Abstract
This contribution aims to prove that, depending on the specific circumstances of the dispute at stake, different solutions are required in order to protect the Union autonomy where EU law is the applicable law. This analysis will take into consideration the different nature of Union law—as international or domestic law—distinguishing four different typologies of international disputes. The first of the four categories is the so-called inter se EU Member States disputes, where two EU Member States are parties to an international dispute as applicant and respondent. The second category where EU law, as international law, amounts to applicable law is foreseen under the so-called “integration-oriented agreements”, that is, treaties whose purpose is to extend EU law to third parties. The third category of international disputes takes place when EU law amounts to domestic law, and will be treated as ‘a matter of fact’, rather than ‘a matter of law’, while the applicable law is the international agreement allegedly violated. The fourth and final category will focus on intra-EU investor-state disputes where EU law may be the applicable law as international or domestic law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
- 2.
On the reasons why the interpretation and application of EU law by an international court and tribunal may undermine, under certain circumstances, EU autonomy, see Contartese and Andenas 2019.
- 3.
See, in this Volume, Chap. 3 by van Rossem.
- 4.
Case C-459/03, Commission v. Ireland (MOX Plant), EU:C:2006:345.
- 5.
C-284/16, Slovak Republic v Achmea, ECLI:EU:C:2018:158.
- 6.
Opinion 1/17, CETA, ECLI:EU:C:2019:341.
- 7.
MOX Plant (Ireland v. UK), (2003) 42 ILM 1187 (hereafter ‘OSPAR Award’), OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 Sept. 1992, (1992) 2 ILM 1069 (hereafter OSPAR).
- 8.
UNCLOS Arbitral Tribunal, MOX Plant, Suspension of proceedings on jurisdiction and merits and request for further provisional measures, Order n. 3 (24 June 2003), available at www.pca-cpa.org.
- 9.
ITLOS, MOX Plant, Request for provisional measures, Order of 3 December 2001, available at www.itlos.org.
- 10.
Case C-459/03, Commission v. Ireland (MOX Plant).
- 11.
For a summary of the facts of the MOX Plant saga, see the CJEU’s judgment in MOX Plant, paras 30–48.
- 12.
Article 9(2) OSPAR requires the contracting parties to make available all information ‘on the state of the maritime area, on activities or measures adversely affecting or likely to affect it’.
- 13.
Article 32(5)(a) OSPAR.
- 14.
OSPAR Award, para 142–143.
- 15.
Under Article 290(5) UNCLOS.
- 16.
See Schrijver 2010.
- 17.
Mox Plant, para 110.
- 18.
Ibid., para 123.
- 19.
Ibid., para 149.
- 20.
Ibid., para 154 (emphasis added).
- 21.
Contartese 2017.
- 22.
Opinion 2/13, ECHR, EU:C:2014:2454, para 182.
- 23.
Ibid., para 184.
- 24.
See in this sense, the MOX Plant case, para 151, where the Court noted that ‘Ireland submitted instruments of Community law to the Arbitral Tribunal for purposes of their interpretation and application in the context of proceedings seeking a declaration that the United Kingdom had breached the provisions of those instruments’ (emphasis added).
- 25.
- 26.
The Iron Rhine (“Ijzeren Rijn”) Railway case, Belgium v. Netherlands (24 May 2005), available at www.pca-cpa.org. See Bladel 2006, pp. 3–22; D’Argent 2007, pp. 1113–11137.
- 27.
Ibid., para 103.
- 28.
Ibid., paras 97–106.
- 29.
Ibid., paras 107–137.
- 30.
As Lavranos (2006, p. 231) rightly observed, ‘[t]he three arbitral awards (UNCLOS, OSPAR, and IJzeren Rijn) illustrate […] the very different approaches adopted by the tribunals towards the issue of Article 292 EC [article 344 TFEU]. The UNCLOS arbitral tribunal indicated that it was mindful of the potential problems related to its jurisdiction vis-à-vis the ECJ jurisdiction by staying the proceedings and requesting the parties first to find out whether or not the ECJ indeed had jurisdiction. In contrast, the OSPAR arbitral tribunal took the opposite position by seizing its jurisdiction and rendering a final award without any discussion of Article 292 EC. The IJzeren Rijn arbitral tribunal took a position between those of the other two tribunals by discussing at length the possible application of Community law that would trigger jurisdiction of the ECJ, ultimately coming to the conclusion that it could render its award without the application of Community law’.
- 31.
- 32.
The insertion of a disconnection clause was, for instance, what the CJEU deemed necessary in the Draft EU Accession Agreement to the ECHR (Opinion 2/13, paras 201–214). This latter, according to the Court, failed to properly safeguard Article 344 TFEU as it did not rule out the possibility that, where EU law is at issue, the EU and/or its Member States might submit an inter-state application under Article 33 ECHR, concerning ‘Inter-State cases’.
- 33.
Łazowski 2008. Amongst the limited number of agreements belonging to this category, there can be listed: as for multilateral agreements, the European Economic Area agreement, the Energy Community Treaty and the European Common Aviation Area Agreement; as for bilateral agreements, the Association Agreement with Turkey, Agreements establishing a custom union with Andorra and San Marino, some agreements with Switzerland, some bilateral common aviation area agreements, monetary agreements on euro with Vatican City State, Monaco, San Marino, and Andorra, and some agreements with Andorra and Monaco.
- 34.
Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part (OJ L 108, pp. 0003–0354, 29/04/2010).
- 35.
Stabilisation and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part (OJ L 278, pp. 0016–0473, 18/10/2013).
- 36.
EU-Montenegro Agreement (Protocol 7, Article 13); EU-Serbia Agreement (Protocol 7, Article 13) (emphasis added).
- 37.
Article 111, par. 4 EEA Agreement ‘Arbitration’: ‘If a dispute concerns the scope or duration of safeguard measures taken in accordance with Article 111(3) or Article 112, or the proportionality of rebalancing measures taken in accordance with Article 114, and if the EEA Joint Committee after three months from the date when the matter has been brought before it has not succeeded to resolve the dispute, any Contracting Party may refer the dispute to arbitration under the procedures laid down in Protocol 33. No question of interpretation of the provisions of this Agreement referred to in paragraph 3 may be dealt with in such procedures. The arbitration award shall be binding on the parties to the dispute’.
- 38.
OJ L 161/3, 29/05/2014.
- 39.
OJ L 260/4, 30/08/2014.
- 40.
OJ L 261/4, 30/08/2014.
- 41.
For an analysis of the Association Agreement with Ukraine, which served to a large extent as a template for the agreements with Moldova and Ukraine, see Van Der Loo et al. 2014.
- 42.
Petrov 2015, p. 242.
- 43.
See for all, Article 477 EU-Ukraine AA.
- 44.
See Chapter 14 of the three AAs in point.
- 45.
EU-Moldova Agreement (Article 403)—Referrals to the Court of Justice of the European Union—‘1.The procedures set out in this Article shall apply to disputes concerning the interpretation and application of a provision of this Agreement relating to gradual approximation contained in Chapter 3 (Technical Barriers to Trade), Chapter 4 (Sanitary and Phytosanitary Measures), Chapter 5 (Customs and Trade Facilitation), Chapter 6 (Establishment, Trade in Services and Electronic Commerce), Chapter 8 (Public Procurement) or Chapter 10 (Competition) of Title V (Trade and Trade-related Matters) of this Agreement, or which otherwise imposes upon a Party an obligation defined by reference to a provision of Union law. 2. Where a dispute raises a question of interpretation of a provision of Union law referred to in paragraph 1, the arbitration panel shall not decide the question, but request the Court of Justice of the European Union to give a ruling on the question. In such cases, the deadlines applying to the rulings of the arbitration panel shall be suspended until the Court of Justice of the European Union has given its ruling. The ruling of the Court of Justice of the European Union shall be binding on the arbitration panel’ (emphasis added).
EU-Georgia Agreement (Article 267)—Referrals to the Court of Justice of the European Union– ‘1. The procedures set out in this Article shall apply to disputes concerning the interpretation and application of a provision of this Agreement which imposes upon a Party an obligation defined by reference to a provision of Union law. 2. Where a dispute raises a question of interpretation of a provision of Union law referred to in paragraph 1, the arbitration panel shall not decide the question, but request the Court of Justice of the European Union to give a ruling on the question. In such cases, the deadlines applying to the rulings of the arbitration panel shall be suspended until the Court of Justice of the European Union has given its ruling. The ruling of the Court of Justice of the European Union shall be binding on the arbitration panel’.
- 46.
EU-Ukraine Agreement Article 322(2); EU-Georgia Agreement Article 267(2); EU-Moldova Agreement Article 403(2).
- 47.
EU-Ukraine Agreement Article 322(2); EU-Georgia Agreement Article 267(2); EU-Moldova Agreement Article 403(2).
- 48.
Contartese 2016.
- 49.
Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018, 14 November 2018 TF50 (2018) 55—Commission to EU27.
- 50.
The previous Draft agreement (Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community highlighting the progress made in the negotiation round with the UK of 16–19 March 2018, TF50 (2018) 35—Commission to EU27) foresaw a direct involvement of the CJEU, under Article 162, as follows:
‘3. The Joint Committee may, at any point, decide to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.
4. If the dispute has not been settled within 3 months after it was brought before the Joint Committee and has not been submitted to the Court of Justice of the European Union by the Joint Committee pursuant to paragraph 3, the dispute may be submitted to the Court of Justice of the European Union for a ruling at the request of either the Union or the United Kingdom. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.’
- 51.
Article 174, para 1.
- 52.
For further examples of (draft) agreements foreseeing a direct referral from an international tribunal to the CJEU, see Contartese 2016.
- 53.
- 54.
On the relationship between the CJEU and the ECtHR, see, for all, Lock 2015.
- 55.
German Interests in Polish Upper Silesia case P.C.I.J., Series A, No. 7, p. 19.
- 56.
For an updated overview on the EU Free Trade Agreements, see the European Commission web site, available at http://ec.europa.eu/trade/policy/countries-and-regions/agreements/index_en.htm#_other-countries.
- 57.
- 58.
Jenks 1938, p. 68.
- 59.
Hepburn 2016, p. 18.
- 60.
Ibid., 18–19.
- 61.
Ibid., p. 19.
- 62.
Ibid.
- 63.
Jenks 1938, p. 92, recalls an extract from the Serbian Loans case (Serbian Loans case, P.C.I.J., Series A, Nos. 20/21, pp. 18–20) as ‘the classical passage upon the subject’: ‘For the Court itself to undertake its own construction of municipal law, leaving on one side existing judicial decisions, with the ensuing danger of contradicting the construction which has been placed on such law by the highest national tribunal and which, in its results, seems to the Court reasonable, would not be in conformity with the task for which the Court has been established and would not be compatible with the principles governing the selection of its members. It would be a most delicate matter to do so, especially in cases concerning public policy-a conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself-and in cases where no relevant provisions directly relate to the question at issue’.
- 64.
Hepburn 2016.
- 65.
Opinion 1/17, para 136.
- 66.
Ibid., para 132.
- 67.
Contartese and Pantaleo 2018.
- 68.
Opinion 1/17, para 132.
- 69.
The Bundesgerichtshof (Federal Court of Justice, Germany) addressed to the ECJ three preliminary questions on the compatibility of the intra-EU BIT between Netherlands and Slovakia with Articles 18, 267 and 344 TFEU. The Achmea case was brought before the ECJ as a result of the dispute between the Slovak Republic and Achmea before the German courts. Achmea, a Netherlands insurance group that established a subsidiary in Slovakia, in 2008, brought arbitration proceedings against Slovakia, under the Netherlands-Slovakia BIT, claiming damages because of the reform of the Slovak health system. Frankfurt am Main (Germany) was chosen as the place of arbitration and accordingly, German law was part of the applicable law.
- 70.
Eureko B.V. v. The Slovak Republic, Award on jurisdiction, arbitrability and suspension, PCA Case No. 2008-13 (26 Oct. 2010), para 282.
- 71.
Eureko, para 289.
- 72.
Ibid., paras 289–290.
- 73.
Ibid., para 293.
- 74.
Oostergetel and Laurentius v. Slovak Republic, Decision on jurisdiction (30 Apr. 2010), para 99.
- 75.
Ibid., para 99 (emphasis in the original).
- 76.
Ibid., para 100.
- 77.
AES Summit Generation Limited AES-TISZA Erömü KFT v. Republic of Hungary, Award, ICSID Case No.ARB/07/22 para 7.3.4.
- 78.
Ibid., para 7.6.4.
- 79.
Ibid., para 7.6.6.
- 80.
Ibid., para 7.6.12.
- 81.
Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Decision on jurisdiction, applicable law, and liability (30 Nov. 2012), paras 4.119 et seq., and paras 4.127 et seq.
- 82.
Ibid., paras 4.12–4.15.
- 83.
Ibid., para 4.18.
- 84.
According to the Claimant, EU measures are to be considered as fact, whereas for the Respondent, the ECT operates at the level of international law and, therefore, forms part of the applicable law in an ECT dispute between Member States. In this latter sense, also the European Commission, as amicus curiae in the dispute, required the application of EU law as international law (Electrabel S.A. v. Hungary, paras 4.30. and 4.36; 4.64–4.67; 4.80; 4.102).
- 85.
Ibid., para 4.118.
- 86.
Ibid., para 4.124.
- 87.
Ibid., para 4.119 (emphasis added).
- 88.
Ibid., para 4.126.
- 89.
Achmea, para 42.
- 90.
Achmea, paras 40–41 (emphasis added).
- 91.
Von Papp 2013, p. 1081.
- 92.
- 93.
See Contartese and Andenas 2019.
- 94.
Achmea, paras 45–46.
- 95.
Eilmansberger 2009, pp. 427.
- 96.
Ibid., pp. 427.
- 97.
Achmea, para 53.
- 98.
Ibid., para 56 (emphasis added).
- 99.
For a detailed analysis, see Hindelang 2019.
- 100.
Vidal Puig 2019.
- 101.
See, in this Volume, Chap. 11 by Happold and De Boeck.
References
Baratta R (2013) Accession of the EU to the ECHR: The Rationale for the ECJ’s Prior Involvement Mechanism. Common Market Law Review 50(5): 1305–1332.
Basedow J (2015) EU law in international arbitration: Referrals to the European Court of Justice. Journal of International Arbitration 32(4): 367–386.
Bladel I (2006) The Iron Rhine Arbitration Case: on the Right Legal Track?: an Analysis of the Award and of its Relation to the Law of the European Community. Hague Yearbook of International Law 18:3–22.
Cassese A (1962) Il diritto interno nel processo internazionale. CEDAM, Padova.
Contartese C (2016) The procedures of prior involvement and referral to the CJEU as means for judicial dialogue between the Luxembourg Court and international jurisdictions. Geneva Jean Monnet Working Papers (University of Geneva), 27:1–30 (www.ceje.ch/fr/recherche/jean-monnet-working-papers/working-papers-2016/).
Contartese C (2017) The autonomy of the EU legal order in the CJEU’s external relations case-law: From the ‘essential’ to the ‘specific characteristics’ of the Union and back again. Common Market Law Review 54(6):1627–1672.
Contartese C, Andenas M (2019) EU autonomy and investor-state dispute settlement under inter se agreements between EU Member States: Achmea. Case C-284/16, Slowakische Republik v. Achmea BV, Judgment of the Court (Grand Chamber) of 6 March 2018, EU:C:2018:158. Common Market Law Review 56(1):157–192.
Contartese C, Pantaleo L (2018) Division of competences, EU autonomy and the determination of the respondent party: Proceduralisation as a possible way-out? In: Neframi E, Gatti M (eds) Constitutional Issues of EU External Relations. Nomos, Baden-Baden, pp. 409–445.
Cremona M (2010) Disconnection clauses in EU law and practice. In Hillion C, Koutrakos P (eds) Mixed agreements revisited: the EU and its Member States in the world. Hart Publishing, pp 160–186.
Cremona M, Thies A, Wessel R A (eds) (2017) The European Union and International Dispute Settlement. Hart Publishing.
D’Argent P (2007) De la fragmentation à la cohésion systémique: la sentence arbitrale du 24 mai 2005 relative au “Rhin de Fer” (IJzeren Rijn). In: Salmon J J-A (ed) Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon. Bruylant, Brussels, pp. 1113–11137.
Eilmansberger T (2009) Bilateral investment treaties and EU law. CML Rev 46(2):383–429.
Govaere I (2010) Beware of the Trojan horse: dispute settlement in (mixed) agreements and the autonomy of the EU legal order. In: Hillion C, Koutrakos P (eds) Mixed agreements revisited: the EU and its member states in the world. Hart Publishing, pp. 187–207.
Heliskoski J (2014) The Arrangement Governing the Relationship between the ECtHR and the CJEU in the Draft Treaty on the Accession of the EU to the ECHR. In: Cremona M, Thies A (eds) The European Court of Justice and External Relations Law. Hart Publishing, Oxford, pp. 223–248.
Hepburn J (2016) Applicable law in TPP Investment Disputes. Melbourne Journal of International Law 17(2):1–20.
Hepburn J (2017) Domestic Law in International Investment Arbitration. OUP.
Hindelang S (2012) Circumventing primacy of EU law and the CJEU’s judicial monopoly by resorting to dispute resolution mechanisms provided for in inter-se Treaties? LIEI 39(2):179–206.
Hindelang S (2019) Conceptualisation and application of the Principle of Autonomy of EU Law – The CJEU’s judgment in Achmea put in perspective. EL Rev. 44(3): 383–400.
Jenks C W (1938) The Interpretation and Application of Municipal Law by the Permanent Court of International Justice. British Yearbook of International Law, 67–103.
Kjos H E (2013) Applicable Law in Investor–State Arbitration: The Interplay between National and International Law. Oxford University Press.
Lavranos N (2006) The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter? Leiden Journal of International Law 19(1):223–246.
Lavranos N (2009) On the Need to Regulate Competing Jurisdictions between International Courts and Tribunals. Working Paper, EUI MWP 14:1–57.
Łazowski A (2008) Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership in the European Union. Common Market Law Review 45(5):1433–1458.
Lock T (2015) The European Court of Justice and International Courts. OUP.
Pantaleo L (2019) The Participation of the EU in International Dispute Settlement. Lessons from EU Investment Agreements. T.M.C. Asser Press, The Hague.
Paschalidis P (2016) Arbitral tribunals and preliminary references to the EU Court of Justice. Arbitration International 33(4):663–685.
Petrov R (2015) Constitutional Challenges for the Implementation of Association Agreements between the EU and Ukraine, Moldova and Georgia. European Public Law.
Salacuse J W (2013) The Three Laws of International Investment: National, Contractual and International Frameworks for Foreign Capital. OUP.
Schrijver N (2010) Case C-459/03, Commission of the European Communities v. Ireland, Judgment of the Court of Justice (Grand Chamber) of 30 May 2006, [2006] ECR I-4635. Common Market Law Review 47(3):863–878.
Shany Y (2004) The first MOX Plant Award: The Need to Harmonize Competing Environmental Regimes and Dispute Settlement Procedures. Leiden Journal of International Law 17(4):815–827.
Spiermann O (2008) Applicable Law. In Muchlinski P, Ortino F, Schreuer C (eds) The Oxford Handbook of International Investment Law. OUP, pp. 89–118.
Stoll J A (1962) L’application et l’interprétation du droit interne par les juridictions internationales. Université Libre de Bruxelles, Institut de Sociologie, Brussels.
Szpunar M (2017) Referrals of preliminary questions by arbitral tribunals to the CJEU. In: Ferrari (ed) The Impact of EU Law on International Commercial Arbitration. JurisNet, pp. 85–123.
Van der Loo G, Van Elsuwege P, Petrov R (2014) The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument. EUI Working Paper 09:1–28.
Vidal Puig R (2019) Investment arbitration in the EU following Achmea and Opinion 1/17. European Central Bank Legal Working Paper Series 19:20–25.
Von Papp K (2013) Clash of ‘autonomous legal orders’: Can EU Member State courts bridge the jurisdictional divide between investment tribunals and the ECJ? A plea for direct referral from investment tribunals to the ECJ. CML Rev. 50(4): 1039–1081.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2020 T.M.C. Asser Press and the authors
About this chapter
Cite this chapter
Contartese, C. (2020). EU Law as Applicable Law in International Disputes and Its Procedural Implications. In: Andenas, M., Pantaleo, L., Happold, M., Contartese, C. (eds) EU External Action in International Economic Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-391-7_8
Download citation
DOI: https://doi.org/10.1007/978-94-6265-391-7_8
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-390-0
Online ISBN: 978-94-6265-391-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)