69
Second working session — The impact
Though obligations under international law are binding for the EU and
may even be given precedence over secondary law (
42
), the Court makes clear
that the autonomy and the constitutional principles of the EU legal system
exclude any immunity of acts of the Union giving effect to Resolutions of the
UN Security Council from judicial review under EU law order with regard to
the constitutional principles of the Union as now laid down in Article 2 TEU,
for ‘such review is a constitutional guarantee forming part of the very founda-
tions of the Community’ (
43
). The explanation given in paragraphs 316 and 317
of the judgment again refer to the autonomy:
‘316 …the review by the Court of the validity of any Community
measure in the light of fundamental rights must be considered to be
the expression, in a community based on the rule of law, of a constitu-
tional guarantee stemming from the EC Treaty as an autonomous legal
system which is not to be prejudiced by an international agreement.
317 The question of the Court’s jurisdiction arises in the context
of the internal and autonomous legal order of the Community, within
whose ambit the contested regulation falls and in which the Court has
jurisdiction to review the validity of Community measures in the light
of fundamental rights.’
While the EU recognises the ‘primacy’ of the relevant Resolution in inter-
national law, this does not imply primacy under Union law: It is a ‘primacy at
the level of international law’, a principle regarding the obligations under the
Charter of the United Nations (
44
). That the EU is bound by Resolutions of the
UN Security Council seems to be generally accepted, though the EU is not
party to the UN Charter (
45
). But the autonomy-claim made by the ECJ not
only distinguishes the EU legal order from international law – like it did ear-
lier regarding national law, but also stresses the independent responsibilities
of the EU institutions and, in particular of the ECJ, for ensuring the respect of
„the law’ as required under Article 19(1) TEU.
(
42
) See ECJ Case C-308/06
Intertanko
, paragraphs 42-44, 51.
(
43
) Ibid., paragraph 290.
(
44
) Ibid., paragraphs 288, 300.
(
45
) Article 21(1) TEU, however, refers among the principles to be respected by the Union to ‘the
principles of the United Nations Charter and international law’; similarly: Article 3(5) TEU
and Declaration No 13 to the Treaty of Lisbon.
