When in Europe: Customary International Law and EU Competence in the Sphere of External Action
(2012) 13 (11) German Law Journal 1177-1201
Posted: 23 Jul 2012 Last revised: 4 Dec 2012
Date Written: July 23, 2012
Abstract
This article attempts to provide an insight into the constitutional role of customary international law within the EU legal order by focusing on the CJEU’s relevant jurisprudence. It is split in three parts. The first part looks into the interconnectivity between EU and customary international law and its applicability to EU external action. The second part explores the ways in which international custom can be invoked by private parties in order to review the legality of EU secondary law and, therefore, escape their EU law obligations. In light of the CJEU’s recent controversial judgment in the Emissions Trading Scheme case, the third section of this article discusses the new conditions under which reliance may be placed on customary international law for private parties to be able to invoke it before the courts of the Member States in order to challenge the application of EU regulations to non-European airlines with respect to their activity outside the EU. By way of conclusion, this article will make some observations with reference to the place of customary international law in the EU legal order as an effective standard of review of EU law and a useful tool to curtail EU external competence. This is significant in determining, for instance, the extraterritorial jurisdiction of the EU vis-à-vis the enactment and enforcement of EU legislation to tackle global problems.
Keywords: EU external competence, Customary International Law, judicial review of EU acts
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