Further exploring international responsibility: The European community and the ILC's project on responsibility of international organizations

International Organizations Law Review

Volumn 1, Issue 1, 2004, Pages 111-138

  Kuijper, P J ^a   Paasivirta, E ^b  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

^b UNIVERSITY OF HELSINKI   (Finland)

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EID: 33645577829     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/1572374043242385     Document Type: Article

References (94)

1. Resolution of the General Assembly, A/56/83, 12 December 2001.
2. Official Records of the General Assembly, Fifty-fifth session, Supplement No. 10 (A/55/10), ch. IX.A.1, para. 729.
3. Resolution of the General Assembly, A/55/152 of 12 December 2000.
4. Resolution of the General Assembly, A/56/82 of 12 December 2001.
5. Giorgio Gaja, Second report on responsibility of international organizations by Mr. Giorgio Gaja, special rapporteur, UN Doc. A/CN.4/541, 2 April 2004.
6. This is not intended to affirm that the questions of international responsibility in respect of peace-keeping as confronted by the EU police and military missions are simple, but they are already known from UN missions.
7. This is done through so-called infringement procedures under Arts. 226-228 EC Treaty, which in the end may even lead to penalty payments. For infringement procedures relating to an agreement concluded by the Community,A1. see Cases 61/94, Commission v. Germany (Dairy Agreement) [1996] ECR, I-3989 and 13/00 Commission v. Ireland [2002] ECR I-2943.
8. Pierre Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Bruxelles 1998), pp. 426 et seq.
9. There are agreements concluded by the Member States next to the EC of the one part and (an)other State(s) of the other part. The participation of the Member States on the side of the EC is necessary in such cases, since Community competence alone does not suffice to cover the domain covered by the international agreement concerned.
10. For a recent treatment, see Piet Eeckhout, External Relations of the European Union, Legal and Constitutional Foundations (Oxford 2004), ch. 7.
11. Resolution of the General Assembly A/56/83, 12 December 2001.
12. Report of the International Law Commission A/56/10, p. 317.
13. Cf. e.g. Preamble of the Vienna Convention on the Law of Treaties between States and International Organisations, 21 March 1986.
14. See generally A. Rosas, OKeeffe and Schermers (eds.), Mixed Agreements (Deventer 1983)
15. J.H.J. Bourgeois et al. (eds.), La Communauté européenne et les accords mixtes (Bruxelles 1997)
16. Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States, (The Hague 2001), ch. V.
17. Order of the International Tribunal for the Law of the Sea, Case concerning the Conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean (Chile/European Community), 20 December 2000, p. 1, 2.
18. Art. 6.2 of Annex IX to the Law of the Sea Convention, which is drafted in general terms but in fact applies only to the Community.
19. This was the role a provision modelled on Article 6.2 of Annex IX of the Law of the Sea Convention (Article 19) played in the bilateral "mixed" agreement between the US and the Community and its Member States on Galileo, see OJ.
20. Council Decision 2002/358/EC, 25 April 2002, concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of their obligation thereunder, including as Annex III: Declaration by the European Community made in accordance with article 24(3) of the Kyoto Protocol.
21. Convention concerning the International Commission for the Rhine (Berne Convention); Bonn, 3 December 1976, para.8 of Annexe B to the Convention.
22. OJ L 69, 9.3.1998, p. 115.
23. Opinion of Advocate General of the European Court of Justice, case C-53/96, Hermès International v.A1. FHT Marketing Choice BV (reference for a preliminary ruling from the Arrondissementenrechtsbank, Amsterdam), ECR 1998, 1-3603, para. 14.
24. Opinion of the Advocate General delivered on 10 November 1993; Case C-316/91 European Parliament v.A1. Council of the European Union [1994] ECR I-625, para. 39.
25. Opinion of Advocate General of the European Court of Justice, delivered on 27 No vember 2001, Case C-13/00, Commission of the European Communities v. Ireland [2002] ECR I-2943, paras. 29, 30.
26. One of the earliest examples is the Association Agreement with Turkey, OJ N° C 113, of 24/12/1973.
27. Cotonou Agreement, OJ L 317 of 15/12/2000, p. 3.
28. Judgement of the European Court of Justice of 2 March 1994, Case C-316/91, European Parliament v. Council of the European Union, ECR 1994, 1-625, para. 29.
29. WTO, Report of the Panel: "European Communities-customs classification of certain computer equipment", WT/DS62/R, WT/DS67/R, WT/DS68/R, 5 February 1998.
30. "European Community Programme of minimum import prices, licences and surety deposits for certain processed fruits and vegetable", Report of the Panel adopted on 18 October 1978 (L/4687-25S/68).
31. "EEC restrictions on imports of apples from Chile", Report of the Panel adopted on 10 November 1980 (L/5047-27S/98)
32. "European Economic Community-Restrictions on imports of dessert apples-complaint by Chile", Report of the Panel adopted on 22 June 1989 (L/6491-36S/93).
33. WTO, Report of the Panel: "European Communities-customs classification of certain computer equipment", WT/DS62/R, WT/DS67/R, WT/DS68/R, 5 February 1998.
34. Oral pleadings of the European Communities to the Panel on "European Communities-customs classification of certain computer equipment "; 12 June 1997, para. 6.A1. The ILC in its Report on its work on the 56th Session took the view that it was not clear whether this was an assumption of attribution or of responsibility, A/CN.4/652, p. 121.
35. WTO, Report of the Panel: "European Communities-customs classification of certain computer equipment " WT/DS62/R; WT/DS67/R; WT/DS68/R; 5 February 1998.
36. In terms of the Articles on State Responsibility, are we mutatis mutandis in a situation where the organs of a State are placed at the disposal of an international organization (Art. 6) or where conduct which is not attributable to the international organization is adopted as its own (Art. 11)? See further infra.
37. "European Community Programme of minimum import prices, licences and surety deposits for certain processed fruits and vegetable", report of the Panel adopted on 18 October 1978 (L/4687-25S/68)
38. "EEC restrictions on imports of apples from Chile", Report of the Panel adopted on 10 November 1980 (L/5047-27S/98)
39. "European Economic Community-Restrictions on imports of dessert apples-Complaint by Chile", report of the Panel adopted on 22 June 1989 (L/6491-36S/93).
40. "European Community Programme of minimum import prices, licences and surety deposits for certain processed fruits and vegetable", report of the Panel adopted on 18 October 1978 (L/4687-25S/68), para. 4.13A1.
41. "EEC restrictions on imports of apples from Chile", Report of the Panel adopted on 10 November 1980 (L/5047-27S/98), para. 4.6A1."European Economic Community-Restrictions on imports of dessert apples-Complaint by Chile", report of the Panel adopted on 22 June 1989 (L/6491-36S/93), para. 2.11-2.12, 8.15-8.17.
42. Patent protection under the industrial property act concerning Portugal, Notification of a mutually agreed solution, WT/DS37/2, IP/D/Add.1, 8 October 1996A1. Request for consultations by the United States on the same issue, WT/DS37/1, IP/D/3, 6 May 1996.
43. Case brought against Denmark, measures affecting the enforcement of intellectual property rights, Notification of a mutually agreed solution, WT/DS83/2, IP/D/9/Add. 1, 13 June 2001A1. Request for consultations by the United States, WT/DS83/1, IP/D/9, 21 May 1997A1. Case brought against Sweden: measures affecting the enforcement of intellectual property rights, Notification of a mutually agreed solution, WT/DS86/2, IP/D/10/Add. 1, 11 December 1998A1. Request for consultations by the United States, WT/DS86/1, IP/D/10, 2 June 1997.
44. Greece-Enforcement of intellectual property rights for motion pictures and television programs, Notification of a Mutually-Agreed Solution, WT/DS125/2, IP/D/14/Add.1, 26 March 2001A1. Greece-Enforcement of intellectual property rights for motion pictures and television programs, Request for Consultations by the United States, WT/DS125/1, IP/D/14, 7 May 1998;
45. European Communities-Enforcement of intellectual property rights for motion pictures and television programs, Notification of a Mutually-Agreed Solution, WT/DS124/2, IP/D/13/Add.1, 26 March 2001
46. European Communities-Enforcement of intellectual property rights for motion pictures and television programs, Request for Consultations by the United States, WT/DS124/1, IP/D/13, 7 May 1998;
47. Ireland-Measures affecting the grant of copyright and neighbouring rights (WT/DS82), European Communities-Measures affecting the grant of copyright and neighbouring rights (WT/DS115): Notification of a Mutually-Agreed Solution, WT/DS82/3, WT/DS115/3
48. IP/D/8/Add.1, IP/D/12/Add.1, 13 September 2002; Ireland-Measures affecting the grant of copyright and neighbouring rights, Request for the Establishment of a Panel by the United States, WT/DS82/2, 12 January 1998
49. Ireland-Measures affecting the grant of copyright and neighbouring rights, Request for Consultations by the United States, WT/DS82/1, IP/D/8, 22 May 1997;
50. European Communities-Measures affecting the grant of copyright and neighbouring rights, Request for the Establishment of a Panel by the United States, WT/DS115/2, 12 January 1998
51. European Communities-Measures affecting the grant of copyright and neighbouring rights, Request for Consultations by the United States, WT/DS115/1, IP/D/12, 12 January 1998;
52. WTO Dispute Settlement Body, Minutes of meeting, held in Centre William Rappard, 22 January 1998, WT/DSD/M/41, 26 February 1998.
53. Cf. Article 4 of the Draft Articles on State Responsibility, A/56/83 of 12 December 2001.
54. The ILC is of the view that the terms "the exercise of elements of governmental authority" is "generally inappropriate" to international organizations, see A/CN.4/L 652, p. 108.
55. The authors do not want to seem overly Eurocentric, but one wonders how some forty years after the Court of Justice of the EC ruled for the first time that the EC Treaty clearly implied a transfer of sovereignty from the Member States, (Case 26/62 Van Gend en Loos), which in turn clearly implies the exercise of some kind of "governmental authority" by the Community, such sweeping generalities about international organizations can still flow from the collective pen of the ILC.
56. See UN doc. A/CN.4/541, p. 6 fn.18; Klein, supra, fn. 12, pp. 385-386.
57. Report of the ILC on its 56th Session, A/CN.4/L 652, pp. 109 ff.
58. UN Doc. A/CN.F/541, p.6. In order to underpin this position the special rapporteur points, in the area of the Law of the Sea, to Article 6(1) of Annex IX of UNCLOS and the special agreement between Chile and the EC on the so-called swordfish case, and in the field of human rights, to the decision on M & Co of 9 February 1990 on application No. 13258/87, see ibid. pp. 7, 8.A1. For reasons explained below in section V, especially the latter case does not seem convincing to us.
59. See Art. 7 of the draft articles, on the model of Art. 11 of the draft Articles on State Responsibility.
60. Decision of the European Commission of Human Rights, 9 February 1990, Application No. 13258/87 by M. & Co. against the Federal Republic of Germany; Decision of the Euro pean Commission of Human Rights, 10 July 1978, Application No. 8030/77A1. Confédération Française Démocratique v. European Communities, alternatively their Member States (1) a) jointly and b) severally.
61. Decision of the European Commission of Human Rights, 9 February 1990, Application No. 13258/87 by M. & Co. against the Federal Republic of Germany, p. 8.
62. Decision of the European Commission of Human Rights, 10 July 1978, Application No. 8030/77, Confédération Française Démocratique v. European Communities, alternatively their Member States (1) (a) jointly and (b) severally, p. 500.
63. European Court of Human Rights, Application No. 56672/00, DSR Senator Lines.
64. Written Observations by the Commission of the European Communities, Legal Service, to the President of the European Court of Human Rights, in case No. 56672/00: DSR SENATOR LINES v. 15 Member States of the European Union, pp. 7, 9.
65. Judgment of the Court of First Instance, 30 September 2003, Joined Cases T-191/98, T-212-214/98, Atlantic Container Line et al. v. Commission, not yet published.
66. European Court of Human Rights, 10 March 2004, DSR Senator Lines. Senator Lines was one of the companies involved in the Atlantic Container Line case mentioned in the preceding footnote.
67. European Court of Human Rights, Application No. 45036/98, Bosphorus v. Ireland, declared admissible 12 September 2001.
68. Case C-84/95, Bosphorus v. Minister for Transport, Energy and Communications [1996] ECR I-3953.
69. Decision of the European Commission of Human Rights, 9 February 1990, Applica tion No. 13258/87 by M. & Co. against the Federal Republic of Germany, p. 8.
70. Decision of the European Commission of Human Rights, 10 July 1978, Application No. 8030/77, Confédération Française Démocratique v. European Communities, alternatively their Member States (1) (a) jointly and (b) severally, p. 500A1. Cantoni v. France ECHR Judgment of 15/11/1996.
71. Decision of the European Commission of Human Rights, 10 July 1978, Application No. 8030/77, Confédération Française Démocratique v. European Communities, alternatively their Member States (1) (a) jointly and (b) severally, p. 500.
72. This approach to the matter has been inspired by a similar approach followed by the German Constitutional Court in the so-called "Solange" cases, see BVerfGE 37, 271 (Solange I) and BVerfGE 73, 223 (Solange II) confirmed by the "Banana decision" of 27 June 2000, with case note F. Hoffmeister, CMLRev. (2001), pp. 791-804.
73. This is in particular of the case of M & Co, see supra, fn. 49.
74. Disagreement with the United States arising under the Convention on International Aviation done on 7 December 1944
75. Oral Statements and Comments on the US response, Presented by the Member States of the European Union, Before the Council of the International Civil Aviation Organization under its Rules for the Settlement of Differences (Doc.7782/2), Montreal, 15 November 2000.
76. Communication from the Secretary General of the Council of the European Union to the Secretary General of the ICAO, concerning the joint defence of the 15 Member States, Brussels, 24 July 2000.
77. GAOR 58th Session, Suppl. No. 10 (A/58/10), p. 22.
78. See Article 2(j) of the Vienna Convention on the Law of Treaties between States and International Organization or between Organizations of 1986.
79. See Case 22/70, Commission v. Council (AETR), [1971] ECR 263 and lastly the so-called "Open skies" cases (Cases 466-469, 471-472 and 475-476/98), [2000] ECR I-9427 ff.A1. For the moment it would seem still unlikely that courts of other international organizations can have a similar influence on the external powers of their organizations.
80. Report of the ILC on the work of its 56th Session, A/CN.4/L 652, p. 103.
81. Judgement of the European Court of Justice of 26 October 1982, case 104/81, Haupt-zollamt Mainz v. Kupferberg & Cie. KG a.A. (reference for a preliminary ruling from the Bundesfinanzhof), [1982] ECR 3641, para. 13;
82. Judgement of the European Court of Justice of 30 September 1987, case 12/86, Meryem Demirel v. Stadt Schwäbisch Gmünd (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart), [1987] ECR 3719, para. 9-11;
83. Opinion of Advocate General of the European Court of Justice Tesauro, case C-53/96, Hermès International v. FHT Marketing Choice BV (reference for a preliminary ruling from the Arrondissementenrechtsbank, Amsterdam), ECR 1998, I-3603, para. 18/20;
84. Judgement of the Court of 19 March 2002, in Case C-13/00, Commission of the European Communities v. Ireland, [2000] ECR I-2943, para. 15.
85. Note that Article 24 EU Treaty differs considerably in this respect. There is only an explicit obligation on the EU Institutions and not on the Member States to implement agreements concluded by the EU Council.
86. Opinion of the European Court of Justice of 15 November 1994, Opinion 1/94, pursuant to article 228(6) of the EC Treaty, [1994] ECR I-5267, para. 108.
87. In a recent case, C-239/03 Commission v. France, Judgment of October 2004 (not yet published), it has been established that a Member State can be successfully prosecuted by the Commission for not having fulfilled its obligations under a mixed agreement, even if there is no Community implementing legislation.
88. Judgement of the European Court of Justice of 2 December 1992, Case C-370/89, Société Générale dEntreprises Eletro-Mécaniques (SGEEM) and Roland Etroy v. European Investment Bank, [1993] ECR I-2583, para. 15.
89. Judgement of the European Court of Justice of 12 July 1962, Case 18/60, Louis Worms v. High Authority of the European Coal and Steel Community, [1962] ECR 195, 204 (English special ed.).
90. Judgement of the European Court of Justice of 10 July 1969, Case 9/69, Claude Sayag and Another v. Jean-Pierre Leduc and others (reference for a preliminary ruling by the Belgian Cour de Cassation) [1969] ECR 329, para. 11.
91. Judgement of the European Court of Justice of 26 February 1986, Case 175/84, Krohn & Co. Import-Export (GmbH & Co. KG) v. Commission of the European Communities [1986] ECR 753, para. 18;
92. Judgement of the European Court of Justice of 13 March 1992, Case C-282/90, Industrie-en Handelsorderneming Vreugdenhil BV v. Commission of the European Communities [1992] ECR I-1937, para. 15.
93. See Case 175/84 Krohn, supra, fn. 66, paras. 19-23. In that case the Commission had been given the power under Community legislation to instruct the national bodies with which it collaborated to refuse certain licences and had actually exercised that power.A1. Hence the Community was liable for the tort arising from the action of the Member State bodies concerned.
94. Judgement of the Court of First Instance of 28 April 1998, Case T-184/95, Dorsch Consult Ingenieurgesellschaft mbH v. Council of the European Union and Commission of the European Communities, [1998] ECR I-667, para. 74-88.