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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
director in 2008. During the United Kingdom’s Presidency in the EU (6-12/2005)
he was posted at the Czech Embassy in London. In 2007 he received his Ph.D. from
Charles University, Faculty of Law (doctoral programme Public Law I: European,
International and Constitutional Law) upon completing research in the area of
legal aspects of EU external relations, which is one of his fields of specialisation.
In 2011 he spent 6 months as a Visiting Fulbright Scholar at Fordham Law School
in New York. He is married, with one son. One of his most favourite plays is Tom
Stoppard’s Rock’n’Roll (2006), which just about sums up his theatrical and musical
tastes (with some bits of Shakespeare, Handke, Creation Records and New York
post-punk).
I. Introduction
Sovereign States, as subjects of international law, do not usually like being taken
to court in another State and surrendering to its jurisdiction. This would generally
go against the principle of sovereign equality of States as one of the main principles
of international law. The concept of jurisdictional immunity was developed precisely
for this purpose, to protect States from lawsuits brought against them in courts of
other States.
However, jurisdictional immunity is not absolute and, as we shall see, does not
extend to all actions of a State. The matter becomes even more complicated when
the international law concept of jurisdictional immunity is transposed and applied
in the context of European Union law, which is a system originally stemming from
international law
2
but at the same time a system with extensive judicial protection of
individuals and a guaranteed right of effective judicial remedy.
3
Thus the aimof this article is to analyse to what extent the concept of jurisdictional
immunity is acknowledged in the context of EU law and in the jurisprudence of the
Court of Justice of the European Union (hereinafter the “CJEU” or the “Court”). We
shall first look briefly at the concept of jurisdictional immunity and its development
under international law, then we shall deal with the structural relationship between
international and EU law, and finally we shall analyse specific CJEU cases where the
jurisdictional immunity of States was raised and see whether there are any actual
or potential conflicts between the international law and EU law approaches to
jurisdictional immunity.
2
In the seminal judgement 26/62
Van Gend en Loos
[1963] ECR 1, concerning
inter alia
the direct
effect of provisions of the EEC Treaty, the Court of Justice held:
“(…) the Community constitutes
a new
legal order of international law
for the benefit of which the benefit of which the states have limited their
sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but
also their nationals.
” (emphasis added).
3
Art. 47 of the Charter of Fundamental Rights of the European Union (OJ C 326, 26. 10. 2012, p. 391,
hereinafter the “EU Charter”).