MIDTERM – most important things

Lecture 1

- Sovereignty = supreme authority both internal and external

- Social contract = the granting and limiting of public authority
- Rule of law
- International law
 Lotus case: international law needs to specifically prohibit something in order for there to
be a violation
- Hallmarks of traditional international law
1. No central legislative = law making is by State consent
2. No central executive = implementation relies on States
3. No compulsory adjudication
- What are the legal bases of international law (art. 38 ICJ)
1. Treaties
2. Custom = state practice and opinion juris
3. General principles
4. And judicial decisions + academic work
- for states, international organization and multinationals
- Jurisdiction
International courts & tribunals (ICJ)

Lecture 2 – jurisdiction and immunities

State immunity For the law each state is equally sovereign

 States cannot interfere in what happens in another states
 Notion of jurisdiction: State can decide what happens on its own
territory
immune before the courts of another state
- sovereignty = possession of ultimate (legal) authority over defined territory
- jurisdiction: exercise of ultimate legal authority within defined territory

Immunity v. A state may have jurisdiction but the other state can still be immune
jurisdiction jurisdiction doesn’t imply absence of immunity
Grounds for 1. Territoriality: subjective + objective (effects)
jurisdiction 2. Nationality: Active (perpetrator) + passive (victim)
3. Protection: threatens important interests
4. Universality: crimes that shock mankind
5. Flag state
Immunity of Immunity of state depends on nature of the act
STATE - Acta jure imperri: governmental act  official state act  immunity
- Acta jure gestiones: commercial act  no immunity
Immunity of Arrest Warrant case  BELGIUM V CONGO
STATE
OFFICIALS - Belgium had domestic law giving universall jurisdiction
(art. 7)
- Congo said there should be immunity
- Arrest warrant case
 immunity isn’t restricted
 there are state officials that embody the state  private and officials
acts have immunity
 The main question is whether it was a private or official act
- Genocide
1. Official act: you need to resources of the state to fulfil this
2. Private: genocide is never something that can be part of your
function

Problem with Belgium: the warranted the arrest warrant while he was still in
office
Jus cogens - Customary law
- art. 53 VCTL: a peremptory norm of general international law is a
norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted”
Traditional - jus cognes and immunity address different matters
international law  Italy case state that Jus Cogens norms are violated by Germany and
that therefore derogation isn’t permitted
 Traditional response
- Question of immunity is procedural
- Question of what kind of act (jus cogens) is substantial
this means a state can get away with genocide
New human - Rome Statue art. 27
rights view Immunity can be released
- There are tribunals (ICTR, ICTY( that no longer make a balance
between immunity and jus cogens
can also prosecute people in office (only for state who have signed
the Rome statue)

ICTY and ICTR are created by UN security Council

 apply to the entire world
UN Security council can also make a referral for prosecution of State who
haven’t signed the Rome Statue
delete immunity
Workgroup Immunity
international customary law
Who has immunity
 International organizations  functional immunity
 States
 High ranked state officials  heads of states, MFA, MFD
 Immunity is for both their private and official acts
 Former high ranked state officials
only immunity for official acts
 Lower ranked state officials  functional immunity

1. Traditional way

Rules:
- Customary law:
 Concept of state immunity
 Concept of sovereignty
- Jurisprudence:
 Arrest warrant case
Application:
 Sovereignty is the cornerstone of international law, without it the
system would collapse, therefore it is important to grant the
immunity
 Persecution option elsewhere
 ICC  ICJ
national courts
 The current system provides quality, legal certainty that the ICJ
judgment is in accordance with the arrest warrant
 Arrest warrant case does grant immunity
 The two sets of rules (jus cogens and immunity) address
different matters. The rules of State immunity are procedural in
character and are confined to determining whether or not the courts
of one State may exercise jurisdiction in respect of another State.
They do not bear upon the question whether or not the conduct in
respect of which the proceedings are brought was lawful or
unlawful.”
 question of immunity is procedural
 question of what kind of act (jus cogens) is substantial
this means that state could get away with genocide

2. New human rights approach

Rules:

- Customary law:
 Concept of state immunity
 Concept of sovereignty
concept of jus cogens
 concept of human rights law
- Jurisprudence:
 Arrest warrant case
- Treaties:
 Art. 27 Rome Statue; Immunities or special procedural rules which
may attach to the official capacity of a person, whether under national
or international law, shall not bar the Court from exercising its
jurisdiction over such a person”
Art. 53 VLTC: a peremptory norm of general international law is a
norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted
-
Application:
- Jus cogens / human rights should prevail
- Jus cogens principle are by principle non-derogable and preemptory
rules as this is stated in article 52 VLCT
 If this is not accepted the whole idea of jus cogens rules doesn’t
make sense
- The current / traditional international law approach is faced with a lot
of human rights violations and we cannot deal with this is and jus
cogens cannot be invoked if it’s shielded by immunity
- Still mention the arrest warrant case
- Also, Rome statue (ICC) doesn’t warn immunity
- Tribunals (ICTR and ICTY) do no longer balance immunity and jus
conges
Week 3

ICTY  Could release immunity of the head of government

 Criminal tribunal created by Un Security Council
 The official position of any accused persons, whether as Head
of State or Government or as responsible Government official
shall NOT relieve such person of criminal responsibility nor
mitigate punishment
Monism International and domestic law are part of the same legal order and
constantly interact
Dualism Different actors, different topics, different legal order
Direct effect Intentions of the parties as demonstrated by the text
Dutch law Art. 93 and 94 Constitution  Monism
Question - Genocide Convention: no direct effect because to vague to be
responsibility NL considered direct effect
- But Dutch Tort Provision  Standard of care
- + human rights treaties
State responsibility - Effective control is very important
- Effective control turns the act of a private entity into the act of the
State
- Art. 8 ASR effective control
- Art. 11 ASR conduct acknowledge and adopted by a State as its
own
- You can still hold a state accountable for not doing something to
private acts of private entities
Articles on State (reflection of) CUSTOMARY LAW
responsibility
Art. 1 Every internationally wrongful act of a State entails the
international responsibility of that State
When transposability 1. There must be an international norm that is violated (art. 3)
sources of international laws
2. Attribution to the state (art. 4-11)
a. Instruction, direct control art. 8
b. Acknowledgement and adoption art. 11
3. Circumstances precluding wrongfulness (art. 20-25)
a. Force majeure
b. Necessity
c. Etc.

The legal basis of state responsibility lies in customary international law.

These norms are authoritatively articulated in the ILC Draft Articles on
Responsibility of States for Internationally Wrongful Acts (ARSIWA).
Article 1 ARSIWA provides that every internationally wrongful act of a
state entails the international responsibility of that state. To see what
qualifies as an internationally wrongful act, we turn to Article 2 ARSIWA,
which reads that there is a wrongful act of a state when state conduct (act
or omission) is both attributable to that state and constitutes a breach of an
international obligation of that state. Moreover, to qualify as an
international wrongful act, none of the circumstances precluding
wrongfulness as stated under Chapter V of ARSIWA must be applicable.

Nicaragua case Effect control test = attribution of specific act to the sate  general
 control is not enough to attribute a violation to a state
Art. 11 If a state adopts or acknowledges it, it can also be seen as state
acknowledgment responsibility
Due diligence A sort of standard of care which is an international customary legal norm
 failing to cooperation with investigation / failing to protect civilians

Consequences of state Art. 35 ARS: restitution

responsibility
Art. 36 ARS: compensation

Art. 37 ARS: Satisfaction express of regret / apology

Lecture 4

Gend en Loos - EEC is a common market

preamble also refers to governments and people
- Art. 267 TFEU: ensure uniform interpretation of the Treaty by
national courts and tribunals  confirms that states have
acknowledged that community law has an authority which can be
invoked by their nationals before these courts and tribunals

- Also, individuals can rely on EU primary law

 direct effect
- Preamble and provisions also speak towards individuals
 preamble isn’t binding: used as main objection by MS
- Court didn’t care: more implementation of EU law
enable the induvial the power upon it
enabled growth
Conditions of direct - A provision of EU law will be deemed to be directly effective if it
effect is sufficiently clear, precise and unconditional
Vertical effect - Provision of EU law is invoked at MS (EU-MS)
- Provision of EU law is invoked against private party
Defrenne case - Certain provision of primary EU law are directly effective not just
before MS but also private parties
- Art. 157 is mandatory in nature as well as on private parties
- The court stated that the objectives the directives should be
respected, also agreement at the private levels should comply with
it

- this is for treaties + the charter

they have both vertical and horizontal direct effect
(Gend loos showed vertical, defrenne showed horizontal)
Direct effect of Vertical  YES, if sufficiently clear, precise and unconditional
regulations
- Regulations are directly appliable and are binding in its entirety
(Slaughtered cow Case)

Horizontal  YES

- They become law in the MS so horizontal direct effect

- Case Munoz Cia v. Frumar Ltd
Direct effect of Art. 288 TFEU: a decision shall be binding in its entirety. A decision
decisions which specifies those to whom it addressed shall be binding only on them
Vertical  YESS, binding in its entirety
 Horizontal  YES
carp: decision addressed to private party shall be binding on them
when the obligation is sufficiently precise and unconditional
Direct effect of Art. 288 TFEU: “A directive shall be binding, as to the result to be
directives achieved, upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and methods.”

 Main harmonization instrument of the EU  leaves the choices

open
 Respecting the sovereignty of the states

Vertical  Yes

- Art. 267 TFEU empowers national courts to refer to the Court

questions concerning directive
- Estoppel argument: if I don’t allow directives to have direct
effect, then you allow MS on their own wrongdoing
- Vertical direct effect only after time limited has passed, before
MS are under the obligation not to adopted contradicting
measures (Wallonie, Mangold)

Horizontal NO

- Directives are not intended to create obligations on induvial

- Marshall case: directive may not of itself impose obligations on
individuals
- this can create problems
Overcoming these
problems
1. concept of - broaden what is a state: public services
emanation of - foster case: public function formula
state not cumulative (farell): it is sufficient if the body is either a
legal person under public law; or is given special powers by the
state ‘or an entity providing a public function
2. the duty of - even in horizontal situation you can ask the national court if they
harmonious interpret national law in light of directive
interpretation  von Colson: national courts are required to interpret their
(indirect national law in light of the wording and purpose of the directive
effect)
- conditions
1. time limit must have passed (adeneler)
2. indirect effect cannot result in determination/aggravation of
criminal liability
3. indirect effect cannot result in a contra legem reading of
national law (Marleasing)
3. indirect effect - a procedural rule in a directive can be relied upon by private
parties as long as the directive does not impose obligation on one
of the parties (exclusionary effect)
- incidental direct effect: where there is a procedural rule, doesn’t
create new obligation confliction national rule is set aside
- exclusionary effect: the directive can be invoked in cases between
individua in order for national law to be disapplied, so long as the
 directive doesn’t create new obligations to be applied
going against the state instead of the induvial
- national law determines the results of the case, minus the part
that has been executed by the directive

Week 5

Primacy of EU law Flaminio Costa v Enel case

- showed fundamental notion of primacy of EU law

- EU law wouldn’t be effective if national law wasn’t supreme
- Primacy of all laws, even pre-dating EU law or not
(Simmenthal)
- Only EU law that has direct effect can have primacy
Primacy of EU law 1. Germany
reaction of national A: Solange: offers the opportunity to review fundamental
courts rights protection at the EU level  primacy as long as the
fundamental rights protection is higher or the same as at the
national rights level

B. Solange II: primacy works so lang as primacy doesn’t

entail the surrender of kompetenz- kompetenz = the power to
decide your field of competence (the treaty defines very Cleary
where the EU can do things)
member states still have Kompetenz = only accept primacy
only if the legalisation respect the principle of Kompetenz
(doesn’t go over the power I have already given you in the
treaties)

C. brunner: German constitutional court can’t accept

primacy if it entails conflict with the core constitutional
elements of German STATE

2. Italy:

A. Taricco case: Italian Court knows primacy but will not do this
if that entails that they have to go against a core identity
question (constitution) or if they have to set aside fundamental
rights
 this is where they draw the line
 2005-2008: Taricco started to commit Fraud crimes they had
prejudiced a provision of the treaty  they only this 2010 and
by then the statute of limitation (verjaring) by Italy has passed
 But EU still wants to go after him
 if primacy of EU law then the fundamental right of statute of
limitation would be gone
 the Italian constitution didn’t give primacy of EU law

B. MAS case: MS court are not under an obligation to give

primacy apply primacy when this happens
 CJEU states that this happens in very limitation
 when a constitutional provision needs to be set aside there is
 no obligation

- Poland:

2 main conflict between Poland’s constitutional court and European

Union
A. First case: Case law: EAW  they had a provision to
prohibit the extradition or surrender of nationals to other
MS, however MS entails that this should be possible
 constitutional court in Poland enabled deferral of the
validation of the EAW decision until the constitution was
amendment
B. Second case: Poland said that the constitutional is the
highest legal instrument
 In an event of a conflict
 Either EU change the law, or Poland change constitution or
Poland leaves the EU
Principle of national Francovich case
procedural authority - Anything that is internal conflict that isn’t an EU rule for is up
to the MS

Limits Unibet case

- Principle of equivalence: safeguarding of individuals rights
under EU law must be no less favourable than those governing
similar domestic cases
- Principle of effectiveness: must nor render practically
impossible or execivlley difficult the exercise of rights conferred
by EU law
State liability If the state fails to implement EU law
franchovich and bonifaci v. Italy

- Induvial can go before national court to say that the directive

isn’t implement well
- 3 conditions (Brasserie)
1. Rule of law infringed must have intended to confer rights on
individuals’
2. The breach must be ‘sufficiently serious
3. There must be a direct causal link between the breach and
the damage

What type of violations?

Joined Cases C-46/93 and 48/93 Brasserie du Pecheur SA v Germany

and R v Secretary for Transport, ex parte Factortame Ltd and Others
[Factortame III]
“32. [The] principle [of State liability in damages] holds good for any
case in which a Member State breaches [EU] law, whatever be the organ
of the State whose act or omission was responsible for the breach.”
 Protection of EU rights cannot be only at nationals
 EU also needs to protect
 Some remedies that induvial can get from the EU
Infringement procedure Art. 258 TFEU
If the Commission considers that a Member State has failed to fulfil an
obligation under the Treaties, it shall deliver a reasoned opinion on the
 matter after giving the State concerned the opportunity to submit its
observations. If the State concerned does not comply with the opinion
within the period laid down by the Commission, the latter may bring the
matter before the Court of Justice of the European Union
Commission can take action against MS that are failing to apply EU law
effectively

How does it work?

1. Informal Stage
Commission: Informal Notification
State: Reply
2. Formal Stage
Commission: Formal Notice
State: Reply
Commission: Reasoned Opinion (including time limit to remedy
breach)
State: accepts and complies; or continues failure to comply.

The reasoned opinion must be confidential, needs to contain a coherent

statement of reasons and must allow the MS a sufficient period to
respond (Case 293/85 Commission v Belgium)
Action for annulment Art. 263 TFEU - if the court itself makes a mistake

- CJEU reviews acts of EU bodies  only acts that intent to have

legal effect
- Who can do this  classes of applications
1. Privileged applicants: whenever they want
2. Semi-Privileged applicants: Court of Auditors, European centre
bank and Committee of regions for the purpose of protecting
their prerogatives.
3. Non-privileged applicants (natural and legal persons) needs to
have legal effect!
 May challenge acts in two circumstances:
1. The act is addressed to them
2. The act is not addressed to them, but it
is of direct and individual concern to
them.
3. The act is regulatory in nature, has
direct concern for the party, and does
not entail implementing measures.
What is direct and individual concern?

Direct concern
- Measure isolates you in some way  direct effect on you
Individual concern
- Decision determines that you are a part of a closed group that is
effective by it
applicant must establish that they are affected by the measure
as being a member of a closed group

Grounds of review

1. Lack of competence
 2. Infringement of an essential procedural requirement
3. Infringement of the treaty or any rule relating to its
application
4. Misuse of powers
Action for failure to act Ar.t 265 TFEU
Preliminary reference Art. 267 TFEY
procedure is the only one that can extent EU law
question about EU law by national court and ask clarification at
the Court: Thereby expending EU law but still power to national
court
national courts still decide the outcome
The Court of Justice of the European Union shall have jurisdiction to
give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union;

what is a court
1. body is established by law
not by private parties
2. it is permanent
3. its jurisdiction is compulsory
 there must be no alternative remedies available to the parties
4. procedure is inter partes
5. it applies to the rule of law
6. it is independent
7. it gives decisions of a judicial nature

- lower courts have discretion as to whether referral is necessary

- higher courts are obliged to refer questions, subject to two
expectations
1. act eclair: the provision is so clear it doesn’t require further
clarification
2. acte eclaire: the court has already ruled on a materially
identical case

must the CJEU accept all references?

No
1. lack of genuine dispute
2. question not relevant for the resolution of a dispute
3. the question is hypothetical or general
4. insufficient legal or factual information

Action for damages by Art. 268, 340(2)

EU
Art. 268:
The Court of Justice of the European Union shall have jurisdiction in
disputes relating to compensation for damage provided for in the second
and third paragraphs of Article 340.”

Art. 340(2)

In the case of non-contractual liability, the Union shall, in accordance

with the general principles common to the laws of the Member States,
make good any damage caused by its institutions or by its servants in the
performance of their duties.”

When is liability determined?

1. Unlawfulness
1. non-discretionary acts: mere illegality is sufficient
2. Discretionary acts
sufficiently flagrant violation of a superior rule of law for the
protection of an individual
sufficiently flagrant: when the institution manifestly and
gravely disregarded the limits of its discretion

2. Damage: certain, specific and quantifiable

3. Causation