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Case 21-24/72, International Fruit Company v Produktschap voor Siergewassen, Court of Justice of the EC, [1972] ECR 1219

Pieter Jan Kuijper

Relevance of the case

The International Fruit Company case is rightly famous for two reasons: (1) the succession of the European Community to its member states in the General Agreement on Tariff and Trade (GATT); and (2) the lack of direct effect of art. XI (the prohibition of quantitative restrictions) and of the GATT in general. On point (2) the case has largely lost its initial relevance, since the Court of Justice (ECJ), though still of the same view with respect to the GATT’s successor, the WTO, has considerably developed and refined its initial reasoning. It is on point (1) that the case has continued importance, not so much because it will easily find new application, but because it sheds light on the comparable, but different situation in which the EU effectively follows the rules of international organizations or of treaty bodies, to which all member states are parties, but without the possibility for the EU itself to accede to these organizations and treaty bodies.

I. Facts and legal questions

This was the first case before the ECJ in which the General Agreement on Tariffs and Trade (GATT) was at issue. It came to the Court by way of a so-called preliminary question from a national court, in this case a Dutch court (College van Beroep voor het Bedrijfsleven, CBB) that at the time was charged with ruling on certain economic disputes in first and last instance.1 The question was inspired by the following facts. In the framework of the Common Agricultural Policy (CAP) the European market for hard fruit was semi-closed during the European season (late autumn and winter) to apples and pears from the southern hemisphere. Imports into the Community were restricted to a reference quantity based on the import level in previous years. If there was a threat that these reference quantities were about to be surpassed, the Commission could take safeguard measures by precisely fixing the reference quantities, as a consequence of which import licences going beyond these quantities would have to be rejected.

In the early 1970s the Dutch semi-public organ charged with implementing certain aspects of the CAP (the Produktschap mentioned in the title of the case) thus refused to issue licences for apples and pears from Chile to International Fruit and other importers. These importers regarded this refusal as contrary to art. XI of the [1]

GATT, which in their view contained an unconditional prohibition of quantitative restrictions on imports (para. 1). Exceptions to this prohibition were accepted for agricultural products, if these were linked to measures limiting national production or eliminating a temporary surplus (para. 2c).[2]

The first preliminary question submitted by the CBB to the ECJ was put in the form of an inquiry after the scope of art. 177 EEC Treaty (art. 267 TFEU): namely whether international agreements (in this case the GATT) could be used as the standard by which the validity of a Community act could be tested in the framework of a preliminary question procedure.

The second question, which would need a reply only if the first one was to be answered in the affirmative, inquired whether the Commission decisions that had been implemented by the refusal of licences by the Produktschap, were invalid as being contrary to art. XI of GATT.

II. Excerpts

The ECJ deals quickly and in a straightforward fashion with the first question. It remarks rather drily that the wording of art. 177 EEC (now 267 TFEU)[3] does not permit to limit the jurisdiction of the Court ‘by the grounds on which the validity of [the] measures [at issue] may be contested’. Hence the Court is obliged to examine the second question.

It immediately continues with two underlying questions that are of much greater interest and difficulty and which are: (1) what are the obligations under the GATT by which the EU must be considered to be bound; and (2) whether an individual can invoke such obligations (if they exist) before the courts of the member states and of the EU itself in order to plead the invalidity of Community/Union rules. The Court expresses this as follows:

Before the incompatibility of a Community measure with a provision of international law can affect the validity of that measure, the Community must first of all be bound by that provision.

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.

It is therefore necessary to examine whether the General Agreement satisfies these two conditions.

It is clear that at the time when they concluded the Treaty establishing the European Economic Community the Member States were bound by the obligations of the General Agreement.

By concluding a treaty between them they could not withdraw from their obligations to third countries.[4]

The Court then mentions one factual circumstance and two articles from the EEC Treaty, which bolster the view that the member states did not have the wish at all to act against this ground rule of the law of treaties.[5] After that, the Court returns to the first of the two questions, namely whether the EEC is bound by the obligations of the GATT:

The Community has assumed the functions inherent in the tariff and trade policy, progressively during the transitional period [1958-70] and in their entirety on the expiry of that period, by virtue of Articles 111 and 113 of the Treaty.

By conferring those powers on the Community, the Member States showed their wish to bind it by the obligations of the General Agreement.

Since the entry into force of the EEC Treaty and more particularly, since the setting up of the common external tariff, the transfer of powers which has occurred in the relations between the Member States and the Community has been put in concrete form in different ways within the framework of the General Agreement and has been recognized by the other contracting parties.

In particular, since that time, the Community, acting through its own institutions, has appeared as a partner in tariff negotiations and as a party to the agreements of all types concluded within the framework of the General Agreement, in accordance with the provisions of Article 114 of the EEC Treaty which provides that the tariff and trade agreements ‘shall be concluded [...] on behalf of the Community’.

It therefore appears that, in so far as under the EEC Treaty the Community has assumed the powers previously exercised by the Member States in the area governed by the General Agreement, the provisions of that agreement have the effect of binding the Community.[6]

III. Commentary

It is important to remark at the outset that the Court, in making the step from the conclusion relative to the first question (namely that the GATT is binding on the Community) to the second question (the decision on a possible direct effect of art. XI of GATT invalidating Commission decisions), skips two logical steps that remain implicit, namely (1) that the GATT, because it is binding on the EEC also becomes an integral part of the Community legal order,[7] and moreover (2) has supremacy over secondary Community law.[8]

The Court probably considered these two implicit steps in its reasoning to be selfevident and inherent in its argumentation laying down its so-called succession theory. As the Court argued, all the member states were parties to the GATT and bound by its provisions and could not, by becoming Members of the EEC, free themselves from their GATT obligations.[9] The member states, however, have transferred their powers in the area covered by GATT to the Community, while at the same time they made it clear that they did not want to escape their obligations by submitting the EEC Treaty to the GATT in the framework of its provision on customs unions (art. XXIV:6 GATT). Moreover, the Community itself, represented by the Commission, negotiated during this same period within the GATT about the gradual introduction of the common external tariff of the EEC. The other Contracting Parties of the GATT, by participating in these negotiations, defacto recognized this transfer of powers from the member states to the Community. The importance of this last mentioned aspect underpinning the Court’s succession approach has been rather neglected in the later literature about the way in which the Community inherited its member states’ rights and duties in the GATT. This is a unique element of the situation in the GATT as it existed at the time of the emergence of the EEC as a fully fledged customs union.

International Fruit did not clarify in an explicit manner whether international law in all its manifestations (treaty, customary law, and general principles of law) was part of the Community legal system and which rank it had in that system. Fairly quickly afterwards these questions were clarified in other cases. In the Haegeman case, the ECJ ruled ‘that the provisions of an international agreement from their entry into force are an integral part of the Community legal order’.[10] [11] After that it took some time before it was made clear that this was valid also for binding decisions of an Association Council because ‘of their direct link’ with such Association Agreements that had already themselves become an integral part of the Community legal order." The Poulsen case in turn clarified beyond doubt that the Union was bound by customary international law, in that case by the law relating to different sea zones and to the varying degrees of sovereignty and sovereign rights that states had in such zones." In the Racke case the Court reviewed the invocation by the Community of the customary rule of rebus sic stantibus in the light of the precise content of that rule, when the Community had had recourse to it in order to justify the unilateral termination of the Co-operation Agreement with Yugoslavia.13 From the cases mentioned here, it also transpires that the Court accorded higher rank to international law (whether treaty or custom) than to secondary Community law and that it shares in the supremacy of Union law over the law of the member states (including even constitutional law). In this connexion the Court referred from time to time to art. 216(2) TFEU, which states that agreements concluded by the Union are binding on the institutions of the Union and for its member states.

A. Does ‘succession’ amount to EU implementation without EU obligation?

It is fitting at this moment to make a few remarks about the ‘succession’ of the Union to existing customary law and to make a comparison to the ‘succession’ of the Union to treaty obligations. In the past, newly independent states issued from the decolonization movement of the 1960s and 1970s argued that ‘your international law is not our international law’, having never participated in the formation of ‘your international law’. Accordingly they pretended to be able to choose ‘their international law’ a la carte. As far as customary international law is concerned, they have been largely unsuccessful, although they have deployed many efforts through recourse to UN General Assembly Resolutions and other soft law instruments. In respect of succession to treaties the newly independent states disposed of a larger margin of manoeuvre, although they were not able to have a complete ‘clean slate approach’ accepted. The Convention on the Succession of Treaties between States in the end became an awkward balance between the complete succession and the clean slate approach and it remains uncertain whether it correctly represents the actual practice of states/4 The ‘succession’ between the member states and the EU in respect of international legal rules obviously is a succession between international legal persons of an entirely different nature and for that reason alone succession might be more difficult. The contrary is the case. Historically the Union has not been under the slightest impulsion not to observe customary international law, although from early on it has been opting for an approach to customary law that suited its needs. A good example are the customary law rules on the exercise of legislative and enforcement jurisdiction in the field of anti-trust, where the Commission took the view that a moderate effects doctrine was in conformity with international law. That approach was approved by the Court, but initially reinterpreted to be within the bounds of the territoriality principle, which was less controversial/5 The cases of Poulsen and Racke mentioned above are other [12] [13] [14]

important examples of how the Union embraced existing customary international law through actions of the Commission and the Court.

As far as treaty law was concerned, historically the Commission and the Council, and later also the European Parliament when its legislative powers increased, have not had the slightest hesitation to move the implementation of the member states’ obligations under international agreements to which they all were parties, to the Community (Union) level. This happened in many cases, where the Union was not and could not become a party, while its powers covered the matters regulated by the treaties in question. An early example is the OECD decision on an ‘Understanding on a Local Cost Standard’ that gave rise to the well-known Opinion 1/75.16 As a consequence the EEC concluded and implemented this Understanding that was adopted in the OECD Council by the member states, whereas the EEC merely had a special observer status there. Another example of some notoriety is the constant implementation and adaptation of the lists of endangered species by the Union, following the CITES obligations of its member states, without itself being a member: a pure case of implementation without obligation.^

It bears pointing out that for succession to, or acceptance of, customary international law, a unilateral act of consent suffices, whereas for succession to treaty obligations this is often not sufficient; some kind of consent has to be forthcoming from the treaty partners. In the case of the Union’s de facto succession to the member states’ GATT obligations, the other GATT Contracting Parties had de facto accepted the EEC’s presence and action in the GATT. That fitted with the very pragmatic and not very rules-bound way of operating of the GATT in the 1950s and early 1960s. In other treaty settings, and even more so in international organizations, third states were likely to insist on more formality, often requiring a change in the treaty’s provisions on accession.

Fairly early after the Court’s judgment in International Fruit, comments began to appear in the literature, which pointed out that the succession approach could also be fruitfully applied in other international organizations, especially if they were wholly or partially active in the sphere of the exclusive powers of the Union, such as the common commercial policy. It was pointed out that, according to the succession theory, the Union ought to carry out the Security Council sanctions against Southern-Rhodesia, since otherwise there was a risk that disparate implementation by the member states would undermine their effectiveness and cause distortions on the internal market^8 Over the course of the years the Commission and the Council developed a technique which enabled the EC to implement any trade sanctions

‘6 Opinion 1/75 [1975] ECR 1355.

!7 It is only recently that the so-called Gaborone amendment of art. XXI of the CITES Convention with a view to permitting organizations like the EU to become a party to the CITES Convention was ratified by the required majority (fifty-four of eighty) of the members of CITES, which were members on the day the text of the amendment was adopted. This process has lasted over three decades, from 30 April 1983 to 29 November 2013. See http://www.cites.org/eng/disc/gaborone.php.

‘8 P.J. Kuijper, ‘Sanctions against Rhodesia: The EEC and the Implementation of General International Legal Rules’, (1975) 12 Common Market Law Review 231.

imposed by the Security Council.[15] This practice was later laid down in a different form, consisting of successive decisions under the CFSP (art. 15 TEU) and the EC Treaty (arts. 60 and 300 ECT), and is now laid down in art. 215 TFEU (preceded by a decision under art. 29 TEU). Such implementation of UN sanctions that are binding on the member states is another example of implementation without obligation. However, when in the famous Kadi case the then Court of First Instance developed an elaborate argument to the effect that the Union was bound by UN Security Council trade sanctions and asset freezing as a kind of functional substitute for its member states in the field of international trade and capital movement,[16] [17] [18] [19] [20] the Court itself shot this down quite emphatically: the EU could not become a party to the UN Charter and thus not a member of the UN. It was a mere observer, and as such was not bound by Security Council Resolutions, although it was authorized by its founding treaty to carry them out.21

What the ECJ was willing to do—and it had already done so earlier—was to resort to UN Security Council resolutions as an aid in interpretation of the implementing regulations of UN sanctions on the EU level. Usually this resulted in a stringent interpretation of the Union act, especially because the Court took into account the objective of the resolutions—the maintenance of international peace and security.22

The well-known and long-standing case law of the ECJ reviewing EU acts in the light of the human rights and fundamental freedoms common to the constitutional traditions of the member states and exemplified by the European Convention on Human Rights (ECHR), which had been ratified by all member states, is another example of unilateral application of international treaty norms, formally without any corresponding obligation.” Over a very long period the Court, with increasing assurance, referred to articles of the ECHR and the case law of the European Court of Human Rights (ECtHR). At the same time the Court decided that, though co-operation on human rights and fundamental freedoms was possible in the framework of a development or co-operation relationship,” the EU was not empowered under the Treaties to conclude a human rights treaty” This example of ‘implementation without obligation’ in the field of human rights and fundamental freedoms was originally entirely Court driven. However, in order to sustain the situation in which all member states were parties to the ECHR and so the Court could continue to rely on this fact in its case law, it became necessary for Commission and Council to declare accession to that Convention a condition for accession to the EU.[21] [22] In the same fashion human rights and democracy started to appear in the first articles as essential underlying elements of co-operation agreements with Latin-American countries that had recently emerged from dictatorships or brutal military regimes. Such provisions were intended to simplify the suspension and even termination of these agreements, following the model of the Racke case” This extreme case of disjunction between a human rights policy without underlying attribution of power in the Treaty and no treaty obligations in this domain, while the Union’s court almost routinely applied the ECHR, following the ECtHR’s case-law, will only be resolved, when the Union accedes to the ECHR pursuant to the new art. 6 TEUT[23]

B. Does ‘succession’ provide a solution to a new problem?

A new problem of disjunction between the development of the Union’s internal powers in important sectors of inter alia transport policy and the impossiblity of the EU to become a party to long-standing international agreements of these sectors has arisen over the last two decadesT[24] The basic international agreements on aviation (Chicago Convention and Warsaw Convention) and the organization (ICAO) conceiving and running these agreements, are not open to the Union, whereas there is considerable internal legislation in the field that may or may not be in conformity with the ICAO. Obviously the EU, when it is incapable of becoming a party to the international agreement or convention that covers the field of its new legislation, normally will venture to comply with the international convention in question, especially if all its member states are parties to it. In the light of the principle of sincere co-operation prevailing in the Union,[25] [26] the Union institutions should not intentionally embarass their member states by producing legislation that goes against a convention that all of them are bound to respect. On the other hand the Union institutions may decide to develop further certain aspects of such conventions, and treaty partners and economic operators in the sector may see such developments as breaches of these conventions. This was the case of the American Airlines Association (AAA) and others, who believed that the regulation that extended the EU ETS system to aircraft and airlines infringed certain rules of the Chicago Convention. Hence they demanded that the Union regulation be reviewed and declared inapplicable in the light of these alleged breaches of the Chicago Convention^1

The same situation had occurred a few years earlier when the Union’s legislation in the field of pollution of the seas was considered by a number of shipping companies to be contrary to certain rules laid down in the so-called MARPOL Convention adopted within the framework of the International Maritime Organization (IMO).[27] [28] [29] In the Intertanko case the complaining parties explicitly invoked the precedent of the International Fruit case, arguing that all member states had ratified MARPOL and that hence it was binding on the EC. As a consequence its provisions could be invoked to set aside the relevant EC legislation. As in International Fruit, the Court was confronted with the same ‘double whammy’ argument: there is an obligation binding on the EU through succession and direct effect of this obligation should lead to a set-aside of a Union legislative rule. Whereas in International Fruit the fruit importers lost on the second issue, that is direct effect, the Court ventured to distinguish Intertanko from International Fruit on the first question. The Court signalled that the EU had not been able to become a party to MARPOL, which was not open to international organizations and, one might add, had never given any indication that a de facto succession to the member states would be acceptable to the states already parties. The Court also stated that the EU’s competences, based on its internal legislation, did probably not cover the full scope of the MARPOL Convention. Hence the Union was not bound by the MARPOL Convention: the rules of the Convention had not become part of Union law and hence could not be invoked by private parties at all. The question of direct effect simply could not arise.

This was also the conclusion of similar cases, such as the AAA case in the field of air transport and the TNT case, which was a road transport and private international law case.33 However, as long as all member states were parties to such international instruments as the Chicago Convention and MARPOL, the Court felt bound, pursuant to the principle of sincere co-operation, to take account of the provisions of such agreements in interpreting provisions of Union law. The words ‘to take account of’ seem to have been chosen carefully by the Court in order to distinguish this method of interpretation from the normal method of interpreting Union law in conformity or in harmony with international agreements to which the Union has become a party, when it is not giving direct effect to such agreements or their provisions^

Some conclusions

The conclusions that remain to be drawn cannot be but mitigated, where the theory of the succession of international organizations to the international legal obligations of their member states are concerned. The succession of the EU to its member states’ GATT obligations is a consequence of special circumstances in which the flexibility of the procedures in the GATT and the adaptation of the EU’s treaty partners to such flexibility happily combined with a daring Court in order to bring about this result. The Court now maintains a strongly toned-down succession, which finds its expression merely in taking account of the existing treaty obligations of all the member states in interpreting Union law. This ‘taking account of’ such obligations is, as far as the author knows, also practiced by Commission and Council, when drafting Union legislation that possibly may touch upon existing treaty obligations of all the member states. The succession doctrine, or what is left of it, is no longer based on an international obligation characterized by de facto consent from the EU, its member states and third states, as in the International Fruit case. It now finds its foundation primarily in the EU constitutional duty of sincere co-operation (enhanced good faith) between EU institutions and the member states. This obligation in turn takes account of the obligation that member states have under international law vis-a-vis their third state treaty partners to continue to carry out their existing treaty obligations in good faith, if necessary through EU legislation, even if they legally, under EU law, do no longer have the power to take on those obligations.[30] [31] There is a triangular relationship between the EU, its member states, and third states (or another international organization or regime) and good faith only operates on two sides of the triangle, that is to say between the EU (institutions) and its member states and between the member states and third states (or international organization or regime), but not on the third, linking the EU (institutions) to third states.

Between the third states and the EU such obligation does not exist, or at any rate is deemed not to exist, because the transfer of powers from member states to the EU continues to be regarded as res inter alios acta or as an illegitimate excuse under ‘national’ law that can have no consequences on the international levels6 This is a highly unsatisfactory situation of which the Union is the victim, since it is its internal constitutional order that is distorted by this state of affairs, without much hope for change, unless the Union institutions (mainly the Commission and the Court in reality) manage to force the member states to break their good faith bond with third States and thus put the latter under pressure to open the treaty regime or international organization to the EU in a shorter period than the thirty years it took for CITES” One may wonder whether this is yet another example of Antonio Gramsci’s old order dying, while the new order is kept from being born. Is it not time for international law to come to an acceptance of the reality that there is a good faith lien also between third states and the EU in this situation, in recognition of the fact that one cannot have diplomatic relations with the EU (as nearly all states now have had for many years) without having to accept that this brings a good faith duty with it to accept this fact also in other contexts?

  • [1] It is recalled that the preliminary question procedure laid down in art. 177 of the EEC Treaty (presently art. 267 TFEU) had been created in order that the lower courts of the member states may, andthe highest courts must, submit questions of interpretation or of validity of Union law to the ECJ inLuxembourg before deciding such cases. This would enhance and ensure the uniform interpretation andapplication of Union law.
  • [2] Some years later a panel of the GATT found that the EEC had violated, amongst others, this exception provided by art. XI:2(c) GATT, see EEC-Restrictions on Imports of Apples from Chile—Report ofthe Panel adopted 10 November 1980 (L/5047-BISD 27S/98) available at https://www.wto.org. This Panelreport was not given sufficient weight by the Court in a later (German) procedure concerning a similarcase, see Case 112/80, Durbeck/Hza Frankfurt/Main-Flughafen, paras 45-6.
  • [3] Article 267 TFEU (ex art. 234 TEC) reads in part as follows: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulingsconcerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies ofthe Union; Where such a question is raised before any court or tribunal of a Member State, that court ortribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
  • [4] Paragraphs 7-11 of the judgment.
  • [5] See art. 30 Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, TreatySeries, vol. 1155, p. 331. The fact referred to in the text is the submission of the EEC Treaty to the scrutiny of the GATT Contracting Parties under art. XXIV:6 GATTT, the exception for customs unions. Thearticles referred to are the present arts. 206 and 351(1) TFEU.
  • [6] Paragraphs 14-18 of the judgment.
  • [7] See formula in art. VI US Constitution: ‘... all treaties made, or which shall be made, under theauthority of the United States, shall be the supreme law of the land; and the judges in every state shallbe bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’
  • [8] One might say that there is still another element in the reasoning of the Court that hovers in thebackground, but remains unsaid, namely the exclusive nature of the EEC’s commercial policy powers,later decided in Opinion 1/75 [1975] ECR 1355.
  • [9] Pursuant to the pacta tertiis-rule (art. 34 VCLT), which art. 351 TFEU takes into account.
  • [10] Case 181/73 Haegeman [1974] ECR 449, para. 5.
  • [11] Case 30/88 Greece v Commission [1989] ECR 3711, para. 13. This principled decision led to a tidalwave of cases during the 1990s and thereafter, on the basis of non-discrimination and standstill clausesincluded in decisions by the Council of Association between the EEC and Turkey, relevant for the position of Turkish employees and their families in the Community, starting with Case C-192/89 Sevince[1990] ECR I-3461. It has to be assumed that binding decisions of international organizations are alsopart of EU law. 12 Case C-286/90 Poulsen v Anklagemyndigheden [1992] ECR I-6019, para. 9
  • [12] Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-503, paras 48-59.
  • [13] See S.T. Korman, ‘The 1978 Vienna Convention on Succession of States in respect of Treaties: anInadequate Response to the Issue of State Succession’ (1992-93) 16 Suffolk Transnational Law Review 174.
  • [14] Case C-48/69 ICI v Commission (Dyestuffs) [1972] ECR 619, Case C-137/92 BASF v Commission[1994] ECR I-2555. In the longer term the Court came ‘round to the Commission’s view of the moderateeffects approach being in conformity with the customary international law of jurisdiction’, see Case T-102/96 GencorLtd v Commission (Gencor) [1999] ECR II-753.
  • [15] See P.J. Kuijper, ‘Sanctions Against Argentina: Lawfulness Under Community and InternationalLaw’ in D. O’Keeffe and H.G. Schermers (eds), Essays in European Law and Integration, to Mark the SilverJubilee of the Europa Institute Leiden (Kluwer, Deventer 1982) pp. 141-66.
  • [16] Case T-315/01 Kadi v Council and Commission (Kadi I), [2005] ECR II-3649, paras 203-5.
  • [17] Joined Cases C-402/05 & C-415/05 Kadi v Council and Commission (Kadi I) [2008] ECR I-6351paras 281-5; 316-17.
  • [18] Case C-84/95, Bosphorus Hava Yollari Turizm v Ireland (Bosphorus) [1996] ECR I-03953, paras 21-3;Case C-177/95, Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisiand others (Loten Navigation) [1997] ECR I-1111, para. 38.
  • [19] Case C-44/79, Liselotte Hauer v Land Rheinland-Pfalz. (Hauer) [1979] ECR-3727.
  • [20] Case C-268/94, Portuguese Republic v EU Council [1996] ECR I-6207. 25 Opinion 2/94 [1996] ECR I-1759.
  • [21] Act concerning the conditions of accession and the adjustments to the Treaties—Accession of theKingdom of Spain and the Portuguese Republic [1985] OJ L 302, 23.
  • [22] 27 In general about these points: Bartels, Human Rights Conditionality in EU’s International Agreements(Oxford, Oxford University Press 2005).
  • [23] Which after Opinion 2/13, n.y.r. probably has been put off for quite some time again.
  • [24] For a brief overview of the problem, see ‘Editorial Comments. The Union, the Member States andInternational Agreements’, (2011) 48 Common Market Law Review 1.
  • [25] Article 4(3) TEU. See in general M. Klamert, The Principle of Loyalty in EU Law (Oxford, OxfordUniversity Press 2014).
  • [26] Case C-366/10, American Airlines Association [2011] ECR I-13755.
  • [27] Case C-308/06, Intertanko [2008] ECR I-4057.
  • [28] Case C-533/08, TNT v AXA Versicherungen [2010] ECR I-4107.
  • [29] See Case C-53/96 Hermes [1998] ECR I-3603; Joined Cases C-300/98 and C-393/98 Christian Diorand Wilhelm Layher [2000] ECR I-11307; and Case C-89/99 Schieving-Nystad v Groeneveld [2001] ECRI-5851.
  • [30] However in some instances Union law obligations come in direct conflict with acts under international law. Such was the case, when the CJEU forbade the member states to continue the practice ofaccepting the notifications from third states of their acceptance of a Convention on private internationallaw, which fell within EU exclusive competence, see Opinion 1/13, n.y.r.
  • [31] By analogous interpretation of art. 27 of the 1969 Vienna Convention on the Law of Treaties. 37 It is, when this scenario is looming for member states and third states, that ‘unholy’ tacit alliancesare created between these two groups of states to keep the Union out of the relevant treaty regime ofinternational organization for a ‘little bit longer’.
 
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