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Constitutionalism, the Community Court and international law*

Published online by Cambridge University Press:  07 July 2009

L. Hancher
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Extract

The purpose of this article is not to attempt to establish whether or not the EC legal system is a ‘self-contained regime’ in the sense implied by Simma. It is submitted that given the origin of that system as part of the international legal order, as a system which the Court itself described as ‘a new legal order of international law’ EC law cannot be conceived as totally distinct or self-contained. Nor, in this author's contention, is there much to be gained from such an approach as a contribution to the understanding of the current state of the relationship between international and European law. This article takes a rather different approach to the analysis of European law as a separate or distinct branch of international law without attempting to assess just how absolute or complete that process of separation might be.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 259 - 298
Copyright
Copyright © T.M.C. Asser Press 1994

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References

1. Case 26/62 Van Gend en Loos [1963] ECR 1 at p. 12.

2. Hart, H.L.A., The Concept of Law (1961).Google Scholar

3. Petersmann, E.-U., ‘Constitutional Principles Governing the EEC's Commercial Policy’, in Maresceau, M., ed., The European Community's Commercial Policy after 1992: the Legal Dimension (1993) p. 21, at p. 36.Google Scholar

4. Mancini, G.F., ‘The Making of a Constitution for Europe’, 26 CML Rev. (1989) p. 595Google Scholar, and the literature referred to therein. See also Lenaerts, K., ‘Constitutionalism and the Many Faces of Federalism’, 38 AJCL (1990) p. 205.CrossRefGoogle Scholar

5. Opinion 1/91, 14 December 1991, at para. 21, [1991] ECR I-6079.

6. Simma, B., ‘Self-contained Regimes’, 16 NYIL (1985) p. 111, at p. 123 et seq.CrossRefGoogle Scholar

7. See here in particular the Court's ruling in case 294/83 Les Verts v. Parliament [1986] ECR 1339 – According to the terms of Art. 173 EEC (but now amended by 173 EC) the Court's power of review is limited to measures taken by the Council and the Commission; the Court's ruling in ‘Les Verts’ that measures taken by the European Parliament could also be challenged under Art. 173 was a consequence of applying a fundamental constitutional principle that the Community was based on the rule of law so that no measures either of Community institutions or the Member states could escape judicial review.

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9. Loc. cit. n. 8, at pp. 2413–2414. See also B. Vierdag in this volume at pp. 137–141.

10. See further Wyatt, D., ‘New Legal Order or Old?’, 12 EL Rev. (1982) p. 147Google Scholar; de Witte, B., ‘Retour a Costa’, Rev. trim, du droit europeen (1984) p. 425.Google Scholar

11. Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

12. See Curtin, D., ‘Judicial Snakes and Ladders’, in Curtin, D. and O'Keefe, D., eds., Essays in Honour of Judge O'Higgins (1992) p. 39Google Scholar. See in particular the Court's ruling in case C-106/89 Marleasing [1990] ECR p. 4135.

13. Snyder, F., ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, 56 MLR (1993) pp. 19–54.CrossRefGoogle Scholar

14. Indeed with the incorporation of Article 3B on ‘subsidiarity’ the Treaty on European Union attempts to avoid any express reference to supremacy.

15. Case 106/77 Simmenthal [1978] ECR 629.

16. C-213/89 Factortame [1990] ECR I-2433.

17. As Weiler observes this latter system ‘which is typically actuated through the principles of state responsibility, reciprocity, and counter-measures, gives the notion of supremacy an exceptionally rarefied quality, making it difficult to grasp and radically different from that found in the constitutional orders of states with centralized enforcement monopolies’, loc. cit. n. 8, at p. 2414.

18. Weiler, loc. cit. n. 8, at p. 2416. But see here the jurisprudence of the International Court of Justice, which has also recognized the concept of implied powers – Reparations for Injuries Suffered in the Service of the United Nations, ICJ (1949) p. 174.

19. These powers have not been greatly modified by the Treaty of Union. See further, Cremona, B.M., ‘The Common Foreign and Security Policy of the European Union’, in O'Keefe, D. and Twomey, B., eds., Legal Issues of the Maastricht Treaty (1993) pp. 247–261.Google Scholar

20. Jacobs, F.G., ‘Is the Court of Justice of the EC a Constitutional Court?’, in Curtin and O'Keefe, op. cit. n. 12, p. 25 at p. 32.Google Scholar

21. Although the Commission has both the duty and the powers to ensure the enforcement of treaty obligations, in contrast to traditional international law where the enforcement of treaty obligations is a matter to be settled amongst the Contracting Parties, it is normally seen as too constrained both politically and operationally to carry out its supervisory functions effectively. See further Evans, A., ‘The Enforcement Procedure of Article 169’, 4 EL Rev. (1979) p. 442.Google Scholar

22. This Article provides, inter alia, that when a question of interpretation of the Treaty is raised before a national court, the latter may suspend the proceedings, and refer the matter to the Court. It must do so if it is a court of last resort – Art. 177(3).

23. See here Pescatore, P., ‘Les Travaux du Groupe Juridique dans la Negociation des Traites de Rome’, 34 Studia Diplomatica (1981) p. 159.Google Scholar

24. See further Temple Lang, J., ‘Community Constitutional Law: Article 5 EEC’, 27 CML Rev. (1990) pp. 645–681.Google Scholar

25. Case 226/86 UNECTEF v. Heylens [1987] ECR 4097; case 222/84 Johnston v. RUC [1986] ECR 1651; case C-18/88 RTT v. INNO [1991] ECR 1–5941; case C-46/90 and C-93/91 Lagauche [1993] ECR I-5267.

26. Case C-213/89 Factortame I, supra, n. 16; cases C-6 and C-9/90 Francovich and Bonfaci v. Italian Republic [1991] ECR 1–5357; case C-271/91 Marshall II [1993] ECR I-4367; case C-208/90 Emmott [1991] ECR 4269.

27. See further case 234/88 Delimitis v. Henniger [1991] ECR I-935.

28. C-92/89 Zuckerfabrik [1991] ECR I-415, modifying Foto-Frost; see note by Schermers in 29 CMLRev. (1992) p. 133.

29. Case C-2/88 Zwartveld [1990] ECR I-440; case C-54/90 Weddel v. Commission [1992] ECR I-871.

30. See here Jones, M.J., ‘The Legal Nature of the EC: A Jurisprudential Analysis Using H.L.A. Hart's Model of Law and a Legal System’, 17 Cornell ILJ (1984) p. 1.Google Scholar

31. Weiler, loc. cit. n. 8, at p. 2422. In support of his arguments with respect to the illegality of counter-measures, he cites the rulings of the Court in joined cases 142 and 143/80 Amministrazione delle Finanze dello Stato v. Essevi [1981] ECR 1413 at p. 1431 and case C-38/89 Minister Public v. Guy Blanguernon [1990] 2 CMLR 340. He therefore rejects, at fn. 42, p. 2422, Simma's conclusion, loc. cit. n. 6, at p. 123, that ultimate recourse, even for the Community to public law and classical State responsibility, remains.

32. Bebr, G., ‘Agreements Concluded by the Community and their Possible Direct Effect: From International Fruit Company to Kupferberg’, 20 CML Rev. (1983) pp. 35–73, at p. 71.Google Scholar

33. F.G. Jacobs, ‘European Community Law and Public International Law: Two Different Legal Orders?’, speech for the Walteher-Schuking-Kollegs, at the Institut fur Internationales Recht, University of Kiel, April 1983.

34. See B. Simma in his entry in 7 EPIL (1984) pp. 400–404.

35. Cases 90 and 91/63, EEC Commission v. Luxembourg [1964] ECR 625, at p. 631 where the Court defines the Community as ‘a new legal order’ where Member States ‘shall not take the law into their own hands’. Cf., the rule that the US constitution's commerce clause does not allow the imposition by the States of reciprocity conditions on the interstate flow of goods: Spoorhase v. Nebraska 458 US 941, 102 S.Ct. 3456, 73 L.Ed. Sd 1254. On the Court's rejection of unilateral retaliation in general, see case 232/78 Commission v. France (lamb wars) [1979] ECR 2729 at p. 2739: ‘A Member State cannot under any circumstance unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to prevent any failure on the part of another Member State to comply with the rules laid down by the Treaty.’

36. Wils, G., ‘The Concept of Reciprocity in EEC Law: An Exploration into these Realms’, 28 CML Rev. (1991) p. 245 at p. 250.Google Scholar

37. Case 6/64 Costa v. ENEL [1964] ECR 585 at 594.

38. Case 236/83 Universität Hamburg v. Hauptzollamt München-West [1984] ECR 3849, at para. 23, where the Court refuses to let the interpretation of a Unesco agreement on the tax-free importation of scientific instruments to be influenced by the alleged interpretations given by other signatories; case 218/83 Les Rapides Savoyards [1984] ECR 3105 para. 29, dealing with a protocol on the concept of ‘originating products’ annexed to the EEC-Swiss agreement; case 104/81 Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641 at para. 18; case 87/75 Bresciani [1976] ECR 129 at para. 23. See also for mixed-agreements and the denial of the right of Member States to rely on the concept of reciprocity – case C-18/90 Kziber [1991] ECR I-199.

39. See further Bourgeois, J., ‘Effects of International Agreements in European Community Law: Are the Dice Cast?’, 82 Michigan LR (1984) pp. 1250–1273.CrossRefGoogle Scholar

40. See in particular the Court's reasoning at para. 21 of cases 21 to 24/72 International Fruit Company v. Produktschap voor Groenten en Fruit [1972] ECR 1219 and more recently, Advocate-General Gulmann in case C-280/93 Germany v. Commission (bananas), 8 June 1994.

41. Schemers, H.G., ‘Community Lawand International Law’, 12 CML Rev. (1975) pp. 77–99 at p. 79.Google Scholar

42. Jacobs, op. cit. n. 33, p. 31; Tomuschat, C., Festschrift für Bodo Borner (1992) p. 441.Google Scholar

43. Art. 171 EC now makes provision for the imposition of pecuniary sanctions in certain circumstances.

44. Art. L acknowledges that the Court may also be given jurisdiction to interpret certain conventions, and to rule on their application, in the field of justice and home affairs – Art. K3(2)(c).

45. Everting, U., ‘Reflections on the Structure of the Union’, 29 CML Rev. (1992) p. 1053, at p. 1063Google Scholar, suggests that under Art. M the Court will have to annul decisions contravening Community law which are based on guidelines of the European Council, so that the latter body is subject to the indirect scrutiny of the Court, notwithstanding Art. L. He further argues that sanctions under international law are not to be contemplated even where the Court is effectively denied jurisdiction (at p. 1064).

46. Injoined cases C-181/91 and C-248/91 Parliament v. Council (‘Aid to Bangladesh’) [1993] ECR 3685 which pre-dated the entry into force of the TEU the Court recognized that a decision of the Council acting on behalf of the Member States as opposed to the Community was an ‘act’ susceptible to judicial review. The issue has also arisen in case C-316/91 Parliament v. Council (European Development Fund) [1994] ECR I-625. The Court refused to accept the Council's argument that it had no jurisdiction to review an act adopted outside the framework of the EEC Treaty but on the basis of an Internal Agreement between the Member States concerning the financing and administration of aid granted under the Lomé Convention. In the Court's views this ‘act’ remained an ‘act of the institutions’ within the meaning of Art. 173 EEC.

Could the Council or the Commission exclude judicial review in an international agreement? The Court of Justice seemed to answer this question in the affirmative in case 104/81 Kupferberg supra, n. 38, at p. 3666, para. 17, although a firm distinction between the international agreement and Community law proper should be kept in mind. This problem has surfaced very recently in connection with disputes between the Member States as to whether express jurisdiction should be conferred upon the Court in relation to a proposed convention on the use of computer technology in the customs field and another on a European Information System. See generally Agence Europe no. 6254 n.s., 18 June 1994, no. 6255, 20 June 1994, and no. 6267, 6 July 1994.

47. The delimitation of the fields of cooperation from die decision-making competence of the Community, which according to Articles M and J(1) remains unaffected, will nevertheless remain problematic. See for example for the position of nationals of third States and the argument that this is already covered by the EC Treaty, Plender, R., ‘Competence, European Law and Nationals of Non-Member States’, 39 ICLQ (1990) p. 559.CrossRefGoogle Scholar

48. Case 181/73 Haegeman v. Belgium [1974] ECR 449.

49. See also case 12/86 Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719, at para. 7; case 30/88 Greece v. Commission [1989] ECR 3711 at para. 12; and case C-192/89 Sevince [1990] ECR 1–3461 at para. 8, as well as Opinion 1/91 of 14 December 1991, supra, n. 5, para. 37.

50. Case 30/88 Greece v. Commission, supra n. 49, and case C-192/89 Sevince, supra, n. 49. See also case C-237/91 Kus [1992] ECR I-6781.

51. Sevince, supra, n. 49, at para. 11.

52. This case concerned a recommendation by the Joint Committee in charge of the administration and proper implementation of the Convention on a common transit regime concluded in May 1987 between the EEC the EFTA countries, which was in turn incorporated into German legislation, challenged in the German courts, and was eventually referred to the Court of Justice: case C-188/91 Shell [1993] ECR I-363.

53. See further case C-322/88 Grimaldi v.Fonds des Maladies Professionnelles [1989] ECR 4407, para. 9, where the Court affirmed its competence to review all acts including recommendations in the course of an Art. 177 procedure, in contrast to the Art. 173 procedures where review of recommendations and opinions is expressly excluded.

54. This case concerned its competence to reply to questions referred to it by a Belgian court relating to the interpretation of a Treaty of 1960 establishing the European Organization for the Safety of Air Navigation – and its related protocols: [1994] ECR I-43. For a further discussion of this case and the question of State immunity doctrines and international organizations, see Bekker, P.H.F., The Legal Position of International Organizations (1994) pp. 218–221.Google Scholar

55. The parties to the agreement include nine of the EC Member States, as well as five other European contracting parties.

56. In the earlier case 41/83 Italy v. Commission [1985] ECR 873 the Court upheld the Commission's decision that certain restrictions imposed by the UK Post Office and British Telecommunications – BT – infringed Art. 86 EC, notwithstanding BT's contention that the restrictions were imposed pursuant to binding recommendations of the International Telegraph and Telephone Consultative Committee (CCITT), a permanent organ of the ITU. The Commission's own reasoning on this point in its contested decision was somewhat vague on the precise effects of such international obligations. It stated that while it accepted the view put forward by BT that international cooperation and the honouring of international commitments are essential for the efficient provision of international communications, such co-operation should not go as far as to violate the Treaty rules on competition. As a compromise, the Commission refrained from imposing a fine on BT.

57. Para. 9. The Court refers to its earlier judgment in case 44/65 Hessische Knappschaft v. Singer [1965] ECR 965.

58. He reviewed the Court's recent jurisprudence on the application of the EC competition rules to State measures which led to an infringement of the prohibition against abuses of a dominant position. See for example case C-41/90 Höfner and Elser [1991] ECR I-1979.

59. He did, however, acknowledge the dispute in the literature as to the nature and scope of State immunity of international organizations – at para. 6 of his Opinion. On this issue, see also Bekker, op. cit. n. 54. See also, on the impact of the doctrine of sovereign immunity on Community competition law, Commission Decision IV/26.870, ‘Aluminium from Eastern Europe’, OJ 1985 L92/1.

60. Opinion of 19 March 1993. Convention No. 170 of the International Labour Organization concerning safety in the use of chemicals at work, [1993] ECR I-1061.

61. In this earlier version the Council, the Commission or a Member State could request an opinion from the Court on the compatibility of a treaty to be concluded by the Community and one or more third States or an international organization.

62. Para. 5 of Opinion 2/91, supra, n. 60.

63. Case 22/70 Commission v. Council [1971] ECR 263.

64. There was also some debate as to whether incorporation had to take the form of a regulation and not just a mere decision. See further Bebr, loc. cit. n. 32, at p. 40.

65. Leenen, A.Th.S., Gemeenschapsrecht en Volkenrecht (1984) at pp. 74–75.Google Scholar

66. The latter writer seems now to have embraced a more ‘monist’ position, see E.-U. Petersmann, ‘Constitutional Principles Governing the EEC's Commercial Policy’, in Maresceau, op. cit. n. 3, p. 46.

67. VerLoren van Themaat, P., ‘The Impact of the Case Law of the Court of Justice of the EC on the Economic World Order’, 82 Michigan LR (1984) p. 1423 at p. 1435.Google Scholar

68. Gilsdorf, P., ‘Les organes institués par des accords communautaire’, 357 RMC (1992) p. 328.Google Scholar

69. See in this respect the Opinion of Advocate-General Gulmann in case C-280/93 Commission v. Germany (bananas), supra, n. 40.

70. Case C-192/89 Sevince, supra, n. 49 at para. 11.

71. Para. 11 of his Opinion, loc. cit. n. 52.

72. Bebr, loc. cit. n. 32.

73. Bourgeois, loc. cit. n. 39, at p. 1272.

74. Cases 21–24/72 – Third International Fruit Company Case, supra, n. 40 para. 6. This reasoning was subsequently upheld in case 9/73 Schlüter [1973] ECR 1135; case 181/73 Haegemann, supra, n.48; case 38/75 Nederlandse Spoorwegen [1975] ECR 1439; cases 267–269/81 Amministrazione delle Finanze dello Stato v. SPI and SAMI [1983] ECR 801; cases 290–291/81 Singer and Geigy v. Amministrazione delle Finanze dello Stato [1983] ECR 847; case 266/81 SIOT v. Minnisterio delle Finanze [1983] ECR 731.

75. Schermers, op. cit. n. 41, at p. 81.

76. Giardina, A., ‘International Agreements of the Member States and their Construction by the ECJ’, in Capotorti, F., ed., Liber Amicorum P. Pescatore (1987) p. 263, at p. 271.Google Scholar

77. Reisenfeld, S.A., ‘The Doctrine of the Self-Executing Treaties and US v. Postal: Win at Any Price?’, 74 AJIL (1980) p. 892CrossRefGoogle Scholar; Verhoeven, J., ‘La notion d'“applicabilité directe” du droit international’, RBDI (1980) p. 243.Google Scholar

78. See its rulings in case 112/80 Dürbeck v. Hauptzollamt Frankfurt [1981] ECR 1095 and case 245/81 Edeka v. Germany [1982] ECR 2745.

79. Case 17/81 Pabst and Richarz v. Hauptzollamt Oldenburg [1982] ECR 1331; case 270/80 Polydor v. Harlequin Record Shops [1982] ECR 329; case 104/81 Kupferberg, supra, n. 38.

80. See further Polydor, supra, n. 79 and Kupferberg, supra, n. 38, and most recently Opinion 1/91, supra, n. 5.

81. In the cases concerning possible conflict between a Community rule and an international agreement, the Court has always side-stepped the issue of supremacy by a substantive finding of compatibility. See for example case 181/73 Haegemann, supra, n. 74; case 70/877 Fedoil v. Commission [1989] ECR 1781. See most recently the Opinion of Advocate-General Gulmann in the ‘bananas’ case, supra, n. 40.

82. Case C-105/90 Goldstar v. Council [1992] ECR I-715; case 175/87 Matsushita v. Council [1992] ECR I-1467; case C-188/88 NMB v. Commission [1992] ECR I-1689; case C-176/87 Konishiroku v. Council [1992] ECR I-1493.

83. OJ 1984 L201/1.

84. A similar situation arose in case 70/89 Fedoil, supra, n. 81, which concerned a complaint by a Community company. The Court ruled that it did not follow from its earlier case-law and from the fact that GATT provisions are not capable of conferring on citizens rights which can be invoked before national courts, that citizens may not in proceedings before the European Court of Justice rely on the provisions of GATT in order to obtain a ruling on whether the conduct criticized in a complaint lodged under Art. 3 of Regulation 2641/84, supra, constitutes an illicit commercial practice within the meaning of that Regulation. The flexibility which characterizes GATT provisions in several areas does not prevent the Court from interpreting and applying the rules of GATT regarding a given case in order to establish whether Commission practices should be considered compatible with those rules (see para. 19 at pp. 1830–1831). The Court eventually found that the relevant GATT Articles III and IX were not applicable to the complaint. For a detailed assessment, see further the Opinion of Advocate-General van Gerven, at paras, pp. 10–14.

85. Case C-69/89 Nakajima v. Council [1991] ECR I-2069, at p. 2127. See also in this respect the recent Opinion of Advocate-General Gulmann in case C-280/93 Germany v. Commission, supra, n. 40.

86. Petersmann, for example, claims that as the Court recognized in case 240/83 ADBHU [1985] ECR 531, that individual freedom of trade was a fundamental right of EC citizens it should construe GATT law in the same spirit: ‘Constitutionalism, Constitutional Law and European Integration’, 46 Aussenwissenschaft (1991) p. 249, at p. 260Google Scholar. See also his contribution in Maresceau, op. cit. n. 66, at p. 40.

87. Bebr, loc. cit. n. 32.

88. Case 4/73 Nold v. Commission [1974] ECR 491.

89. For a review of subsequent case-law and the Court's appraisal of other international conventions including the European Social Charter and numerous conventions of the International Labour Law, see Toth, A.G., ‘Human Rights’, EECL (1990) p. 284 et seq.Google Scholar

90. Case 36/75 Rutuli [1975] ECR 1219. The standing of the jurisprudence of the Court and the Commission in Strasbourg has been left unclear, however. In its Opinion 1/91, supra, n. 5, at paras. 39–40, the Court seems to indicate that it would be willing to consider itself bound, under certain conditions, by the interpretation of an international agreement by a specialized court. These statements have been interpreted by some commentators as paving the way for Community adhesion to the European Convention – see the annotation by Schermers, 29 CML Rev. (1992) pp. 991–1010.

91. For a critique of the Court's reasoning in Nold in respect of its failure to consider whether the Convention was directly effective, see Schermers, loc. cit. n. 41.

92. See for example joined cases 374/87 Orkem v. Commission [1989] ECR 3283 and 27/88 Solvay v. Commission [1989] ECR 3355 where the applicants successfully maintained that a principle existed in Community law that a person should not be required to incriminate himself in non-criminal proceedings despite the fact that no similar right was expressly referred to in Art. 6 of die European Convention. Since that time, however, the European Court of Human Rights has confirmed that Art. 6(1) contains an unconditional right to remain silent and not to incriminate oneself – case 82/1991/2334/407, Funke/France, Series A no. 256A. In the recent case C-62/90 Otto [1993] ECR I-5683, the Court of Justice made no reference to Funke, and refused to extend the principle to national procedural laws.

93. Case 60 and 61/84 Cinéthèque [1985] ECR 2605; case 5/88 Wachauf [1989] ECR 2609 and case 222/84 Johnston v. RUC, supra, n. 25. Attempts to invoke the European Convention as part of Community law before national courts to challenge purely national measures have been unsuccessful: See further Drzemczewski, A., ‘The Domestic Application of the European Human Rights Convention as European Community Law’, 30 ICLQ (1991) p. 118.CrossRefGoogle Scholar

94. See for example the commentary by Weiler, J.H. in Weiler, et al. , eds., Human Rights and the European Community, Vol II (1991) pp. 580–581Google Scholar; and the analysis of J. Coppel and A. O'Neill of the Court's ruling in Wachauf, in ‘The European Court of Justice: Taking Rights Seriously’, 29 CML Rev. (1992) 669 at p. 676.Google Scholar

95. Case 36/75 Rutuli, supra, n. 90.

96. Supra, n. 93 at para. 25.

97. Case 12/86 Demirel, supra, n. 49. For a critique of the Court's approach to human rights in this case, see Weiler, J.H., ‘Thou Shall not Oppress a Stranger’, in Schemers, et al. , eds., Free Movement of Persons in Europe (1993) p. 248.Google Scholar

98. Case C-260/89 ERT [1991] ECR 1–2925.

99. Case C-159/90 Society for the Protection of Unborn Children, Ireland v. Grogan [1991] ECR I-4685.

100. Loc. cit. para. 43. See also case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007 for a similar line of reasoning with respect to the ‘rule of reason’ exceptions developed by the Court in relation to Art. 59 EEC.

101. See most recently case C-275/92 Schindler, judgment of 24 March 1994.

102. In this respect the case-law does not seem to have departed from the rhetoric identified by Weiler, who argued that while the ‘surface language’ of the Court in its early case-law was the language of human rights, ‘the deep structure was all about supremacy’. See Weiler, op. cit. at n. 94.

103. Cases C-237/91 Kus, supra, n. 50; case C-18/90 Kziber, supra, n. 38.

104. Case C-192/89 Sevince, supra, n. 49. See also its earlier decision in case 30/88 Greece v. Commission, supra, n. 50, at para. 13.

105. See in particular the careful analysis of Advocate-General Darmon in Sevince, supra, n. 49.

106. Supra, n. 49, at para. 10.

107. See also in this respect case C-18/90 Kziber, supra, n. 38.

108. Judgment of 2 March 1994, [1994] ECR I-625.

109. Supra, n. 60.

110. Opinion of 10 November 1993, not yet reported.

111. See most recently Opinion 2/91, supra, n. 60.

112. See for further confirmation of the Court's pragmatic approach in joined cases C-128/91 and C-248/91 – the Bangladesh case, supra, n. 46.

113. Lenaerts, K.R., ‘Regulating the Regulatory Process: Delegation of Powers in the EC’, 18 EL Rev. (1993) pp. 23–49, at p. 39.Google Scholar

114. It may, however, be objected that in its ruling in Shell, supra, n. 52, handed down after the publication of Lenaert's article (loc. cit. n. 4) the Court explicitly refused to equate the two powers.

115. Moreover, the jurisprudence of the Court clearly shows that it does have jurisdiction to review decisions of the Community institutions as such, provided that the decisions are binding upon the Community and that the validity of such a decision can be contested before a national court. Third International Fruit Company, supra, n. 40 and the Schlüter case, supra, n. 74.

116. In Opinion 1/76 the Court underlined ‘the need to establish judicial remedies and legal procedures which will guarantee the observance of the law in the activities of the [international body] to an equal extent for all individuals’: [1977] ECR 741 at pp. 761–762, para. 22.

117. This Court's caution here, first expressed in Opinion 1/76, has been confirmed in the later Opinions 1/91 and 1/92 on the European Economic Area Agreement. See Opinion 1/91 at paras. 47–53 and Opinion 1/92 (OJ 1992 CC136/1). Nevertheless at para. 59 et seq. of its Opinion 1/91 the Court acknowledges that it would be prepared to accept the responsibility of interpreting the effects of an international agreement in third States, provided that its rulings had binding effect. The Court has now been requested by the Council pursuant to Art. 228(6) EC to rule on the compatibility with the EC Treaty of accession of the Community to the European Convention on Human Rights, and in particular to address the nature of the Court's jurisdiction under Arts. 164 and 219 EC.

118. Supra, n. 113 p. 40.

119. Pescatore, P., ‘External Relations in the Case-Law of the Court of Justice of the EC’, 16 EL Rev. (1979) p. 615 at p. 626.Google Scholar

120. He refers here to similar ideas posited by the Court in its judgment in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, at paras. 35–38

121. Although the procedures for concluding international agreements have been amended by the Treaty of EU, to include, in certain circumstances provision for the assent of the European Parliament, the provision on the role of the Court remains unaltered, except for its numbering.

122. Where the opinion is adverse, the agreement may only enter into force in accordance with Art. N of the Treaty of Union (formerly Art. 236 EEC), i.e., following Treaty amendment. See further B. de Witte's article in this volume.

123. Cases in which the Court had declared national measures (potentially incompatible) with international agreements include case 65/69 Procureur de la République v. Chatain [1980] ECR 1345; case C-36/75 Rutuli, supra, n. 90; case 48/74 Charmasson v. Minister of Economic Affairs and Finance [1974] ECR 1383.

124. Opinion 1/75 [1975] ECR 1355 at p. 1361. It may however be doubted whether Art. 169, given that it is restricted to the obligations of the Member States, offers any scope for judicial review of Community competence to enter into international agreements as such – see Boulouis, J., in Hague Recueil (1978) p. 367Google Scholar. Nevertheless one could envisage that a Member State may invoke an international agreement in defence of an alleged failure to fulfil its Treaty obligations and that in this context, the Court could be obliged, if indirectly, to consider the legality of the agreement itself.

125. See especially in this context, Opinion 1/78 [1979] ECR 2871.

126. Case 22/70 Commission v. Council (re ERTA) [1971] ECR 263.

127. Para. 10. of Opinion 2/91 [1993] ECR 1–1061.

128. It should also be noted that in accordance with Article 19(8) of the ILO constitution, ILO conventions provide nothing more than minimum requirements for labour standards and should not be deemed to affect any law which ensures more favourable conditions to the workers concerned than those provided for in the Convention.

129. Para. 34 of Opinion 2/91, supra.

130. Para. 36 of Opinion 2/91, supra.

131. The Court introduced this dichotomy in the ERTA case, supra, n. 126.

132. [1977] ECR 741.

133. Paras. 11 et seq. and 18 et seq. respectively. See further, Hartley, T.C., in 2 EL Rev. (1977) p. 275.Google Scholar

134. Lenaerts, loc. cit. n. 113, at p. 38.

135. At para. 41 the Court stated that ‘the Community may accept rules made by virtue of an agreement as to the sharing of the respective competences of the contracting parties in the field of competition, provided that those rules do not change the nature of the powers of the Community and its institutions as conceived in the Treaty.’

136. In accordance with the Commission's request, the Opinion was limited to the compatibility of the proposed system of judicial supervision and dispute settlement, and did not concern the other provisions of the Agreement, OJ 1992 C136/1.

137. The implications of Opinion 1/91 are further examined in the contribution to this volume by B. de Witte, at p. 318 et seq.

138. The Court has now been asked by the Commission to consider the competence of the Community to conclude the agreement setting up the World Trade Organization and the Agreement on trade in services (GATS) and the Agreement on trade in counterfeit goods (TRIPS) – registered as Opinion 1/94, May 1994.

139. See in particular paras. 22 and 27 et seq.

140. Since November 1993, of acts adopted jointly by the Parliament and the Council, and acts of the Parliament intended to produce legal effects vis-à-vis third parties. The grounds of review are lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or any rule of law relating to its application, or misuse of powers.

141. The Court's powers of control under this Article are not further discussed in this contribution.

142. Case 89/76 Commission v. The Netherlands [1977] ECR 1355.

143. See further Kovar, R., ‘Lesaccord liant les Communatues europeennes et l'ordre juridique communautaire’, 172 RMC (1974) p. 345 at p. 357.Google Scholar

144. Rideau, J., ‘Les accords internationaux dans la jurisprudence de la Courde justice de CE: reflexions sur les relations entre les ordres juridiques international communautaire et nationaux’, RGDIP (1990) p. 289.Google Scholar

145. Hartley, T. C., The Foundations of EC Law, 2nd edn. (1988) p. 253.Google Scholar

146. The Court's ruling is binding on the referring court – Case 66/80 ICI v. Amministrazione delle Finanze dello Stato [1981] ECR 1191.

147. See more generally Toth, A.G., ‘The Authority of Judgments of the European Court of Justice: Binding Force and Legal Effects’, 4 YEL (1984) p. 1.Google Scholar

148. Case 264/82 Timex v. Council and Commission [1985] ECR 849 at para. 32.

149. Case 165/87 Commission v. Greece [1988] ECR 5545 at p. 5551.

150. Rideau, op. cit. n. 144, at p. 380–383.

151. Registered as case C-327/91 France v. Commission.

152. See case 22/70 Commission v. Council, supra, n. 126 at para. 42.

153. He further relied on the Court's remarks, obiter dicta, in Opinion 1/75 [1975] ECR 1355.

154. Supra, n. 48; case 12/86 Demirel, supra, n. 49 at para. 7.

155. See para. 12 of his Opinion of 16 December 1993.

156. Three reasons are usually given to justify review: the competence of the Community institutions being one of attribution implies that international agreements are instruments for the achievement of the goals of the Community and are therefore subordinated to the Treaty regime; the existence of preventive or a priori control; and the fact that Art. 238 provides that where association agreements call for amendments to the Treaty, these must be adopted in accordance with procedure laid down in Art. 236. See further Louis, J. V. and Bruckner, P., Relations exterieures dans le droit de la CEE (1980) p. 181.Google Scholar

157. Supra, n. 46.

158. At para. 85. It should also be pointed out, however, that the contested act in case 316/91 was taken to implement an agreement to which the Community and the Member States alone were parties.

159. Case 266/81 SIOT v. Ministerio delle Finanze, supra, n. 74.

160. Opinion 2/91, supra.

161. See Opinion 1/91 and the comment by Schermers, supra, n. 90. As already mentioned the Court has now been requested by the Council to consider whether the Community could become a party to the European Convention – Opinion 2/94, registered in May 1994.

162. Council Decision 82/72 concerning the conclusion of the Convention on the Conservation of European Wildlife and Natural Habitats, OJ 1982 L38/1.

163. See para. 5 of Decision 82/72. This recital should be regarded as out-dated, given that the Community's competence in matters of nature protection was expressly recognized in the amendments to the EEC Treaty introduced by the Single European Act, and has subsequently been confirmed by the Treaty on European Union: Art. 130R – 130T. Indeed the Court's ruling with respect to French authorizations for the importation of wild cat skins from Bolivia in case C-182/91 Forafrique v. Commission (29 November 1993) suggests that while the Commission still considers its tasks limited to enforcing Community regulations implementing international agreements – in this case Council Regulation 3626/82 implementing the CITES Convention in the Community – it will take into account the resolutions of the meetings of the contracting parties to the Convention when interpreting the terms of the Regulation and the obligation this imposes on the Member States.

164. Where an EC Member State allows the destruction of a natural habitat located within its territory it prevents the Community from fulfilling its international obligations, in breach of Article 5.: Kramer, L., ‘Implementation of Environmental Laws by the EEC’, YEL (1991) p. 45.Google Scholar