CYIL 2015

MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ the challenged conduct because this would endow the ECtHR with the capacity to assess the intra-EU division of competences. 117 A second flaw identified by the CJEU which is relevant here was the ECtHR’s envisaged power to decide, by exception to the general rule of joint responsibility borne by the EU and the Member State(s) acting as co-respondents, that only one of them is responsible. Indeed, explains the CJEU, “[a] decision on the apportionment as between the EU and its Member States of responsibility for an act or omission constituting a violation of the ECHR established by the ECtHR is also one that is based on an assessment of the rules of EU law governing the division of powers between the EU and its Member States and the attributability of that act or omission.” 118 Reflecting on the fact that the adjustment of international responsibility by the ECtHR could be done “solely on the basis of the reasons given by the respondent and the co-respondent”, the CJEU held that this was still not protective enough of the EU law specificity because “[t]o permit the ECtHR to confirm any agreement that may exist between the EU and its Member States on the sharing of responsibility would be tantamount to allowing it to take the place of the [CJEU] in order to settle a question that falls within the latter’s exclusive jurisdiction”. 119 For further reflection, it is useful to compare this statement with the above-referred UNCLOS “right respondent” mechanism which includes the default rule of joint and severe responsibility of the Union and its Member States, although in these circumstances, the international judge is not equipped with explicit powers to further adjust it. Also, references should be made to the WTO agreements and the ECT, which leave the issue of attribution open and therefore at the will of the respective adjudicating bodies. 120 These elements of practice notwithstanding, the most recent interpretation delivered by the CJEU in Opinion 2/13 indicates that the operating field in which the arbitral tribunals under EUSFTA, CETA and further such agreements will have to maneuver as to the attribution of international responsibility is fairly limited if the adherence to the above quoted statement of the CJEU is to be ensured . While the determination of the “right respondent” will intervene at an early stage, it would be worth considering that, in the light of the uncompromising approach adopted by the CJEU in Opinion 2/13, the EUSFTA specifies that the determination of the “right respondent” by the Union is binding upon the tribunal (which only the CETA does at the time of writing). On the intra-EU side, if the determination of the “right respondent” mechanism should be equaled to an “agreement that may exist between

117 Opinion 2/13 quoted above, fn. No. 113, par. 215-225; esp. par. 221 and 235. 118 Opinion 2/13 quoted above, fn. No. 113, par. 230. 119 Opinion 2/13 quoted above, fn. No. 113, par. 234.

120 Commenting on the difference between the attribution of international responsibility and the issue of intra-EU division of competences see Eeckhout (P.), “Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky?”, Fordham Int’l L.J . (2015), vol. 38, pp. 955-992, pp. 979-885.

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