CYIL Vol. 4, 2013

WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES… III. General interplay of EU law and international law in the caselaw of the CJEU The support and respect of the EU for international law is stated among the main aims of the Union in Art. 3(5) TEU: “[The Union] shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law , including respect for the principles of the United Nations Charter”. 12 This general aim is further highlighted with regard to the Union’s external action in Art. 21(1) TEU: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law .” 13 The Court has repeatedly acknowledged its adherence to international law and its principles when interpreting and applying EU law. It is a settled case-law of the CJEU that the EU “ must respect international law in the exercise of its authority ” 14 and that “ when it adopts an act, it is bound to observe international law in its entirety, including customary international law ”. 15 The rules of secondary EU law (i.e. regulations, directives and decisions) must be therefore interpreted also in the light of the relevant rules of customary international law. Even though the above principles should generally govern the interplay between the EU law and international law, this is not always the case, and in certain situations the EU law, as “an autonomous system”, 16 effectively prevails over conflicting rules of international law. This was the situation in the Kadi case, 17 where the Court 12 Emphasis added. 13 Emphasis added. 14 Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, para. 9. 15 Case C-366/10 Air Transport Association of America and Others [2011] /not yet reported/, para. 101 and the case-law cited therein. 16 The notion of EU law as an autonomous system not governed by general rules of international law can be traced back to another seminal judgement in the case 6/64 Costa v. ENEL [1964] ECR 585, where the Court stated: “ By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply .” 17 A famous example of certain disregard for international law (albeit for arguably legitimate reasons of human rights safeguards as essential principles of EU legal order) occurred in the joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission [2008] ECR I-6351.