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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
apply international law and may be required to interpret certain rules falling within
the scope of that law, but solely within the context of the competence which has been
conferred on the European Union by the Member States
.”
45
But the Court found no
link whatsoever with EU competence in this case and went on to state the following:
“There is, however, nothing to indicate that the situation forming the subject-
matter of the case in the main proceedings might come within the scope of European
Union law or, therefore, of the rules of international law which have a bearing
on the interpretation of European Union law.
Consequently, the Court has
no jurisdiction to interpret and apply the rules of international law
which the referring court is minded to apply to that situation
.”
46
As for the lack of jurisdiction
ratione temporis
, the Court recalled that “
it follows
from Article 28 of the Vienna Convention on the Law of Treaties, which binds the
European Union institutions and forms part of the European Union legal order as a rule
of customary international law (…), that, in the absence of a different intention expressed
in the treaty concerned, the provisions of that treaty do not bind the States party to it so
far as concerns an act or an event predating its entry into force.
”
47
This led the CJEU
to the only possible conclusion that, since there was no indication whatsoever in the
original founding treaties
48
of any such different intention under which the European
Union’s competence could be extended to events which took place during the Second
World War, and thus before the European Communities were established, “
it is clear
that Court has no jurisdiction ratione temporis to reply to the questions referred.
”
49
V. Conclusion
We have seen from recent case-law that the CJEU is well aware of the current
tendency to restricted jurisdictional immunity in international law and is willing to
apply this concept in the context of EU law. However, the granting of jurisdictional
immunity to a State should not affect the primacy and uniform application of EU
law and thus the integrity of Union’s legal order,
50
as well as the right of individuals
to an effective judicial remedy.
45
C-466/11
Curra
, para. 18.
46
ibid
., para. 19 (emphasis added). The Court also noted that it was actually the ICJ which had proper
jurisdiction to rule on the interpretation and application of the principle of State immunity in an
application for compensation brought by citizens of one State against another State in respect of events
which took place during the Second World War and that “
the two Member States at issue [Germany and
Italy] brought proceedings before the International Court of Justice without challenging the jurisdiction of
that latter court. That court declared that it had jurisdiction and delivered a judgment on the merits of the
case on 3 February 2012.
” (para. 20). See also note 8
supra
.
47
C-466/11
Curra
, para. 22.
48
Treaty establishing the European Coal and Steel Community (1951), Treaty establishing European
Economic Community (1957) and Treaty establishing the European Atomic Energy Community (1957).
49
C-466/11
Curra
, paras. 23-24.
50
See
e.g.
case C-399/11
Stefano Melloni v. Ministerio Fiscal
[2013] /not yet reported/, paras. 58-59, where
the CJEU stressed the importance of the primacy of EU law as an essential feature of the EU legal order.
Consequently, rules of national law, even of a constitutional order, cannot be allowed to undermine