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WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES…
In case of conflict with the essential features of the EU legal order, the CJEU
would probably opt for a fairly narrow concept of jurisdictional immunity, which
might go even further than the current restrictive concept in international law. In
other words, it cannot be excluded that the Court might disregard the international
law obligations in favour of safeguarding the essential principles of EU law and the
fundamental rights protection in a situation which falls within the scope of EU law.
However, it is important to stress that in its case-law so far, the CJEU has always
fully respected the international law principles of jurisdictional immunity and was
well aware of the ICJ jurisprudence, as was demonstrated in case C-466/11
Curra
.
This was no doubt facilitated by the clear tendency in international law to depart
from an absolute to a restricted concept of jurisdictional immunity, which in turn
enables the CJEU to comply with the international law obligations which the Union
should respect.
the effectiveness of EU law in the territory of EU Member States. This primacy (precedence) of EU
law would arguably also apply to any conflicting rules of international law, when the international law
obligation would infringe essential principles of EU legal order (see note 17
supra
).