Is article 297 EC a “reserve of sovereignty”?

Common Market Law Review

Volumn 37, Issue 6, 2000, Pages 1339-1362

  Koutrakos, Panos ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 32144432480     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.54648/312914     Document Type: Article

References (71)

1. 1. For an analysis of a derogation on the basis of national security in particular, see Peers, “National security and European law”, 15 YEL (1996), 363.
2. 2. Case 13/68, Salgoil SpA v. Italian Ministry for Foreign Trade, [1968] ECR 453 at 463 and Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651 at paras. 26-7. For examples of narrow construction of derogations to fundamental provisions, see Case 36/75, Rutili, [1975] ECR 1219; Case 229/83, Leclercv. Au Blé Vert, [1985] ECR 1; and Case C-260/89, ERT, [1991] ECR I-2925.
3. 3. See Commentaire Megret (Brussels: Presses Interuniversitaires de Bruxelles, 1987) Vol. 15 at p. 437; Constantinesco, Kovar and Simon, Traite sur l’Union europeenne: (signe le 7 fevrier 1992): commentaire article par article (Pa ris: Economica, 1996) at p. 1404.
4. 4. See Kapteyn and VerLoren Van Themaat, Introduction to the Law of the European Communities3rd ed. (London: Kluwer, 1998) at p. 406.
5. 5. Supra note 2.
6. 6. Ibid. at 1671; the other “safeguard” Treaty provisions, according to the British Government, were Arts. 30, 39(3), 46, 55, 55 and 296.
7. 7. Ibid. at 1684. This conclusion was repeated in Case C-273/97, Angela Maria Sirdar v. The Army Board and Secretary of State for Defence, Judgment of 26 Oct. 1999; [1999] 3 CMLR 559 and Case C-285/98, Tanja Kreil v. Bundesrepublik Deutschland, Judgment of 11 Jan. 11, 2000, nyr.
8. 8. Case C-120/94, re: Former Yugoslav Republic of Macedonia, [1996] ECR I-1513.
9. 9. Ibid. para 46. He also followed this line of reasoning in his Opinions in Case C-70/94, Fritz Werner Industrie-Ausruestungen GmbH v. Federal Republic of Germany, [1995] ECR I-3189 and C-83/94, Criminal proceedings against Peter Leifer and Others, [1995] ECR I-3231 at para 64.
10. 10. Case 15/69, W ϋrttembergische Milchverwertung-Suedmilch-AG v. Salvatore Ugliola, [1969] ECR 363.
11. 11. Ibid. at 367. The Court ignored this argument, hence following the Opinion of A.G. Gand that it was totally irrelevant to the issue in question.
12. 12. Arnull, “EC Law and the Dismissal of Pregnant Servicewomen”, 24 Industrial Law Journal (1995), 215 at 233.
13. 13. Supra note 7.
14. 14. Art. 133(1) EC reads as follows: “The common commercial policy shall be based on uniform principles, particularly in regard to change in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies”.
15. 15. See e.g. Case 45/86, Commission v. Council (Generalized Tariff Preferences), [1987] ECR 1493 at 1498–9.
16. 16. This argument was put forward by the Council in Opinion 1/78 [1979] ECR 2871. This line of reasoning was also followed by various Member States. In Case C-120/94, Commission v. Greece (F.Y.R.O.M.), for instance, Greece argued that the scope of CCP must be construed as covering measures whose genuine and main objective is to influence the volume or flow of trade; see The European Commission’s action before the ECJ following the counter-measures adopted by the Hellenic Republic against F.Y.R.O.M. (in Greek) (Athens-Komotini: A.N.Sakkoulas, 1996) at 78–83.
17. 17. See Opinion 1/75, [1975] ECR 1355, Case 41/76, Suzanne Criel, née Donckerwolcke and Henri Schou v. Procureur de la Republique au Tribunal de Grande Instance, Lille and Director General of Customs, [1976] ECR 1921, Opinion 2/91 on I.L.O. Convention 170 on Chemicals at Work, [1993] ECR I-1061; Opinion 1/94 on International Agreements Concerning Services and the Protection of intellectual Property, [1994] ECR I-5267.
18. 18. Security Council Resolutions 216 (1965) and 217 (1965) called on the international community to cut off trade relations with Rhodesia. Under Security Council Resolution 232 (1966), the UN members were asked to impose a trade embargo on a variety of products, whereas under Security Council Resolution 253 (1968) a complete embargo was asked to be imposed.
19. 19. Under Art. 48(1) UN Charter, “[t]he action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine”.
20. 20. Answer to Written Question 530/75 by Mr Hughes, O.J. 1976, C 89/9.
21. 21. For the application of this pattern, see Dewost, “La Communauté, les Dix, et les ‘Sanctions’ Economiques: de la Crise Iranienne à la Crise des Malouines”, (1982) AFDI, 215; Verhoeven, “Communautés Européennes et Sanctions Internationales”, (1984–1985) RBDI 79; ibid., “Sanctions internationales et communautes europeennes. A propos de l’affaire des îles Falklands (Malvinas)”, (1984) CDE 259; and Ehlermann, “Communautés européennes et sanctions internationales – Une réponse à J. Verhoeven”, (1984–1985) 18 RBDI, 96.
22. 22. Art. 301 EC reads as follows: “[w]here it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by a qualified majority on a proposal from the Commission”. In addition, the Treaty of Maastricht inserted the similar provision of Art. 60 regarding the movement of capital and payments.
23. 23. The third ground provided in Art. 297 EC remains applicable in cases of UN Resolutions which give rise to obligations excluded from the scope of the Treaty and obligations imposed on Member States by other international agreements, such as NATO; see Commentaire Mégret, loc. cit. cited supra note 3; Verhoeven in supra note 21 and Smit and Herzog, The Law of the European Community – A Commentary on the EEC Treaty (New York: Matthew Bender, 1996) at 6-216.85.
24. 24. Konstadinidis, “The new face of the Community’s external relations: Recent developments on certain controversial issues” in Konstadinidis (Ed.), The Legal Regulation of the European Community’s External Relations after the Completion of the Internal Market (Aldershot: Dartmouth, 1996) p. 19 at 30; while Konstadinidis argues that “there is little or no argument” against this view, he also notes that it must be required that no improper use of the powers provided for in Art. 297 EC be made and that, if the adoption of Community law becomes feasible, the Member State concerned fall in line with it.
25. 25. Art. 11(2) TEU.
26. 26. Art. 2 TEU.
27. 27. Namely Council Regulation 2603/69 on common export rules, [1969] O.J., Eng. Sp. Ed. (II) at 590, Council Regulation 288/82 on common import rules, O.J. 1982, L 35/1, Council Regulation 3698/93 on imports into the Community of products originating in the Republic of Bosnia-Herzegovina, the Republic of Croatia, the Republic of Slovenia and FYROM, O.J. 1993, L 344/1 and Council Regulation 2726/90 on Community transit rules, O.J. 1990, L 262/1.
28. 28. This argument reflects the debate outlined above regarding the legal basis of Community sanctions and the differing views according to whether the purpose or the effect of the sanctions were the determining factor.
29. 29. However, the Court had already rejected the Commission’s application for interim measures in Case 120/94R, Commission v. Greece, [1994] ECR I-3037.
30. 30. Opinion in Commisison v. Greece, supra note 8 at para 42.
31. 31. Ibid. at para 47.
32. 32. Ibid. at para 49.
33. 33. Ibid. at para 54.
34. 34. Supra note 69 at para 58.
35. 35. Ibid. at para 52.
36. 36. Ibid. at para 56.
37. 37. Ibid. at para 50.
38. 38. Ibid. at para 67.
39. 39. Ibid. at para 69. In relation to the former, he gave the example of a prohibition of exports of products from other Member States to FYROM or a distinction between different categories of goods or traders without any objective criteria.
40. 40. Ibid. at para 72.
41. 41. Ibid. at para 71.
42. 42. Stefanou and Xanthaki, A Legal and Political Interpretation of Articles 224 and 225 of the Treaty of Rome: The Former Yugoslav Republic of Macedonia Cases (Aldershot: Dartmouth and Ashgate, 1997) at p. 91.
43. 43. Ibid. at 82; see also the analysis at 80–92.
44. 44. Case C-124/95, The Queen, ex parte Centro-COm Srl v. HM Treasury and Bank of England, [1997] ECR I-81 at para 41.
45. 45. Case C-170/96, [1998] ECR I-2763.
46. 46. Ibid. at para 17.
47. 47. For a comment on the substance of the judgment, see the annotation by Oliveira, in 36 CML Rev. (1999), 149.
48. 48. For support for this conclusion prior the Court’s judgment, see Allot, Written Evidence to the House of Lords Scrutiny of the Intergovernmental Pillars of the European Union (1992– 93) HL 124 at 50; Cremona, “The Common Foreign and Security Policy of the European Union and the External Powers of the European Community” in O’Keeffe and Twomey (Eds.) Legal Issues of the Maastricht Treaty (Chichester: Wiley Chancery, 1994) pp. 247 at 256; Dashwood (Ed.), Reviewing Maastricht. Issues for the 1996 IGC (Cambridge: LBE 1996) p. 218; MacLeod, Hendry and Hyett, The External Relations of the European Communities (Oxford: Clarendon Press, 1996) at p. 414 and Weiler, “Neither Unity Nor Three Pillars – The Trinity Structure of the Treaty on European Union” in Monar, Ungerer, Wessels (Eds), The Maastricht Treaty on European Union. Legal Complexity and Political Dynamics (Brussels: European Interuniversity Press, 1993), pp. 49 at 53.
49. 49. Supra note 44.
50. 50. Para 25 of the judgment.
51. 51. Supra note 9.
52. 52. See para 26 of the judgment.
53. 53. Case C-177/95, Ebony Maritime SA and Loten Navigation Co. Ltd v. Prefetto della Provincia di Brindisi and Ministero dell’ Interno, [1997] ECR I-1111.
54. 54. Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications, Ireland and the Attorney General [1996] ECR I-3953.
55. 55. Supra note 7.
56. 56. O.J. 1976, L 39/40.
57. 57. Sirdar judgment, supra note 7, para 16.
58. 58. Supra note 9.
59. 59. Ibid.
60. 60. On exports of dual-use goods prior to the We r n e r and Leifer judgments, see Govaere and Eeckhout, “On dual use Goods and dualist case law: The Aimé Richardt Judgment on export controls”, 29 CML Rev. (1992), 941. On the issues raised in We r n e r and Leifer, see Emiliou, annotation in 22 EL Rev. (1997), 68 and Koutrakos, “Exports of Dual-use Goods under the Law of the European Union”, 23 EL Rev. (1998), 235. 61. Supra note 37.
61. 62. Xanthaki and Stefanou, supra note 42 at 56.
62. 63. See Written Question, Patijn, No 527/75, O.J. 1976, C 89/8 at 9.
63. 64. See Bulletin EC 5-1980 at 27–8. It was pointed out that, in that case, the consultation requirement was complied with, irrespective of the fact that no Member State changed any of the measures already adopted: Kuyper, “International legal aspects of economic sanctions” in Sarcevic and Van Houtte (Eds.), Legal Issues in International Trade (London: Kluwer Law International, 1990) p. 145 at 146.
64. 65. As, for instance, in Art. 100 EC.
65. 66. Supra note 12.
66. 67. This was the case in Greece after the prohibition of trade with FYROM; it would have been political suicide for the Government to lift the embargo without any tangible effect being determined. In the light of the explosive political circumstances, any modification of the embargo following its adoption as a result of consultations with other Member States would have been seen as a political retreat not tolerated by either political supporters or enemies of the Government.
67. 68. It has been argued that any consultation between the Member States, irrespective of the framework within which it is carried out, meets the Art. 297 EC requirement: see Kuyper, “Sanctions against Rhodesia. The EEC and the Implementation of General international Legal Rules”, 12 CML Rev. (1975), 231 at 237.
68. 69. Answer to the Written Question No 526/75 to Mr Patijn, O.J. 1976, C 89/7, answer No. 5.
69. 70. See Bulletin EC 5-1980 at 26.
70. 71. For an assessment of the changes the Treaty of Amsterdam introduced to the second pillar, see Dashwood, “External relations provisions of the Amsterdam Treaty”, 35 CML Rev. (1998), 1019 and Monar, “The European Union’s foreign affairs system after the Treaty of Amsterdam: A ‘Strengthened capacity for external action’?”, 2 EFA Review (1997), 413.
71. 72. See Dashwood, “The Limits of European Community Powers”, 21 EL Rev. (1996), 113 and “States in the European Union”, 23 EL Rev. (1998), 201.