349 / 464
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POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
While this statement aims to clarify both the substantive and procedural facets
of the mixed EU/Member States participation to the ECT, it lacks legally binding
character because it is not anchored in the text of the ECT itself but has been
made unilaterally by the European Union. On the procedural level, the suggestion
addressed to potential claimants that the Union and the Member States will determine
who responds to the claim may be considered an invitation which, if declined, should
not trigger any adverse effects for the claimant. As regards the substantive facet and the
apportionment of international responsibility between the Union and the Member
States, assessment is more complex because it oscillates between two main competing
lines of reasoning. This duality can be identified in international case law as well as
in the ILC Draft articles on the responsibility of international organizations (the
“DARIO”)
87
which, in absence of any binding international instrument, constitutes
the most commanding guidance as to assessment of the international responsibility
of an international organization and its Member States. The fundamental question
seems to be whether the EU intra-division of competences can trigger international
legal effects
per se
or, in other words, whether an international judge has, under the
existing rules of international responsibility, to apportion the responsibility to the
Union and to the Member States according to their respective competences under
EU law.
The response given under the classical international-law reading seems to be
“no”, because the intra-EU division of competence is an intra-EU matter and if not
acknowledged by the respective treaty, it does not produce any extra-EU legal effects
on its own. When looked at from the “internationalist” viewpoint, the responsibility
of the European actors will depend on whether the designated defendant is bound
by the international rule concerned and on whether the challenged measure can be
attributed to him, which is likely to rely on the identification of the “immediate
actor”
88
whose behavior engendered the challenged measure. The responsibility
arising under a mixed agreement, which does not contain any specific arrangement
as to the apportionment of responsibility to the Union or to the Member States, is
generally considered as joint and severe.
89
A good example of how both scenarios
of specific and joint/severe responsibility rules can be combined is provided for in
Art. 6(2) of Annex IX to the United Nations Convention on the Law of the Sea (the
“UNCLOS”).
90
Interestingly, the UNCLOS mechanism is to some extent similar to
87
Yearbook of the International Law Commission
, 2011, vol. II, Part Two.
88
KUIJPER, P. J., PAASIVIRTA, E.,
“EU International Responsibility and its Attribution …”
,
op. cit
., fn.
No. 69, pp. 65-67.
89
On the responsibility under mixed agreements see BURGSTALLER, M., “The Energy Charter Treaty
…
”,
op. cit
., fn. No. 43, pp. 143-147; KUIJPER, P. J., “International Responsibility for EU Mixed
Agreements” in HILLION, CH., KOUTRAKOS, P., (eds.),
Mixed Agreements
…,
op. cit
., fn. No. 80,
pp. 208-227.
90
Concl. on 10 Dec. 1982, 1833 UNTS 3. “Any State Party may request an international organization
or its member States which are States Parties for information as to who has responsibility in respect of