are liable to enter into conflict with the core principles of the Community
legal order. The Member States themselves, therefore, carry a responsibility
to minimise the risk of conflicts between the Community legal order and
international law’. 83
It is evident that such a reading of the position taken by the Court in Kadi
and Al Barakaat Foundation may deeply influence the EU representation in the
UN. As is well-known, this issue is only partially faced by EU primary law. In
particular, for present purposes the wording of Article 34(2) TEU should be
recalled, which reads: ‘Member States which are also members of the United
Nations Security Council will concert and keep the other Member States and
the High Representative fully informed. Member States which are members of
the Security Council will, in the execution of their functions, defend the positions
and the interests of the Union, without prejudice to their responsibilities under
the provisions of the United Nations Charter’. 84 According to several scholars,
the last passage of the second sentence of that paragraph (‘without prejudice
to their responsibilities under the provisions of the United Nations Charter’)
makes express reference to the right to veto of the EU Member States which
are permanent Security Council members and, consequently, allows them not
to act on behalf of the Union in participating in Security Council’s activities. 85
81 N. Lavranos, ‘The Impact of the Kadi Judgment on the International Obligations of the EC
Member States and the EC’, 28 Yearbook of European Law (2009) 616, at 619.
82 C. Eckes, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’, 17
European Foreign Affairs Review (2012) 113, at 130.
83 Opinion of Advocate General Poiares Maduro, 23 January 2008, para. 32.
84 [Emphasis added].
85 See for instance N. Ronzitti,‘Il seggio europeo alle Nazioni Unite’, 91 Rivista di diritto internazionale
(2008) 79, at 91. In this sense see also the Declaration No 14 annexed to the Final Act
of the Lisbon Intergovernmental Conference concerning the common foreign and security policy,
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