Protecting European law from international law

Abstract

This contribution analyses the relationship between international law and Community law in the light of two recent European Court of Justice (ECJ) cases on Article 307 EC, that is, the Kadi and bilateral investment treaties (BITs) judgments. The analysis discusses two concepts: (1) the concept of the 'very foundations of the Community legal order' and (2) the concept of 'hypothetical incompatibility'. The main argument that is advanced in this contribution is that with these two concepts, the ECJ has identified a constitutional dimension of Article 307 EC that hitherto has not been generally recognized. More specifically, it is argued that the main aim and result of this new line of jurisprudence is to protect the autonomy of European law from international law interferences by excluding as much as possible any conflicts between European and international law. In this sense, Article 307 EC is a tool for the ECJ to act as a gatekeeper by regulating the relationship between international law and Community law. Moreover, it is argued that the concept of the 'very foundations of the Community legal order' very much resembles the approach of the Federal German Constitutional Court, which in turn illustrates that the ECJ is performing the function of a true constitutional court of Europe. Accordingly, this article links up the external relations aspects of Article 307 EC with the closely connected internal constitutional aspects.