Home Archive for category "European Union" (Page 10)

Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Published on November 16, 2010        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. Read the rest of this entry…

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A Preemptive Strike against European Federalism: The Decision of the Bundesverfassungsgericht Concerning the Treaty of Lisbon.

Published on October 9, 2010        Author: 

Julian Arato is a J.D. candidate and Institute of International Law and Justice Scholar at the New York University School of Law .  His article on  Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences, 9 Law & Prac. Int’l Cts. & Tribs. (forthcoming 2010) is  available here.

Editor’s Note: Readers may be interested in previous EJIL:Talk commentary on the Lisbon Judgment discussed below. For pieces by Joseph Weiler see here  and here . See also Piet Eeckhout’s  ” The European Union and International Law Under the Treaty of Lisbon“. For analysis of the legal guarantees offered to Ireland to secure ratification of the Lisbon treaty, see Laurent Pech’s  “The European Union’s Lisbon Treaty: Some Thoughts on the Irish Legal Guarantees“.

 On first reading the 2009 Lisbon case of the German Constitutional Court appears to hew quite closely to the Court’s reasoning in 1993, reviewing Germany’s accession to the Maastricht Treaty.  Both cases declare that European integration must respect the inviolable core of the German Constitution (Grundgesetz). (Specifically, in these cases, Article 20, entrenching democracy and the rule of law.  See Zitierung: BVerfG, 2 BvE 2/08 vom 30.6.2009, ¶233 [hereinafter Lisbon]; Decision concerning the Maastricht Treaty, 33 I.L.M. 388, 422 [hereinafter Maastricht]). In both cases the Court declares that under the Treaties it retains final say over whether European Law is compatible with the Grundgesetz and is thus applicable in Germany (judicial Kompetenz-Kompetenz).[i] Finally Lisbon, like Maastricht, finds that the Treaty ultimately passes constitutional muster. Thus, at first blush, the Court of Lisbon seems to basically restate its 1993 reasoning.  I want to argue, however, that the Court has substantially sharpened its challenge since Maastricht, elevating much of the Court’s earlier state-centric interpretation of the status of integration under the Treaties to a statement of German constitutional principle.

I will focus on three ways in which Lisbon represents an advance on Maastricht.  The Court announces: 1) that the Grundgesetz entrenches an absolute and unamendable limit on integration, that State sovereignty as such is inalienable, and thus forbids the delegation of excessive competences, especially Kompetenz-Kompetenz; 2) the Grundgesetz requires the German Constitutional Court to retain final review over the actions of German and European public authorities for possible alienation of, or encroachment on, German State sovereignty (judicial Kompetenz-Kompetenz); and 3) the Court goes about rigorously reviewing the Lisbon Treaty for infringements of German sovereignty in a far more searching manner than it had done in the past.  Leaving little to implication, the Court spells out the consequences of its decision: in the exceptional case where European institutions overstep their enumerated powers, even with the interpretive blessing of the ECJ, the German Court will exercise review and may instruct German authorities not to apply the European law, even if it means engaging Germany’s international state responsibility.

 1. Constitutional limits to integration: Germany must retain substantial competences.

            The rhetoric of Lisbon suggests that, like Maastricht, it concerns a democracy review on the model of Solange.  However, I want to suggest that Lisbon is really, at its core, about protecting state sovereignty in light of the expansion of competences at the Union level. In this regard, in 1993 the Court held only that under the Treaty of Maastricht, integration would not yet reach the point of a federal state.  In 2009 the Court went further, holding that full integration into a supranational federal state (federalization) would be in principle forbidden by the Constitution. Read the rest of this entry…

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The Position of British Parties on International Law Issues

Published on April 22, 2010        Author: 

As readers will know the UK will hold a general election on the 6th of May. This evening, as a part of a unprecedented three part series of debates, the leaders of the three main UK parties (Labour, Conservatives and Liberal Democrats) will hold a debate on foreign affairs. I thought it would be useful to highlight, brieftly, the position of those three parties on some issues of international law. The BBC website has a useful summary of the position of these parties on Europe and Foreign Affairs, which you can find here. However, some of the positions attributed to the parties by the BBC do not appear in their manifesto and don’ t seem to be on the parties website either. Unlike the position in the United States in recent years, and with the exception of their position on relations with the European Union, there is no radical difference between the parties on questions of foreign affairs. I don’t intend to say much on Europe, but it is worth pointing out, in brief, that the Conservatives hold the most sceptical position, including, for example, a commitment never to join the single european currency – the Euro; and amending UK law to ensure that any future transfers of powers to the EU must be approved by referendum. The Liberal Democrats , by contrast hold the most Euro friendly position (both with respect to the single currency and Europe more generally) with Labour being somewhere in the middle. On another matter related to Europe, the Conservatives have promised to replace the Human Rights Act (which incorporates the European Convention of Human Rights into UK law) with a UK Bill of Rights. I will leave it to others more knowledgeable about that issue to comment on it.

On general international law issues there is actually broad agreement among the parties on a range of issues. Let me start by pointing out the position of the parties on a number of international treaties – both exisiting treaties and those possible future treaties that the parties commit themselves to support. Labour and the Conservatives commit themselves in their manifesto to reform of the UN Security Council (which presumably means amendment of the UN Charter). Read the rest of this entry…

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EU denies preferences to products from Israeli settlements

Published on March 2, 2010        Author: 

Dr Lorand Bartels is University Lecturer in Law, University of Cambridge. His publications include Human Rights Conditionality in the EU’s International Agreements (2005, OUP) and Regional Trade Agreements and the WTO (co edited with F. Ortino, 2006, OUP)

The European Court of Justice decided an interesting case last week (Case C-386/08, Brita, 25 February 2010). The Hauptzollamt Hamburg-Hafen (the main customs office of the port of Hamburg) had refused to give preferential treatment under the EC-Israel Association Agreement to products manufactured by an Israeli company in the West Bank.The judgment gives the following facts:

32. The German customs authorities provisionally granted the preferential tariff applied for, but commenced the procedure for subsequent verification. On being questioned by the German customs authorities, the Israeli customs authorities replied that ‘[o]ur verification has proven that the goods in question originate in an area that is under Israeli Customs responsibility. As such, they are originating products pursuant to the [EC-Israel] Association Agreement and are entitled to preferential treatment under that agreement’.

33. By letter of 6 February 2003, the German customs authorities asked the Israeli customs authorities to indicate, by way of supplementary information, whether the goods in question had been manufactured in Israeli-occupied settlements in the West Bank, the Gaza Strip, East Jerusalem or the Golan Heights. That letter remained unanswered.

34. By decision of 25 September 2003, the German Customs authorities therefore refused the preferential treatment that had been granted previously, on the ground that it could not be established conclusively that the imported goods fell within the scope of the EC-Israel Association Agreement. Consequently, a decision was taken to seek post-clearance recovery of customs duties amounting to a total of EUR 19 155.46.

One might have thought that the question would hinge on whether the origin of the products fell within the territorial scope of the EC-Israel Agreement (the ‘territory of the State of Israel’). But the Court took quite a different route. It referred to the EC-PLO Association Agreement, which provides for free trade for products from the ‘territories of the West Bank and the Gaza Strip’ and said:

52. Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention.

Is this correct? Recognizing Israeli competence in relation to products originating in the West Bank does not amount to a denial of Palestinian competence over those products. And even if it did, it does not impose any obligation on the Palestinian authorities not to exercise this competence. They remain free to do so, if they can. So this is not entirely convincing.

The more interesting question is why the Court found it necessary to adopt this odd approach to the case. Why not just determine whether or not the West Bank is part of the ‘territory of the State of Israel’ (as did the A-G)? Could this have anything to do with possible future cases involving annexed territories?

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Reframing EU Constitutionalism

Published on December 17, 2009        Author: 

Professor Neil Walker is Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh

The intense if highly variable focus on constitutionalism in the Ruling the World collection is a reflection of significant changes in global legal relations with which we are only beginning to come to terms. Once upon a time constitutional law was part of a hegemonic pair of dominant legal frames for the Westphalian world. Constitutional law framed the legal authority of states – understood as mutually exclusive sites of sovereign power – while international law was engaged in the relentless and relentlessly precarious business of framing legal authority between states (who were in many respect in unequal or even imperial relations inter se).

 The world has changed. States are very far from being marginal players, but they do not exert the comprehensive legal and political authority they once did. This poses a challenge to international law and constitutional law alike. For each, the post-Westphalian moment both poses a threat and provides an opportunity. International law is in some respects disorientated and decentred by the erosion of state authority. It has to deal with the rise of private power and of forms of supranational authority. It also has to cope with the related matter of the advent of new forms of functional specialisation – of more or less self-contained regimes in such as environmental, trade and criminal law to which states increasingly defer and where general principles of international law are of fading authority. But privatization, transnationalism and fragmentation also afford new opportunities.  A flexible international law can seek to embrace these. If international law has always been about the heterarchical dimension in legal relations – about law between powerful entities – then the new global archipelago offers new possibilities for the adaptation of international law.

For constitutional law the erosion of state authority poses an even more direct challenge. If constitutional law was embedded in the modern state, what happens when the state itself becomes disembedded from its dominant position in the global order? Does constitutional law just become less relevant, ceding ground to the new forms of private and supranational authority? Or, as in the case of the EU or the WTO or the UN, can it become the new framing discourse for each of these entities considered discretely?  Can we think of such supranational organisations in constitutional terms, and can we even begin to think of private or hybrid bodies (such as the internet’s ICANN) in such terms? Can we learn and borrow from state constitutional discourse sufficiently to bridge the legitimacy gap opened up by the erosion of state constitutional authority?  In other words, can the rise of a new constitutionalism be an answer to the decline of the old constitutionalism?

In my own essay in the collected volume, I ask this question of the EU. My answer is a mixed one. Modern state constitutionalism, I argue, involves a fusion of number of framing registers. Read the rest of this entry…

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The European Union and International Law under the Treaty of Lisbon

Published on October 16, 2009        Author: 

Editor’s Note: This is part of a series of post on the Treaty of Lisbon. The first post in the series was by Laurent Pech and can be found here

Now that Ireland has voted yes in a referendum earlier this month – remarkable how democracy swings! – the European Union’s Treaty of Lisbon looks set to enter into force over the next couple of months.  Barring any further upheaval, such as a recalcitrant Czech President refusing to sign, or further delay allowing the UK Conservative Party (if they win the next general election in the UK) to set up their referendum, the curtain will fall over the European Union’s [EU] long constitutional episode which followed the Treaty of Nice.  It is by no means the end of the play though.  The curtain may fall for the general public, but behind the scenes much of the work remains to be done.  The entry into force of Lisbon will not close institutional reform.  Quite the contrary, it will set in motion an intense period of institutional adaptation, governed by often sketchy Treaty provisions which are indeterminate and riddled with opportunities for inter-institutional strife.  This is particularly the case for the conduct of the EU’s external relations – or external action, as the Treaties now call it.  The role and position of the High Representative for Foreign Affairs and Security Policy, who will also be a Commission Vice-President, will need to be clarified.  His or her relationship with both the Commission President and with the new European Council President will need to be developed.  The EU’s External Action Service will need to be set up.  These are just some examples.

The focus of this post is not on such institutional issues, but on other questions regarding the EU’s future as an international actor, subject to international law.  What are some of the main changes which may affect that future?  Here are some projections.

The International Legal Personality of the European Union

Readers probably know this by now, but it is still momentous: the European Community will be no more.  The difficult construction of a European Union, based on, and complementing the European Community, will be replaced by a single EU, which will have legal personality (Art 47 Treaty of the European Union [TEU]).  That will terminate the rather tedious academic discussions about whether the EU, as opposed to the EC, has international legal personality (it clearly had, at the latest from the moment it started concluding international agreements).  Instead of two international legal persons, the EU and the EC, there will be only one.  This also means that the various EU external policies will need to be further integrated.  Read the rest of this entry…

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Filed under: EJIL Analysis, European Union
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The European Union’s Lisbon Treaty: Some thoughts on the “Irish Legal Guarantees”

Published on September 28, 2009        Author: 

Dr. Laurent Pech is Jean Monnet Lecturer in EU Public Law at the National University of Ireland, Galway. He has recently been Emile Noel Fellow at New York University School of Law and a Visiting Scholar at UC Berkeley’s EU Center of Excellence.

 As is well-known, EU Treaties, to enter into force, must be ratified by all EU Member States in accordance with their respective constitutional requirements. In Ireland, following a controversial and ambiguous 1987 judgment of the Irish Supreme Court, ratification of EU Treaties is understood as requiring amendment of the Constitution, which in turn requires a referendum (formally speaking, however, each new EU Treaty is submitted by the Government to the Attorney General to determine if a referendum is constitutionally required: see this study for further analysis).

 In June 2008, to the surprise of many, Irish voters refused to amend the national Constitution to allow for ratification of the Lisbon Treaty, signed in December 2007. The Irish No did not lead, however, to the abandon of the Treaty as most national governments continue to consider this latest updating of the EU “Constitution” indispensable in order to help the enlarged EU to function more efficiently and more democratically. To pave the way for Irish voters to be consulted again on the same text, the Heads of State and Government of the 27 Member States decided that Ireland would be given some “legal guarantees” and “assurances” on the main areas of concern to Irish voters as long as they were perfectly compatible with the Treaty and did not require, therefore, the ratification process to be re-opened. As a result of the EU leaders’ agreement on the substance and legal form of those guarantees last June (see Conclusions of the European Council meeting), the Irish government indicated that a second referendum will be held on Friday, 2 October.

Designed to respond to concerns raised by the Irish people, the “package” agreed by EU leaders consists of:

  • An agreement that, provided the Treaty of Lisbon enters into force, a decision would be taken to the effect that the Commission shall continue to include one national of each Member State;
  • A Decision on the concerns of the Irish people on the Treaty of Lisbon and an agreement to subsequently enshrine the substance of this Decision in a Protocol to be attached to the EU Treaties at the time of the conclusion of the next accession Treaty;
  • A Solemn Declaration on Workers’ Rights, Social Policy and other issues;
  • A unilateral Declaration by Ireland relating to defences issues to be associated with the Irish instrument of ratification of the Lisbon Treaty.

 The commitments and “set of arrangements” agreed by the European Council call for several remarks. Read the rest of this entry…

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Investment Treaties and EU law

Published on July 21, 2009        Author: 

Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London.

In two parallel decisions of March of this year (Case C-249/06 Commission v Sweden and Case C-205/06 Commission v Austria) the European Court of Justice ruled that Sweden and Austria are in breach of their EC Treaty obligations by maintaining bilateral investment treaties with third countries which may interfere with the EU’s powers to restrict capital movements.  This is the Court’s first venture into the booming international investment law field.  It should be seen in its broader setting. The Treaty of Lisbon purports to extend the scope of the EU’s common commercial policy to matters of “foreign direct investment”.  Perhaps in anticipation of this significant expansion of Community competence, the Commission is becoming active in this area.  It considers that bilateral investment treaties between Member States and third countries are incompatible with Community law, in so far as they contain a clause on the free transfer of payments connected with an investment.  Such a clause, whilst in principle compatible with the free movement of capital between the Community and third countries, could create problems were the Community to introduce restrictions pursuant to Articles 57(2), 59 and 60(1) of the EC Treaty.  There is as yet no relevant legislation under any of these Treaty provisions, but the Commission is concerned that the future exercise of Community competence could be hindered.

The Commission therefore brought proceedings against Sweden and Austria, referring to a series of investment treaties which they have concluded.  Those treaties come within the scope of Article 307 EC, pursuant to which (a) rights and obligations arising from agreements, concluded before accession, between Member States and third countries are not affected by the EC Treaty, and (b) Member States shall take all appropriate steps to eliminate any incompatibilities with the EC Treaty.  Sweden and Austria were alleged not to have removed the incompatibility between their investment treaties and EC law.  What the Commission would like to see is a so-called Regional Economic Integration Organisations clause in these agreements: a clause which allows and safeguards EC measures. Read the rest of this entry…

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A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Published on July 7, 2009        Author: 

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

Read the rest of this entry…

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Kadi and Al Barakaat: Luxembourg is not Texas – or Washington DC

Published on February 25, 2009        Author: 

Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London. He was a member of the legal team for the applicant Yassin Kadi.

The European Court of Justice’s approach in the Kadi decision has already been described as sharply dualist (see,Professor Joseph Weiler’s EJIL editorial, posted here on this blog and Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi“, Jean Monnet Working Paper No. 01/09).  The Court emphasises the autonomy of the Community legal order. Judicial review in the light of fundamental rights is the expression of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, a guarantee which is not to be prejudiced by an international agreement. Not even the UN Charter is capable of interfering with that guarantee, notwithstanding the Charter’s primacy under international law, a primacy which the Court accepts.

The strong confirmation of the autonomy of Community law is undeniable. But there is of course nothing new in that autonomy: since Van Gend en Loos this is the very premise of the Community legal order. However, I find the notion of dualism much less helpful for the purpose of characterising the Court’s reasoning. The interactions between international law and municipal law in today’s world have too many different dimensions for blunt concepts such as monism and dualism to be helpful. This means that Kadi needs to be put in perspective. It is very tempting to argue that the judgment is ground-breaking, perhaps even revolutionary, the most important judgment handed down by the Court in decades. Alas, my academic assessment is that this is exaggerated. Read the rest of this entry…

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