CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY FOR VIOLATIONS OF INVESTORS’ RIGHTS … agent acts in an official capacity and within the overall functions of that organization (Article 8 DARIO). According to Article 7 DARIO, an international organization shall be furthermore responsible for the conduct of an organ of a state or other international organization that is placed at the disposal of the international organization if the organization exercises effective control over that conduct. Finally, an international organization shall also be responsible for the conduct which it acknowledges and adopts as its own (Article 9 DARIO). In the statement addressed to the ILC in 2004 when the work on the DARIO was in progress, the representatives of the EU expressed their concern that the proposed provisions on the attribution of conduct did not take proper account of the special situation of the EU (at that time the EC) and its practical needs. 11 The arguments of the EU, which have been further elaborated in literature, 12 can be summarized as follows. The Member States have transferred a significant portion of their sovereign competence to the Union. The rules of EU law and acts adopted by the EU institutions are binding on the Member States and automatically become integral parts of their legal orders. However, the application and enforcement of EU rules remain to a large extent the task of the Member States and their authorities as the EU, far from being a state, lacks its own comparable executive apparatus (this is sometimes referred to as ‘executive federalism’). These specific features of the EU find their reflection also in the sphere of international law. The Union is a party to many international agreements under which it has assumed many obligations to its contracting counterparties. For implementation and fulfilment of these obligations, even those falling within the areas of exclusive competences of the EU ( e.g. obligations concerning the external dimension of the customs union), the EU relies on Member States and their authorities. If these authorities apply EU law rules which are inconsistent with the international commitments of the Union, such conduct should be under existing rules on attribution prima facie attributed to those Member States. However, the EU representatives were of the opinion that in such situations the international responsibility should be borne by the Union. In this regard, some authors have called for a criterion of ‘normative control’, which should apply as an alternative to the codified criteria of attribution. 13 This position has been asserted by the Union particularly in trade disputes resolved under the auspices of the WTO and has generally been endorsed by the WTO panels. 14 On the other hand, there is a series of judgments of the European 11 Statement on behalf of the European Union by Dr Johan G. Lammers, Legal Adviser, MFA. Item 144: Report of the International Law Commission on the work of its fifty-sixth session. Responsibility of International Organizations. Sixth Committee – 59th session of the General Assembly (New York) 5 November 2004, http:// eu-un.europa.eu/eu-presidency-statement-report-of-the-international-law-commission-on-the-work-of-its- fifty-sixth-session/ (accessed 7 August 2016). 12 See for instance Kuijper & Paasivirta, supra n. 7; HOFFMEISTER, Frank, Litigating against the European Union and Its Member States – Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?, 21 European Journal of International Law 723-747 (2010); or KUIJPER, P. J., International Responsibility for EU Mixed Agreements, In: HILLION, Christophe, KOUTRAKOS, Panos (eds.), Mixed Agreements Revisited: The EU and its Member States in the World , 208-227 (Oxford: Hart Publishing, 2010). 13 HOFFMEISTER, supra n. 12, at 746. 14 The WTO agreements have been concluded by the Union and all its Member States as mixed. In a couple of cases, the other contracting parties (particularly the USA) attempted to bring proceedings within the WTO dispute settlement mechanism against individual EU Member States. The EU representatives have argued in these cases, relying on the line of reasoning outlined above, that in the matters falling within the EU competence only the Union could be internationally responsible for any eventual breaches of international law rules, and

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