351 / 464
337
POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
In other words, while the assessment of whether a Member State has violated the
ECHR in the specific context of the execution of EU law has since been subjected
to a specific review test, the attribution of responsibility stays with the EU Member
States. The fact that these do nothing more than comply with the requirements of an
EU regulation and that they have no normative control over such a measure under
EU law is irrelevant at the stage of the attribution (although it becomes relevant at
the stage of the assessment of the alleged violation).
Competence-based analysis was not embraced either by the investment tribunal
arbitrating the ECT
Elecrabel
case (an intra-EU arbitration case) which brought a
thorough analysis of the normative relations between European law and the ECT.
In this case, Hungary defended its anticipated termination of a long-term power
purchase agreement concluded with a Belgian investor. Because the Commission
had previously requested Hungary to bring this contract to an end so as to comply
with EU State-aid rules, the question arose as to what extent this fact influenced the
attribution and assessment of Hungarian responsibility under the ECT. The tribunal
did not enter into a competence-related analysis at the stage of the attribution of
responsibility, and the Commission’s arguments to this end remained unheard.
Although the Hungarian decision to terminate the above-mentioned commitment
was a response to a Commission State-aid decision, the tribunal stressed that
the investor brought the claim against the domestic measure and not against
the Commission’s decision.
94
Despite slightly confusing reference to Art. 6 of the
Draft Articles on the Responsibility of States (“DARS”) which deals with the
issue of attribution,
95
the European normative context was referred to the stage
of assessment of Hungarian conduct,
96
where it deployed important derogative legal
effects, similarly to what happened in the ECtHR
Bosphorus
case.
On the other hand, the competence-related assessment of the attribution
of international responsibility has been present in WTO case law, although not
without variations. In the
Custom Classification of Certain Computer Equipment
case,
which was first launched by the United States against the Union and two Member
States and then arguably “transformed” into a case against the Union, the WTO
panel ended up ruling on the international responsibility of the Union and not on
the responsibility of the United Kingdom and Ireland, although in its preceding
94
Par. 5.31-5.60 of the decision
Electrabel
quoted above, fn. No. 5.
95
“Conduct of organs placed at the disposal of a State by another State”. See Draft articles on Responsibility
of States for Internationally Wrongful Acts with commentaries,
Yearbook of the International Law
Commission
, 2001, vol. II, Part Two, 2001.
96
“Where Hungary is required to act in compliance with a legally binding decision of an EU institution,
recognized as such under the ECT, it cannot (by itself) entail international responsibility for Hungary.
Under international law, Hungary can be responsible only for its own wrongful acts. The Tribunal
considers that it would be absurd if Hungary could be liable under the ECT for doing precisely that
which it was ordered to do by a supranational authority whose decisions the ECT itself recognises as
legally binding on Hungary”. Par. 6.72 of the decision
Electrabel
quoted above, fn. No. 5.