A. Introduction
Proportionality is the predominant tool for resolving cases in EU law.Footnote 1 Areas in which its role is excluded or limited are few,Footnote 2 however, case law applying international law—external relations case law—has emerged as one. Proportionality ensures that a given action does not go beyond what is necessary and does not infringe unacceptably on other rights or legitimate aims. Its impact on the EU legal system is notable; norms of EU law emerge as non-hierarchical, with the potential for each to prove most important in the unique facts of a given case.Footnote 3 This enables the Court to manage and develop norms within EU law and provides it significant discretion too.
The large absence of proportionality in external relations case law means that a significant mechanism for resolving disputes is missing. The result has been a strict hierarchy in which supposedly mechanical rules govern when international law can be relied upon. The reality is very different though; scholars have become increasingly vocal in exposing the Court’s discretion and activism in external relations case law.Footnote 4 But discretion here, unlike proportionality in internal case law, is fragmented and manifests itself across interalia rules of reliance, especially the direct effect test, opportunistic approaches to interpretation, and recourse to the concept of autonomy.
This significantly influences legal certainty, which the Court has called a “fundamental principle of Community law.”Footnote 5 It recognizes that legal certainty, “requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly.”Footnote 6 We will see that external case law falls far short of this aim, affecting participants.
This is particularly problematic given that legal certainty and justice are all that law ought to achieve.Footnote 7 A significant shortcoming in one is concerning, as they are, “a couple that cannot be ignored in a functioning and legitimate system of Law.”Footnote 8 However, our analysis will also reveal issues in external case law concerning justice, by which is meant, achieving the right outcome in a given case.
Substantive, or “thick,” justice is contestable, but “thin” justice is widely accepted. Thin justice can be derived from AristotleFootnote 9 and amounts to the assertion that “like cases should be treated alike and unalike cases unalike to the extent of their unalikeness.”Footnote 10 Through comparing internal and external case law we will be well-placed to see that fundamental aspects of the EU legal system are modified in external case law. This is so despite the Court stating that “an international agreement cannot affect the allocation of responsibilities defined in the Treaties”Footnote 11 and asserting that international law is “an integral part of [EU] law.”Footnote 12 It will be argued that fundamental changes largely flow as a result of the large absence of proportionality in external case law. The extent of “unalikeness”—which would justify divergence from internal case law—and the consequent exclusion of proportionality will be challenged, particularly given that general principles of EU law are anticipated to have relevance “in a series of infinite applications of the law,”Footnote 13 and that proportionality and other general principles have on occasion been applied in external case law.
The need for the Court to address shortcomings in this area is reflected in the mass of proposals from scholars for reform. However, proportionality has received little sustained attention in literature concerning external relations case law. It is submitted, though, that scholars’ proposals for reform—somewhat like the Court’s approaches in external relations case law—often converge towards proportionality without fully arriving there. Accordingly, this Article offers an initial exploration of the possibility for extension of proportionality, in its full form, to external relations case law. It seems this could both improve legal certainty and form a more just basis for the application of international law in the CJEU moving forward.
This Article is structured as follows: First, a lack of legal certainty and the necessity of balancing EU law and interests against international law in external relations case law will be highlighted in prominent scholarship, with proportionality identified as warranting closer attention; second, the context and prominence of the application of proportionality in internal case law will be analyzed; third, the absence of proportionality in external relations case law will be analyzed and reflected upon through consideration of the judicial tools which have been deployed to facilitate discretion in its stead. This Article concludes with the pragmatic call for proportionality to be deployed more openly, frequently and fully in external relations case law.
B. The Rise of Proportionality in External Relations Case Law Scholarship?
I. The Acknowledged Need for Reform of External Relations Case Law
Scholarship can be drawn upon to confirm two primary observations regarding external relations case law: First, legal certainty is problematic, and second, the case law evidences some balancing of EU law/interests against international law. The former is important, as the “dual nature” of law suggests that legal certainty, which is defined as being able to anticipate an outcome, and justice, which is defined as achieving the right outcome in a given case, are all law ought to achieve.Footnote 14 In lieu of an authoritative balance between these aims one would need to be cautious in proposing reforms. However, due to shortcomings in legal certainty, scholars have been liberated in proposing modifications to the Court’s approach, with most favoring a continuance of the balance between EU and international law already present, but in modified form. Surprisingly though, only a few scholars mention proportionality expressly, and those do so only briefly.
II. Concerns Regarding Legal Certainty in External Relations Case Law
Concerning legal certainty in the case law, Holdgaard speaks of a “manifest lack of clarity and coherence,”Footnote 15 Skordas of ‘‘counter-systemic commotion,”Footnote 16 and Odermatt encourages “a more consistent and principled approach when dealing with international law questions.”Footnote 17 Etienne notes “[u]ncertainty” concerning the application of customary international law and direct effect of international agreements,Footnote 18 and then calls on the Court generally to say “what it is actually doing and how it is doing [it].”Footnote 19 Mendez criticizes the “curt and formalistic” reasoning in Intrertanko and draws attention to the fact that, concerning the direct effect test, “we are entitled to expect a credible attempt at reasoned justification for why a particular Agreement will be deprived of its most potent internal legal effects.”Footnote 20 Intertanko is also highlighted by Koutrakos as evidence that the process of direct effect “may be unpredictable,”Footnote 21 whilst Air Transport is said to be “staggering in its brevity and lack of clarity.”Footnote 22
Of course, criticisms of legal certainty will always be present, but they are particularly acute concerning the application of international law in the CJEU. Our analysis of external relations case law will confirm concerns of scholars regarding legal certainty; however, the absence of proportionality will be explained as the reason for this to a greater extent than has previously been undertaken—albeit most scholars favor some balance.
III. Disposing of Two Possible Arguments in Favor of the Status Quo
With legal certainty problematic, two possible avenues remain by which reform in external relations case law may not be desirable: First, were this construct to be required by international law itself, and second, were the case law as it currently stands to benefit the EU—for instance, through a continuing projection of the “good citizen Europe” brand.Footnote 23
First, it is submitted that international law does not generally dictate the effects which it shall have in domestic legal systems.Footnote 24 The Danzig Footnote 25 case of the Permanent Court of International Justice provides a notable exception, but one which was ultimately based on “the very object of [that] international agreement, according to the intention of the contracting Parties,” and which the Court recognized went against “a well-established principle of international law . . . [that] an international agreement, cannot, as such, create direct rights and obligations for private individuals.”Footnote 26 The narrow exception has not been returned to, indicating its exceptional nature.Footnote 27 The more recent LaGrand Footnote 28 and Avena Footnote 29 cases arguably indicate the limited relevance of Danzig moving forward. Both concerned Article 36 of the Vienna Convention on Consular Relations, which allows consulates access to detainees and which the US was accused of breaching. But even in the face of such specific links to individuals it has been recognized the International Court of Justice did “not stipulate or imply, that the US courts are required to give direct effect to the obligation.”Footnote 30 It is thus, widely acknowledged by scholars that there is not an obligation to apply international law domestically.Footnote 31 This has been suggested to apply equally to UN Security Council Resolutions, arguably the most binding of international legal instruments and so, one might think, more prone to direct effect.Footnote 32 Of course, the scope for maneuver provided by international law has manifested itself in the EU through its own tests of direct effect and its utilization of the concept of an autonomous legal system which, “cannot be prejudiced by an international agreement.”Footnote 33Accordingly, discretion is both afforded and already taken, as we will see immediately below, and when considering external relations case law more fully, but direct effect and autonomy have not proven satisfactory utilizations of it.
Second, accepting that the perception other nations and parties may have is important to international standing, including the capacity to function effectively on the international plane, the Court’s case law still falls short.Footnote 34 Ultimately, remarkably few scholars are supportive of the current external relations case law of the CJEU without equivocation.Footnote 35 For instance, the 2008 cases, Intertanko and Kadi, have been described as an annus horribilis for the Court, showcasing the declining perception of its open approach towards international law.Footnote 36 Such views have even become mainstream; Goldsmith and Posner’s brief—and very negative—appraisal of the Court’s case law appeared in the Wall Street Journal.Footnote 37
With external relations case law at a remarkably low ebb concerning its utility in raising the esteem in which the EU is held, problems regarding legal certainty, and international law providing discretion for domestic courts in applying international law, it is not surprising that many suggestions for reform have been forthcoming.Footnote 38 These can now be considered.
IV. Acknowledgement of the Need for Balance Between Protection of EU Law and Respect for International Law in the Interests of Justice
In their analyses of external relations case law, scholars tend to arrive at an abrogated position between respecting international law and protecting/promoting EU law/interests. This is achieved either through recognizing and endorsing elements of balance within current case law or proposing such a balance more generally.
Accordingly, it has been noted that “the Court case-law reflects the balanced relationship between international law and EU law,”Footnote 39 “[t]he Court is still trying to find a balance between protecting the autonomy of its own legal order and the openness towards international law that is enshrined in the EU Treaties,”Footnote 40 and that within the case law there is “commitment to comply with international law and the defence of EU autonomy.”Footnote 41
In accommodating this balance moving forward, Cannizzarro suggests neo-monism as a concept which can “mitigate some of the consequences deriving from the supremacy of international law.”Footnote 42 de Búrca suggests a “soft constitutionalist approach . . . which does not insist on a clear hierarchy of rules but rather on commonly negotiated and shared principles for addressing conflict.”Footnote 43 Klabbers adopts the term Völkerrechtsfreundlichkeit to mean the EU respecting international law on the international plane and to “apply it in the internal legal order if and when appropriate.”Footnote 44 In the same collection of essays Skordas responds to Klabbers. For Skordas, Völkerrechtsfreundlichkeit as comityFootnote 45 functions as an ersatz meta-principle that enables the ECJ to recognize, interpret, and implement international law and, at the same time, develop and preserve the Union’s own separate identity. Footnote 46 Comity, Skordas states, “has a hybrid status, oscillating between social [local] practice and a ‘sense of’ international legal obligation.”Footnote 47 All of these proposals have at their heart a balance between international law and EU law.
More precise proposals for the mechanics of this balance are also forthcoming in scholarship. Etienne considers that the Court “has opened the doors when international law commanded so and in turn has closed them when the integrity of essential EU acquis was at stake.” However, the extent to which only the essential EU acquis has been protected from the application of international law in the case law will appear below as debatable. Etienne proposes, moving forward at least, that meta-constitutional principles of EU law should be shielded from international law. These are, “ . . . the rules inherent to the fundaments of the European Union, providing for the essential values on which it is founded, [and] the general principles on its institutional framework and on its relationships with the member states and the international legal system.”Footnote 48
The argument put forward implies that material, or policy, provisions of primary law are subordinate and would not form a part of this cluster.Footnote 49 Martines notes that “[t]here is of course a risk in approaching international law binding the EU selectively which can result in the very denial of international law, if pushed too far,”Footnote 50 yet, “[o]n the other hand it should also be considered that the EU provides a way of protecting its legal order. . . .”Footnote 51 One aspect of Martines’ suggestion arguably comes very close to proportionality, “[w]hat could be called the sub-constitutional supremacy of international law means that the incompatibility of an agreement's provision with primary law might be a limit to the direct application of its provisions.”Footnote 52
Accordingly, this proposal is more liberal in balancing EU interests than that of Etienne and has a strong flavor of proportionality, without deploying that term. Overall, prevarication is palpable in putting into print the “p word.” Eeckhout though does suggest that “general principles of EU law, such as the principle of proportionality” are an alternative to “putting up formal obstacles, such as the lack of direct effect of an international agreement.”Footnote 53 “[T]he interesting suggestion [of Eeckhout] that . . . the Court should more readily accept direct effect but show reluctance to find a breach [of international law] where EU legislation is concerned”Footnote 54 was also noted by Mendez. These passages remain—to the author’s knowledge—the strongest endorsement of proportionality proper in the application of international law in the CJEU to date.
V. Proportionality’s Place in the Literature and Potential Moving Forward
Like a missing jigsaw piece, it is submitted that proportionality fits neatly into the literature.
First, it can accommodate the aim sought by most scholars of achieving a balance between respect for international law and protection of EU law. This balance is now more clearly encapsulated in the Treaties too, with Article 3(5) of the Treaty of the European Union (TEU) requiring strict observance of international law, but also that the EU uphold and promote its values and interests.
The second way in which proportionality meets the aims of scholars is that its deployment would place less pressure on tests for direct effect of international law, which have given rise to the legal uncertainty to which scholars have objected. The process by which direct effect has become an awkward locus for discretion in the absence of proportionality in external relations case law will be further detailed below.
The third benefit of proportionality is its familiarity and durability. With the proliferation of nomenclatures in external relations case law analyses there is the risk that scholars may speak past one another, whereas coalescence around proportionality can provide a more solid basis for development. Relevant elements of proportionality will be considered more fully below, but it is notable that proportionality is durable in its application to a range of contexts—governing competence and subsidiarity, reviewing EU and Member State action for legitimacy of aims and appropriateness of measures, and even weighing interests against one another stricto sensu.Footnote 55 Its application in external relations case law could concern derogation from international law where an international treaty confers rights on individuals, but equally, due to proportionality’s reach it need not be limited to this. For example, in case law not applying international law the question of direct effect does not arise concerning review of EU legislative action under Article 263 or 267 of the Treaty on the Functioning of the European Union (TFEU), permissibility of review is presumed, and the intensity of judicial review varies based on the complexity of the issue.
A fourth merit of proportionality is that of facilitating coherence with fundamental tenets of the EU legal system. The rule of law principle from Les Verts provides that, “in a Community based on the rule of law . . . neither [the EU’s] Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”Footnote 56
For EU external relations law the concept of a political question doctrine is not accepted, meaning that, in principle, the legislature’s action should be reviewable.Footnote 57 Practically, though, without direct effect of international law the EU legislature—or less frequently Member StateFootnote 58—essentially has freedom to ignore it.Footnote 59 This seems in tension with the concept of international law as an integral part of EU law and Article 3(5) TEU. Moreover, we will see that at present, direct effect of international law precludes, in the absence of proportionality, the defense of the legislature or Member State that pursues an objective in the Treaty which was, in the circumstances, more important than that of international law. Thus, international law can also, arguably, have too great an effect and it is notable that the Council in particular has sought to exclude direct effect from certain EU agreements.Footnote 60 Proportionality can achieve review commensurate with complexity of circumstance, without excluding international law nor allowing it to overpower other EU norms. This would overcome the somewhat schizophrenic options currently available, whilst maintaining a closer correlation with recognized precepts of EU law.
Having made the case that proportionality warrants more sustained consideration in the literature, the following sections will consider how proportionality manages the relationship between other EU norms in internal case law. Reasons for it to be more fully and openly applied to external relations case law will then be developed in context.
C. Judicial Discretion Manifests Itself Largely in Proportionality in Internal Case Law
Claims to direct effect are arguably the distinctive feature of the EU legal order, and as a result, coverage is prominent. However, direct effect sits within further rules of reliance. It is notable, though, that all of these rules are remarkably lenient in allowing EU law to be invoked easily. Invocation of EU law is simply the beginning in most cases and—as “EU primary law [itself] is characterized by a high degree of vagueness and pervasive norm collision across most of its substantive areas”Footnote 61—resolution ultimately lies most frequently in the application of proportionality.
I. Decline of Direct Effect and other Rules of Reliance as a Locus of Discretion in Internal Case Law
The capability for individuals to rely on provisions of the EU Treaty against their Member State in domestic courts, so called vertical direct effect, first emerged in the van Gend en Loos case.Footnote 62 Provided the relevant provision is clear, precise, and unconditional the Member State court must apply EU law and disapply conflicting national law.Footnote 63 In Van Gend en Loos, the Court stated the relevant provision was “ideally adapted to produce direct effects,”Footnote 64 and the criteria has been liberally applied to less ideal provisions since. For instance, free movement of workers “entail[s] the right [to accept offers of employment actually madeFootnote 65 in another Member State], subject to limitations justified on grounds of public policy, public security, or public health.”Footnote 66 However, such limitations are “subject to judicial control [at EU level]”Footnote 67 and therefore provisions with such conditionality can have direct effect.Footnote 68 Craig and de Búrca note that “[t]he idea that direct effect could apply even where the Member States possessed discretion . . . represented a significant juridical shift in thinking about direct effect.”Footnote 69
Similarly, the Court’s focus on negative obligation in Van Gend en Loos emerged as being non-dispositive in Lütticke.Footnote 70 Here a positive obligation under The Treaty of Rome (EEC) Article 95 to repeal or amend discriminatory rules on taxation was considered “complete [and] legally perfect”Footnote 71 and therefore capable of having direct effect. The case Defrenne v. Sabena (No. 2)Footnote 72 marked a relaxation of the “clear, precise and unconditional” criteria.Footnote 73 The case concerned Article 119 of the EEC Treaty which provided for the “principle that men and women should receive equal pay for equal work.” Advocate General Trabucchi conceded that the “form of words used . . . may seem too vague and the meaning of the word ‘principle’ itself not to be very specific” but asserted that “the purpose of the rule is nevertheless clear.”Footnote 74 The Court conceded that where discretion was “indirect and disguised, . . . entire branches of industry and even of the economic system as a whole” would need to be addressed and therefore required legislative measures.Footnote 75 However, in this case discrimination was direct and overt, meaning direct effect could be found. Scholars have noted the novelty in the fact that the provision “simultaneously [had] and did not have direct effect.”Footnote 76 The concept of direct effect has also expanded to include directives,Footnote 77 and even unwritten general principles of EU law may be directly effective.Footnote 78
Ultimately, there is the sense that “[d]irect effect is nothing but the ordinary state of [EU] law,”Footnote 79 and it will be found wherever possible. Moreover, other rules governing reliance on EU law are equally liberal: First, Article 258 TFEU essentially presumes the Commission’s capacity to rely on the Treaty and any rules relating to it in order to challenge Member State action. Member States are empowered equally, as against one another, through Article 259 TFEU.
Second, Article 263 TFEU provides a mechanism of direct judicial review before the CJEU. In analyzing “the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union,”Footnote 80 the Court applies the Treaty and rules emanating from it, including general principles,Footnote 81 regardless of whether they have direct effect.Footnote 82 Controversy regarding limited standing for EU institutions under Article 263 TFEU has now been addressed, meaning that they, along with Member States, may challenge EU legislation without questions of direct effect arising. Private individuals must demonstrate that the act is of direct and individual concern to them, with the interpretation of this criteria being narrow.Footnote 83 Minor changes in the language of the provision in the Lisbon Treaty do not appear to have significantly affected this.Footnote 84 However, if an individual does not fulfil the restrictive criteria of Article 263 TFEU they may proceed through the preliminary rulings procedure.
Third, under Article 267 TFEU, preliminary rulings procedure, if the matter concerns the validity of EU legislation the national court’s question, it will prompt the CJEU to answer and to invalidate the legislation should this be required, regardless of direct effect.Footnote 85
In all the instances above, the question as to whether a specific provision has direct effect is not enquired into: For Articles 258, 259, 263, and this aspect of Article 267 TFEU. However, under Article 267 TFEU, cases brought by individuals against Member States and private individuals will require direct effect of the relevant provision; otherwise the provision may only be useful in the more limited capacity of interpreting another EU and/or national law provision.Footnote 86 Although, as noted above, the test for direct effect is itself generous.
The presumption, where relevant, of direct effect of EU legal provisions, combined with other rules which permit reliance creates a large opening, catches and then funnels cases through to the proportionality stage. It is submitted that proportionality—not direct effect—is the primary locus of the Court’s discretion in internal case law. The impact and practical application of this can now be considered.
II. Corresponding Rise of Proportionality as a Locus of Discretion in Internal Case Law
With direct effect and other related rules invariably allowing reliance on EU law provisions, cases must then progress to consider their application. While EU law features a hierarchy in which we identify the EU Treaty as sitting above secondary legislation and secondary legislation above national law,Footnote 87 it is submitted that this hierarchy is not especially informative regarding the resolution of most cases. Instead, the normative interest—pursued at any level of the hierarchy—is postulated at the EU treaty level, where multiple norms conflict and must be resolved through proportionality.
Proportionality arises in challenges to EU legislation and Member State action, essentially allowing defense of such actions through, in the case of the former, pursuit of another justified goal and, in the latter, recourse to derogations within the Treaty and those developed within the case law. The application of the proportionality test is noted to differ significantly depending upon whether EU or Member State action is challenged. The Court’s approach and presentation of relevant steps within proportionality analyses are also not consistently presented.Footnote 88
Nonetheless, the common steps for the Court in proportionality analyses are inquiries as toFootnote 89:
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i. Whether the aim is recognized as legitimate by EU law.
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ii. Whether the measure was suitable to achieve the desired end.
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iii. Whether it was necessary to achieve the desired end.
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iv. Whether the burden was excessive in relation to the objective sought to be achieved, proportionality stricto sensu.
It can be seen through this that proportionality requires, or at least facilitates, engagement with the facts and circumstances of a given case in a concrete way.
III. Proportionality Applied to EU Action
As hinted at above, a key modification to the proportionality test comes where EU secondary legislation is reviewed, as it often need not solely be manifestly disproportionate, or inappropriate, whereas Member State action should typically adopt the least restrictive means available.Footnote 90 The distinction results in deference to the EU legislature where it is exercising discretion, though Member State action is subject to more intense review.Footnote 91
The consequence of a lighter touch review of EU secondary legislation, as compared to intrusive analysis of Member State measures, is that case law reviewing EU action will also be less helpful in informing participants of the current normative state of EU law for this or future cases.Footnote 92 Nonetheless, “the Community legislature is obliged to base its choice on objective criteria appropriate to the aim pursued by the legislation in question,” including consideration of all facts and technical and scientific data available.Footnote 93 All interests involved must be considered, and “the Community legislature’s exercise of its discretion must not produce results that are manifestly less appropriate than those that would be produced by other measures that were also suitable for those objectives.”Footnote 94 This means that both the outcome and the procedure are subject to review.
A further variation arises within proportionality review of EU action based on the nature of the conflicting rights. It is recognized that where a fundamental right is at stake, rather than a discretionary policy choice, the review of EU legislative action will be based on protecting the substance of the relevant right, and for this reason can be more intrusive.Footnote 95 Proportionality and the nature of fundamental rights is developed further below. However, it should be noted that fundamental rights are readily balanced against other interests in review of both EU and Member State action.
IV. Proportionality Applied to Member State Action
As stated at the introduction, proportionality is relevant in most areas of EU law. However, consideration of internal market case law is particularly helpful in identifying the normatively relative—less hierarchical—nature of EU law, as other norms are often measured against the four fundamental freedoms.Footnote 96 Another notable point is that, in this case law, these “other” norms manifest themselves in national rules creating barriers to free movement, and the hierarchical place of national law—at the very bottom—does not preclude their normative weight as interests recognized as being of importance in EU law. Once recognized as such, provided the measure was appropriate and necessary, the Court can consider whether the restriction on trade, or another norm, was excessive in relation to the objective sought to be achieved—proportionality stricto sensu. Even where the Court does not balance norms against one another stricto sensu, which it is sometimes reluctant to do unless prompted, it is recognized that the relevant norms also affect the intrusiveness of tests of appropriateness and necessity.Footnote 97 For this reason, the term “balance” is used liberally by scholars, and this is also the case here.
A snapshot of case law, therefore, reveals that, interalia, protection of health can be more important than free movement of goods,Footnote 98 as can public morality.Footnote 99 Of course, these feature as express derogations in Article 36 TFEU, but environmental protection,Footnote 100 fundamental rights,Footnote 101 and consumer protectionFootnote 102 have the capacity to prevail similarly. The protection of norms beyond the closed-list of Article 36 TFEU illustrates the Court’s inclination to entertain clashes between norms, even when previous case law would have implied that this was not possible.Footnote 103 The Court’s inclination to balance is strong, and it is not only the free movement norms—or “trade” norms—against which others are balanced, this is just the most prominent area of practice. By way of brief example, fundamental rights are frequently balanced against the public interestFootnote 104—or even public health—Footnote 105and equal treatment has been balanced against environmental protection.Footnote 106 The necessity of balancing is inherent in the postulation of multiple norms at the same level—EU treaty and general principle—which means that the Court frequently must “strike a ‘balance’” between competing “integrated” values.Footnote 107 This reality marks the decline of hierarchy and the corresponding rise of proportionality in internal case law.
This also affects the nature of the norms themselves and, by extension, the EU legal system in which norms are accorded relative—rather than intrinsic—weight. Accordingly, restrictions to fundamental rights must “not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of that right.”Footnote 108 This means that such rights are not “absolute prerogatives,”Footnote 109 but may have an “essence” or “very substance,” which suggests a hardening at their center, although the precise scope of this varies and is unclear.Footnote 110 This flexibility is perhaps appropriate given the proliferation of fundamental rights—some of vital importance, but some covering even “the most mundane matters.”Footnote 111 Ultimately, albeit with stricter review from the Court, fundamental rights have a “relational character”Footnote 112 and the Court readily balances them against other norms,Footnote 113 essentially seeking a “fair balance between them.”Footnote 114 Thus, “[t]here is no distinction and hence no hierarchical relationship being posited by the European Court between the basic human rights . . . and the free market rights.”Footnote 115 Instead, human rights are subject to “the interpretative practice of balancing to reconcile the competing rights and interests.”Footnote 116
Similarly, concerning trade liberalization and consumer protection, Weatherill observes “many delicate cases” in which “[j]udges must decide which interest prevails – and why,”Footnote 117 with proportionality analyses facilitating the “sensitive task of adjudication without any intricate set of guidance or hierarchy mapped by the founding Treaties.”Footnote 118 Ultimately, “the Court makes a radical choice on a case-by-case basis . . . radical in the sense that there are no overarching criteria that provide a rational basis for preferring one value to another.”Footnote 119 Properly applied, however, it has also been suggested that “[b]alancing offers the best possible predictability in a flexible jurisdiction. [As] [a]ll conflicting interests are taken into account clearly and openly in every single case.”Footnote 120
Schmidberger—concerning protests limiting free movement of goods—is a helpful example of this. There, the Court stated that “the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests.”Footnote 121 In comparing the protest in Schmidberger to the protest in Spanish Strawberries Footnote 122—which was found to have “serious and repeated disruptions to public order”Footnote 123—the Court was able to indicate the factors that contributed to the Schmidberger protest being justified, identifying the “various administrative and supporting measures [that] were taken by the competent authorities in order to limit as far as possible the disruption to road traffic.”Footnote 124
V. Reflections on Proportionality Internally
In spite of many variables—based on actor, subject matter, nature of right, and changing weight of norm—harsh critics of proportionality within the EU remain few in number.Footnote 125 Instead, there is recognition by most that proportionality can mitigate the harshness of supremacy coupled with direct effect from the Member State point of view,Footnote 126 in addition to providing meaningful review of EU action.Footnote 127 It can also be seen that even where loosely or partially followed, the common steps of proportionality will prompt the Court—in what is undeniably a complex and developing legal system—to at least be somewhat forthcoming concerning its reasoning, and to engage with the facts and circumstances of the case in a concrete way.
With direct effect invariably granted—and often not being requiredFootnote 128—it is evident that discretion in internal case law manifests itself primarily through proportionality, that the EU legal order is emerging as non-hierarchical in practice, and that the Court has a key role in incrementally developing the relevant norms.Footnote 129 These factors carry implications for external relations case law, as can now be explored.
D. Emergence of Discretion by Means Other than Proportionality in External Relations Case Law Due to its Significant Absence
I. Inevitability of Discretion: Proportionality’s Shadow in External Relations Case Law
As noted at the introduction, proportionality analyses are very largely absent in external relations case law.Footnote 130 Instead, there is the purport of a formalistic hierarchy, in which international law is mechanically applied in external relations case law insituations where it has direct effect. However, having had a prominent role in developing norms incrementally in internal case law,Footnote 131 the following question remains: Is it to be expected that the Court will eschew the norms developed in its internal case law when applying international law in external relations cases?
The Court’s refusal to permit its members to sit on any newly created international court in Opinion 1/91Footnote 132 was based on its view that “it will be very difficult, if not impossible, for those judges, when sitting in the Court of Justice, to tackle questions with completely open minds where they have taken part in determining those questions as members of the EEA Court.”Footnote 133 However, the converse must hold, and even more strongly. The Court cannot be expected to disavow its normative conceptions and mechanically apply international provisions to invalidate EU law. Indeed, the idea that courts have the capacity to “split roles,” so that “any time a domestic court deals with a conflict of law question, it acts qua an international body,”Footnote 134 has recently been described as “overly optimistic”Footnote 135 and “shaky.”Footnote 136
The external relations case law analyzed below is strong evidence that the Court is not able to divide its internal function from its role in applying international law. Instead, modified rules of reliance and application seek to alleviate the absence of proportionality in external relations case law so as to protect EU norms from international law. Setting aside the fact that “it is by no means clear that a neatly defined hierarchy is always the best way of resolving conflicts within a legal system,”Footnote 137 it is true that a strict hierarchy, mechanically enforced, would give rise to greater legal certainty than would balancing competing norms through proportionality.Footnote 138 However, as we shall now see, this is no longer the case in external relations case law.
Unsurprisingly, normative concerns have permeated the strict hierarchy. We will see that the direct effect test is modified relentlessly, autonomy is claimed—on unclear bases and with varied effects, and interpretative methods emerge as questionable concerning international treaty and customary international law (CIL). This though, it will be seen, falls a long way short of proportionality, in which “[a]ll conflicting interests are taken into account clearly and openly in every single case.”Footnote 139 Instead, we have the worst of both worlds: Neither a strict hierarchy nor proportionality, but rather discretion exercised covertly through supposedly mechanical rules. The result is a lack of nuanced balance and loss of legal certainty.
Whilst proportionality would not overcome the reality that domestic judges, either through issues of competence, confidence, or allegiance, are more likely to favor domestic methods or viewpoints, the benefits of its application to this area would be significant.Footnote 140 Following the analysis on external relations case law we will be better placed to understand the modest means by which proportionality could be deployed. Indeed, in some cases it already has been. It should also be mentioned that the proposal to deploy proportionality in external relations case law is not limited to those agreements which have direct effect currently. Instead, it would be anticipated that access to proportionality for the Court will lessen the need for narrow distinctions within direct effect, thus mirroring more fully the internal approach with a more ready acceptance of direct effect where needed and subsequent application of proportionality.Footnote 141
II. Manifestations of Discretion in External Relations Case Law I: Modifications to Direct Effect-Related Rules in the Absence of Proportionality
1. Discretion Through Wider Application of Direct Effect Tests in External Relations Case Law
In spite of distinguishing EU law as a “new legal order of international law” uniquely capable of direct effect in Van Gend en Loos, in International Fruit,Footnote 142 the Court confirmed that provisions of “old” international law could also have direct effect in the EU. Though relatively receptive of international law, this case already marked a divergence from the equivalent scope of application of internal direct effect. As above, we have seen that in Article 267 TFEU cases calling into question validity of EU legislation, direct effect of relevant rules is not required, whereas in International Fruit it was.
However, in Haegeman II,Footnote 143 the Court reviewed the Commission’s imposition of a “countervailing charge” on the basis of an Association Agreement with Greece. The case was also an Article 267 TFEU referral, and the Court utilized for the first time the oft-cited phrase that “[t]he provisions of [an international] agreement, from the coming into force thereof, form an integral part of Community law.”Footnote 144 This expression was particularly fitting as the Court did not enquire into direct effect at all, which matched with the internal approach. However, the case has become an anomaly, and direct effect appears to be required before international law can be relied upon to invalidate EU legislation in Article 267 TFEU actions.
It also emerged that even privileged applicants under Article 263 TFEU—such as the Member States—cannot rely on international agreements to which the EU is party to challenge EU legislative action, unless that provision is directly effective.Footnote 145 In this light, it is worthy of mention that the Commission’s capacity to rely on international agreements to which the EU is party in 258 TFEU enforcement actions against Member States is uncircumscribed—matching the approach in internal case law.Footnote 146 This gives rise to some asymmetry.
However, in Biotechnological Inventions, an Article 263 TFEU case, the Court stated thatFootnote 147:
Even if . . . the [Convention on Biological Diversity] contains provisions which do not have direct effect . . . that fact does not preclude review by the courts of compliance with the obligations incumbent on the Community as a party to that agreement.
This matches with the internal approach in which challenges to EU action are readily entertained. Eeckhout has speculated that the reason for departure from previous external relations case law may be “that the Court felt embarrassed by the incapacity of the Member States to seek judicial review [of EU legislation] on grounds of violation of certain [international] agreements.”Footnote 148 However, Eeckhout forewarned that this approach may not continue, and Pavoni notes that “it appears that the Court of Justice is willing to duck the Biotech Patents decision, which has never been endorsed in its subsequent jurisprudence on external relations.”Footnote 149 And, in spite of encouragement by Advocate General Jääskinen, the Court was not inclined to utilize it more recently.Footnote 150
The above demonstrates oscillations concerning the requirement for direct effect externally in Article 263 and 267 TFEU cases; a requirement which is not present in internal case law. Accordingly, direct effect, at the Court’s discretion, has a potentially wider application than in internal case law. There are also significant oscillations in the application of the direct effect test itself externally, which will now be considered.
2. Discretion Through Elusive Terms: Broad Scope and Logic/Spirit or Nature of Agreement
In International Fruit,Footnote 151 the Court stated thatFootnote 152:
Before invalidity can be relied upon before a national court, that provision of international law must also be capable of conferring rights on citizens of the Community which they can invoke before the courts.
The Court then explained that “the spirit, the general scheme and the terms of the general agreement must be considered” in order to answer this question.Footnote 153 The words “spirit” or “nature” provide potentially elusive benchmarks, and therefore “the CJEU’s discretion in applying these criteria is high and requires an amount of subjectivity.”Footnote 154 Similar formulations have been used by the Court since. These tended not to utilize the conferral of rights criteria expressly, instead replacing it with analysis of the “wording and the purpose and nature”Footnote 155 of agreements, which is equally elusive.
It is well known that the Court’s case law concerning, first, General Agreement on Tariffs and Trade (GATT), and second, World Trade Organization (WTO) agreements, resulted in the blanket exclusion of direct effect of these treaties based on their “broad scope and logic.”Footnote 156 In International Fruit, the Court refused direct effect of GATT due to its flexible nature. The subsequent WTO agreement was viewed as carrying more concrete obligations. However, in Portuguese Textiles, the Court refused to accept that it could have direct effect.Footnote 157 Whilst the Court accepted that the WTO agreement did “differ significantly . . . in particular by reason of the strengthening of the system of safeguards and the mechanism for resolving disputes.”Footnote 158 It added immediately that “the system resulting from those agreements nevertheless accords considerable importance to negotiation between the parties.”Footnote 159 The Court made reference, in passing, to the preamble and to annexes too,Footnote 160 the former of which led the Court to focus on aspects of reciprocity. It noted that it was unlike agreements between the EU and other non-member countries “which introduce a certain asymmetry of obligations or create special relations of integration with the Community.”Footnote 161 It also went on to observe that “some of the contracting parties, which are among the most important commercial partners of the community” had not considered the rules to be “applicable by their judicial organs when reviewing the legality of their rules of domestic law.”Footnote 162
However, in Kupferberg, the Court broadly asserted that a “framework for consultations and negotiations between the parties inter se . . . is not in itself sufficient to exclude all judicial application of it.”Footnote 163 This was because case concerned a Free Trade Agreement with Portugal,Footnote 164 and may therefore be thought to be rather different from WTO law. Indeed, Eeckhout notes that concerning “direct effect of free-trade, co-operation, and association agreements the Court has never decided against direct effect on the basis of the structure and nature of the agreement as such.”Footnote 165 Klabbers similarly observes of Kupferberg that “[d]irect effect within one of the parties’ legal system but not within the other’s would not, e.g., constitute a fatal lack of reciprocity.”Footnote 166
Of course, the reality is that reciprocity is being used as an inconvenient proxy, enabling covert differentiation on the basis of the trading partner. But this creates confusion. Indeed, in Kupferberg itself, Advocate General Rozès, unlike the Court, thought that direct effect should not be granted as it would be to the Community’s “disadvantage” where Portugal did not “guarantee that an individual may rely on the provision in Portugal on the same terms and with the same results.”Footnote 167 Once more, discretion emerges.
3. Discretion Through Selective Adherence to Binding Decisions of Bodies Established Under Agreements
The “remarkable phenomenon”Footnote 168 in which decisions of bodies established by international agreements could have direct effect was established in Sevince.Footnote 169 This case concerned the EU-Turkey Association Agreement,Footnote 170 which was found in Demirel not to have direct effect as it set out a “programme . . . not sufficiently precise and unconditional to be capable of governing directly the free movement of workers.”Footnote 171 However, in Demirel, the Court referred to Decision 1/80 of the Council of Association, which had been given “exclusive powers to lay down detailed rules” for the functioning of the agreement.Footnote 172 The Decision was not relevant to the case at hand, but in referring to it, the Court implied that such Decisions would be determinative in future cases. In Sevince, the Court found that the programmatic nature of the EU-Turkey Association Agreement,Footnote 173 which gave the Council of Association power to lay down detailed rules for its functioning, “does not prevent . . . decisions . . . which give effect in specific respects to the programmes envisaged . . . from having direct effect.”Footnote 174 Accordingly, Decision 2/76 and 1/80 could have direct effect, a finding that was said to “merely lay emphasis on the obligation to implement in good faith an international Agreement.”Footnote 175
The conditionality of WTO obligations will be recalled as being a central tenet in the precluding of direct effect in Portuguese Textiles.Footnote 176 The WTO dispute settlement procedure’s binding nature is also debated.Footnote 177 Article 19 of the Dispute Settlement Understanding (DSU) says that the panel (DSB) or Appellate Body “shall recommend that a Member concerned bring the measure into conformity” in the case of a breach or that the relevant body “may suggest ways in which the Member could implement the recommendations.” Article 22(2) DSU provides that in the event of non-compliance a “Member shall . . . enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation.” Article 21 DSU though speaks of “prompt compliance” being “essential” to the system. “Compensation [by the Member in breach] and suspension of other obligations [by Members harmed]” are considered to be “temporary” alternatives in the event of non-compliance and “neither compensation nor the suspension of concessions or other obligations is preferred to full implementation of a recommendation to bring a measure into conformity with the covered agreements.”Footnote 178 Article 3(7) DSU supports this further by stating that “compensation should be resorted to only if the immediate withdrawal of the measure is impracticable and as a temporary measure.” Could this clear postulation of a hierarchical preference for complianceFootnote 179 render a DSB or Panel recommendation directly effective in the EU legal system given the “good faith” in implementation of international law referred to in Sevince?
The Biret Footnote 180 case appeared to leave the door open to such a possibility.Footnote 181 A negative DSB finding was made in 1997 concerning the EU’s banning of certain substances being administered to farm animals.Footnote 182 Though the case was unsuccessful, the reasoning of the Court was very much focused on the “timeline.” As will be seen below, where the EU intends to implement WTO law, a review of secondary legislation on its basis can occur.Footnote 183 However, because the relevant Union legislation was adopted “several years before” the WTO rules came into force, it was “not logically possible for them either to give rise to a specific obligation entered into under that agreement or to refer expressly to some of its provisions.”Footnote 184 As to the breach of the DSB recommendation, the Court observed that a grace period had been provided until May 13, 1999. As the applicant’s losses fell within this period, the Court found that the EU “cannot, on any view, have incurred liability.”Footnote 185 Though the tone of the judgment could hardly be considered generous to the possible effects of WTO law before EU courts, by engaging with detailed claims rather than dismissing them in “broad logic,” the question remained concerning the possible direct effect of WTO law after DSB or Appellate Body decisions.Footnote 186
The Van Parys case followed.Footnote 187 After a negative 1997 DSB finding on EU banana imports, the EU implemented a new RegulationFootnote 188 “expressly” referring to the aim of bringing EU rules into compliance with the WTO system.Footnote 189 This was found not to have been successful by the WTO in 1999, and the Court acknowledged that at that point the time limit had expired.Footnote 190 Van Parys challenged the Regulation, but the combined considerations of expired time limit and possible Nakajima-type implementation principleFootnote 191 were not sufficient for WTO rules to be relied upon.
The Court instead placed great emphasis on Article 22(2) DSU, allowing for negotiation over compensation. The Court did acknowledge that the main aim under Article 3(7) DSU was compliance, but also that there is anticipation of continued breach “where the immediate withdrawal of the measures is impracticable.”Footnote 192 Though it is suggested that, at WTO level, “the exception [of impracticability] has become the rule,”Footnote 193 the argument is at least engaged with. In Van Parys, there was no questioning at all of whether impracticability was present, letalone a reference to the fact that the relevant time period, even in the presence of impracticability, “should not exceed 15 months.”Footnote 194 This was so in spite of the reference from the Belgian court being lodged in 2002, some three years after the negative WTO finding. The Court’s refusal to acknowledge the shift from political discretion to legal obligation in WTO proceedings at any stage and its avoidance of Nakajima when it is “hard to envisage” a more relevant case, has been criticized by scholars.Footnote 195
What is notable for our purposes concerning this WTO case law is the Court’s disinclination to pick a clear course and stick to it. Instead, discretion is retained—at the expense of legal certainty and applicants—even in circumstances where the Court appears to have backed itself into a corner.Footnote 196
4. Discretion Through Redeployment of the Conferral of Rights Test
Building from experience, rather than principle, one may then simply need to think that WTO agreements are of a different ilk concerning their non-conferral of rights, among other things, precluding reliance. Indeed, commenting on Simutenkov,Footnote 197 Jacobs notes that “it seems as if the nature of the Agreement is no longer an obstacle to direct effect, so long as the Agreement contains provisions which . . . directly govern the position of individuals.”Footnote 198 This case concerned a Partnership and Cooperation agreement, which creates a more limited relationship between parties than Association Agreements.Footnote 199 In case law concerning the latter, it has been noted that the Court will often simply proceed to consider whether the specific provision a hand is sufficiently “clear, precise and unconditional” before then reflecting on the nature of the agreement. As Jacobs puts it, it would make little sense to consider a specific provision’s direct effect only to refuse direct effect on the basis of the broad scope and logic of the agreement; accordingly, the Court has not done so.Footnote 200 Therefore, there is a presumption towards direct effect; “[s]uch a reference [to the nature of the agreement] is perhaps a relic of an earlier period.”Footnote 201
However, in Intertanko,Footnote 202 which concerned the United Nations Convention on the Law of the Sea (UNCLOS),Footnote 203 the Court reasoned that “individuals are in principle not granted independent rights and freedoms by virtue of UNCLOS”Footnote 204 and that “UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State.”Footnote 205 The Court has been criticized heavily for its “curt” assertions and defensive stance concerning direct effect.Footnote 206 It is also notable that in refusing direct effect, the Court also expressly closes the door on any possible argument concerning reciprocity in application of the agreement, unlike in WTO case law.
In Intertanko, Advocate General Kokott is suggested to have been “wrongfooted”Footnote 207 by the conclusion which the Court reached concerning the lack of direct effect. The confusion was still greater because, in Poulsen, a case concerning an EU Regulation seeking to control fishing on the high seas, some rules within UNCLOS—which the EU was not yet party to—were applied analogously as CIL rules. Of course, not all UNCLOS rules will be CIL, but attention has been drawn to the fact that the Court did not even engage with this potential,Footnote 208 letalone the ironic sequitur: Making UNCLOS formally binding on the EU simultaneously made it less enforceable.
In contrast to Intertanko, in EDF,Footnote 209 the Court found direct effect of the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution. Article 6(3) of the Convention provided that “discharges shall be strictly subject to the issue, by the competent national authorities, of an authorisation.”Footnote 210 However, a Commission action against France three months later confirmed that France had provided only “operating instructions” to EDF but that it was in breach of the Convention in doing so.Footnote 211 This did not preclude a private individual from being able to rely on the Convention as against EDF in the interim, a conclusion which Pavoni notes the Court reached “without enquiring into whether the pertinent treaty norms on the regulation of pollution from land-based sources attributed rights to individuals.”Footnote 212 Mendez suggests that the explanation for the previous approach in EDF when compared to Intertanko was “the important distinction—a challenge to domestic rather than EU action.”Footnote 213 This is a hidden factor, as it is one with which the Court has never been willing to engage in its case law, and suggests rules which vary according to latent discretion.
One may also speculate that in both cases the environment was protected, meaning that normative concerns may have led to two very different interpretations of what amounts to conferring rights. Ultimately, externally the conferral of rights test’s resurgence has meant an additional means of utilizing discretion for the Court, particularly as it remains ill-defined.
5. Discretion in Determining Whether a Specific Provision Within a Directly Effective Agreement May be Relied Upon
The “clear, precise and unconditional” requirement of the test has been less problematic than that concerning “broad scope and logic.” It has thus received less coverage in prominent accounts of the case law.Footnote 214 A recent exception, though, notes flexibility and subjectivity in application of this element.Footnote 215
Razanatsimba Footnote 216 marked divergence from the internal rule concerning the specific wording of a provision, thereby providing a further locus for the Court to utilize its discretion. The case concerned the Lomé Convention, a former international trade and aid agreement between the EU and African Caribbean and Pacific countries. Article 62 of that agreement provided for non-discrimination concerning establishment unless “a Member is unable to provide such treatment.”Footnote 217 Mr. Razanatsimba was noted by the Court as seeking “to rely upon the principles which form the basis of the judgment of the Court . . . [in] Reyners.”Footnote 218 The outcome of that case essentially found “that direct effect could apply even where the Member States possessed discretion, because the exercise thereof could be judicially controlled.”Footnote 219 Here though, the Court adopted a more restrictive reading by which a Member State or ACP State not adhering to non-discrimination “is not guilty of any infringement” but “merely exposes itself to the risk of a retaliatory measure by the other party.”Footnote 220
The Court’s conclusion and referral to what it termed “negative reciprocity” is interesting. In case law concerning agreements outside of GATT/WTO law, it has not often made reference to reciprocity, except often to note—as with this agreement—that the EU has undertaken asymmetrical obligations, and that accordingly the Court should enforce them.Footnote 221 Perhaps then, the conditionality of the requirement here was the key to the Court’s conclusion? Eeckhout considered that the Court “did not expressly rule on direct effect” and that “as the provision at issue contained an open-ended reservation, granting participating States a wide discretionary power, it was impossible to consider its direct application.”Footnote 222 But this does mark a significant divergence from Reyners.Footnote 223 The case certainly evidences that the “specific provision” test is not, as is often suggested, equivalent to the internal test and that there is complexity within it.
This case may remain an anomaly,Footnote 224 but the sheer presence of this case creates concerns where the “broad scope and logic” of an agreement has been found not to be problematic yet the Court may wish to limit the effects of it in a future case. Equally, the Court may be less inclined to preclude direct effect based on “broad scope and logic”Footnote 225—as this limits its discretion in the future—and so may make increased use of the “specific provision” test.
The Slovak Brown Bear case is perhaps evidence of the dexterity and usefulness of the “specific provision” test compared to the “broad scope and logic” test moving forward.Footnote 226 Here, the Court was not inclined to overcome conditionality inherent in Article 9(3) of the Aarhus Convention, concerning access to justice, in order to require a Slovakian court to apply it directly so as to enable an organization to have greater access to justice in judicial review proceedings concerning environmental matters.Footnote 227 Judicial review at EU level is notoriously narrow in scope for private individuals’ standing. On this basis, it was inevitable that a case would arrive concerning not Member State rules on access to justice but EU rules.Footnote 228 This may explain the fact that the Court declined to grant direct effect of this specific provision despite direct effect of other Aarhus provisions being possible. The “specific provision” test here then provided delicacy in discretion that “broad scope and logic’” tests cannot.
6. Limited Discretion Through Presumed “Direct Effect” of Customary International law
It will be discussed belowFootnote 229 that relative strength with which CIL is applied in the Court may be weaker than that of treaties to which the EU is a party. This is so as the Court today appears to limit its review of the legislator’s action to “manifest errors in assessment.”Footnote 230 Conversely, and likely because of this state of affairs, the potential for an individual to rely upon CIL has been more liberal. The case law has tended towards a presumption of direct effect, with the Court frequently simply stating that the EU “must respect international law in the exercise of its powers.”Footnote 231
Air Transport Footnote 232 saw a somewhat different approach to previous case law. In order to establish that the claimant could rely upon the international rule the Court focused on EU law. The international rule only had to be “capable of calling into question the competence of the European Union to adopt that act,”Footnote 233 however, the Union act had to be “liable to affect rights which the individual derives from European Union law or to create obligations under European law.”Footnote 234 Though odd—given that this was a preliminary reference and direct effect or quasi-direct effect of the EU provision is not typically a requirement—the latter test would frequently be met with ease. This test was indeed met in Air Transport as the claimant would, as an association of commercial airline operators, have been required to comply with the provisions of the directive.Footnote 235
The approach to reliance on CIL still remains starkly more generous when compared with the labyrinth developments in international treaties to which the EU is a party;Footnote 236 although we will see below that application of CIL is often weaker.
7. Discretion Through Selective Application of Reference and Implementation Principles
A variation to direct effect has manifested itself in the “implementation” and “reference” principles founded in the Nakajima Footnote 237 and Fediol Footnote 238 cases respectively. Koutrakos notes of the Fediol and Nakajima cases that to create this exception the court there viewed “the duties undertaken by GATT as ‘internalised’ in the Community legal order.”Footnote 239 This raises questions regarding the assertion in Haegeman II which appeared to internalize all international treaties as an “integral part of [EU] law.”Footnote 240
Nakajima and Fediol would seem to provide that, notwithstanding a lack of direct effect, such agreements can provide a benchmark against which to review the legislature’s actions. This potentially undermines the Court’s reasons that such agreements preclude review generally due to their nature or lack of precision. Moreover, the fact that “there is no evidence that other WTO members have a similar exception [to Nakajima and Fediol]”Footnote 241 undermines equally the rationale of reciprocity in the Court’s WTO law more generally.
Confusion in this area is exacerbated by the Intertanko judgment. As the Court acknowledged, the directive provided that it would apply “in accordance with international law,” with specific reference made to UNCLOS.Footnote 242 But in spite of clear reference in the legislation to UNCLOS, the Court simply went on to highlight a lack of direct effect. Thus, in Intertanko the Court did not engage with the reference principle all, with no explanation of why this should be so. Though König considers that the directive in Intertanko could have remained intact were UNCLOS to be fully applied,Footnote 243 others disagree.Footnote 244 One cynical suggestion might be that in Fediol and Nakajima the challenges were ultimately unsuccessful.
However, though such a simplistic “meta-narrative” may provide a degree of legal certainty, Mendez draws attention to the fact that the General Court has annulled regulations and decisions on the basis of international lawFootnote 245 and that the Court has also done so in Petrotub.Footnote 246 These cases all concerned anti-dumping rules and today scholars suggest that the reference and implementation principles are limited to GATT/WTO law, and probably only to anti-dumping within that;Footnote 247 however, until recently the case law gave a very different impression.
In Bettati Footnote 248 an EU regulation was adopted in order to fulfil the commitments entered into under the Vienna Convention of 22 March 1985 for the Protection of the Ozone Layer. The Court stated that “[i]t is settled law that Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community.”Footnote 249 Though conflation of indirect effect—a mere interpretative tool—and the implementation principle—a basis for review—rendered the Court’s position less clear, there was an implication that the implementation principle could be relevant beyond anti-dumping and even WTO case law.
Racke Footnote 250 confirmed this further by applying the principle to CIL. The Court identified that the challenged regulation, which suspended an international agreement with the Socialist Federal Republic of Yugoslavia, had been adopted so as to comply with CIL governing the suspension of such agreements.Footnote 251 The Court drew direct analogies between invocation of CIL and the Nakajima principle in the judgmentFootnote 252 and conducted a review of EU secondary legislation in light of international rules, ostensibly on the basis of that principle.Footnote 253
Commune de Mesquer Footnote 254 saw the Court return to the principle in passing—although without a direct reference to Fediol or Nakajima—concerning various conventions providing for liability caps in the event of oil pollution. Ultimately the precise directive at hand did not, rather conveniently for the Court, refer to international conventions on liability, leaving it free to impose a higher level of liability in total. But the clear prospect of applying the implementation principle beyond WTO law once more rendered Intertanko all the more questionable, particularly as Commune de Mesquer was decided after Intertanko.
The above has so far shown little clarity as to who exactly is in the driving seat regarding the reference and implementation exceptions: Is it the legislature? The Court on an overtly ad hoc basis? Or is it dependent on the type of international agreement or customary rule?
Stichting saw the General Court and Court disagree profoundly. Though the General Court found that the regulation “was adopted to meet the European Union’s international obligations under Article 9(3) of the Aarhus Convention,”Footnote 255 the Court ruled that “it cannot be considered that, by adopting Regulation No 1367/2006 . . . the European Union was intended to implement the obligations [of the Aarhus Convention].”Footnote 256 Gáspár-Szilágyi notes that this was held despite “the more than obvious title which specifically refers to the Aarhus Convention [and the fact that] almost every recital of the preamble of the Regulation makes references to the Convention.”Footnote 257
Ultimately the Court “came clean” and stated of Nakajima and Fediol, “those two exceptions were justified solely by the particularities of the agreements that led to their application.”Footnote 258 This overturned the more liberal approach of the General Court, which had relied on the Nakajima principle and ultimately annulled the regulation on the basis of the Convention. The fact that the Court neglected even to mention Racke, which formed a cornerstone in the General Court’s reasoning in evidencing the principle’s application beyond GATT/WTO law,Footnote 259 is also a strong indication of the principle’s limitations today. However, caution is warranted given the Court’s tendency to repurpose seemingly dormant judicial devices.Footnote 260
III. Manifestations of Discretion in External Relations Case Law II: Application of International Law
Holdgaard observes “[t]he hierarchical status of international agreements concluded by the Community has never been much disputed,”Footnote 261 sitting above secondary legislation but below the Treaty. CIL is ranked similarly. Of course, “the practical effect of a hierarchically superior rule of international law depends on whether or not it can be directly invoked.”Footnote 262 If granted, hierarchy would simply dictate mechanical application of a superior rule to invalidate a lower ranked one. However, the multifaceted discretion accruing to the Court through modifications to direct effect above has not proven sufficient to redress the absence of proportionality. Accordingly, we can now chart some further modifications which have also enhanced the Court’s discretion at the application stage.
1. Discretion Through Opportunistic Interpretations of Provisions of International Agreements and CIL
This Article has identified above that the Court has taken a more liberal view towards the invocation of CIL than it has to international agreements. However, it appears the Court has limited its view of what CIL demands.
In Woodpulp,Footnote 263 the Court dealt with a challenge that Article 101 TFEU was being applied extraterritorially, as an agreement to restrict competition had been concluded outside of the EU. However, its effect was to restrict competition within the EU. Therefore the Court asserted that “the Community’s jurisdiction to apply its competition rules to such conduct is covered by the territoriality principle as universally recognised in public international law.”Footnote 264 The implication though was that EU action, and even the EU Treaty, would be appropriately constrained by CIL.
However, Intertanko demonstrates that the Court will not necessarily be quick to accept that international rules reflect custom. In Poulsen the Court said of UNCLOS that “many of its provisions are considered to express the current state of customary international maritime law.”Footnote 265 In Intertanko the Court stated:
Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law . . . .Footnote 266
The Court cited Poulsen, but it did not clearly address UNCLOS in this regard. Even the later statement that “UNCLOS’s main objective is to codify, clarify and develop the rules of general international law”Footnote 267 did not prompt the Court to do so. The lack of analysis in Intertanko in this regard has been said to be striking.Footnote 268
Where accepted as relevant, case law has also shown the complexities which can arise concerning interpretations of CIL. The decisions have been met with some criticism. Opel Austria,Footnote 269 a case at the General Court (then CFI), is notable in that it saw the rare occurrence of EU secondary law being invalidated where international law was invoked. However, on closer inspection, the extent to which international law formed the basis for invalidation, rather than the EU principle of legitimate expectations, emerges as questionable. The case concerned the adoption of a regulation which was argued to be in breach of a signed, but not yet in force, EEA treaty.Footnote 270 The General Court held that “the principle of good faith is a rule of customary international law.”Footnote 271 However, it found it to be a “corollary . . . of the [EU general] principle of protection of legitimate expectations.”Footnote 272 Ultimately the General Court referred to the regulation as having “infringed the applicant’s legitimate expectations”Footnote 273 rather than the principle of good faith. Eeckhout notes that the principle was “channeled”Footnote 274 throughout EU law. Konstadinides takes a sterner approach in stating that “despite the custom-friendly outcome,”Footnote 275 in reality “[i]t makes more sense to argue that the customary principle of good faith was not the real ground for annulment.”Footnote 276 This suggestion is further supported by the Air Transport Footnote 277 case, concerning airline emissions, which further limited the extent to which CIL—in and of itself—is a genuine restraint on EU action. The Court found thatFootnote 278:
[S]ince a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying those principles.Footnote 279
Accordingly, a “manifest errors” approach, which was not present in the review on the basis of EU law in Opel Austria, is present here where CIL alone is applied, with Racke being cited as justification. However, it is submitted that the reference to Racke is misleading. In Racke the Court did conclude that “the complexity of the rules in question and the imprecision of some of the concepts to which they refer”Footnote 280 meant that only a marginal review of the legislator’s actions could be conducted. However, the reference was not to all rules of customary law but to “the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances.”Footnote 281 It is notable that even concerning Racke this approach was criticized.Footnote 282
Notwithstanding Racke, the Court’s approach to interpreting CIL in Air Transport itself can be questioned. Territorial sovereignty is arguably the precursor to the proper functioning of international law.Footnote 283 The extension of the concept to airspace is both essential for the proper functioning of aviation and uncontroversial. The ICJ describes the rule concerning sovereignty over airspace as a “basic legal concept,”Footnote 284confirming “no doubt that . . . prescriptions of treaty-lawFootnote 285 merely respond to firmly established and longstanding tenets of customary international law.”Footnote 286 This does not sit well with the Court’s assertion that the rule lacked precision.Footnote 287
Arguably, the outcome simply evidences the problem by which environmental protection has developed in importance in more recent years, a development with which external relations case law, based in hierarchy and formalism, has struggled to keep up. Advocate General Kokott appeared to acknowledge this problem and encourage change in stating:
[The Court’s] judgment will be of fundamental importance not only to the future shaping of European climate change policy but also generally to the relationship between European Union (EU) law and international law. In particular it will be necessary to consider whether and to what extent individuals are entitled to rely in court on certain international agreements and principles of customary international law in order to defeat an act of the European Union.Footnote 288
Though the Court was not so colorful, it did refer to the importance of “environmental protection objectives which it has set for itself.”Footnote 289 But, as Koutrakos points out, this point was irrelevant in the current constellation of the case law.Footnote 290 Although few would question that it did, in fact, influence the Court.
Moreover, if we reconsider Air Transport, which concerned the expansion of the EU emissions trading scheme to airlines, in light of Arcelor, which also featured the expansion of the emissions trading scheme to steel producers, then a further impact of the absence of proportionality is apparent. In Arcelor the Court provided a margin to the legislature as it should have a “broad discretion where its action involves political, economic and social choices.”Footnote 291 From the legislature’s perspective though, it is clear which expansion was more complex,Footnote 292 but the Court’s rules governing reception and application of international law could not accommodate this, hence the interpretative strain to find CIL uncertain.
It is not just CIL which has seen strained interpretation. A prominent example of opportunistic interpretation of an international treaty is ELFAA.Footnote 293 The case saw a challenge to an EU regulation on the basis that it breached the Montreal Convention. The Montreal Convention provides for the circumstances and amount of compensation to which passengers are entitled. The EU is a party to the Montreal Convention and the Court found the relevant articles of the Convention to have direct effect.Footnote 294 It then referred to Article 31 of the Vienna Convention on the Law of Treaties (VCLoT) and directed itself that an international treaty “must be interpreted . . . in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.”Footnote 295
However, in spite of the Court acknowledging the Montreal Convention limiting liability of carriers to set amounts,Footnote 296 the Court reasoned that “[t]he system prescribed in Article 6 [of the regulation] simply operates at an earlier stage than the system which results from the Montreal Convention.”Footnote 297 Thus the challenge was unfounded; the EU legislature was free to impose liability, even in extraordinary circumstances, as the Court felt that it was regulating a distinct aspect of compensation not covered by the Convention.
The Court reasoned that the Convention covered individual damage sustained by passengers—who could then bring a claim—but that the regulation covered “standardised and immediate assistance.”Footnote 298 The Court implicitly acknowledges the potential for some overlap with the Convention, stating “[t]he standardised and immediate assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down by the Montreal Convention.”Footnote 299
In spite of passengers not being able to claim twice for the same damage, there is the problem that the 4 150 SDRs cap is now artificially raised. Mendez also draws attention to the fact that the Convention contains an exclusivity provision, allowing for passengers to seek damages only through it.Footnote 300 Overall there is heavy criticism of the reasoning adopted by the Court.Footnote 301
It is submitted that Air Transport and ELFAA ultimately appear as contorted interpretative efforts deployed to pursue environmental protection and consumer protection, respectively. The norms of consumer and environmental protection are indeed important, but their accommodation through the finding of interpretative room within international provisions that appear to allow none is problematic for legal certainty. Proportionality analysis would have provided for richer argumentation and engagement with the facts and, given the heavy criticism of both cases, could not have damaged perceptions of the EU’s respectfulness towards EU law any further.
2. Discretion Through Recourse to the Concept of an Autonomous Legal System
The EU legal system “cannot be prejudiced by an international agreement.”Footnote 302 This infamous phrase in fact belies the outcome of the Kadi case law. As is well known, in Kadi the Court was confronted with an EU regulation which transposed a UN Security Council Resolution aimed at combatting terrorism by listing terrorist suspects and suspected financiers. The potential infringement on fundamental rights was subjected to a limited review on the basis of jus cogens by the General Court, in deference to the international origin of the EU regulation. The Court instead reviewed the EU Regulation on the basis of EU law and made that clear through the language of autonomy. But on closer inspection, the autonomous legal system is quite permeable.
“The Court must determine whether a fair balance has been struck between the demands of the public interest and the interest of the individuals concerned” and that public interest must be judged “[w]ith reference to an objective of general interest as fundamental to the international community as the fight by all means . . . against the threats to international peace and security posed by acts of terrorism.”Footnote 303 Accordingly the international political and legal context permeated the “autonomous” EU legal system and was balanced against the “very foundations” of that legal system.Footnote 304 However, due to the significant shortcomings in the listing process the Court’s application of this balance is less discernible.
It is notable though that while the Court noted the multiple flaws in the regulationFootnote 305 it concluded “annulment to that extent of the contested regulation with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by the regulation and which the Community is required to implement . . . .”Footnote 306
The Court accordingly allowed the regulation to maintain its effects for three months, within which time a new regulation was concluded. Thus, in spite of the fact that multiple infringements of fundamental rights were found, the remedy was simply to provide the legislature with a further three months in which to remedy the shortcomings. This is markedly deferential to international law and, of course, recognizes the importance of combatting terrorism, which it would be artificial to suggest is purely an EU, and not international, concern. The consequence was that a new Security Council Resolution was passed, transposed into EU law, and then challenged once more in Kadi II. Five years had passed since the Court’s Kadi I judgment in which the EU legal system had been declared to be unable to be prejudiced by international law.
Far from “autonomy,” Sena and Vitucci’s argument that “the findings reached in its judgment can, ultimately, be regarded as the outcome of a direct balancing of the EC principles on fundamental rights with the value of cooperation of the EU states with the UN in the fight against terrorism”Footnote 307 seems correct. Autonomy here was simply proportionality by another name.
However, autonomy has meant autonomy in cases such as MoxPlant, precluding Member State submission of a dispute to an international court where EU law is concerned,Footnote 308 and Opinion 2/13, refusing accession to the ECHR.Footnote 309 Equally though it has not been mentioned in cases where it appeared relevant.Footnote 310
Though Kadi I shows that autonomy can have a softer and more proportionate side, the deployment of autonomy is guaranteed to garner much attention and for this reason the term may have been eschewed in Kadi II. Interestingly, though, the Court returned to autonomy in Opinion 2/13. Ultimately then the concept itself is elusive and allows for discretion in both deployment and application, yet falling short of that which proportionality would offer. The label of autonomy is unhelpful, but the concept of autonomy is confirmatory of the discretion which a domestic court holds when applying international law. The manifestation of that discretion, though, would be better served through proportionality.
3. External Relations Cases Which Have Seen the Deployment of Proportionality
It is appropriate to end our analysis of the case law with an anomaly or two: The Court’s deployment of proportionality analysis in the application of international law.
Omega Air Footnote 311 concerned secondary legislation which sought to limit noise pollution of aircraft. The Court engaged with the principle of proportionality and stated that “with respect to judicial review . . . the Community legislature has wide legislative powers in the field of the common transport policy as regards the adoption of appropriate common rules.”Footnote 312 In favorably reviewing the legislature’s actions, the Court even invoked ICAO assembly resolutions, which it claimed endorsed the approach adopted by the EU.Footnote 313
Though the Court would later expressly recall the fact that WTO law does not have direct effect, the passages concerning proportionality appear implicitly to disentangle international provisions in both WTO law and the Chicago Convention—to which the EU is not even party—from the need for direct effect for the purposes of that analysis.Footnote 314 Overall, the balance between respect for international law and protection of the environment appeared to be entertained.
Commission v. Italy also saw deployment of proportionality.Footnote 315 The case concerned a Free Trade Agreement with Norway. In finding Italy in breach of the agreement, the Court reasoned that due to provisions analogous to Article 34 and 36 TFEU, Italy’s requirement for health inspections of fish had “infringed the principle of proportionality.”Footnote 316 This application of proportionality is interesting as it concerns a balance within the international agreement rather than between protection of EU law and respect for international law.
However, Eeckhout points out that in Commission v. Italy the deployment of proportionality “[found] little basis in the actual agreement.”Footnote 317 The international treaty provision allowed for measures to protect, interalia, health, provided they do “not constitute a means of arbitrary discrimination or a disguised restriction on trade between the Contracting Parties,” whereas here the Court balanced the health imperative against the trade imperative, as it would do in internal case law.
The effort to conclude trade agreements which more appropriately reflect non-trade concerns within them means that this approach may be available to the Court more often, meaning at least a limited role for proportionality moving forward.Footnote 318
IV. Reflections on Diffuse Discretion in External Relations Case Law
In internal case law the Court’s discretion does not reside exclusively within the proportionality test, but it is its primary residence. This is the consequence of accepting reliance on rules without requiring direct effect in many instances.Footnote 319 Equally, where direct effect is requiredFootnote 320 we have seen a remarkably liberal approach in finding it to be present. With EU law readily engaged, the Court’s practice is to then postulate competing interests at the same level and to resolve them with consideration of the unique facts of the given case in a proportionality analysis.
Externally, direct effect has been more actively deployed as a gatekeeper of the EU legal order. Perhaps this is to be expected given that direct effect was justified by the EU being, in the Court’s view, “a new legal order of international law.”Footnote 321 However, complexity in external relations cases arises due to the sheer breadth of the rules, not to mention their variation over time. A further confounding feature is that the rules of direct effect seem to be heavily influenced by unexpressed normative concerns to the point where one wonders “whether . . . the actual review which the judgment avoids, is influencing the answer . . . as to the capacity of the Agreement itself to form a review criterion vis-à-vis Community law.”Footnote 322
Moreover, overburdening direct effect as a locus for discretion clearly lacks the refinement of proportionality analyses. Pavoni notes this problem in Intertanko; by refusing direct effect of a significant number of UNCLOS provisions, the case led to higher environmental protection but would, in theory, be equally applicable to EU and Member State conduct in a subsequent case and accordingly may result in “lower EU standards of environmental protection” in the future.Footnote 323
Similarly, interpreting away the demands of international law, through eminently subjective readings of international treaties or claimed uncertainties of CIL which few international scholars would recognize,Footnote 324 may ultimately protect EU norms, but it does so by mutating the international norm itself rather than balancing interests in a given case. This too renders it hard to recant from in a subsequent case with fresh competing interests.
Ultimately, where proportionality has become dominant in resolving internal complexity, external recourse to it—in name at least—is a statistical outlier. This results in fragmented case law which can at times seem capricious, at least until one considers normative factors hidden behind judgments. Legal certainty is clearly affected by the continued purport of neutrality and a formal hierarchy, with normative concerns permeating without a clear rationale or measured resolution and in stark contrast to internal case law.
V. How Could Proportionality in External Case Law be Expanded in the Future?
From the above we can see a significant fragmentation in approaches and even divergences within individual approaches. It has been argued that these seemingly narrow and often technical distinctions are best understood through a normative lens. Proportionality is the purest expression of that normative lens available within EU law.
The sheer presence of proportionality will lessen the pressure on direct effect related rules and the uncertainty it creates. For example, a finding of direct effect would no longer be fatal to a piece of EU secondary legislation as it may be justified at the proportionality stage.Footnote 325 For a similar reason, international law would also be less susceptible to being imputed with questionable meaning as an avoidance strategy.Footnote 326 This is particularly important given that although application of international law—through direct effect tests—is readily accepted as being within the discretion of domestic courts, interpretation of international law is not. Accordingly, though d’Aspremont and Dopagne suggest there is an “elementary divide”Footnote 327 between the application of international law at the international and domestic levels, d’Aspremont is more nuanced concerning interpretation; “when applying the rules of another legal order, judges should heed the rules of interpretation of that legal order . . . [otherwise] judges would simply apply another rule than the rule originating in that foreign legal order.”Footnote 328
With proportionality present the allure for the Court of opportunistic interpretations of international law and oscillating tests for direct effect as a means to control international law’s impact would be lessened in external case law. The logic for retaining structural differences compared to internal case law concerning access to justice would also be removed. Consequently, in the future, approaches in external case law could more closely reflect those already present in internal case law discussed above. For example, in judicial review cases under Article 263 TFEU, privileged applicants such as Member States should not be dependent on direct effect of the international provision. Under Article 267 TFEU, preliminary reference questions arising concerning the legality of EU secondary legislation do not require direct effect internally, nor should they externally. Direct effect would be required to challenge Member State legislation under 267 TFEU, as is the case internally: However, direct effect of international law in Member State cases has often been found and is less uncertain as a result. These changes would helpfully restore a consistent approach to the balance between actors across both internal and external case law.
This is not to say that these changes will result in overbearing review of EU action in all instances, which should also alleviate concerns over floodgates opening to claimants. It should be remembered that the intensity in proportionality review of EU and Member State action differs. Member States often need to adopt the least restrictive path, whereas more lenience is afforded to the EU institutions. The practice of allowing a margin of appreciation to the EU legislature would seem appropriate here, given that its basis tends to be the complexity of judgements which the legislature must undertake, and International affairs are generally recognized to be an area in which the executive or legislature has wide discretion.Footnote 329 Moreover, the odd potential divergence between cases such as Arcelor, concerning internal expansion of the emissions trading scheme, and Air Transport, concerning expansion of the same scheme with an international context, would be remedied. In Air Transport a margin was provided, but not based on the complexity of judgement required. Instead, unconvincingly, the uncertainty of customary international law was invoked; were the case to have concerned international treaty law binding on the EU, rather than customary law, no margin would have been provided to the legislature.
A key limitation to any margin of appreciation arrives concerning the EU’s infringement of the essence of fundamental rights, and to the extent that this principle is present internally, this would continue to be the case externally. It is also submitted that the reference and implementation principles could appropriately be applied, in and beyond anti-dumping law, through proportionality, and could also affect the legislature’s margin of appreciation. This seems logical as statements that EU legislation has been passed “in accordance with” or to implement international law would mean that, were legislation not to meet this aim, then it would be disproportionate, except arguably in the most complex of instances.
It can be seen that these changes would remove the need for direct effect in some cases and, in all cases, would lessen uncertainty within direct effect related rules and the need for opportunistic interpretations of international law by providing a release valve in the form of proportionality. The question then becomes whether it is helpful to replace multiple small problems with one large problem; namely, what weight should be afforded to respect for international law within the case law? It is submitted that this single question was both already present and, indeed, driving the multiple oscillations and divergences present in the case law, but through a series of smaller synthetic proxies. Instead, by focusing more closely on the large question in scholarship and openly in the Court, clarity will emerge in a similar fashion to that which occurs internally concerning EU norms. Incremental arguments based within proportionality concerning respect for international law in differing contexts will inform future action in a meaningful way and will allow litigants to argue their case in alignment with the Court’s underlying rationales.
E. Conclusion
What is missing from external relations case law is the capacity for the Court to engage with the facts of a case in their specific context. Though proportionality has only appeared briefly in external relations case law and scholarship to date, it does appear to be a point upon which there is gradual convergence.Footnote 330 Proportionality provides a convenient means by which to distinguish specific cases without the need to avoid or mutate international law on specious bases, which has occurred in its absence. Fully embracing proportionality in external relations case law would see international law being more readily invoked. However, respect for it would be balanced against other EU norms, with the consequence that—like all EU norms—respect for international law would be extrinsically defined, through applying proportionality in specific cases, rather than intrinsically defined through vacillating assertions about international law’s capability to be relied upon.
When and which EU norms should trump respect for international law? These are clearly questions for future research, and they would be facilitated by scholars openly acknowledging and promoting proportionality’s relevance rather than multiplying the range of nomenclatures. Then meaningful debate on substance can begin. For instance, many would argue that a margin ought to be provided to the legislature in fields related to international law, and yet others would argue that there should be heavy presumption in favor of respecting international law. Initially, it is clear that significant fundamental rights, such as Kadi, should be more likely to be favorably weighed against international law than more minor issues within consumer protection, such as ELFAA. But there are more challenging cases, and ones which call for very delicate consideration. The balance will also necessarily change over time, as all norms developFootnote 331 and cases differ. Proportionality can accommodate this debate and the complexity, which is already inherent in the case law, whilst simultaneously providing greater legal certainty.
Balancing respect for international law against other EU norms is eminently justifiable from the perspective of international law—as states retain discretion concerning application of international law domestically.Footnote 332 More generally, the diminishing esteem in which the Court’s case law is held for its respectfulness towards international law means change is now opportune.Footnote 333
Finally, it should be remembered that the Court is already balancing EU norms such as fundamental rights, consumer protection, environmental protection, and trade interests against respect for international law. However, it currently does so through the more crude and less legally certain means of oscillating direct effect tests, opportunistic interpretations, and an incoherent, autonomous legal system. So, though it does seem that there are embryonic or sporadic references to proportionality in aspects of both external relations case law and literature, it is also hoped that there is more to come on both counts.
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