CYIL 2015

POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT… While this statement aims to clarify both the substantive and procedural facets of the mixed EU/Member States participation to the ECT, it lacks legally binding character because it is not anchored in the text of the ECT itself but has been made unilaterally by the European Union. On the procedural level, the suggestion addressed to potential claimants that the Union and the Member States will determine who responds to the claim may be considered an invitation which, if declined, should not trigger any adverse effects for the claimant. As regards the substantive facet and the apportionment of international responsibility between the Union and the Member States, assessment is more complex because it oscillates between two main competing lines of reasoning. This duality can be identified in international case law as well as in the ILC Draft articles on the responsibility of international organizations (the “DARIO”) 87 which, in absence of any binding international instrument, constitutes the most commanding guidance as to assessment of the international responsibility of an international organization and its Member States. The fundamental question seems to be whether the EU intra-division of competences can trigger international legal effects per se or, in other words, whether an international judge has, under the existing rules of international responsibility, to apportion the responsibility to the Union and to the Member States according to their respective competences under EU law. The response given under the classical international-law reading seems to be “no”, because the intra-EU division of competence is an intra-EU matter and if not acknowledged by the respective treaty, it does not produce any extra-EU legal effects on its own. When looked at from the “internationalist” viewpoint, the responsibility of the European actors will depend on whether the designated defendant is bound by the international rule concerned and on whether the challenged measure can be attributed to him, which is likely to rely on the identification of the “immediate actor” 88 whose behavior engendered the challenged measure. The responsibility arising under a mixed agreement, which does not contain any specific arrangement as to the apportionment of responsibility to the Union or to the Member States, is generally considered as joint and severe. 89 A good example of how both scenarios of specific and joint/severe responsibility rules can be combined is provided for in Art. 6(2) of Annex IX to the United Nations Convention on the Law of the Sea (the “UNCLOS”). 90 Interestingly, the UNCLOS mechanism is to some extent similar to 87 Yearbook of the International Law Commission , 2011, vol. II, Part Two. 88 KUIJPER, P. J., PAASIVIRTA, E., “EU International Responsibility and its Attribution …” , op. cit ., fn. No. 69, pp. 65-67. 89 On the responsibility under mixed agreements see BURGSTALLER, M., “The Energy Charter Treaty … ”, op. cit ., fn. No. 43, pp. 143-147; KUIJPER, P. J., “International Responsibility for EU Mixed Agreements” in HILLION, CH., KOUTRAKOS, P., (eds.), Mixed Agreements …, op. cit ., fn. No. 80, pp. 208-227. 90 Concl. on 10 Dec. 1982, 1833 UNTS 3. “Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of

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