CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ Court for Human Rights (ECtHR) pointing in another direction and finding Member States responsible for violation of individual rights even if the challenged measures were aimed at implementation of their EU law obligations. 15 Having regard to the diverging practice of international courts and tribunals, the ILC has cautiously leaned towards the conclusions of the Strasbourg court and decided not to include in its codification work another alternative rule of attribution according to which conduct of state organs implementing an act of an international organization should be attributed to that organization. 16 Thus, the authorities of EU Member States cannot be without further qualifications considered as de facto organs of the Union within the meaning of Article 6 or Article 7 DARIO even in situations when they implement binding acts of the Union which leave them with no margin of their own discretion as regards the way of implementation. Even in such cases, the actions of a Member State’s authorities will be − as a general rule − attributable to that Member State. As far as EU IIAs are concerned, Article 6 DARIO will be the proper provision to establish international responsibility of the Union in cases where investors’ treaty rights are violated by actions or omissions by the EU institutions (scenario 1 outlined above), but not in cases when the violation has been caused by actions or omissions by Member Sates’ authorities, even where they are purported to implement EU law obligations of that state. DARIO attempt to address some of the problematic situations by broad construction of the concept of responsibility. In certain situations, the responsibility of an international pleaded vigorously that only the Union was the proper respondent in these disputes. The individual panels and subsequently also the WTO appellate body have been receptive to this argumentation and have in principle accepted that the authorities of the Member States have in these cases acted as de facto organs of the EU for whose conduct the Union was internationally responsible. See: WTO Panel Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 June 1998, as modified by Appellate Body Report WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, DSR 1998:V, p. 1891; WTO Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, p. 3499; WTO Panel Report, European Communities – Selected Customs Matters, WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body Report WT/DS315/AB/R, DSR 2006:IX, p. 3915. For details see for example EECKHOUT, Piet, The EU and its Member States in the WTO – Issues of Responsibility, In: BARTELS, Lorand, ORTINO, Federico (eds.), Regional Trade Agreements and theWTO Legal System (Oxford: Oxford University Press, 2006); HOFFMEISTER, supra n. 12.; KUIJPER, supra n. 12. 15 The situation underlying these cases was different. All Member States of the EU are contracting parties to the ECHR, while the Union itself is not (yet). The ECtHR therefore does not have the jurisdiction ratione personae to judge on actions of the Union. In a couple of cases, the applicants have challenged the treatment afforded by the EU Member States, which was the result of the application of EU law rules by authorities of these Member States. The ECtHR rejected the proposition that the Member States authorities in these cases acted as de facto or quasi organs of the Union, and considered their conduct as attributable to the respective Member States. The most important judgments include M. & Co. v. Germany , concerning the enforcement of a CJEU’s judgment by German authorities ( M. & Co. v. Germany, No. 13258/87, 64 DR 138), and Bosphorus, concerning implementation of sanctions imposed by EU legislation by Irish authorities ( Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], No. 45036/98, ECHR 2005-VI). The factor which apparently outweighed other considerations was that in order to ensure effective protection of human rights, the ECtHR wanted to retain its own jurisdiction to deal with the cases brought before it and to keep a possibility to control the conduct of the contracting parties to the Convention resulting from implementation of their obligations from the EU membership, as if it had found that the conduct in question was not attributable to the Member States, it would probably have to reject the applications as inadmissible 16 Seventh report on Responsibility of International Organizations, A/CN.4/2009, 27 March 2009, paras 31-33.

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