CYIL 2015

336

MAGDALENA LIČKOVÁ

CYIL 6 ȍ2015Ȏ

the one shaped in the CETA and EUSFTA in as much as its first rule provides the

Union with the possibility to project internationally its vision as to who the right

respondent should be, while the default rule imposes a ready-made solution (which,

however, differs in the UNCLOS case, on one part, and in the CETA/EUSFTA case,

on the other part).

The “internationalist” approach is challenged by the “Europeanist” one suggesting

that the attribution of international responsibility to the Union or to the Member

States should copy the intra-EU division of competences and that the international

responsibility should be borne by the actor who has “normative control”

over

the challenged measure. This approach points to the fact that under EU law there

are situations in which the Member States’ authorities act

as bras arm

é of the EU

institutions without the possibility to depart from the course of action defined at

the EU level. This is a specific aspect of the intra-EU constitutional arrangement,

referred to as executive federalism. Because the EU institutions and not the Member

States’ ones are entitled to adopt the relevant legal acts, it is also the former and

not the latter that can remedy possible international law violation. Therefore, the

attribution of international responsibility should follow the logic of EU “executive

federalism” and be associated with the appropriate regulatory level within the Union.

The international practice is divided and sides sometimes with one, sometimes

with the other approach. The internationalist reading corresponds to the first part

of the reasoning followed by the European Court of Human Rights (the “ECtHR”)

in the

Bosphorus

case where it held that while the ECHR parties are free to transfer

their sovereign power to an “international (including a supranational) organization”,

they remain “responsible under Article 1 of the [ECHR] for all acts and omissions

of [their] organs regardless of whether the act or omission in question was a

consequence of domestic law or of the necessity to comply with international legal

obligations.”

Although, as a second step, the ECtHR famously formulated its

rebuttable presumption of equivalent protection benefiting measures that the ECHR

contracting parties take when doing “no more than implement[ing] legal obligations

flowing from its membership of the [European Union]”,

the ECtHR did not engage

in any competence-related assessment at the level of the attribution of responsibility.

any specific matter. The organization and the member States concerned shall provide this information.

Failure to provide this information within a reasonable time or the provision of contradictory

information shall result in joint and several liability.”

Hoffmeister (F.), “Litigating Against the European Union and Its Member States – Who Responds

Under the ILC’s Draft Articles on International Responsibility of International Organizations?”,

EJIL

(2010) vol. 21, No. 3, pp. 723-747, p. 741. In favour of the competence-based approach also

KUIJPER, P.J., PASSIVIRTA, E., EU International Responsibility and its Attribution …”,

op. cit

., fn.

No. 69.

Judgment of the ECtHR (Grand Chamber), 30 Jun. 2005,

Bosphorus Hava Yollari Turizm ve Ticaret

Anonim șirketi v. Ireland

, application No. 45036/98, par. 152-154.”

Par. 156, 159-165 of the judgment

Bosphorus

quoted above fn. No. 92.