356 / 464
342
MAGDALENA LIČKOVÁ
CYIL 6 ȍ2015Ȏ
the challenged conduct because this would endow the ECtHR with the capacity to
assess the intra-EU division of competences.
117
A second flaw identified by the CJEU
which is relevant here was the ECtHR’s envisaged power to decide, by exception to
the general rule of joint responsibility borne by the EU and the Member State(s)
acting as co-respondents, that only one of them is responsible. Indeed, explains
the CJEU, “[a] decision on the apportionment as between the EU and its Member
States of responsibility for an act or omission constituting a violation of the ECHR
established by the ECtHR is also one that is based on an assessment of the rules of EU
law governing the division of powers between the EU and its Member States and the
attributability of that act or omission.”
118
Reflecting on the fact that the adjustment
of international responsibility by the ECtHR could be done “solely on the basis of
the reasons given by the respondent and the co-respondent”, the CJEU held that this
was still not protective enough of the EU law specificity because “[t]o permit the
ECtHR to confirm any agreement that may exist between the EU and its Member
States on the sharing of responsibility would be tantamount to allowing it to take the
place of the [CJEU] in order to settle a question that falls within the latter’s exclusive
jurisdiction”.
119
For further reflection, it is useful to compare this statement with the
above-referred UNCLOS “right respondent” mechanism which includes the default
rule of joint and severe responsibility of the Union and its Member States, although
in these circumstances, the international judge is not equipped with explicit powers
to further adjust it. Also, references should be made to the WTO agreements and
the ECT, which leave the issue of attribution open and therefore at the will of the
respective adjudicating bodies.
120
These elements of practice notwithstanding, the most recent interpretation
delivered by the CJEU in Opinion 2/13 indicates that the operating field in which the
arbitral tribunals under EUSFTA, CETA and further such agreements will have to
maneuver as to the attribution of international responsibility is fairly limited if the
adherence to the above quoted statement of the CJEU is to be ensured . While the
determination of the “right respondent” will intervene at an early stage, it would be
worth considering that, in the light of the uncompromising approach adopted by the
CJEU in Opinion 2/13, the EUSFTA specifies that the determination of the “right
respondent” by the Union is binding upon the tribunal (which only the CETA does
at the time of writing). On the intra-EU side, if the determination of the “right
respondent” mechanism should be equaled to an “agreement that may exist between
117
Opinion 2/13 quoted above, fn. No. 113, par. 215-225; esp. par. 221 and 235.
118
Opinion 2/13 quoted above, fn. No. 113, par. 230.
119
Opinion 2/13 quoted above, fn. No. 113, par. 234.
120
Commenting on the difference between the attribution of international responsibility and the issue of
intra-EU division of competences see Eeckhout (P.), “Opinion 2/13 on EU Accession to the ECHR
and Judicial Dialogue: Autonomy or Autarky?”,
Fordham Int’l L.J
. (2015), vol. 38, pp. 955-992,
pp. 979-885.