FULL TEXT -The Contribution of the ECJ to the Methodology of International Law – Riaan Eksteen PhD, 19 September 2019
Presented at the International Law Association’s Regional Conference 2019 devoted to
The Contribution of Case-law of International Courts and Tribunals to the Development of International Law,
to be held at Braga, Portugal, on 19 and 20 September 2019.
The European Court of Justice (ECJ) has maintained its role as chief interpreter of European Union (EU) law ever since its establishment. Its mandate has evolved through a series of Treaties. The Treaty of Lisbon is now the definitive treaty governing the EU and a pivotal point for European integration. The Treaty renamed the whole judicial system as the “Court of Justice of the European Union” (CJEU). Its main component is henceforth to be known as the Court of Justice — previously the ECJ. This development has, however, not reduced the importance of the ECJ in any way. In fact, its role has expanded. But even more so, its influence increased with the TEU seeking to ensure a more systematic account of overall objectives. Consequently, the ECJ does not define the Union’s objectives. It accepts them as defined by the political institutions and the TEU. For Beck the ECJ relies on whichever arguments favour a pro-Union solution to the legal question raised and an expansive reading of the competences of the EU institutions. This observation leads him to a critical assessment of the Court whereby he concludes that the ECJ does not accept international law as automatically binding within the EU legal order.
Judicial independence is a fundamental principle that is safeguarded throughout the EU. Core to the judicial identity of the Union is the ECJ. This Court is one of the most powerful
* Author of the recently published book: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. Currently Senior Research Fellow at the Department of Politics and International Relations in the Faculty of Humanities, University of Johannesburg.
supranational courts in world history. It has an extensive authority that has been clearly achieved and defined. In that process the Court has advanced a major aim of the Union from an early date, namely Integration. While it has zealously demonstrated and safeguarded its independence, the ECJ became its main proponent. With the necessary authority the Court extended the parameters and depth of European integration.
Over six decades the EU has developed into an integrated organisation founded on the constitutional order that the Court has ensured and continued to protect. However, Lawlor makes two apposite statements: First, that the Court in evolving over decades has transformed itself from being a Court by treaty law into one which is and continues to achieve supra-national dominance over the courts of Member States and in matters of international treaty law. Secondly, in doing so the ECJ has ensured the supremacy of EU law over potentially conflicting international law.
As guardian of justice the ECJ is guided by the inalienable principle of the rule of law. From that has flown the other characteristic that is inextricably part of the Court’s existence — judicial review.
Many ECJ decisions have a political dimension and concern fundamental principles. Over the years, the ECJ’s judicial activism has encountered both praise and criticism, with some claiming that its growing powers have eroded its popular legitimacy. Such claims have gained traction since the expansion of the Court’s jurisdiction to include areas like human rights, monetary policy, immigration and citizenship. It is on this expansive array of issues that the ECJ has already pronounced itself and on which the Court is committed to guide the EU.
Contribution to the Methodology of International Law
During the EU’s existence international law has become part of its legal order. International obligations of Member States are no longer confined to their own domestic constitutional surroundings. They are now more and more governed by EU law. European integration has brought consequences for Member States in the field of international law. The ECJ has facilitated and advanced European unification by means of judicial interpretation and influential rulings. This interpretation became central to its transformation of EU law from treaty-based international law into what Beck describes as “a hegemonic supra-national legal order”.
It is against this background that the ECJ’s application and interpretation of international law has to be assessed and recognised. As methodology seeks to define the means of acquiring scientific knowledge, the Court consequently supplies rich, varied and significant research material. As a source of international law the Court is unique. Its rulings contain persuasive arguments to ensure the proper structuring of core theoretical frameworks for research. The main structure is thus based primarily on qualitative research focusing on the identification of the relevant rulings and thereafter systematic analysis of their contents and impact. To complete the understanding of the ECJ’s place in international law these rulings must be placed in the broader context of the Court’s own understanding and appreciation of the EU’s legal order.
When it comes to the sources of international law and the practice of treaty interpretation no better institution presents itself than the ECJ. Especially its treaty interpretation is beyond compare. Rulings in which these interpretations are embedded have cemented the pillars of the European legal order. Bold jurisprudence has enabled the Union to advance new policies. What has emerged from this role of the Court is that it presents two sides of equal importance: decisions advancing the aims of the EU; and decisions limiting the formulation and execution of policy.
In methodological writing the term qualitative data is generally taken to encompass the rough materials researchers collect from the field they study. The case study research method provides insight and enables interpretation leading to a substantive end product — an in-depth study of a particular topic rather than a superficial reading of a few sources. Careful case selection that focuses on relevancy is at the heart of this qualitative research. The array of cases that is available for this purpose is impressive and unsurpassed. One point in this regard that has to be noted is the one which Beck highlights as follows:
… the decision-making of the CJEU is not subject to unusually high legal uncertainty. The CJEU’s decisions are probably more predictable than those of many higher national courts. They are predictable, however, not because the CJEU approach is governed by a high degree of methodological rigour, but because its pro-Union prejudice is so settled.
Rule of Law in the Framework of the ECJ
The ECJ has demonstrated that the rule of law is vital to create and ensure a democratic and equitable Union and to defend its core principles. Throughout its history the Court has held the rule of law to be supreme and the fundamental cornerstone for what the EU stands and wants to promote. The rule of law is, and remains, undeniably sacrosanct for the Union — one EU Foreign Minister once referred to it as the cement for the EU.
The ECJ has always relied on strong European traditions and values. This contributed much to the Court’s success in strengthening democracy throughout the Union and across Europe. The eminent role played by the EU’s judiciary is firmly embedded in the ECJ’s dictum that the EU is based on the rule of law. In the celebrated ruling commonly known as “Les Verts” the ECJ emphasised in this regard that the EU
… is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty … [which] established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions.
This concept is found in legal texts and judicial practice embodies it as the linchpin of the Union. Consequently, the principle found a prominent place in Article 2 of the TEU which enumerates the values on which the EU is founded. Article 21(2) expands on the key objectives that define the Union’s common policies and actions with the aim of consolidating and support democracy, the rule of law, human rights and the principles of international law. Their impact on the Union’s affairs has been felt in numerous ways. The consequence has been that a judicial institution, such as the ECJ, has increasingly limited the capacities of national political institutions to make and implement policies — foreign and domestic.
Ever since the ECJ has treated the supreme treaty of the EU as the constitutional document of a supranational polity based on the rule of law. This concept along with democracy and human rights became dominant in political and legal discourses. Pech has undertaken a most useful audit of the rule of law. He treats this subject with great care and the critical analysis allows him to explore the principle in the ECJ’s case law; to identify jurisdictional gaps; and to conclude that the Treaty of Lisbon has substantially strengthened compliance with the principle of the rule of law as far as the EU’s constitutional parameters are concerned.
That the Court has been able to develop its authority and entrench its influence is perhaps even more relevant today than it was when the ECJ started crafting its own revolution. The dominant narrative about the ECJ is that of an unusually powerful Court that is able to progress into new policy sectors. And because of the substance of its deliberations and rulings the Court is regarded as a “political actor”. In sum: the implementation of the rule of law in the EU permeates the jurisprudence of the ECJ.
Even in time of crisis and conflict it is incumbent on the judiciary to ensure that the rule of law is respected, obeyed, enforced, and defended so that it remains and is held supreme. In the final analysis it is the EU body politic that proposes but its judiciary that disposes. In so doing the ECJ has valiantly defended the rule of law with its stern reprimands whereby it has lived up to its role of upholding the rule of law in exemplary fashion.
Over decades the ECJ has established a framework within which the rule of law is supreme and which has gained respect, recognition and acceptance not only within the EU itself, but, quite significantly, also internationally. The Court has demonstrated that the EU family will be held to account in upholding the rule of law – the indispensable cornerstone of EU democracy and integration as concretised in EU treaties. It is thus the role of the Court to ensure that the rule of law, the treaties and these principles are respected by and adhered to by all Member States and their national institutions. Furthermore, to defend the rule of law under all circumstances and oversee adherence to it by all institutions under the umbrella of the EU and their members. And not to tolerate any action that will undermine its effectiveness. With that it is ensured that all institutions serve as bastions of democracy and uphold the rule of law. Von Danwitz concludes appropriately that the rule of law is not a static concept; it is a living instrument.
It grows and changes its profile with the evolution of society due to economic, social, technological, and political factors.
With that approach the Court had no difficulty in developing a rights-based jurisprudence. It formalised a new era of judicial activism.
Judicial Review in the Framework of the ECJ
The extent to which judicial review is granted and effectively exercised is a key element for the evaluation of any modern legal system. In any legal system that is based on the rule of law a constituent part is judicial review. The EU is no exception. The record of the ECJ shows that the Court has applied judicial review without fail and without fear or favour. It forms the cornerstone of constitutional law. Judicial review enables the Court to play a particular important role in this regard whereby it has made certain its authority is seen and recognised.
The EU is a major treaty-making power and signatory to numerous bilateral and multilateral agreements. All of them are part and parcel of the legal order of the EU. They all bind the Union and its Member States. This power of judicial review is thus of crucial importance in respect of all these agreements. The other heavy responsibility the Court bears is to oversee the proper and consistent interpretation and application of the basic law of the Union, lately the TEU.
From an early stage it has claimed the sole authority to legally evaluate all EU treaties and commitments having international and legal implications for the Union. For the ECJ, the purpose of judicial review is not only to determine whether national laws are consistent with European law, but, most importantly, to declare illegal any EU action or national law that violates an agreement entered into by the EU that has international consequences for the Union. This resulted in the ECJ establishing the doctrine of EU law supremacy, which in turn created the doctrine of direct effect. The impact of these two maxims has been considerable. Together with these two principles the most important achievements of the ECJ in constructing a constitutional legal order for the EU are, according to Eckes, the development of the general principles of European law. Beck elaborates on this point by arguing that the ECJ has adopted an uncompromising position in guarding its own autonomy and judicial pre-eminence over the interpretation of every aspect of EU law and a similarly restrictive approach to the legality of international agreements.
Judicial review does not only invalidate blatantly unconstitutional law it could be used by the judiciary to expand or contract its jurisdiction. For Barrett judicial review has been credited as an important feature of a strong and independent judiciary and necessary for judicial independence. Van Elsuwege draws attention especially to the rule enumerated in another case that decided unequivocally that only the ECJ has the power to declare EU acts invalid. For him that is crucially important to ensuring uniformity in the application of EU law within the EU legal order. It is essential to note Van Elsuwege’s final observation in this regard that
… building upon a tradition which already started in the pre-Lisbon period, the Court seeks to uphold the rule of law within the constitutional limits of the Treaties.
The EU demonstrated to the world through its Court that robust international legal oversight can co-exist with important national values such as democracy, dealing with security threats, and respecting heterogeneous national values. Once empowered as such the Court was set to rule on the legality of counter-terrorist measures against individuals.
The ECJ and Case Study — The Kadi Cases
In studying the ECJ and its cases several major themes emerge. One of the more important ones relates to human rights. It lifted the issue of human rights to a global level. It placed fundamental rights at the apex of the EU’s edifice. Human rights became the soul of the whole legal order of the EU. In several cases the Court has dealt with crucial aspects of this all-important subject. The four cases involving Yassin Kadi and the Al Barakaat Foundation are prime examples. No study of the EU legal system and of the impact of ECJ’s rulings is ever complete without due attention paid to what is commonly referred to as the Kadi cases.
For nine years, Courts in the ECJ system were engrossed with these cases. The saga in these Courts commenced when the United Nations Security Council (UNSC) included Kadi and the Foundation on its terrorist list. Their travails ended, and their legal struggles came full circle when the UNSC eventually recognised and considered the impact of these cases. That caused the UNSC to substantially adjust its approach to listings and delistings in order to improve the procedures in its sanctions regime in terms of due process. That change constituted a major reform of the UN sanctions system with key procedures adjusted.
For several reasons these four cases have a special place in the annals of the ECJ. First, while access to the Court is mainly accorded to the EU’s institutions and Member States, individuals have practically no standing before the Court. In special cases when individuals challenge legal instruments that affect them directly, as in the case of Kadi. Secondly, with its Kadi II ruling, the ECJ placed fundamental rights at the heart of the EU legal order — the shining light on fundamental rights. The ECJ has placed sharper focus on security concerns and human rights protection. It secured an appropriate balance between fighting terrorism and protecting those rights when security concerns and human rights protection were merged for the first time. The Court moulded these rights and concerns into an overpowering concept: the threat of international terrorism must effectively be addressed without imposing disproportionate restrictions on the human rights of those suspected of supporting terrorism.
Thirdly, that ruling became the legal interface between the EU and the UN and its Security Council (UNSC). Important to note that there was no conflict between European and international law obligations as far as the aim of fighting international terrorism was concerned. What the Court did was to warn EU institutions and Member States that they cannot hide behind the UNSC and escape judicial review. For Poli and Tzanou this is an exercise of full judicial review over regulations implementing UNSC resolutions. Harpaz categorised the ECJ ruling as robust, inward-looking, human-rights oriented, and constitution-based, in which the Court provided a venue for indirect judicial review of UNSC resolutions and restored the EU legal order to its constitutional foundations. This landmark judgment basically announced that as long as the UNSC with its rigid sanction regimes do not create an effective mechanism of protection and review of individual rights affected, however indirectly, by UNSC resolutions, it would continue to engage in judicial review of those acts designed to give effect to the former. It is true that the ECJ did not directly review the lawfulness of UNSC resolutions, but limited itself to annulling the contested EU regulations insofar as they concerned Kadi and the Foundation, on the grounds that the EU, while implementing UNSC resolutions, had not respected fundamental human rights, such as the right of defence, in particular the right to be heard, and the right to effective judicial review of those rights. In this context, the ECJ also found it necessary to note that the contested EU regulations could not be considered directly attributable to the UN.
Fourthly, in the EU and its institutions the rulings had more than ripple effects. The ECJ was not only critical of the Commission and Council in several of its pronouncements, it ruled against them by rejecting their appeals. While the Court reined in their powers it widened the scope of its own and cemented them. It refused to defer to these EU executive bodies.
Lavranos encapsulates the end result of these cases with the observation that the rule of law prevailed. According to him, that is exactly what distinguishes the European constitutional legal order from the UN legal order, which is still based on power politics and diplomacy. When the Court had to decide on commitments to multilateralism in the form of UNSC resolutions it opted for what would meet first and foremost the EU’s standards on human rights. The handling of the Kadi cases is testimony to the ECJ’s forceful and uncompromising stand on human rights. This the ECJ has made very clear: an obligation imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of any EU Treaty. Strydom gives this particular perspective on the ECJ’s decision:
When the ruling went on appeal to the Grand Chamber, the Chamber took the view that the contested EC regulation that gave effect to the applicable Security Council resolution, should be seen as part of the EC’s internal and autonomous legal order, established by the EC Treaty, and subject to the review jurisdiction of the European Court of Justice, which may rule on any EC measure in light of the fundamental rights guarantees that form an integral part of that autonomous legal order.
In evaluating the Kadi cases it is imperative to note the case of Haegeman in which the ECJ nearly three decades earlier confirmed the principle that an international agreement concluded by the EU formed an integral part of the EU legal order. In a more recent case the ECJ ruled that, in accordance with the Court’s settled case-law, international agreements concluded by the EU pursuant to the provisions of the treaties constitute, as far as the Union is concerned, acts of the institutions of the Union. In a subsequent paragraph the Court makes this significant determination:
Moreover, the European Union is bound, in accordance with settled case-law, when exercising its powers, to observe international law in its entirety, including not only the rules and principles of general and customary international law, but also the provisions of international conventions that are binding on it.
To better understand and appreciate the whole Kadi saga and its far-reaching consequences there is voluminous research material that forms indispensable sources that underline the contribution of the ECJ to the methodology of international law. A wide range of topical subjects is available for in depth analysis. Background on Kadi and the Foundation is necessary to understand the complexity of issues the ECJ had to deal with and why each of the different decisions caused such a deluge of commentary — and why the reasoning for each provoked such severe criticism in certain quarters. It was that full review over EU regulations implementing UNSC resolutions that cemented the Court’s role of judicial review. In the end the Court annulled the EU’s measures adopted to give effect to these resolutions and made its ruling a perspective firmly rooted in European law, explicitly stating that international law could not alter the fundamentals of European law. Eckes continues to provide valuable insights. In that process she debunks the notion that with decisions, such as Kadi II, the ECJ has become less international law friendly and has changed its attitude. To support her contention she relies on the fact that with the entry into force of the Treaty of Lisbon litigation in the ECJ that relates to international law could increase.
The Kadi cases have demonstrated that case studies in the context of the ECJ can be complex. They involve multiple sources. However, this is a major strength of the case study design: the opportunity to use many different sources of evidence. Case study knowledge is more concrete, more contextual and more orientated towards interpretation. It also clears up differences of opinion on issues when conclusions are reviewed. This method of research and enquiry helps to gain an in-depth and valid understanding of the complexities involved in the topic and how they interlock with a specific research problem.
With fresh concepts and ideas presenting themselves, further research is stimulated. This invariably results in additional insights, which make a stronger impact. The advantage of the case study method is that it helps to focus on specific and relevant cases and not necessarily only the interesting and popular ones. In analysing rulings, recurring themes and principles are found. Eventually it fulfils the overall aims of any study. This is made possible because conceptual issues are important in case study research. Theory development then becomes possible because case studies bring that potential to the fore.
Fuller and more comprehensive insight into, and understanding and appreciation of the Courts’ functioning in general become possible. That being the case, the qualitative and case study approach proved most suitable when it was required to observe a process involving the application of certain principles, taking on the importance of doctrines, by the ECJ over a period of time. What is most important is that case study sometimes covered many years and decades to trace the origin and establishment of these doctrines. In the case of the ECJ, reference must again be made to principles of supremacy and direct effect. All of this confirmed that the goal of case study research is essentially descriptive and of historical significance.
Importance of Historical Material
History of court cases captures crucial developments in and important applications of rulings, especially when a particular issue or ruling is studied over a period of time. This life trajectory ensures that critical events are evaluated. Central themes can be identified and adequately considered in preparing the ultimate conclusion of the study. Fundamental rulings enable a determination to be made about the Courts’ involvement and role in the subject. Most important for a better understanding of the rulings has been research into the historical context of each epoch-making case. It is essential in rulings of the ECJ whereby this Court has established the principles of supremacy and direct effect. In the cases of Van Gend & Loos and of E.N.E.L. the ECJ structured these two pillars of EU law. They carry consequences for each Member State. The ECJ condensed and enunciated what has become known as the supremacy or primacy principle which requires that in the case of a conflict national law must yield to community law. The impact of these two maxims has been considerable. They are of profound importance for the EU legal system. They resonate until this day. They are still guiding principles. Due to the establishment of the doctrine of supremacy and direct effect in previous landmark cases the Court no longer had to defend its existence but was able to expand its jurisdiction, and consequently also its influence beyond the borders of the EU. First, the ECJ moved well past its initially timid approach to human rights cases. It ushered in a new era of judicial activism. Secondly, it started another era as well: from this point onwards, the ECJ would have no hesitation in annulling the actions of the EU Commission with increasing frequency. It thereby cemented its own authority while limiting that of the other EU institutions.
With them the ECJ laid a firm foundation for a totally new legal order. By employing these two principles the Court entrenched four freedoms of the EU system: freedom of movement of persons, goods, services and capital. These freedoms are now enshrined in the EU as basic tenets. As such they have played a significant role in the evolution and development of the EU and in the achievement of ambitious common aims among its Member States.
Moreover, the Court was henceforth treated as both a legal and political actor whose rulings have played a key role in constitutionalising EU treaties. From the application of these two doctrines also followed importantly governmental respect for fundamental rights, rights that are instrumental in furthering both human rights and democracy. They ensured that two concepts were to an even greater extent ingrained into the legal tradition of the EU. With this in mind, the outcome of the main Kadi case should not have been that big a surprise.
The ECJ makes a profound contribution to the methodology of international law. Wouters and his co-authors subscribe to this when they devote their book to the understanding of the europeanisation of international law. With that terminology they mould the relationship between international law, EU law and national law into one meaning — EU law as applied by the ECJ determines how international law is to be adhered to by the EU and its Member States.
- Books and Articles
Alter KJ (2008). The European Court of Justice and European Legal Integration: An Exceptional Story or Harbinger of the Future? In: Whittington K, Kelemen RD, Calderia, GA (eds) The Oxford Handbook of Law and Politics, Oxford University Press, pp. 209-228.
Barrett KR (2007). Pre-Accession Influence of the European Court of Justice: Do Constitutional Courts Use the European Court of Justice? Paper presented to the 48th Annual International Studies Association Convention in Chicago, Illinois, pp. 1-23.
Beck G (2018). The Court of Justice of the EU: Imperial, not Impartial. Politeia, pp. 3-49.
Boschiero N; Scovazzi T; Pitea C and Ragni C (eds.) (2013). International Courts and the Development of International Law: Essays in Honour of Tullio Treves. Asser Press, The Hague.
Cannizzaro E; Palchetti P; and Wessel R (eds.) (2011). International Law as Law of the European Union. Martinus Nijhoff, Leiden.
Cremona M (2014). A Reticent Court? Policy Objectives and the Court of Justice. In: Cremona M, Thies A European Court of Justice and External Relations Law: Constitutional Challenges. Hart Publishing, Oxford, pp. 15-32.
De Búrca G (2010). The European Court of Justice and the International Legal Order after Kadi. Harvard International Law Journal, Vol. 51, No. 1, pp. 1-49.
Eckes C (2010). International Law as Law of the EU: The role of the Court of Justice. Centre for the Law of EU External Relations. CLEER Working Papers 2010/6, pp. 1-24.
Fabbrini F (2010). The Role of the Judiciary in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the United States Supreme Court and the European Court of Justice. Yearbook of European Law, Vol. 28, pp. 664-697.
Ferejohn J (2002). Judicializing Politics, Politicizing Law. Law and Contemporary Problems, Vol. 65, No. 3, pp. 41-68.
Grasso C (2018). The European Court of Justice as a bastion of democracy and rule of law. openDemocracy, 20 September 2018.
Harpaz G (2009). Judicial Review by the European Court of Justice of UN ‘Smart Sanctions’ Against Terror in the Kadi Dispute. European Foreign Affairs Review, Vol. 14, pp. 65-88;
Harpaz G (2018). Common Foreign and Security Policy, counter-terrorism measures and judicial review: Hamas and LTTE. Common Market Law Review, Vol. 55, No. 6, pp. 1917-1940.
Lavranos N (2007). UN Sanctions and Judicial Review. Europa Law, Amsterdam.
Lavranos N (2009)a. Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities Judgment of the European Court of Justice Grand Chamber 3 September 2008. Legal Issues of Economic Integration, Vol. 36, No. 2, pp. 157-183.
Lavranos N (2009)b. Judicial Review of UN Sanctions by the European Court of Justice. Nordic Journal of International Law, Vol. 78, pp. 343-359.
Lawlor S (2018). Foreword: in Beck G (2018) The Court of Justice of the EU: Imperial, not Impartial. Politeia, pp. 1-2.
Losurdo F (2007). The Rule of Law in Europe – The Rule of Law in the Interpretation of the European Court of Justice. Summer School in European Public Law, 26 August – 1 September 2007.
Martinsen D (2015). An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union. Oxford University Press.
Moens G and Trone J (2010). Judicial Review and the European Court of Justice. In: Commercial Law of the European Union. Ius Gentium: Comparative Perspectives on Law and Justice, Vol 4. Springer, Dordrecht, The Netherlands.
Paso M (2012).The Court of Justice of the European Union as a Rhetorical Actor. Maastricht Journal of European and Comparative Law, Vol. 19, No. 1.
Pech L (2010). ‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law. European Constitutional Law Review, Vol. 6, No.3, pp. 359-396.
Poli S and Tzanou M (2009). The Kadi Rulings: A Survey of the Literature. Yearbook of European Law, Vol. 28, No. 1, pp. 533-558.
Rasmussenn H (1993). European Community Case Law: Summaries of Leading EC Court Cases. Handelshøjskolens Forlag, Copenhagen.
Rosas A (2018) The European Court of Justice and Public International Law. Meeting of the Council of Europe Committee of Legal Advisers on Public International Law (CAHDI), Strassbourg, 23 March 2018.
Schwarze J (2002). Judicial Review in EC Law: Some Reflections on the Origins and the Actual Legal Situation. The International and Comparative Law Quarterly. Vol. 51, No. 1, pp. 17-33.
Solanke I (2008-2009). Diversity and Independence in the European Court of Justice. Columbia Journal of European Law, Vol. 15, pp. 89-121.
Strydom H (2017). Counter-Terrorism Sanctions and Human Rights: In Maluwa T; Du Plessis M and Tladi D. The Pursuit of a Brave New World in International Law: Essays in Honour of John Dugard. (Chapter 15). Brill Nijhoff, Leiden, pp. 395-430.
Tamm D (2013). The History of the Court of Justice of the European Union Since its Origin: In Rosas A et al. (eds.). The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law. Published by the Court of Justice of the European Union on the unique occasion of its 60th anniversary.
Tridimas T and Guitierrez-Fons J (2009) EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Fordham International Law Journal, Vol. 32, No. 2, pp. 660-730.
Türk A (2010). Judicial Review in EU Law. Edward Elgar Publishing, Cheltenham, UK.
Van Elsuwege P (2017). Upholding the rule of law in the Common Foreign and Security Policy: H v. Council. Common Market Law Review, Vol. 54, No. 3, pp. 841–858.
Von Danwitz T (2014). The Rule of Law in the Recent Jurisprudence of the ECJ. Fordham International Law Journal. Vol. 37, No. 5, pp. 1311-1347.
- Cases of the ECJ
Case C-26/62 — NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration. 5 February 1963.
Case C-6/64 — Flaminio Costa v. E.N.E.L. 3 June 1964.
Case 181-73 – R. & V. Haegeman v Belgian State. 30 April 1974.
Case C-294/83 (ECR 1339) — Parti écologiste “Les Verts” v. European Parliament. 23 April 1986.
Case C 314/85 — Foto-Frost v. Hauptzollamt Lübeck-Ost. 22 October 1987.
Case C-266/16 Western Sahara Campaign UK ECLI:EU:C:2018:118. 27 February 2018.
Joined Cases C-402/05 P and C-415/05 P — Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities and the United Kingdom and Northern Ireland. Judgment of the Court (Grand Chamber). 3 September 2008. (Kadi II).
- Document of the EU
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, (2007).
Koskenniemi M (2007) Methodology of International Law, Public International Law, Oxford University Press, (Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum).
Wessel R (2018). General Principles in EU Common Foreign and Security Policy. Paper
Wouters J; Nollkaemper A and de Wet E (eds.) (2008). The Europeanisation of International Law: The Status of International Law in the EU and its Member States. TMC Asser Press, The Hague.
 The Treaty of Lisbon was signed on 13 December 2007 and entered into force on 1 December 2009. First, it amended the Treaty of Maastricht of 1993 to be known henceforth in this updated form as the Treaty on European Union of 2007 or TEU. Secondly, it amended the Treaty of Rome of 1957 to be known henceforth in its updated form as the Treaty on the Functioning of the European Union of 2007 or TFEU.
 Henceforth the CJEU comprised three courts: the Court of Justice (formally the ECJ); the General Court (formally the Court of First Instance); and the Civil Service Tribunal. ECJ, 30 November 2009.
 For the purpose of this presentation the reference to the ECJ is maintained.
 Solanke 2008-2009, p. 90.
 Cremona 2014, p. 17.
 Ibid., p. 16.
 Beck 2018, p. 48.
 Ibid., pp. 36-37.
 Grasso 2018.
 Rosas 2018.
 Lawlor 2018, pp. 1 and 2.
 Wouters et al. 2008; Cannizzaro et al. 2011; and Boschiero et al. 2013.
 Beck 2018, p. 4.
 Eckes 2010, pp. 1-24.
 Beck 2018, p. 49.
 Tamm 2013, p. 10.
 Case C-294/83 (ECR 1339) — Parti écologiste “Les Verts” v. European Parliament. Judgment of the Court of 23 April 1986, at paragraph 23.
 Von Danwitz 2014, p. 1312.
 Ferejohn 2002, p. 42.
 Pech 2010, p.359. The ECJ made this determination in Kadi II – see section dealing with Kadi cases infra.
 Ibid, pp. 369, 382-385 and 396.
 Alter 2008, p. 224.
 Martinsen 2015, p. 2.
 Paso 2012, p. 32.
 Losurdo 2007.
 Grasso 2018.
 Von Danwitz 2014, p. 1346.
 Schwarze 2002, p. 17.
 Türk 2010.
 It is for this reason that the EU has treated the Court as non-negotiable in the Brexit negotiations.
 The EU is committed to more than a thousand such agreements.
 See footnote 56 infra.
 Eckes 2010, p. 6.
 Beck 2018, p. 35.
 Barrett 2007, p. 10.
 Case C 314/85 — Foto-Frost v. Hauptzollamt Lübeck-Ost, 22 October 1987.
 Van Elsuwege 2017, p. 856.
 Ibid., p. 858.
 Alter 2012, p. 138.
 Eckes 2010, p. 24.
 De Búrca 2010, p. 49; Tridimas, Guitierrez-Fons 2009, p. 727.
 Harpaz 2009, p. 88.
 Lavranos 2009b, p. 1226.
 Ibid., p. 1228.
 Poli, Tzanou, 2009, p. 541.
 Harpaz 2009, p. 65.
 Lavranos 2009, p. 183. See also Lavranos 2007, p. 185.
 Joined Cases C-402/05 P and C-415/05 P — Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities and the United Kingdom and Northern Ireland. Judgment of the Court (Grand Chamber) on 3 September 2008. (Kadi II).
 Strydom 2017, p. 424.
 Case 181-73 – R. & V. Haegeman v Belgian State. 30 April 1974, at p. 41.
 C-266/16 Judgment of 27 February 2018, Western Sahara Campaign UK ECLI:EU:C:2018:118, at paragraph 45
 Ibid., at paragraph 47.
 Eckes 2010, pp. 15 and 16.
 Ibid., pp. 16 and 17-22.
 Ibid., p. 23.
 The Court established these two principles in 1963 (Case C-26/62 — NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration. Judgment of the Court of 5 February 1963) and in 1964 (Case C-6/64 — Flaminio Costa v E.N.E.L. Order of the Court of 3 June 1964).
 Boschiero et a. 2013.
 Wouters et al. 2008; See also Cannizzaro et al. 2011.