CYIL 2015

344 / 464

330
MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ
down by the Financial Responsibility Regulation is presented as striving for budgetary
neutrality as far as the Union is concerned, meaning that the latter should pay only
for such misconduct that will be attributable to it under this instrument.65 Given
the overall structure of the Financial Responsibility Regulation, one might wonder
whether the budget-neutrality rule should not be better proclaimed as applicable
both ways protecting also the Member States’ budgets where appropriate.
Apart from budgetary neutrality, when it is the Union that acts as respondent the
Financial Responsibility Regulation aims at ensuring that the investor receives the
payment due under an award or a settlement agreement “without delay”66 and that
such an investor is shielded against possible intra-EU disagreement as to who should
pay. These payments shall be in principle mainstreamed through the Commission
which then turns to the Member State concerned if appropriate. Disagreements
between the Commission and the Member State on this subject will be therefore
dealt with separately at the intra-EU level.67
As mentioned above, the regime of the Financial Responsibility Regulation cannot
per se infer with the attribution of international responsibility to the Union and the
Member States because the latter is in principle the province of the international
judge or arbitrator, who in turn, is generally bound to apply rules of international
responsibility.68 In this respect, some of the provisions of the Financial Responsibility
Regulation appear problematic because they translate the ambition of the EU
legislator to provide for extra-EU effects which, however, no EU act can ensure
without the corresponding international-law link-ups.69
To begin with, Recital 3 of the Preamble states that [i]nternational responsibility
for treatment subject to dispute settlement follows the division of competences
between the Union and the Member States. […]”. This may or may not be true. As a
matter of international law, the extent to which the intra-EU division of competences
will determine the assessment of international obligations of the respective “European”
actors will actually depend on treaty law and lawof international responsibility as well as
on what a particular international treaty might possibly say on this subject. Therefore,
65 Recital 9 of the Financial Responsibility Regulation quoted above, fn. No. 56: “The arrangements laid
down in this Regulation are aimed at ensuring that the budget of the Union and Union non-financial
resources are not burdened, even temporarily, by either the costs of litigation or any award made against
the Member State concerned.”
66 Recital 19 of the Financial Responsibility Regulation quoted above, fn. No. 56.
67 Art. 19 of the Financial Responsibility Regulation quoted above, fn. No. 56.
68 See also KLEINHEISTERKAMP, J., “Financial Responsibility in the European International Investment
Policy”. LSE Legal Studies Working Paper No. 15/2013, 2013, =2271526, p. 8.
69 On whether such links-up already exist as an international rule embracing the concept of the executive
federalism (under which the attribution of international responsibility follows the intra-EU competence
division) see KUIJPER, P. J., PAASIVIRTA, E., “EU International Responsibility and its Attribution:
from the Inside Looking Out” in EVANS, M., KOUTRAKOS, P., The international responsibility of the
European Union: European and international perspectives, Oxford [etc.]: Hart, 2013, x-372 p., pp.35-71.