Principles and practices of EU external representation - Asser Institute

CLEER WORKING PAPERS 2012/5Casolariin this case – seeks to achieve the harmonised implementation of MemberStates’ obligations under international law’. 100That being said, it is also worth mentioning that the Intertanko formula hasnot been confirmed in the most recent case-law of the Court. In the ATAAcase, 101 the Court was inter alia asked to assess the validity of an EU Directiveon the inclusion of the aviation activities in the scheme for greenhouse allowancetrading within the Union in light of the 1944 Chicago Convention on InternationalCivil Aviation (which has been ratified by all the Member States). Inthe judgment, the Court concluded that the Directive at issue could not beexamined in the light of the Chicago Convention as such, since the latter wasnot binding upon the Union. 102 In this case, however, the Court did not makeany reference to the duty of consistent interpretation. 103 On this question, theAdvocate General Kokott took a different line. As in Intertanko, she concluded:‘… the European Union is not bound by the Chicago Convention; therefore thatconvention cannot serve as a benchmark against which the validity of EU actscan be reviewed. However, as all of the EU Member States are Parties to theChicago Convention, it must nevertheless be taken into account when interpretingprovisions of secondary EU law.’ 104Even though the Court’s omission may be justified taking into account theabsence of a real risk of conflict between EU law and the Chicago Convention, 105from a theoretical point of view it is, at the very least, difficult to explain thisdifferentiated approach. 106 This also in the light of the recent conclusion of aMemorandum of Cooperation (MoC) between the European Union and theInternational Civil Aviation Organization (ICAO), 107 which sets out the principlesof the mutual EU-ICAO cooperation and states that this cooperation shall beexercised ‘without prejudice to the rights or obligations of EU Member Statesunder the Chicago Convention or to the relationship between EU MemberStates and ICAO resulting from their membership of ICAO’. 108100 Opinion of Advocate General Kokott, 20 November 2007, para. 78.101 Case C-366/10 Air Transport Association of America and Others v Secretary of State forEnergy and Climate Change not yet reported.102 Ibid. para. 72. See also D. Simon, ‘Droit international conventionnel et coutumier:l’invocabilité au cœur de la lecture juridictionnelle des rapports des systèmes (à propos de l’arrêtAir Transport)’, 21 Europe (3/2012) 5, at 8, who affirms, however, that: ‘les limites posées parcet arrêt ... n’interdit pas au juge de l’Union de recourir, dès lors que la demande ne tend pas àprononcer l’invalidité d’un acte communautaire, à la méthode de l’interprétation conforme, dont laproductivité potentielle est de nature à concilier la garantie de l’autonomie de l’ordre juridique del’Union et le respect des obligations imposées par l’ordre juridique international’.103 Case C-366/10 Air Transport Association of America and Others v Secretary of State forEnergy and Climate Change, supra note 101, para. 60.104 Opinion of Advocate General Kokott, 6 October 2011, para. 163.105 See in this respect the Opinion of Advocate General Kokott, supra note 104, para. 171,and B. Mayer, ‘Case C-366/10, Air Transport Association of America and Others v. Secretary ofState for Energy and Climate Change, Judgment of the Court of Justice (Grand Chamber) of 21December 2011, nyr’, in 49 Common Market Law Review (2012) 1113, at 1135.106The rationale of the Court’s reasoning may only be found in an isolationist posture visà-visinternational law: B. Mayer, supra note 105, at 1124.107 OJ 2011 L 232/2.108 Cf. the Preamble of the MoC.32