The situation of the European Union legal system with regard to international agreements

Alain-Patrick Umucyo By Alain-Patrick Umucyo, 26th Nov 2015 | Follow this author | RSS Feed | Short URL http://nut.bz/35_3p6i5/
Posted in Wikinut>Writing>Essays

The Court of Justice of the European Union (EU) laid the foundations for a coherent EU legal system.

1 The pragmatic approach of the Court of Justice of the European Union

1. “'The EU Member States may be divided into those whose legal order is monist and those whose legal order is dualist.'(1) In monist States, once an international agreement has been agreed to, its entering into force in the international legal order entails its entering into force in the national legal order.(2) In dualist States however, this entering into force at the national level requires a specific legal instrument.(3) In the concrete, the instrument may reproduce the exact content of the international agreement or explicitly requires the observance of the agreement's provisions.(4)(5)

2. The decisions of the Court of Justice of the European Union with regard to the international agreements concluded by the EU were not directly and explicitly concerned with the teaching related to monism and dualism. They were determined by concrete cases that required the Court of Justice to clarify EU law in order for those cases to be dealt with accordingly by the national courts. However, the underlying presence of the teaching and, more specifically, the position of the Court about monism and dualism is noticeable.

3. The concrete cases that gave the opportunity to the CJEU to clarify the situation of the EU legal order in relation to external norms were focused on determining whether international agreements acceded to by the EU had a direct effect. This concept of direct effect in the EU legal system of international treaties concluded by the EU would mean that those treaties can confer specific rights to individuals in the EU without the need of any implementing act. More exactly, the concept entails that rights thus conferred can be defended – or challenged – in courts. The CJEU's construction about the direct effect of international treaties started in the 1970s.

2 The choice for theoretical dualism and practical monism

4. In 1974, the Court of Justice gave a preliminary ruling in the case R. & V. Haegeman v Belgian State.(6) The Court had to clarify the situation of an association agreement with Greece. It stated that :
“the provisions of the agreement, from the coming into force thereof, form an integral part of community law.”
This was based on the observation that the conclusion of the agreement had been undertaken via an act of the Council.

5. The mention of the Council's act of conclusion as entailing the agreement being “therefore an act of one the institutions of the Community” is evocative of the dualistic approach of the Court with regard to the international agreements concluded by the EU. Nevertheless, by referring to the provisions of the agreement as forming an “integral part of Community law”, the Court implies that those provisions may benefit from the principles of direct effect and primacy of EU law. The reasoning of the Court is thus marked with both theoretical dualism and practical monism. That is in coherence with the Constitutional situation of Member States.

6. Indeed, with theoretical dualism as the defining aspect of the EU legal order, the dualist States, such as Germany and the United Kingdom, are assured of having an extended control on their internal legal order. They do not only have their constitutional framework in order to internally invalidate external norms but they can take action at the EU level thus preserving the equilibrium they have created between their constitutional order and EU law. Theoretical monism regarding the construction of the EU legal order would have deprived dualist States of the EU level of 'preventive' intervention for protecting their constitutional setting. This, in turn, may have strained the equilibrium. The practical monism implied by the Court in Haegeman emulates the constitutional situation of Member States internal legal system. An emulation can hardly encounter any opposition.

3 The full integration of international agreements into the EU legal system

7. After having presented international agreements duly concluded by the EU as part of Community law, the CJEU unsurprisingly ascertained that the principle of primacy of EU law does cover these international agreements.(7) The ascertainment is not only a consequence of the Court's conceptual approach to the EU legal order but, more sensibly, it derives from the EU primary law. This is confirmed by the Court in the 1982 case Kupferberg.(8) In this case, the Court observed that :
“The Treaty establishing the Community has conferred upon the institutions the power of making agreements with non-member countries and international organizations in accordance with the provisions of the Treaty. According to Article 228 (2) these agreements are binding on the institutions of the Community and on Member States. Consequently, it is incumbent upon the Community institutions, as well as upon the Member States, to ensure compliance with the obligations arising from such agreements.”

8. The Kupferberg case characterises the international agreements as being superior to EU secondary law. The theoretical dualistic approach makes them inferior to EU primary law in the EU legal order. This hierarchy gives force to the independence the EU has progressively gained with respect to the national and international legal orders. This has been perceived in the monist France where the Kupferberg case is regarded as significant in the way Member States have to comply with international agreements concluded by the EU.(9) In the dualist Germany, the case has a clear significance in the matter of direct effect of international treaties but the hierarchy could only be ascertained after the coming into force of the Lisbon Treaty.(10) In the dualist United Kingdom, even after the Lisbon Treaty, the hierarchy is not undisputed.(11) “International treaties agreed with bodies outside the EU” are considered as sources of EU law but they do not fit in between EU primary and secondary laws.(12)

9. These divergences about the position in the EU norms hierarchy of international agreements concluded by the EU show how uneasy it may have been and it may still be for the EU to fully ascertain its independence. The introduction of the article 216 (2) TFEU appears therefore as an ultimate effort of engraving in primary law what the CJEU had already outlined. As a part of primary law, the article represents a protection against (dualistic) moves to challenge EU norms hierarchy because the changing of EU primary law requires a specific procedure different from the ordinary legislative procedure observed for secondary legislation, for instance.

Sources

(1)SCHMIED, Frédéric. Les effets des accords de l’OMC dans l’ordre juridique de l’Union européenne et de ses États membres. L’invocabilité au service de l’influence de l’Union sur la mondialisation du droit. Clermont-Ferrand : Fondation Varenne, 2012. Collection des Thèses. Th. doct. : Droit : Nancy : 2011. ISBN 978-2-916606-67-5. § 223

(2)Ibidem

(3)Ibidem

(4)Ibidem

(5)UMUCYO Alain-Patrick. The choice for practical monism in relation to EU law by France, Germany and the United Kingdom (online). 29 December 2014. Oboulo. <http://www.oboulo.com/summary?id=430845&affiliationcode=0d088b> accessed 11 July 2015

(6)Case 181-73 R. & V. Haegeman v Belgian State (1974)

(7)SCHMIED, Frédéric. Les effets des accords de l’OMC dans l’ordre juridique de l’Union européenne et de ses États membres. L’invocabilité au service de l’influence de l’Union sur la mondialisation du droit. Clermont-Ferrand : Fondation Varenne, 2012. Collection des Thèses. Th. doct. : Droit : Nancy : 2011. ISBN 978-2-916606-67-5. § 138

(8)Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A (1982)

(9)SCHMIED, Frédéric. Les effets des accords de l’OMC dans l’ordre juridique de l’Union européenne et de ses États membres. L’invocabilité au service de l’influence de l’Union sur la mondialisation du droit. Clermont-Ferrand : Fondation Varenne, 2012. Collection des Thèses. Th. doct. : Droit : Nancy : 2011. ISBN 978-2-916606-67-5. § 138

(10)Müller, Matthias, Das Rechtsprechungsmonopol des EuGH im Kontext völkerrechtlicher Verträge. Baden-Baden, 2012. S. 103, 106 ff.

(11)Gary Slapper and David Kelly, The English Legal System (14th edn, Routledge 2013) 708

(12)Ibidem

moderator Chief Nut moderated this page.
If you have any complaints about this content, please let us know

Comments

Add a comment
Username
Can't login?
Password