CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY FOR VIOLATIONS OF INVESTORS’ RIGHTS … organization may be established even if the conduct is not attributable to that organization. 17 The international responsibility of the Union for violation of EU investment agreement may be in some cases construed in particular with reference to Article 15 DARIO. According to this provision, an international organization may be responsible for an internationally wrongful act of a state where it directs and controls the state in the commission such an act. As explained in the ILC’s commentary to this provision, the adoption of a binding decision on the part of an international organization could constitute, under certain circumstances, a form of direction or control in the commission of an internationally wrongful act; the assumption is that the addressee of the decision is not given discretion to carry out conduct in a way which, while complying with the decision, would not constitute an internationally wrongful act. 18 This provision could therefore apply to breaches of investor’s rights derived from EU IIAs by the conduct of Member States in the application of regulations or some other acts of EU institutions (scenario 2(a) outlined above). On the other hand, a violation of investor’s rights under scenarios 2(b), 2(c) and 3 would apparently not lead to international responsibility of the Union. Furthermore, the conceptual difference from the ‘basic’ form of responsibility of an international organization ( i.e. involving element of attribution to the internal organization) is that the responsibility under Article 15 is complementary to the responsibility of the state. The mere fact that the state was directed to carry out an internationally wrongful act does not exempt it from its own responsibility. 19 As explicitly confirmed in Article 19 DARIO, the state committing the internationally wrongful act which will be primarily responsible for the breach of its international obligation and − only where the conditions laid down by Article 15 are met − the international organization which directed and controlled the state in commission of that act would be jointly responsible with the state for such an act. 20 What can be extrapolated from this overview about the responsibility of the EU and its Member States about the responsibility for violations of investors’ rights under new EU IIAs? If the questions of responsibility were left to be governed by general international law as reflected in DARIO, the result would be a non-transparent patchwork of different variants and combinations of responsibility of the Union, the Member State which has afforded the disputed treatment, or both, depending on specific circumstances of each case. 17 Chapter IV DARIO addresses situations when international organization aids or assists a state in the commission of an internationally wrongful act (Article 14), directs and controls a state in the commission of an internationally wrongful act (Article 15), coerces a state to commit an act is internationally responsible for that act (Article 16), or circumvents its international obligation by adopting a decision binding Member States or to commit an act that would be internationally wrongful if committed by that organization (Article 17). 18 UN International Law Commission, Draft Articles on the responsibility of international organizations, with commentaries 2011 , adopted by the International Law Commission at its sixty-third session in 2011, 38-39. 19 See analogously UN International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. 2011 , Text adopted by the International Law Commission at its fifty-third session in 2001, A/56/10, 69. 20 ILC commentaries, supra n. 18, at 76. It should be noted in this regard that by this explanation in the commentary to Article 15, the ILC in principle admitted that responsibility of an international organization may arise also on the basis of the criterion of ‘normative control’, which was called for by EU law specialists. However, the result is very much different from that wished by the EU and by some commentators. In their views, this criterion should have lead to exclusive responsibility of the Union, which would release the Member State, whose organs have committed the act in question, from its own international responsibility. The effect of Article 15 however is to create joint responsibility.

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