CYIL Vol. 4, 2013

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