CYIL 2015

MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ down by the Financial Responsibility Regulation is presented as striving for budgetary neutrality as far as the Union is concerned, meaning that the latter should pay only for such misconduct that will be attributable to it under this instrument. 65 Given the overall structure of the Financial Responsibility Regulation, one might wonder whether the budget-neutrality rule should not be better proclaimed as applicable both ways protecting also the Member States’ budgets where appropriate. Apart from budgetary neutrality, when it is the Union that acts as respondent the Financial Responsibility Regulation aims at ensuring that the investor receives the payment due under an award or a settlement agreement “without delay” 66 and that such an investor is shielded against possible intra-EU disagreement as to who should pay. These payments shall be in principle mainstreamed through the Commission which then turns to the Member State concerned if appropriate. Disagreements between the Commission and the Member State on this subject will be therefore dealt with separately at the intra-EU level. 67 As mentioned above, the regime of the Financial Responsibility Regulation cannot per se infer with the attribution of international responsibility to the Union and the Member States because the latter is in principle the province of the international judge or arbitrator, who in turn, is generally bound to apply rules of international responsibility. 68 In this respect, some of the provisions of the Financial Responsibility Regulation appear problematic because they translate the ambition of the EU legislator to provide for extra-EU effects which, however, no EU act can ensure without the corresponding international-law link-ups. 69 To begin with, Recital 3 of the Preamble states that [i]nternational responsibility for treatment subject to dispute settlement follows the division of competences between the Union and the Member States. […]”. This may or may not be true. As a matter of international law, the extent to which the intra-EU division of competences will determine the assessment of international obligations of the respective “European” actors will actually depend on treaty law and lawof international responsibility as well as on what a particular international treaty might possibly say on this subject. Therefore, 65 Recital 9 of the Financial Responsibility Regulation quoted above, fn. No. 56: “The arrangements laid down in this Regulation are aimed at ensuring that the budget of the Union and Union non-financial resources are not burdened, even temporarily, by either the costs of litigation or any award made against the Member State concerned.” 68 See also KLEINHEISTERKAMP, J., “Financial Responsibility in the European International Investment Policy”. LSE Legal Studies Working Paper No. 15/2013, 2013, http://ssrn.com/abstract=2271526, p. 8. 69 On whether such links-up already exist as an international rule embracing the concept of the executive federalism (under which the attribution of international responsibility follows the intra-EU competence division) see KUIJPER, P. J., PAASIVIRTA, E., “EU International Responsibility and its Attribution: from the Inside Looking Out” in EVANS, M., KOUTRAKOS, P., The international responsibility of the European Union: European and international perspectives , Oxford [etc.]: Hart, 2013, x-372 p., pp.35-71. 66 Recital 19 of the Financial Responsibility Regulation quoted above, fn. No. 56. 67 Art. 19 of the Financial Responsibility Regulation quoted above, fn. No. 56.

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