Decisions of International Organizations the Case of EU

ARTICLES

DECISIONS OF INTERNATIONAL ORGANIZATIONS: THE CASE OFTHE EUROPEAN UNION1

Niels Blokker2

1. Introduction

2. Decisions of international organizations: a tour d'horizon2.1 Introduction2.2 Recommendations2.3 Conventions2.4 Other types of decisions of international organizations

3. The European Union: decisions of the European Communities3.1 Regulations3.2 Directives3.3 Decisions3.4 Recommendations and opinions3.5 Other types of EC decisions3.6 Conclusion

4. The European Union: Second And Third PillarDecisions

4.1 Second Pillar decisions4.2 Third Pillar decisions4.3 Second and Third Pillar decisions in perspective

5. Fortentwicklung of the concept of decisions of other internationalorganizations under the influence of EU decisions?

5.1 Introduction

1. © N . Blokker, 1999.2. Dr. Niels M. Blokker is Legal Counsel of the Netherlands Ministry of Foreign Affairs and

Senior Lecturer in the law of international organizations, Europa Instituut, Law Faculty, LeidenUniversity. I would like to thank Dr. Jorri Duursma, Dr. Rick Lawson, Prof. Dr. Ton Heukels, Prof.Dr. Nico Schrij ver and Prof. Dr. Bruno de Witte for their comments on drafts of this article. The viewsexpressed are my own views.

Netherlands Yearbook of International LawVolume XXX -1999 - pp. 3-44

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5.2 The Andean Community5.3 Mercosur5.4 The Southern African Development Community5.5 The Common Market for Eastern and Southern Africa5.6 Conclusion

6. Concluding observations

1. INTRODUCTION

It is a truism that there is no legislator at the global level identical to the legislatorat the national level. The principle of state sovereignty is difficult to reconcile withthe idea of a world legislator. This was true in previous centuries. It is still true atthe beginning of the 21st century. The role of the state is predominant in thedevelopment of international law, whether it is through treaties, customary law orany other source of international law. International law is first and foremost madeby states.3

Nevertheless, the widely recognized need for cooperation has forced states toattribute decision-making powers to a large number of international organizations.This development has not remained unnoticed. In particular in the 1960s and1970s a doctrinal debate took place - considered by some as the second crisis ofthe doctrine of sources of international law4 - on the legal status of resolutions ofthe General Assembly of the United Nations. And in 1966 Detter concluded thatinternational law-making 'has been "institutionalized" in permanent, internationalorgans. Such organs represent indeed the first tentative and decentralized fore-runners of an International Legislature.'5 While it cannot be foreseen if and howsuch an 'International Legislature' will develop in the future, it cannot be deniedthat most international law-making nowadays takes place within the framework of

3. This is further developed in CM. Danilenko, Law-Making in the International Community(Dordrecht, Nijhoff 1993).

4. SeeR.Geiger, 'Die zweite Kriseder volkerrechtlichen Rechtsquellenlehre', lOOsterreichischeZeitschrift fur offentliches Recht und Volkerrecht (1979) pp. 215-234; J.A. Barberis, 'Les resolutionsdes organisations Internationales en tant que source du droit des gens', in U. Beyerlin et al., eds., Rechtzwischen Umbruch und Bewahrung: Festschrift fur Rudolf Bernhardt (Berlin, Springer 1995) pp. 21-39. The first crisis concerned the 1930s debate on the acceptance of general principles of law as asource of international law.

5. I. Detter, Law Making by International Organizations (Stockholm, Norstedt & Soners Forlag1966) p. 329.

Decisions of international organizations 5

international organizations.6 Even though 'neither the United Nations nor any ofits specialized agencies was conceived as a legislative body', in practice 'majorintergovernmental bodies have utilized their recommendatory authority to achievebinding law where that served their aims and had the requisite political support.'7

It is therefore appropriate that the importance of decisions of internationalorganizations for the doctrine of sources of public international law is increasinglyrecognized.8

This contribution will focus on the legal character of decisions of the EuropeanUnion (EU) and examine to what extent they embody a Fortentwicklung of thegeneral concept of decisions of international organizations. The 'mirror question'of the influence of these EU developments on the concept of decisions available toother international organizations will briefly be analyzed as well.

A few preliminary observations must be made. First, as will be elaboratedbelow (section 2) the generic term 'decisions of international organizations' isused for practical reasons and does not suggest more uniformity than there is inpractice.

Second, this contribution will not discuss 'internal rules', i.e., rules of inter-national organizations which are applicable inside the organization and whichregulate their functioning. Examples of such rules are decisions concerning thecreation of subsidiary organs or dealing with the employment of staff. The limitedspace available will be used to focus on 'external rules', which are directed at theoutside world and are adopted to pursue the objectives of the organization.

Third, already within the EU alone there is a wide variety of types of decisions.A distinction may be drawn between decisions adopted within the supranationalcontext of the European Communities, and decisions of the so-called Second andThird Pillar. A common wisdom holds that the former are most innovative and thatSecond and Third Pillar decisions are essentially the same as decisions of otherinternational organizations. The analysis below will demonstrate to what extentthis common wisdom is correct.

6. G.J.H. van Hoof, Rethinking the Sources of International Law (Deventer, Kluwer 1983) pp.210-212. See extensively O. Schachter and C.C. Joyner, eds., United Nations Legal Order, 2 Vols.(Cambridge, ASIL - Cambridge University Press 1995) in particular the introductory analyses bySchachter at pp. 1-31, Szasz at pp. 35-108 and Kirgis at pp. 109-168.

7. O. Schachter, 'The UN Legal Order: An Overview', in Schachter and Joyner, op. cit. n. 6, atp. 2.

8. See K. Skubiszewski, 'A new source of the law of nations: resolutions of internationalorganizations', in M. Batelli and P. Guggenheim, eds., Recueil d'etudes en hommage a PaulGuggenheim (Geneva, Tribune 1968) pp. 508-520; P.C. Szasz, 'General Law-Making Processes', inSchachter and Joyner, op. cit. n. 6, at pp. 35-108. See also the discussion in the Institute ofInternational Law: Yearbook Vol. 61, Part I (Session of Helsinki 1985).

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Fourth, a large number of books and articles have been written on specificdecisions of specific international organizations. The analysis therefore has to besuccinct and will be limited to the most significant aspects.

The structure of this contribution is as follows. First, a tour d'horizon will begiven of the different types of decisions of international organizations (section 2).In section 3 EC decisions will be analyzed. Next, the different types of decisionsexisting within the EU's Second and Third Pillar are examined (section 4). Finally,the question will be addressed if EU decisions have been used as examples forother international organizations (section 5). The main conclusions are sum-marized in section 6.

2. DECISIONS OF INTERNATIONAL ORGANIZATIONS: A TOURD'HORIZON

2.1 Introduction

A frequently professed view of decisions of international organizations is thatthese decisions are not binding unless member states have given their consent insome way.9 However, while this view may be correct for some organizations, acloser look at this will show that there is room for nuance here.

Every international organization has its own types of binding and non-bindingdecisions that may be adopted by its organs and that are often not defined inprecise terms by the constituent instrument of the organization. Such decisionsoften carry different names and have different characteristics, as they are tailoredto the different objectives and competences of international organizations. TheInternational Civil Aviation Organization (ICAO) has its 'international standards'and 'recommended practices'; the World Health Organization (WHO) may adopt'regulations' that differ fundamentally from EC regulations.

Nevertheless, decisions of international organizations have sufficiently incommon to justify the use of a generic term. In particular, a distinction can bemade between binding and non-binding decisions. Binding decisions are usuallybi- or multilateral conventions concluded within the framework of an internationalorganization.10 But most decisions of the majority of international organizations

9. E.g., H.-J. Seeler, 'Die Legitimation des hoheitlichen Handelns derEuropaischen Gemeinschaft/ Europaischen Union', 33 Europarecht (1998) pp. 721-733, at pp. 723-724; T.C. Hartley, TheFoundations of European Community Law, 3rd edn. (Oxford, Oxford University Press 1994) at pp. 9-10.

10. See further below, section 2.3. The term conventions is commonly used for treaties drafted byinternational organizations, although sometimes other terms are applied as well, such as agreements(Council of Europe). See further on this issue of terminology H.G. Schemers and N.M. Blokker,


are non-binding, strictly unilateral acts. The general term 'recommendation' willbe used here for these decisions. This term is widely applied for this type ofdecision. Only in exceptional circumastances is it used for binding decisions."

While the distinction between binding and non-binding decisions is clear intheory, in practice it is not. For example, it is not apparent if resolutions of the UNSecurity Council not adopted under Chapter VII of the Charter are binding,12 andthere is similar uncertainty as far as presidential statements (made on behalf of theCouncil) are concerned.13 Likewise, within the European Union, it has not alwaysbeen clear if certain decisions adopted within the Second or Third Pillar arebinding or not. A case in point are some Joint Actions that were consideredbinding by the Netherlands and not binding by the United Kingdom.14 Thus, inbetween the categories of binding and non-binding decisions there is aconsiderable terra nullius of decisions of international organizations, the legalforce of which is unclear - a twilight zone of nebulous normativity.15 It shouldtherefore be welcomed if the International Law Commission would decide to putthe topic 'unilateral acts of international organizations' on its agenda to discuss theneed of codification in this field, and would not limit its deliberations on unilateralacts exclusively to unilateral acts of states.16

International Institutional Law, 3rd edn. (The Hague, Nijhoff 1995) at pp. 779-780.11. Treaty establishing the European Coal and Steel Community, Art. 14.12. According to Higgins such resolutions may be binding, while to Frowein they are not. R.

Higgins, "The Advisory Opinion on Namibia. Which UN Resolutions are binding under Article 25 ofthe Charter?', 21ICLQ (1972) pp. 270-286; J.A. Frowein, 'United Nations', 5 EPIL (1983) at p. 277etseq.

13. P. Tavernier, 'Les declarations du President du Conseil de s&uritd', 39 AFDI (1993) pp. 86-104. See also UN Doc. S/26015.

14. See D.M. Curtin and J.F.M. Pouw, 'Samenwerking op het gebied van justitie en binnenlandsezaken inde Europese Unie: pre-Maastricht-nostalgie?', 5£W(1995) pp. 579-605, at p. 601. See furtherbelow, section 4.2.

15. Cf., H.L.A Hart, The concept of law (Oxford, Clarendon 1961). Hart mentions uncertaintyabout the law as one of the three defects that appear when a society with only primary rules ofobligation grows more complex. This defect is remedied by the introduction of a so-called rule ofrecognition that makes it possible to distinguish between rules that are binding and rules that are not.According to Hart - writing in 1961 - international law 'resembles in form though not at all in content,a simple regime of primary or customary law', but 'perhaps [...] is at present in a stage of transition'.See the 2nd edn. (1994) at pp. 92-95 and 232-237. Hart's analysis could perhaps explain why it is oftennot clear whether or not decisions of international organizations are binding. International society isbecoming more complex, but lacks a full-fledged rule of recognition to remedy this defect.

16. In his first report on unilateral acts of states, special rapporteur Victor Rodrfguez-Cedenoproposed to the ILC to exclude unilateral acts of international organizations from the scope of his studyon 'unilateral acts of states', and this was later supported by the ILC. At the same time, both thespecial rapporteur and the Commission suggest that the topic 'unilateral acts of internationalorganizations' could be discussed later by the ILC. See UN Docs. A/CN.4/486 and A/CN.4/L.585.

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Taking into account this uncertainty about the binding nature of decisions, theabove-mentioned distinction between recommendations and conventions is sowell-developed and so generally applied that by now these two legal instrumentsmay be called the 'archetypes' of decisions of international organizations. Theywill now be analyzed in somewhat greater detail.

2.2 Recommendations

Although there are unilateral acts of international organizations that are binding,most of them are of a recommendatory nature and do not create legally bindingobligations for states without their consent.17 However, this does not mean thatthey are legally irrelevant and it is certainly wrong to assume that they aretherefore not morally or politically binding. Of the many examples that can begiven to illustrate this point, three will be discussed briefly.

First, these instruments play an important role in the development ofinternational law.18 While recommendations have generally been defined in anegative way as non legally-binding decisions, Virally has suggested a positivedefinition: 'les resolutions d'un organe international adressees a un ou plusieursdestinataires qui lui sont exterieurs et impliquant une invitation a adopter uncomportement determine, action ou abstention. 'l9 Such invitations are sometimesconsidered most welcome in modern international society, in particular in areaswhere the need for rules is strongly felt but the timely adoption of binding ruleshas not been possible. One example is the exploration and use of outer space.When technological progress enabled states to carry out activities in outer space,no rules existed for such activities. A need was felt to develop such rules, but itwas obvious that it would take years before a treaty would be drafted and obtainsufficient (and relevant) ratifications to enter into force. In 1963, the UN GeneralAssembly adopted the Declaration of Legal Principles Governing the Activities ofStates in the Exploration and Use of Outer Space,2" and the rules included in thisnon-binding instrument filled a vacuum. The Declaration was accepted by the vast

17. See A.J.P. Tammes, 'Decisions of International Organs as a Source of International Law', 94RdC (1958 II) at pp. 265-364, in particular at pp. 344 et seq. Binding unilateral acts will be discussedin section 2.4.

18. SeeW.E. Butler, eA., International Lawandlhe International System (Dordrecht, Nijhoff 1987)in particular the contributions by Tunkin at pp. 5-19, Higgins at pp. 21 -30, Lukashuk at pp. 31 -45), andDelupis at pp. 47-65.

19. M. Virally, 'La valeurjuridiquedesrecommendationsdesorganisations internationales'./lFD/(1956) pp. 66-96; reproduced in M. Virally, Ledroit international en devenir -essais ecrits aufil desans (Paris, Presses Universitaires de Paris 1990) pp. 169-194, at p. 171.

20. GA Res. 1962 (XVIII). On this resolution, see L. Di Qual, Les effets des resolutions desNations Unies (Paris, Pichon & Durand Auzias 1967) at pp. 267-270.


majority of states and played a significant role until the entry into force of the 1967Outer Space Treaty. The 1963 Declaration was an important stepping stone for thefurther development of outer space rules in the 1967 Treaty.

More recently, a rule vacuum was felt in the area of cloning. In February 1997a cloned sheep named Dolly was born in Scotland. It was generally felt thatagreement on certain principles and rules in this area must be reached. And so ithappened that within less than one year different international organizationsformulated such principles and rules. The legal relevance of these instruments -albeit difficult to define precisely - is generally accepted; these principles andrules seem to lay down a certain 'minimum standard' in this area. The UnitedNations Educational, Scientific and Cultural Organization adopted on 11November 1997 the Universal Declaration on the Human Genome and HumanRights. Article 11 of this Declaration stipulates, inter alia, that '[practices whichare contrary to human dignity, such as reproductive cloning of human beings, shallnot be permitted.' In the same year the WHO adopted a resolution alsocondemning human cloning for reproductive purposes as contrary to humandignity.21 In 1998 the WHO adopted a resolution that '[Reaffirms that cloning forthe replication of human individuals is ethically unacceptable and contrary tohuman dignity and integrity,' and that also established a group 'with the aim ofclarifying concepts and developing guidelines relating to the use of cloningprocedures for non-reproductive purposes.'22 Only at the regional level, within theframework of the Council of Europe, has it proved possible to adopt within a veryshort time span a binding legal instrument in this area.23

Of course, these examples are not representative for any non-binding resolutionof international organizations. If the UN General Assembly recommends memberstates to develop and promote methodologies for mainstreaming a genderperspective into all aspects of policy-making, including economic policy-making,24

or if the Assembly invites member states to support the oceanographic andterrestrial observation networks to observe, describe and predict climate anomaliesrelated to El Nino,25 it will be difficult to find any legal relevance. Member states

21. Resolution WHA50.37.22. Resolution WHA51.10, adopted 16 May 1998. The application of non-reproductive cloning -

from which medical science is expected to benefit - is not generally considered unacceptable.23. The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of

the Human Being with regard to the Application of Biology and Medicine, on the Prohibition ofCloning Human Beings. This Protocol was adopted 12 January 1998 following the Second Summit ofthe Council of Europe (10/11 October 1997) which adopted an action plan in which 'the Heads of Stateand Government undertake to prohibit all use of cloning techniques aimed at creating geneticallyidentical human beings.'

24. This was recommended in Res. 52/195, para. 6 (adopted 18 December 1997).25. As was done in Res. 52/200, para. 8 (adopted 18 December 1997).

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will not feel obliged to carry out these recommendations. But the point is that non-binding instruments may respond to a widely perceived need for norm-setting - ashappened in the fields of outer space and cloning mentioned above. Theseinstruments sometimes play an important role in the development of internationallaw. Sometimes they may lead to the adoption of binding legal rules, or to theformation of customary law, and at other times this may not be the case.

More precisely, the legal effect of instruments that are in principle not legallybinding may both concern rights and duties.26 An example concerning rights aredecisions identified by Roling as 'permissive resolutions', which containrecommendations for behaviour that usually is not permissible.27 Suchlegitimization by a General Assembly majority may in the end result in thecreation of a new rule of customary law. Through a similar process, duties may becreated. Dupuy refers to 'programmatory resolutions', that proclaim principleswhich are not yet respected in practice, e.g. in the areas of environment protectionand development.28

Second, while in the examples given so far the assumption is that these acts areformally not binding, this assumption has been challenged, in particular in relationto resolutions of the UN General Assembly. Many developing countries havetaken the view that such resolutions are or may be binding in themselves, a viewthat has also received some support in doctrine.29 However, such a view is far frombeing generally accepted. The situation has been summarized as follows:'[w]hereas most developing states tend to attribute quasi-legislative force toresolutions [adopted by international organizations], claiming that their 'cumu-lative effect' can give rise to binding rules, by contrast, Western and socialiststates cling to the traditional view that, subject to certain well-defined exceptions,resolutions have a hortatory value only'.30

In the absence of a centralized legislator, general acceptance by states is aprerequisite for having such resolutions added to the list of sources of internationallaw. At the same time, in this regard the International Court of Justice may play animportant role, by establishing that in its opinion the existence of a new source of

26. See further N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Dutiesin an Interdependent World (1995) at pp. 354-357 (the references to the concepts of permissiveresolutions (Roling) and of programmatory law (Dupuy) have been taken from this work).

27. B.V.A. Roling, 'International Law and the Maintenance of Peace', 4 NYIL (1973) pp. 1-103at p. 23.

28. R.-J. Dupuy, 'Declaratory Law and Programmatory Law: from revolutionary custom to "softlaw"', in R.J. Akkerman et al. eds., Declarations on Principles: A Quest for Universal Peace (Leiden,Sijthoff 1977) pp. 247-258.

29. J. Castaneda, Legal Effects of United Nations Resolutions (New York, Columbia Univ. Press1969).

30. A. Cassese, International Law in a Divided World (Oxford, Clarendon 1986) p. 198.


international law must be recognized. A well-known example is the finding of theCourt in the Nuclear Tests Cases that states may become bound by makingunilateral declarations.31 So far, not surprisingly, the Court has not come to asimilar finding for unilateral acts of international organizations. The most specificobservation by the Court in this context can be found in the 1996 NuclearWeapons Advisory Opinion:

"The Court notes that General Assembly resolutions, even if they are not binding, maysometimes have normative value. They can, in certain circumstances, provide evidenceimportant for establishing the existence of a rule or the emergence of an opinio juris. Toestablish whether this is true of a given General Assembly resolution, it is necessary tolook at its content and the conditions of its adoption; it is also necessary to see whetheran opinio juris exists as to its normative character. Or a series of resolutions may showthe gradual evolution of the opinio juris required for the establishment of a new rule.'32

The Court does not give its opinion on the issue of bindingness of GeneralAssembly resolutions ('even if they are not binding [...]'), but mainly seekspossible legal effect in an opinio iuris which may be expressed in theseinstruments. In this way, the Court seeks possible normative value not inrecognizing such resolutions as new sources of international law, but within one ofthe existing sources, namely customary international law. Thus, bindingobligations do not originate from the resolution itself, but from one of therecognized sources of international law. A disadvantage of this approach is that itdisregards the source of the decision that was not taken simultaniously by a

31. ICJ Rep. (1974) at pp. 267-268 (Australia v. France) and pp. 472-473 (New Zealand v.France). As the ICJ indicates, it is required that the state in question has the intention to become boundand that the unilateral declaration is given publicly. Earlier, it was also recognized by the PermanentCourt of International Justice that such unilateral declarations may entail legal obligations. See PCIJSer. A/B, No. 53 (1933) at pp. 52-55 (Legal Status of Eastern Greenland, with respect to the so-calledIhlen declaration).

32. Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Rep. (1996) at pp. 254-255 (para. 70). In the case of the specific General Assembly resolutions at stake - those concerningthe use of nuclear weapons - the Court came to the conclusion that several of these resolutions hadbeen adopted 'with substantial numbers of negative votes and abstentions; thus, although thoseresolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fallshort of establishing the existence of an opinio juris on the illegality of the use of such weapons' (ibid.,at 255, para. 71). Cf., also the Court's advisory opinion in the Namibia case, ICJ Rep. (1971) at p. 50(para. 105), and the judgment of the ICJ in the Nicaragua case, ICJ Rep. (1986) at pp. 99-100. For ageneral analysis of the (earlier) case-law of the ICJ dealing with resolutions of internationalorganizations H. Thierry, 'Les resolutions des organes internationaux dans la jurisprudence de la CourInternationale de Justice', 167 RdC (1980-11) at pp. 385-450.

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number of states acting in their own capacity and expressing their own individualwills, but by an international organ having a volonte distincteP

A third reason why it is true that unilateral acts of international organizations,while generally not legally binding, may nevertheless be legally relevant, is thefollowing. Such acts are sometimes invoked before national courts, and it has beenshown that such courts often rely on them. According to Schreuer, only in a fewcases has the application of recommendations been refused for lack of bindingforce.34 More broadly, it has been observed that although UN General Assemblyresolutions are often not formally binding 'it is now widely accepted thatlegitimate expectations as to future behaviour may be engendered by them, whichonly an unwise or excessively formalistic decision-maker would ignore' in an erain which there is 'a growing use of less formal ways of creating internationalobligations'.35

Within the context of the European Communities, it is generally accepted thatnational courts are at the same time Community courts, in the sense that they mustapply Community law.36 It is relevant here to note that the role of the nationalcourts does not cease to exist if the Community decision is not legally binding. Ina case involving two recommendations the Court ruled that these could not

be regarded as having no legal effect. The national courts are bound to takerecommendations into consideration in order to decide disputes submitted to them, inparticular where they cast light on the interpretation of national measures adopted in

33. C. Schreuer, 'Recommendations and the Traditional Sources of International Law', 20 GYIL(1977) pp. 103-118, in particular at p. 109. Cf., also M. Virally, L'Organisation Mondiale (Paris,Armand Colin 1972) at pp. 208-210, and at p. 26: 'comme toute institution, [P6rganisationInternationale] est aussi un appareil d'organes, c'est-a-dire un centre actif, capable d'initiative et dedecision, en mesure, par consequent, de s'adapter au milieu dans lequel il fonctionne, en meme tempsque de controler et de regler ses propres problemes internes, de facon a assurer sa survie et sonde'veloppement. Ce caractere organique de I'institution fait qu'elle &happe toujours, dans une certainemesure, au contr61e de ses fondateurs ou, tout au moins, a leurs provisions, pour suivre une Evolutionautonome.'

34. C. Schreuer, Decisions of International Institutions before Domestic Courts (London, Oceana1981) at pp. 59-64; 355-356.

35. C. Chinkin, Third Parties in International Law (Oxford, Clarendon 1993) at p. 144.36. As has been observed by the Court of Justice of the European Communities: '[...] every

national court must, in a case within its jurisdiction, apply Community law in its entirety and protectrights which the latter confers on individuals and must accordingly set aside any provision of nationallaw which may conflict with it, whether prior or subsequent to the Community rule' (Simmenthal, case106/77 [1978] ECR 644; see also Ciola, case C-224/97 Judgment of 29 April 1999, not yet reported).


order to implement them or where they are designed to supplement binding Communityprovisions.37

Although the role of the national court is limited and rather vague ('to takerecommendations into consideration'), the point here is that the mere fact that adecision is not legally binding does not make it legally irrelevant.

It has also been suggested (but not generally accepted) that national courts fulfila similar function within the context of public international law. This view is mostwell-known through Scelle's notion of dedoublementfonctionnel ('role splitting'),according to which state organs also function as organs of the internationalcommunity.38 However, a fundamental difference is that in the case of Communitylaw it is for the Community legal order to determine the scope of the role ofnational courts in the application of Community law. In the case of publicinternational law this role is traditionally determined by the national legal order.

While the three observations above serve to nuance the popular view thatrecommendations are weak and legally irrelevant legal instruments, the point ofdeparture remains that recommendations are not legally binding. Thus the overallconclusion should be that recommendations, although sometimes very effective,generally are imperfect legal instruments for an imperfect international legal order.As the principal legal instrument at the disposal of almost all internationalorganizations, they invite and stimulate, but do not oblige member states to complywith their substance. They have been designed to leave it to each individualmember state whether or not to comply with the implementation of the objectivesof the organization in a rapidly changing world.

2.3 Conventions

One defect of recommendations is remedied if an international organization hasthe power to adopt conventions. Their binding nature leaves parties no choice butto comply: pacta sunt servanda. However, this advantage of conventions must bebalanced against a disadvantage: the adoption of a convention by an organizationis usually insufficient to create binding obligations for members of theorganization. Generally this only happens as a consequence of a separate

37. Grimaldi case C-322/88 [ 1989] ECR 4421. See also Deutsche Shell case C-188/91 [ 1993] ECR1-388.

38. G.A.J. Scelle, Manuel deDroit International Public (Paris, Domat-Montchrestien 1948) at pp.21 et seq.; G.A.J. Scelle, 'Le phenomene juridique de dedoublementfonctionnel' in W. Schatzel andH.-J. Schlochauer, eds., Rechtsfragen der internationalen Organisation - Festschrift fur HansWehberg zu seinem 70. Geburtstag (Frankfurt a.M, Klostermann 1956) pp. 324-342. See also A.Cassese, 'Remarks on Scelle's Theory of 'Role Splitting' (de'doublement fonctionnel) in InternationalLaw', 1 £//L(1990) pp. 210-231.

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expression of a consent to be bound by member states. As a result, normally onlya limited, sometimes very limited number of members are bound by theseinstruments, and the legal order of the organization in question suffers from lackof coherence. Western European states are parties to most of the 182 ILOconventions, while, for example, South Korea and the United States are only partyto a few.39 Not surprisingly, ratification of ILO conventions is considered essentialfor the organization: '[c]'est la clef du systeme'.40 In the Council of Europe 165conventions have been concluded, of which only a few have been ratified by all 41members of the organization; more than half have been ratified by less than half ofthe members.41 This illustrates that there is no Council of Europe law such as thereis EC law.

The question may well be posed if conventions can at all be considered asdecisions of international organizations: conventions are by definition bilateral ormultilateral, whereas decisions of international organizations are often seen asunilateral acts. If they require individual ratification by each member and if thenumber of parties is often only a minority of all members of the organization, whatmakes these legal instruments different from 'ordinary' treaties? The difference isgenerally to be found in the special relationship conventions have with theorganization involved. Conventions are drafted within the framework of theorganization and formulate rules to pursue its aims. Usually, they only becomeready for ratification after a separate decision to that effect has been adopted bythe organization. Moreover, the organization is often involved in the supervisionof their implementation. Conventions are therefore not the 'sole property ofratifying states', particularly when they give the organization a legal interest in theperformance of obligations.42 They are Janus-faced: in some respects conventionsare treaties, but in other respects the organic nature of the framework within whichthey are created and perform their functions adds features to these legalinstruments that justify their qualification as decisions of internationalorganizations.

It must be concluded that the same is true for conventions as for recom-mendations: they are imperfect legal instruments for an imperfect internationallegal order. As is the case for recommendations, in the final analysis it is for the

39. See also N. Valticos, 'Les conventions de ('organisation Internationale du travail a la croisdedes anniversaires', 100 RCDIP (1996) pp. 5-43, in particular at pp. 14-15.

40. Ibid, at p. 16.41. Chart showing ratifications of conventions and agreements concluded within the Council of

Europe, reproduced in 44 European Yearbook (1996) at C of E 56-58.42. F. Morgenstern, Legal Problems of International Organizations (Cambridge, Grotius

Publications 1986) at pp. 116-118. Cf., also J. Wood, 'International Labour Organisation Conventions- Labour Code or Treaties?' 40 ICLQ (1991) at pp. 649-657.


members themselves to decide whether or not to become bound by conventionobligations.

2.4 Other types of decisions of international organizations

While recommendations and conventions can indeed be considered the archetypesof decisions of international organizations, this description must somewhat bequalified. There are some cases of decisions of international organizations thatcombine the strengths of recommendations and conventions and that largely seemto avoid their defects as legal instruments. Currently there are three major andwell-known examples of such cases. First, so-called internal decisions ofinternational organizations; they are generally binding. This heading covers a widevariety of decisions such as a request by an organ to the Secretariat of theorganization to prepare a report, the creation of a committee or the adoption of thebudget of the organization. These decisions will not be discussed in thiscontribution. Second, binding decisions of the UN Security Council. For example,Resolutions 748 and 883 of the UN Security Council imposing economic sanctionagainst Libya are binding for the fifteen members of the Security Council, as wellas for the other 170 UN member states. And the third exception is of particularinterest here: some types of decisions of the EC. These will be discussed in thenext section.

These three types of decisions are in many cases binding without requiring aspecific consent to be bound by the member states. They therefore lack theinherent limitations of recommendations and conventions and seem to combine thebest of two worlds: the binding nature of conventions and the efficiency ofrecommendations.

But the conclusion should not be drawn that, by definition, such unilateralbinding decisions are to be preferred over recommendations and conventions. Theexample may be given of decisions adopted in the 1990s to create internationalcriminal tribunals. At first such tribunals were created in 1993 and 1994 throughresolutions of the UN Security Council, for certain war crimes committed in theformer Yugoslavia and in Rwanda.43 In 1998 the Statute of the InternationalCriminal Court (ICC) was adopted. The clear advantage of creating such tribunalsthrough Security Council decisions is the gain of time and automatic binding ofmembers. Nevertheless, at the same time these decisions were criticized, partly fortheir lack of legitimacy, and the ICC was created by treaty, with the risk that statesmay decide not to ratify.

43. SC Res. 827 created the Ad Hoc Tribunal on War Crimes in the Former Yugoslavia; SC Res.955 created the Rwanda Tribunal.

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Apart from the three cases of binding unilateral decisions mentioned abovethere are other, less important or less well-known examples. The ICAO may adoptbinding decisions regarding, inter alia, civil aviation over the high seas andcertificates of airworthiness, certificates of competency, licenses and the form ofjourney log books.44 Likewise, the International Maritime Organization haslegislative powers concerning marine safety and pollution.45 Furthermore,organizations such as the North Atlantic Treaty Organization, the WesternEuropean Union, the Organization of American States, the WHO, the World TradeOrganization and the International Monetary Fund may also in some cases adoptbinding unilateral decisions.46 Although this power has not been used very oftenby each of these organizations, for example by the WHO, it embodies an importantstep forward in the development of the concept of decisions of internationalorganizations. As will be analyzed in the next paragraph, important furtherdevelopments of this concept can be found within the European Communities.

3. THE EUROPEAN UNION: DECISIONS OF THE EUROPEANCOMMUNITIES

It is against this backdrop that EU decisions will now be analyzed. First, in thissection the main types of decisions of the European Communities will bediscussed. Many textbooks on EC law hold - explicitly or implicitly - that thesedecisions in particular are fundamentally different from the 'traditional' decisionsof international organizations. It will be examined if this claim is correct. Section4 will then focus on the main types of decisions of Titles V and VI of the EUTreaty. As far as these decisions are mentioned in EU textbooks, they are mostlyconsidered fundamentally different from EC decisions and closely resembling'traditional' decisions of international organizations.

Article 249 EC mentions five types of legal instruments: regulations, directives,Decisions,47 recommendations and opinions, the last two of which have no bindingforce. This is not an exhaustive enumeration of EC legal instruments; apart from

44. See Kirgis in Schachter and Joyner, op. cit. n. 4, at pp. 135-137 and at pp. 825-857.45. Ibid., at pp. 127-130 and at pp. 715-751.46. These examples are briefly examined in Schemers and Blokker, op. cit. n. 10, at pp. 815-816.

For the IMF, see its publication Selected Decisions and Selected Documents of the InternationalMonetary Fund (21st issue, 1996).

47. The capital D is used to distinguish this instrument not only from decisions in the general senseof 'decisions of international organizations' as used in this article, but also from non-Art. 249 EC7EUdecisions such as those mentioned below in Section 3.5.


these, others are mentioned in the EC Treaty48 and have increasingly been createdin practice.49 However, the basic and most common legal instruments continue tobe those listed in Article 249. These five legal instruments will be discussedbelow, and compared to the traditional legal instruments of internationalorganizations.

3.1 Regulations

According to Article 249 regulations have three characteristics. They have generalapplication, are binding in their entirety and are directly applicable in all memberstates. The precise meaning of these characteristics has become more clear fromthe case-law of the Court of Justice.

Their general application distinguishes regulations in particular from Decisions.Regulations contain general rules for an indefinite number of cases and/oraddressees. The Court has considered that they are 'applicable to objectivelydetermined situations' and involve 'legal consequences for categories of personsviewed in a general and abstract manner.'50 But this does not imply thatregulations may not include rather specific rules for rather specific situations, as isclear even from a cursory reading of the Official Journal. In the interpretation ofthe Court it is essential that 'there is no doubt that the measure is applicable as theresult of an objective situation of law or of fact which it specifies and which is inharmony with its ultimate objective.'51

Secondly, regulations are binding in their entirety. Unless indicated otherwise,member states are not entitled not to apply certain parts of regulations or possibleannexes.52 In this respect they differ from directives, which are only binding as faras the result to be achieved is concerned; 'the choice of form and methods' is leftto the national authorities.

Thirdly, regulations are directly applicable in all Member States. It is thischaracteristic in particular that distinguishes regulations from decisions of otherinternational organizations, and also from decisions adopted within the frameworkof the Second and Third Pillar. Lauwaars even concludes that precisely for thisreason the E(E)C 'parts company with the 'traditional' international organizations,

48. E.g., measures (Art. 153.3), guidelines (Art. 155.1), general action programmes (Art. 175.3),multiannual programmes (Art. 179).

49. See below, section 3.5.50. Zuckerfabrik Watenstedt, case 6/68 ECR [1968] p. 415.51. Idem.52. Commission v. United Kingdom case 128/78 [1979] ECR 428-429; Industrias Pesqueras

Campos and others v. Commission, joined cases T-551/93, T-231/94, T-232/94, T-233/94, T-234/94[1996] £CI? 11-280-281.

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in the sense that it penetrates more deeply into the legal system of the memberstates.'53 The case-law of the Court has recognized two main dimensions of thedirect applicability of regulations. On the one hand, member states are prohibitedfrom converting them into national law. Such a conversion could lead to a date ofentry into force different from that laid down in the regulation and,54 morefundamentally, would neglect their higher rank vis-a-vis national law.55 On theother hand, direct applicability of regulations means that they may contain rightsand obligations for individuals. Traditionally it is for the domestic legal order todetermine if and under what conditions rules of public international law aredirectly applicable. In the case of EC regulations no such choice is left for thenational legal order.56 The direct applicability of regulations -just as the relatedprinciple of supremacy of Community law over national law - is a function of theintegration objective of the Communities.57 It is unprecedented, and seems to makeregulations similar to laws at the national level.58 But the terms 'law' or'legislation' have been avoided precisely, as has been suggested 'to ward off thewrath of the national parliaments likely to be provoked by the suggestion that anoutside body shall usurp their legislative function.'59

Nevertheless, member states still have an important role to play when it comesto the implementation of regulations. Often, such implementation is required tomake Community regulations effective within the national legal order. This isparticularly true in the fields of the common agricultural and commercial policywhere member states often act as 'administrative extensions' of the Community;they have to collect levies and customs duties, they have to pay agricultural

53. R.H. Lauwaars, Lawfulness and Legal Force of Community Decisions (Leiden, Sijthoff 1973)at p. 14.

54. Commission v. Italy, case 39/72 [1973] ECR 113-114.55. Simmenthal, case 106/77 [1978] ECR 643.56. Cf., P. Pescatore, Droit international et droit communautaire (Nancy, Centre European

Universitaire 1969) at p. 15: 'Dans cette mesure le traitd a e'limine' l'interposition, caractdristique dudroit des gens, du pouvoir de l'Etat entre I'obligation contracted sur le plan international et sarepercussion dans I'ordre juridique interne.'

57. Cf., W. Ganshof van der Meersch, 'L'ordre juridique des communaute's europe"ennes et le droitinternational', RdC(\915-V) at pp. 252-253.

58. Cf., D. Wyatt and A. Dashwood, European Community Law, 3rd edn. (London, Sweet &Maxwell 1993) who conclude at p. 69: 'Regulations, in short, are to be treated as "law" in every senseof the word.'

59. D. Lasok and J.W. Bridge, An Introduction to the Law and Institutions of the EuropeanCommunities, 3rd edn. (London, Butterworths 1982) referring to P. Pescatore, Les aspects fonctionnelsde la Communaute economique europeenne, Les aspects juridiques du marche commun (1958) at p.67.


refunds.60 Furthermore, it is primarily for the member states to enforce Communityregulations.

Two conclusions can be drawn. First, there can be no doubt that the ECregulation is a legal instrument that is fundamentally different from the traditionaltypes of decisions of international organizations, largely because of its directapplicability as determined by the Community legal order. What Tammes wrote in1958 is still essentially true today: 'as a rule, decisions of international organsrequire, for their implementation, decisions of national organs. So far, it is theexception that international decisions produce direct and full effect within astate.'61 But it is a myth that EC regulations do not require further decisions bynational organs. The second conclusion to be drawn from the brief overview aboveis that member states still have an important role to play in order to makeregulations effective. Although regulations are 'legally perfect instruments',62 theyrequire active implementation and enforcement on the part of the member states inorder to become effective.

3.2 Directives

The second type of decision mentioned in Article 249 is of a different originality.While it has no equivalent in other international organizations - just as theregulation -, its originality lies elsewhere. As appears from Article 249 directivesrequire legislative action by the member states in order to become effective. Whiledirect applicability is most characteristic for regulations, 'indirect rule' wouldseem to best capture the nature of directives.63

The basis for this different originality is to be found in the definition of thislegal instrument. According to Article 249, '[a] directive shall be binding, as to theresult to be achieved, upon each member state to which it is addressed, but shallleave to the national authorities the choice of form and methods'. The memberstates have to implement directives in order to make them effective. The directivetherefore seems to resemble decisions of other international organizations much

60. P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the EuropeanCommunities from Maastricht to Amsterdam edited and further revised by L.W. Gormley, 3rd edn.(London, Kluwer Law International 1998) p. 247; Lasok and Bridge, op. cit. n. 57, at pp. 97-98.

61. Tammes, op. cit. n. 15, at p. 359; Virally, op. cit. n. 31, at p. 177 et seq.62. N. Burrows & H. Hiram, 'The Legal Articulation of Policy in the European Community', in

T. Daintith, Implementing EC Law in the United Kingdom: structures for indirect rule (Chichester,John Wiley 1995) at p. 33.

63. Cf., the Court's case-law in which the directive has been characterized as 'un mode delegislation ou de re"glementation indirecte'. E.g., Gibraltar/Council case C-298/89 [ 1993] ECR1-3654.See also C. Timmermans, 'Community Directives Revisited', 17 YEL (1997) at p. 1.

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more closely than the regulation. However, closer analysis demonstrates that themarge de manoeuvre of member states in the implementation of directives hasbeen increasingly curbed.

Firstly, while it is true that the definition of a directive in Article 249distinguishes between what is for the Community (result) and what is for themember states (choice of form and methods), it is also evident that how muchremains for the member states is determined by the amount of detail in which theresult is prescribed. And practice shows that many directives are very detailed andleave little to be chosen at the stage of implementation.

This tendency has been criticized.64 However, Community law hardly providesfor rules to limit this amount of detail. At most directives 'can never oblige amember state to introduce an exhaustive set of rules entirely unconnected with thenational legislation in the context of which the field concerned was regulated.'65

While the last few years this issue is taken into account in the legislative process,it is open to debate if more recently adopted directives bear the marks of suchincreased awareness.66

Moreover, secondly, the Court has formulated strict conditions to ensureeffective implementation. Such conditions concern both the deadline forimplementation and the choice of form and methods by the member states.

The period available for implementation is included in each directive and variesfrom some months to some years. There is a large amount of judgments in whichthe Court has found that deadlines for implementation were not complied with.The Court consistently rejected arguments put forward by member states to justifytheir exceeding of deadlines. A member state cannot plead provisions, practices orsituations existing within its internal legal system,67 nor practical, administrative orfinancial difficulties,68 in order to justify its failure to comply with time-limits laiddown by Community directives.69 Strict compliance with the deadline is required.

64. See for example N.E. Bracke, Voonvaarden voor goede EG-wetgeving (The Hague, Sdu 1996)in particular at pp. 165-167.

65. Kapteyn and VerLoren van Themaat, op. cit. n. 58, at p. 329.66. Cf., the interinstitutional agreement concluded on 22 December 1998 between the European

Parliament, the Council and the Commission, on common guidelines for the quality of drafting ofCommunity legislation, published in 0J 1999, C 73/1. General principle 2 provides that 'The draftingof Community acts shall be appropriate to the type of act concerned and, in particular, to whether ornot it is binding.'

67. Commission v. Belgium, case C-167/90 [1991] ECR 1-2535. A more recent example isCommission v. Belgium, case C-347/97 [1999] ECR 1-309.

68. E.g., Commission v. Belgium, case C-42/89 [ 1990] ECR 1-2841.69. Cf., the less elaborate Art. 27, first sentence, of the 1969 Vienna Convention of the Law of

Treaties: 'A party may not invoke the provisions of its internal law as justification for its failure toperform a treaty'.


And here the Court benefits from the strong involvement of member states indrafting directives, which are not made by a supranational Leviathan, to beswallowed contre coeur by member states. As indicated by the Court,'governments of the member states participate in the preparatory work fordirectives and must therefore be in a position to prepare, within the periodprescribed, the draft legislative provisions necessary for their implementation'.70

If in practice the period for implementation proves to be too short, this period maybe extended.71

Deadlines are also used in decisions of other international organizations. Forexample, the ILO requires its members to bring conventions and recommendationsbefore the authority or authorities within whose competence the matter lies, for theenactment of legislation or other action, as a rule within one year from the closingof the (annual) session of the ILO Conference.72 And some other organizations usea 'contract out' procedure: all members will be bound by a particular decision ofthe organization unless they notify before a certain date that they do not want tobecome bound. For example, the WHO constitution explicitly provides for thisprocedure.73 Other organizations use this procedure as well, although a cleardisadvantage is the uncertainty if 'silence' really implies that members considerthemselves bound.74 However, in these cases deadlines do not concernimplementation but the preceding stage of expressing a consent to be bound; theyare means to stimulate members to become party to the decision in question. Asprescribed by the 1969 Vienna Convention of the Law of Treaties, such a consentobliges parties to observe the treaty in question and perform its obligations in goodfaith. Deadlines in directives apply after the directive in question has been adoptedand concern the stage of implementation.

The Court has not only formulated strict conditions concerning the deadline forimplementation, but also for the choice of form and methods by the memberstates. In a large number of cases the Court has examined if the form and methodschosen by member states are sufficient to achieve the results prescribed in

70. Commission v. Italy, case 136/81 [1982] ECR 3552.71. See e.g., Ninth Council Directive of 26 June 1978 on the harmonization of the laws of the

member states relating to turnover taxes (78/583/EEC), OJ 1978, L 194/16. The lawfulness of suchextensions is confirmed by the EC Court, see Commission v. Italy, case 52/75 [1976] ECR 284.Sometimes the possibility of extending the deadline for implementation is explicitly mentioned in thedirective, see e.g. First Council Directive of21 December 1988 to approximate the laws of the memberstates relating to trade marks (89/104/EEC) OJ 1989, L 40/1 (Art. 16.2).

72. ILO Constitution, Arts 19.5(b) and 19.6(b).73. Art. 22. See M. Vierheilig, Die rechtliche Einordnung der von der Weltgesundheits-

organisation beschlossenen regulations (Heidelberg, R. v. Decker 1984).74. Schemers and Blokker, op. cit. n. 10, at pp. 794-797.

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directives.75 As such results are often defined in detail, the Court has clearstandards at its disposal for performing this task. More specifically, according tothis case-law, '[t]he freedom left to the member states by Article 189 [now: 249]as to the choice of form and methods of implementation of directives does notaffect their obligation to choose the most appropriate forms and methods to ensurethe effectiveness of the directives'.76 They must 'adopt, in their national legalsystems, all the measures necessary to ensure that the directive is fully effective,in accordance with the objective which it pursues.'77

In a number of cases the legal character of the national implementation was atissue. Often the Court rejected implementation through measures such ascirculars,78 service instructions or administrative directions.79 Generally memberstates must 'give effect to the provisions of the directive by means of nationalprovisions of a binding nature,'80 even though it has also been recognized thatexpress, specific legislation to implement is not always required. '[A] general legalcontext may, depending on the content of the directive, be adequate for thepurpose provided that it does indeed guarantee the full application of the directivein a sufficiently clear and precise manner so that, where the directive is intendedto create rights for individuals, the persons concerned can ascertain the full extentof their rights and, where appropriate, rely on them before the national courts.*1

While these conditions for implementation almost exclusively have beenformulated in judgments in cases brought before the Court by the Commissionunder Article 226, there is another body of case-law relevant in this context thatconcerns cases brought before national courts by individuals and referred to theEC Court for a preliminary ruling. In this second body of case-law the EC Courthas developed - sometimes through remarkable legal gymnastics - a number oflegal constructions or devices in order to ensure that directives are fully effective.Four such devices can be distinguished.

A first one is direct effect. While Article 249 is silent on a possible direct effectof provisions of directives and while such effect was originally denied, it has now

75. See e.g., Commission v. Belgium, case C-207/97 [1999] ECR 1-275.76. Royer, case 48/75 [ 1976] ECR 519.77. Von Colson and Kamann, case 14/83 [1984] ECR 1906; Commission v. Italy, case C-336/97

Judgment of 17 June 1999, not yet reported, para. 19.78. Commission v. Italy, case C-95/92 [1993] ECR 1-3119; Commission v. Greece, case C-311/95

[1996] ECR 1-2433.79. E.g., Commission v. Germany, case C-58/89 [1991] ECR 1-4983.80. E.g., Commission v. Netherlands, case 96/81 [1982] ECR 1804; Commission v. France, case

C-225/97 Judgment of 19 May 1999, not yet reported.81. E.g., Commission v. Germany, case C-131/88 [1991] ECR 1-825; Commission v. Germany,

case C-58/89 [1991] ECR 1-5023.


since long been accepted by the Court,82 although the starting-point has remainedunchanged: the result envisaged by the directive must reach citizens throughimplementation by appropriate measures carried out by the Member States.83 Di-rective provisions have direct effect once two conditions apply: these provisionsmust be unconditional and sufficiently precise, and the period available forimplementation must be over.84 The Court has only accepted the possibility ofvertical direct effect. Arguments in favour of horizontal direct effect have beenrejected by the Court, essentially because Article 249 provides that a directive isbinding only in relation to each member state to which it is addressed. A directive'cannot of itself impose obligations on an individual and cannot therefore be reliedupon as such against an individual,'85 and although many directive provisions donot fulfil the conditions for direct effect, in practice this has limitedimplementation freedom for the member states.

However, often provisions of directives do not fulfil the conditions for directeffect, and it is here in particular that the other three legal devices come into playand serve to give full effect to directives. As a second legal device, although muchless firmly established than direct effect, national courts may examine if nationalimplementing measures have remained within the limits of their discretion set outin the directive.86 A third legal device is the obligation for national courts tointerpret national law - particularly implementing measures - in the light of thewording and purpose of the directive.87 Fourthly, since 1991 the EC Court has

82. See Grad, case 9/70 [1970] ECR 825; Usage, case 20/70 [1970] ECR 861; Haselhorst, case23/70 [1970] ECR 881; Van Duyn, case 41/74 [1974] ECR 1337.

83. Commission v. Belgium, case 102/97 [ 1980] ECR 1487; more recently Commision v. Germany,case C-253/95 [ 1996] ECR 1-2430. See also Emmott, case C-208/90 [ 1991 ] ECR 1-4298:' [S]o long asa directive has not been properly transposed into national law, individuals are unable to ascertain thefull extent of their rights.'

84. See e.g., Comilato di coordinamento per la difesa della cava and others ECR, case C-236/92,[ 1994] at 1-502; more recently HI Krankenhaustechnik, case C-258/97 judgment of 4 March 1999, notyet reported.

85. Faccini Dori, case C-91/92 [1994] ECR 1-3355.86. VNO, case 51/76 [1977] ECR 127 and ENKA, case 38/77 [1977] ECR 2203. According to S.

Prechal, Directives in European Community Law (Oxford, Clarendon 1995) pp. 275-276, they 'haveremained perhaps somewhat isolated on the Community level.' In 1996, new life was breathed intothis almost forgotten case-law: Kraaijeveld, case C-72/95 [1996] ECR 1-5403.

87. Von Colson andKamann, case 14/83 [ 1984] ECR 1891, and Harz, case 79/83 [ 1984] ECR 1942.This device has been mentioned in a large number of cases. A more recent example is Societa ItalianaPetroli SpA, case C-2/97 [1998] ECR 1-8597. See further Prechal, op. cit. n. 84, at pp. 200-245; W.Brechmann, Die richllinienkonforme Auslegung (Zugleich ein Beitrag zur Dogmatik der EG-Richtlinie) (Berlin, Beck 1994).

24 N. Blokker

accepted the principle of state liability for damage suffered by individuals as aresult of breach of Community law, including the failure to implement directives.88

The conclusion to be drawn is therefore in a way opposite to the findings aboveconcerning regulations. Somewhat different from what Article 249 seems tosuggest, making regulations effective is by no means a matter for the Communityalone; in practice member states have an important role to play. In the case ofdirectives however, the opposite is true. While the drafters of the Treatyapparently had in mind an important role for the member states ('choice of formand methods'), in practice this role has increasingly been curbed, largely becausethe application of the directive is embedded in the supranational institutionalstructure of the Community. Within this structure, the Commission, the nationalcourts and the EC Court, and certainly also the citizens have played an importantrole in making the directive an effective Community legal instrument. They haveconstantly reminded member states in their national preoccupation of theCommunity context to which directives belong. Other international organizationsnot only lack a similar type of decisions; they also lack an institutional structuresimilar to that of the Communities, equipped to further develop their owndecisions as happened in the case of the Communities.

3.3 Decisions

Article 249 offers a brief definition of Decisions: 'A Decision shall be binding inits entirety upon those to whom it is addressed.' The nature of Decisions can befurther understood by comparison with the other types of decisions of Article 249,by examining the EC Treaty and through an analysis of practice.

The fundamental difference between regulations and Decisions is, as indicatedabove, the general applicability of regulations vis-a-vis the specific orientation ofDecisions. Decisions contain specific rules for specific situations. The distinctionis of practical importance since individuals may not institute proceedings beforethe EC Court against regulations, but only 'against a Decision addressed to thatperson or against a Decision which, although in the form of a regulation or aDecision addressed to another person, is of direct and individual concern to theformer' ,89 As indicated above, practice shows that regulations may include rules

88. Francovich, cases C-6 and 9/90 [ 1991 ] ECR1-5357. See further Brasserie du Pecheur, casesC-46 and 48/93 [1996] ECR 1-1029. For a recent case, see the Court's judgment of 25 February 1999in Carbonari, case C-131/97 not yet reported. See Prechal, op. cit. n. 86, at pp. 306-345; T. Heukelsand A. McDonnell, eds., The Action for Damages in Community Law (The Hague, Kluwer LawInternational 1997) with references to further literature.

89. Art. 230 EC.


for rather specific situations, and this has generally been accepted by the Court.90

A fundamental difference between Decisions and directives is that the latter areaddressed to member states only, whereas the former may be (and are often)addressed to individuals. Another difference is that Decisions are binding in theirentirety whereas directives are only binding as to the results to be achieved; inpractice, however, this difference is not always clear, because directives maydefine the results to be achieved in great detail, leaving little room for the nationalauthorities to choose form and methods, while Decisions addressed to memberstates usually leave the national authorities some discretion as to the form andmeans of their execution. Finally, as in the case of directives, the Court hasaccepted that provisions of Decisions addressed to member states may have directeffect.91

The EC Treaties in a number of provisions prescribe that the legal instrument tobe used is a Decision.92 In other articles, the choice of the legal instrument is leftto the decision-maker. In practice, a very large number of Decisions have beenadopted. They 'are the means by which the Community adopts individualadministrative acts' and by which 'Community law is applied in specific cases.'93

Different types of Decisions may be distinguished such as those that authorizemember states or undertakings to do things and those that impose obligations.94

Also, a distinction can be made between declaratory and constitutive Decisions;the former establish that a certain legal situation exists, the latter create a new legalsituation.

EC Decisions make very clear how different the EC are from most otherinternational organizations that usually have no administrative competences withina structure that enables them to operate directly within the national legal order.The existing exceptions are limited. An example are Eurocontrol instructionsissued to aircraft commanders. International organizations generally are nosupranational administrations and have no power to address individuals withintheir member states. Where this is necessary, this is usually done indirectly,through the governments of the member states.

90. See for analyses of the Court's case-law on this point H.G. Schermers and D. Waelbroeck,Judicial Protection in the European Communities, 5th edn. (Deventer, Kluwer 1992) at pp. 158-164;K. Lenaerts and D. Arts, Procedural Law of the European Union (London, Sweet & Maxwell 1999);R. Greaves, 'The Nature and Binding Effect of Decisions under Article 189 EC, 21 ELRev. (1996)pp. 3-16.

91. Grad, case 9/70 [ 1970] ECR 825. More recently Hansa Fleisch Ernst Mundt, case C-156/91[1992] ECR 1-5595.

92. For example, Arts. 76, 85.2, 104.6.93. Kapteyn and VerLoren van Themaat, op. cit. n. 60, at p. 332.94. Idem.

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3.4 Recommendations and opinions

These are the two final types of decisions mentioned in Article 249 where they aredefined - as is usually done - in a negative way: they 'shall have no bindingforce'. Although they are not formally binding, they may at times contain detailedrules and sometimes have follow-up provisions that stimulate member states evenmore to accept these invitations to act.95

In practice these types of decisions are far less important than the other types ofCommunity decisions, in qualitative as well as in quantitative terms. Generally,the situation in the EC is opposite to that in most other international organizations.The adoption of unilateral binding decisions is a matter of course, and non-binding decisions are only of secondary importance within the Community legalorder. Other organizations most frequently use non-binding recommendations andto a more limited degree conventions or unilateral binding decisions.

3.5 Other types of EC decisions

This survey of Community decisions would not be complete without including thislast, residual category, usually somewhat easily named sui generis. As is the casewith other organizations - that in practice use many different types of decisionsnot mentioned in their constitution - the EC has used a wide variety of decisionsnot defined in the Treaties. Examples are:— Code of Conduct concerning public access to Council and Commissiondocuments96

— Interinstitutional Agreement of 13 October 1998 on legal bases andimplementation of the budget97

— Interinstitutional Agreement concluded on 22 December 1998 between theEuropean Parliament, the Council and the Commission, on common guidelines forthe quality of drafting of Community legislation98

— Resolution of the Council and the Representatives of the Governments of themember states, meeting within the Council of 22 April 1999 on a Code of Conductfor improved cooperation between authorities of the member states concerning the

95. See for example Commission Recommendation 96/290/EC of 17 April 1996 concerning acoordinated programme for the official control of foodstuffs for 1996, OJ 1996, L 109/24.

96. OJ 1993, L 340/41.97. OJ 1998, C 344/1.98. OJ 1999, C 73/1.


combating of transnational social security benefit and contribution fraud andundeclared work, and concerning the transnational hiring-out of workers"— Council Resolution of 20 May 1999 on women and science100

— Declarations on Council Decision 1999/468/EC of 28 June 1999 laying downthe procedures for the exercise of implementing powers conferred on theCommission.101

The last few years such decisions have become quite popular. Such preference'represents in part a predictable feature of administrative development, in part acomprehensible response to institutional inertia, and in part a questionable attemptto circumvent or avoid the implications of failures to reach political agreement'.102

There is little uniformity as far as the use of particular names for particulartypes of decisions are concerned. The name 'decision' is often used for binding'external' acts,103 such as the decision by which the EC approves a treaty,104 butalso for internal decisions creating new organs or appointing members in organs.105

Other examples are decisions to terminate anti-dumping procedures or decisionsestablishing action or framework programmes of the Community.106 Likewise, thename 'communication' is used for very different purposes.107

Neither is there uniformity as to the question of the legal nature of thesedecisions sui generis. It is necessary to consider the legal basis, the nature and thewording of each individual decision. Only exceptionally such questions have beendecided by the Court.108

99. O/1999, C 125/1.100. OJ 1999, C 201/1.101. OJ 1999, C 203/1.102. F. Snyder, Soft Law and Institutional Practice in the European Community, in S. Martin, ed.,

The Construction of Europe - Essays in Honour of Emile Noel (Dordrecht, Kluwer AcademicPublishers 1994) at pp. 197-225, 199-200.

103. Such acts are therefore usually published in the L series of the Official Journal. See K.Lenaerts, et al., Constitutional Law of the European Union (London, Sweet & Maxwell 1999) at p.587.

104. E.g., Council Decision 1999/803/EC of 23 November 1999 accepting the extension of theInternational Coffee Agreement on behalf of the Community, OJ 1999, L 313/8.

105. E.g., Council Decision 1999/C 373/03 of 13 December 1999 appointing a member of theAdvisory Committee on Nursing Training, OJ 1999, C 373/3.

106. E.g., Council Decision 1999/847/EC of 9 December 1999 establishing a Community actionprogramme in the field of civil protection, OJ 1999, L 327/53.

107. See M. Melchior, 'Les communications de la Commissions: Contribution a l'e"tude des actescommunautaires non pre"vus par les traiteY, Melanges FernandDehousse (Vol. 2) - La Constructioneuropeenne (1979) pp. 243-258 .

108. See for example Schluter, case 9/73 [ 1973] ECR 1161 -1162; The Netherlands v. Council, caseC-58/94 [1996] ECR1-2169.

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3.6 Conclusion

The main conclusion to be drawn from this overview is that EC decisions are avery special case of decisions of international organizations. The unilateralbinding nature of most of these decisions and in particular, in many cases, theirdirect effect within the legal order of the member states, are the main reasons whyEC decisions represent an important next step in the development of the conceptof decisions of international organizations. Although the member states still playan important role in making EC decisions effective, this role is different from whatis required in other organizations, even those that may use binding unilateraldecisions and not only recommendations and conventions.

Only some years ago the discussion would have stopped here. However, withthe creation of the European Union in 1992 came new types of decisions createdfor the new spheres of cooperation in this 'new stage of the process of Europeanintegration'. In the next paragraph these new types of decisions will be analyzed.

4. THE EUROPEAN UNION: SECOND AND THIRD PILLARDECISIONS

When the European Union was created its constituent instrument also included'Provisions on a common foreign and security policy' and 'Provisions oncooperation in the fields of justice and home affairs' (Titles V and VI of theMaastricht Treaty on European Union, commonly known as the Second and ThirdPillar of the Union). The legal instruments embodying the results of cooperation inthese two fields are different from the EC decisions discussed above, as will nowbe analyzed more closely.

4.1 Second Pillar decisions

Under the Maastricht Treaty two main types of decisions are mentioned to carryout the common foreign and security policy: 'common positions' and 'jointactions'. According to the Maastricht Treaty, '[m]ember states shall ensure thattheir national policies conform to the common positions' (Art. J.2.2 (now Art.15)). Furthermore, '[j]oint actions shall commit the member states in the positionsthey adopt and in the conduct of their activity' (Art. J.3.4 (now Art. 14.3)). Theseprovisions seem to indicate that common positions and joint actions are legallybinding instruments, but originally considerable uncertainty existed on this


issue.109 In practice other types of decisions are used as well. Declarations are themost frequently used legal instrument: every year between 100 and 200declarations have been adopted. They are not mentioned in the Maastricht andAmsterdam Treaties and their legal nature is uncertain.110

Until 1999 some 70 common positions have been adopted and some 75 jointactions. Joint actions have been adopted to support activities in third countries(e.g., mine clearance in Croatia), to lay down a more general policy of the EU withregard to a specific international issue (e.g., anti-personnel landmines) or toharmonize general policies (e.g., control on exports of dual-use goods).111 In someof these cases member states were to take action and implement the decision, inother cases joint actions 'simply "create situations'".112 According to Wessel,common positions have been adopted for three categories of cases: decisions onsanctions against third states, decisions on the Union's policy vis-a-vis third states,and decisions on the policy of the Union regarding specific issues.113 Practice hasdemonstrated that 'common positions usually reflect an agreed policy, joint actionsare in need of explicit implementation measures in order to fully take effect' [...],although this 'distinction is often blurred in practice and it is not always easy todiscover a legal rationale behind a choice for a particular instrument.' "4

The Amsterdam Treaty contains a number of amendments concerning SecondPillar decisions. First of all it has created a new legal instrument for the SecondPillar: 'common strategies'. These instruments are adopted by the EuropeanCouncil 'to be implemented by the Union in areas where the member states haveimportant interests in common. Common strategies shall set out their objectives,duration and the means to be made available by the Union and the member states'(Art. 13.2 TEU). 'The Council shall recommend common strategies to theEuropean Council and shall implement them, in particular by adopting jointactions and common positions' (Art. 13.3 TEU).

109. R.A. Wessel, The European Union's Foreign and Security Policy -A Legal InstitutionalPerspective (The Hague, Kluwer Law International 1999) at p. 154 (n. 13): the Dutch governmentoriginally took the view that this was not legislation but political positions only. However a 1995Dutch position paper 'refers to Joint Actions as 'explicitly binding' and compares them withCommunity Regulations and Directives'.

110. Idem, at pp. 185-189.111. Idem, at pp. 162-169.112. Idem, at p. 169.113. Idem, at pp. 175-182.114. Idem, at p. 202.

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Secondly, the Amsterdam Treaty has further defined the other legal instrumentsfor the Second Pillar.115 Joint actions are adopted by the Council and

shall address specific situations where operational action by the Union is deemed to berequired. They shall lay down their objectives, scope, the means to be made available tothe Union, if necessary their duration, and the conditions for their implementation (Art.14.1 TEU).

Common positions 'shall define the approach of the Union to a particular matterof a geographical or thematic nature' (Art. 15 TEU). As far as the legal nature ofthese types of decisions is concerned, the Amsterdam Treaty has noimprovements; the above-mentioned provisions of the Maastricht Treay have beenleft unchanged. As the EC Court lacks powers in the Second Pillar, the furtherdevelopment of these EU decisions cannot be steered by the Court - as is the casefor EC decisions -, but is a matter for the Council in particular.

4.2 Third Pillar decisions

Under the Maastricht Treaty three main types of decisions are mentioned for theimplementation of cooperation in the fields of justice and home affairs: 'jointpositions', 'joint actions' and 'conventions'. Much more than in the case ofSecond Pillar decisions, the legal character of joint positions and joint actions hasbeen left uncertain in the Maastricht Treaty and has not been clarified muchfurther in practice. The Amsterdam Treaty has improved this situation.

Originally, the legal nature of the three Third Pillar decisions was only clear inthe case of conventions: they may be drawn up by the Council and recommendedto the member states 'for adoption in accordance with their respectiveconstitutional requirements' (Art. K.3.2(c)). As has been discussed above,conventions are one of the two archetypes of decisions of internationalorganizations. One of the traditional characteristics of conventions is that theirconclusion and the subsequent ratification process is time-consuming. And thishas also been the experience within the Third Pillar. Until March 1999, only twoof the fourteen conventions concluded within this framework had entered into

115. Responding to the criticism that the scope and function of these instruments was not clear andwould need clarification, as was mentioned in the 1995 Report of the Council on the functioning ofthe Treaty on European Union (at p. 30, para. 61). See also the 1995 Commission Report for theReflection Group, at pp. 63-64.


force.116 During the 1996-1997 Intergovernmental Conference suggestions weremade for improvement."7 The Amsterdam Treaty contains some amendments onthis point. Conventions still have to be adopted unanimously by the Council, butit is now provided that they shall, 'once adopted by at least half of the memberstates, enter into force for those member states,' 'unless they provide otherwise'(Art. 34.2(d)). Secondly, it is now prescribed that measures implementingconventions shall be adopted within the Council by a two-thirds majority of thecontracting parties.118 These amendments are substantial improvements and tosome extent remedy one of the traditional defects of this legal instrument ofinternational organizations, while keeping the strict requirement of unanimitywhen the convention has to be adopted by the Council.

The Maastricht Treaty was entirely silent on the legal nature of the two otherThird Pillar decisions. The resulting uncertainty has not been removed in practice.On the contrary, member states appeared to be fundamentally divided on this. TheUK indicated that in its view the terms joint actions and joint positions are notusually used to designate binding instruments and that member states thereforeremain free, on a case by case basis, to decide if they wish to assume obligationsor not; the Council's legal service, on the other hand, took the view that thesedecisions have a binding character."9 Regarding the first two joint actions, theNetherlands was of the opinion that these were binding decisions, the UKconsidered these to be not legally binding.120 In 1995, the Council concluded thatvery limited use was made of the three types of Third Pillar decisions, 'perhapsbecause of the member states' continuing differences of opinion on the nature andthe legal effects of such implements.'121 Similar differences of opinion existedamongst academics.122

116. The Dublin Convention (OJ 1997, C 254/1) that was in fact signed in 1990 and therefore is nota Third Pillar convention, and the 1995 Europol Convention (OJ 1995, C 316/1). 1 thank Ms. EvelienBrouwer of Forum (Institute for Multicultural Developments) for sending me this information.

117. See e.g., the proposals made by Spain, Europe No. 6878 (19 December 1996) at p. 10.118. Under the Maastricht Treaty, the Council had the power to provide otherwise (and e.g.,

prescribe unanimity for the adoption of such implementing measures).119. A. BorrSs, 'Justice and Home Affairs: Judicial Cooperation in Civil Matters', in J.A. Winter,

eds., Reforming the Treaty on European Union - The Legal Debate (The Hague, Kluwer LawInternational 1996) pp. 447-456, at pp. 452-453. See also the contribution by R. Fernhout ('Justice andHome Affairs: Immigration and Asylum Policy') to this work, at p. 390.

120. Curtin and Pouw, op. cit. n. 14, at p. 601.121. 1995 Report of the Council, op. cit. n. 115, at p. 37. See also the 1995 Commission Report, op.

cit. n. 115, at pp. 51-52.122. P.-C. Muller-Graff, 'The legal bases of the third pillar and its position in the framework of the

Union Treaty', 31 CMLRev. (1994) at pp. 493-510 (no binding force); D. O'Keeffe, 'Recasting theThird Pillar', 32 CMLRev. (1995) at pp. 893-920 (legally binding).

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The Amsterdam Treaty has improved this situation. A new set of legalinstruments of the Third Pillar has been defined and the characteristics and legalnature of these instruments are specified. Conventions and common positions123

continue to exist; the latter define the approach of the Union to a particular matter(Art. 34 TEU) and will usually not be legally binding.124 The newly introducedlegal instruments are 'framework decisions' and 'decisions' and replace the jointaction.125 Framework decisions are adopted by the Council

for the purpose of approximation of the laws and regulations of the member states.Framework decisions shall be binding upon the member states as to the result to beachieved but shall leave to the national authorities the choice of form and methods. Theyshall not entail direct effect. (Art. 34.2(b))

Decisions are adopted by the Council

for any other purpose consistent with the objectives of this Title, excluding anyapproximation of the laws and regulations of the member states. These decisions shallbe binding and shall not entail direct effect. (Art. 34.2(c))

It is clear from the definitions of these new legal instruments that frameworkdecisions resemble EC directives as defined in Article 249 EC, although case-lawhas indicated that the latter may have direct effect while this is explicitly excludedfor the framework decisions. Framework decisions also resemble the other newlegal instrument of the Third Pillar, the difference being the purpose for whichthey are used and also their precise legal nature. It may be assumed (a contrario)that while both framework decisions and decisions are binding, only in the case ofthe former the choice of form and methods is for the national authorities. Inaddition, it has been indicated that framework decisions have a general, normativecharacter and decisions not.126 Furthermore, as is clear from other treaty languages,

123. There is no change in the nature of this instrument despite the small change in name (commonposition instead of joint position). In other languages the name has remained unchanged.

124. This is not explicitly mentioned in the Amsterdam Treaty but can be inferred from the bindingnature of the other three legal instrument of the Third Pillar and from past practice: no binding jointpositions have been adopted under the Maastricht Treaty. See Bijl. Hand II 1997-1998 - 25922 (R1613) No. 3, p. 28, and No. 5, p. 46.

125. As was indicated by the Dutch government when the Amsterdam Treaty was submitted toParliament for approval. See Bijl. Hand. II1997-1998 - 25922 (R 1613) No. 5, p. 50.

126. The Dutch government has mentioned as examples of decisions: a decision to appoint a directorof Europol or to determine the internal workprogramme of the Council for a particular period. Inaddition, it has listed 33 joint actions adopted on the basis of Art. K.3 of the Maastricht Treaty andconcluded that four of these are of a (partial) normative character and would under the Amsterdam


the new Third Pillar decision is different from the Decision mentioned in Article249 EC.127

Finally, it is important that the jurisdiction of the Court of Justice in the ThirdPillar has been extended considerably. According to Article 35 TEU, the Court hasjurisdiction to give preliminary rulings on the validity and interpretation offramework decisions and decisions, and on the interpretation of conventionsestablished under this Title and on the validity and interpretation of the measuresimplementing them. In its future case-law, the Court may therefore further definethe nature of these legal instruments as it is traditionally doing within the FirstPillar. And in this context it must be emphasized that Article 34 TEU onlyexcludes direct effect of provisions of framework decisions and decisions. Asbriefly mentioned above, the Court has developed other legal devices to give fulleffect to directive provisions even if they have no direct effect, and these are notexplicitly excluded in Article 34.128

4.3 Second and Third Pillar decisions in perspective

How are Second and Third Pillar decisions to be evaluated if compared to thedifferent types of decisions of international organizations in general and to ECdecisions in particular?

The overview above indicates that Second and Third Pillar decisions arefundamentally different from EC decisions. It is difficult to recognize in these EUdecisions the characteristics and legal nature of regulations, directives andDecisions of the Communities. This may not be surprising as both sets of legalinstruments are part of two fundamentally different contexts. While the integrationcontext of the First Pillar requires decisions that intensively permeate in thenational legal orders of the member states, the cooperation context of the otherpillars needs legal instruments for the coordination of national policies.

And a number of deficiencies of decisions of many international organizationsequally apply to Second and Third Pillar decisions, in particular before theamendments of the Amsterdam Treaty: the absence of clear definitions of theselegal instruments, the uncertainty which sometimes surrounds their legal nature,

Treaty provisions have the form of a framework decision. See Hand.ll 1997-1998- 25922 (R 1613),No. 5, pp. 46-50, and No. 3, p. 28.

127. While in English they are both named decision, in German and Dutch they carry differentnames: Emscheidung and beschikking for Art. 249 decisions, Beschlufl and besluit for Art. 34.2(c)decisions.

128. See also J.A. Usher, 'Flexibility and Enhanced Cooperation', in T. Heukels, eds., The EuropeanUnion after Amsterdam: legal Analysis (1998) pp. 253-271 (The Hague, Kluwer Law International1998) at p. 270.

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the substantial use made of non-binding instruments within the Second Pillar, theincomplete state of ratifications in the case of conventions concluded within thecontext of the Third Pillar, and the absence of a context within which theseinstruments could be further developed.

However, at the same time it should be mentioned that substantialimprovements have been introduced in the Treaty of Amsterdam. The net result ofthe introduction of framework decisions (resembling EC directives), decisions andan almost full redefinition of the legal instruments, only a few years afterMaastricht, is that Second and Third Pillar decisions with the entry into force ofthe Amsterdam Treaty resemble EC decisions more than before. L'influencebienfaisante du milieu has brought about to a certain degree the 'commu-nitarization' of Second and Third Pillar instruments. It is likely that the creation offramework decisions and the extended jurisdiction of the Court within the ThirdPillar have been facilitated by the context of which Titles 5 and 6 TEU form part,in particular the existence of the example of the supranational EC pillar.129 Whena need was perceived to further develop the existing types of decisions and specifytheir legal character, in particular in the Third Pillar, it was natural to benefit fromthe EC experience.

As analyzed above, the Amsterdam Treaty has introduced two new types ofdecisions for the Third Pillar, framework decisions and decisions. It is clear fromthe definition of the former that an EC legal instrument - the directive - has notsimply been copied; the explicit rejection in the Amsterdam Treaty of thepossibility of direct effect of framework decisions indicates that this aspect as ithad been developed in the case-law of the Court was apparently not consideredfeasible for the new context in which the instrument was to be employed. Theother newly introduced legal instrument - the decision - is not the equivalent ofthe Decision mentioned in Article 249 EC, but mostly seems to resemble the ECdecisions sui generis as discussed above in Section 3.5.

Finally, what is true for decisions of all international organizations - even,albeit to more limited degree, for those of the European Communities - is also truefor Second and Third Pillar decisions: member states still play a pivotal role inmaking decisions effective. This not only applies to the situation before the entryinto force of the Amsterdam Treaty, but also to the situation thereafter. The newly

129. Cf., B. de Witte, 'The Pillar Structure and the Nature of the European Union: Greek Templeor French Gothic Cathedral?', in Heukels, et al., op. cit. n. 128, at pp. 51 -68, in particular at pp. 55-56:'It is out of a better understanding of their own long-term national interest that the member states havenow 'infected' the two intergovernmental pillars with an extra dose of methode communautaire andhave thus recognized that successful and effective cooperation between states is sometimes betterserved by the severe regime of institutional constraints and limitations of sovereignty practiced withinthe European Community than by the lax enire nous of the second and third pillars.'


introduced legal instruments all rely heavily on member state involvement in orderto become effective. The possibility of establishing common strategies and theirimplementation depends on the member states.130 The choice of form and methodsto implement framework decisions is left to the member states. And theeffectiveness of joint actions and common positions is largely dependent uponconscientious implementation by the member states.

5. FORTENTWICKLUNG OF THE CONCEPT OF DECISIONS OFOTHER INTERNATIONAL ORGANIZATIONS UNDER THEINFLUENCE OF EU DECISIONS?

5.1 Introduction

It is clear from the analysis above that the nature and development of EC decisionsin particular are an innovation of the general concept of decisions of internationalorganizations. In this paragraph it will be examined if the example of the EC hasbeen followed by other international organizations. Did other internationalorganizations introduce types of decisions that in some respects resemble ECdecisions?

It is of course impossible to fully discover the influence of EU decisions ondecisions of other international organizations. Where developments can bedetected in such organizations that make their decisions resemble EC decisions, itwill not be easy to establish if this development is prompted by the experience ofthe EC or by the needs of the organization itself, or by a combination of suchexternal and internal stimuli. Incidentally, it is not necessary to identify in greatdetail the source of inspiration of these developments. The present analysis isfocused on the development of the concept of decisions of internationalorganizations, and it seems that the further development of this concept within theEC has also occurred outside the Communities. First of all, as analyzed above, thishad occurred in their immediate neighbourhood, the other parts of the EuropeanUnion. Secondly, some international organizations mention in their constituentinstrument types of decisions similar to EC decisions. These organizations are allregional economic integration organizations that also in other respects basethemselves upon the model of the European Communities, for example in theirinstitutional structure.

130. See F. Dehousse, 'After Amsterdam: A Report on the Common Foreign and Security Policyof the European Union', 9 EJ1L (1998) pp. 525-539, at p. 533.

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At present there is a substantial number of regional integration organizations.Among the most prominent examples are presently two Latin Americanorganizations, the Andean Community and the Southern Common Market(Mercosur), and, although somewhat less important in practice, two Africanorganizations, the Common Market for Eastern and Southern Africa (Comesa) andthe South African Development Community (SADC). It will now be examined ifthe types of decisions of these organizations carry the influence of EC decisions.

5.2 The Andean Community

The Latin American Integration Organization (LAIA), established by the 1980Montevideo Treaty, provides the framework within which regional integrationwithin Latin America is taking place.131 According to the Montevideo Treaty, so-called partial scope agreements may be concluded by some of the LAIA mem-bers.132 The two most developed integration organizations established on the basisof partial scope agreements are the Andean Community and Mercosur.

The Andean Community was established in 1997 following a long history ofintegration efforts that originally applied the model of import substitution andgradually became more outward-looking.133 Its current objectives are, inter alia, topromote the development of the member states through economic and socialintegration and cooperation.134 The Andean Community has five member states:Bolivia, Colombia, Ecuador, Peru and Venezuela. Integration is defined in theconstitution as 'a historical, political, economic, social, and cultural mandate fortheir countries, in order to preserve their sovereignty and independence.'135 TheAndean Community has an elaborate institutional structure. Its most importantorgans are the Andean Presidential Council (the supreme organ, meeting once ayear), the Andean Council of Ministers of Foreign Affairs (normally meetingtwice a year), the Commission of the Andean Commmunity (the main policy-making body, composed of representatives of the governments of the memberstates, and normally meeting three times a year), the General Secretariat (an

131. 20 1LM (1981) p. 672 (1981). The original name of the organization is Asociaci6n Latino-americana de Integraci6n (ALADI). Website: www.aladi.org.

132. Montevideo Treaty, Arts. 7-9.133. On the Andean Community, see A. Fairlie Reinoso, 'The Andean Community Case', in P.

Demaret, et al., Regionalism and Multilateralism after the Uruguay Round (Brussels, EuropeanInteruniversity Press 1997) at pp. 177-197.

134. Cartagena Agreement (originally concluded in 1969), as codified by the 1997 Protocol ofTrujillo, Art. 1.

135. Cartagena Agreement, as codified by the 1997 Protocol of Trujillo, Preamble. Seewww.comunidadandina.org.


independent, executive body), the Court of Justice,136 and the AndeanParliament.137

The main types of decisions that can be adopted by the Andean Community arethe following:— Declarations and Decisions adopted by consensus by the Andean Council ofMinisters. Declarations are not binding; Decisions are binding and 'shall be part ofthe Andean Community Law'.138

— Decisions adopted by the Commission.139

— Resolutions of the General Secretariat.140

The 1979 Treaty creating the Court of Justice specifies the legal nature ofCommission Decisions.141 Article 2 of this Treaty provides that 'decisions becomebinding for member countries as soon as they are approved by the Commission.'Furthermore, Article 3 indicates that Commission Decisions 'shall apply directlyin the member countries'; in addition, 'when so stipulated in their text, Decisionsmust be incorporated into municipal laws by means of a specific deed stipulatingthe date of enforcement in each member country.' As a rule CommissionDecisions are adopted by majority vote. One of the competences of the Court is tonullify both Commission Decisions and Resolutions of the General Secretariat.

It is clear that in particular Commission Decisions may be compared to ECregulations and directives, at least if it is not forgotten that the Andean Commis-sion is composed of representatives of the governments of the member states.They may be adopted without the consent of all members and do not requireapproval by national parliaments. They are binding and directly applicable withinthe member states. And it is also clear that other elements of the AndeanCommunity legal structure resemble supranational characteristics of the EuropeanCommunities. Of particular importance is the position of the Andean Court, whichhas delivered a number of judgments and preliminary rulings.142 No other regionalintegration organization outside Europe has an active court with powers thatresemble so much those of the EC Court.

136. The Court is composed of five judges and has functions similar to those of the EC Court.Website: www.altesa.net/tribunal.

137. The Cartagena Agreement provides for direct elections for the members of the AndeanParliament in the near future (Art. 42). Website: www.parlamentoandino.org.

138. Cartagena Agreement, Art. 17.139. Cartagena Agreement, Art. 21.140. Cartagena Agreement, Art. 29.141. As amended by the Protocol of Cochobamba concluded in 1996 (entered into force in 1999).142. See R. Marwege and J. Samtleben,' Wirtschafiliche Integration undgewerbliche Schutzrechte

in der Rechtsprechung des Andengerichlshofs', GRUR Int. (1993) pp. 279-291.

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5.3 Mercosur

The other main integration organization within the framework of the LatinAmerican Integration Association is Mercosur.143 Following a history of bilateraland multilateral economic cooperation agreements, Mercosur was established in1991 by the Treaty of Asuncion concluded between Argentina, Brazil, Paraguayand Uruguay.144 Its main purpose is to establish a common market. The Treaty ofAsuncion was supplemented by the Protocol of Brasilia for the settlement ofdisputes,145 and by the 1994 Protocol of Ouro Preto.146 The Protocol of Ouro Pretoestablishes the current institutional structure of Mercosur. A number of elementsof this structure resemble features of the EU institutional structure. For example,the presidency of the Mercosur Council - Mercosur's supreme organ - rotatesamong the member states every six months (Art. 6). In addition, the functions ofthe Common Market Group - Mercosur's executive organ composed ofrepresentatives of the governments of the member states - resemble the functionsof the European Commission; they comprise a right of initiative, albeit notexclusive, the power to monitor compliance with treaty obligations, and thecompetence to negotiate agreements with third countries and other organizations(Art. 14). Mercosur has a parliamentary organ with advisory functions - the JointParliamentary Commission - whose members are appointed by the four nationalparliaments (Arts. 22-27). One of the most significant differences with the ECinstitutional structure is the absence of a Court of Justice in Mercosur'sstructure.147 Another fundamental difference concerns the decision-makingprocedure: all decisions of the Mercosur organs are taken by consensus (Art. 37).

143. On Mercosur, see F. Pena, 'Some Lessons from the Mercosur Initial Experience', in Demaret,et al., op. cit., n. 133, at pp. 161-175; J. Kleinheisterkamp, 'Legal Certainty in the Mercosur: TheUniform Interpretation of Community Law', published in the Fall 1999 issue of NAFTA: Law andBusiness Review of the America. I am indebted to Ms. Angelica Avila-Castafieda for giving medocuments and further information concerning Mercosur.

144. 301LM (1991) p. 1994.145. 361LM{ 1997) p. 691.146. 34/ZJW(1995)p. 1244.147. The main rules for dispute settlement can be found in the aforementioned Protocol of Brasilia.

According to this Protocol, members shall first attempt to settle disputes through direct negotiations.If there is no agreement, the Common Market Group may intervene. If such intervention is notsuccessful, parties may take recourse to arbitration. The first arbitration report was delivered on 28April 1999 and refers not only to a number of characteristics of the Mercosur legal order, but also tosome studies of the EC legal order, in particular to R. Lecourt's L'Europe des Juges (Bruxelles,Bruylant 1976). See on this report D. Ventura, 'First Arbitration Award in Mercosul - A CommunityLaw in Evolution?', 13 LJ1L (2000) nyp. A second arbitration report was delivered on 27 September1999.


The decisions that can be taken by Mercosur organs carry different names andare either binding or non-binding upon the member states. Binding decisions areadopted by the Council ('Decisions', Art. 9 Protocol of Ouro Preto), the CommonMarket Group ('Resolutions', Art. 15), and the Trade Commission - created toassist the Common Market Group - ('Directives', Art. 20). These Decisions,Resolutions and Directives are mentioned as one of the three categories of legalsources of Mercosur (the other categories being first of all the Treaty of Asuncion,its protocols and the additional or supplementary instruments, and secondly, theagreements concluded within the framework of the Treaty of Asuncion and itsprotocols). Non-binding decisions are adopted by the Trade Commission('Proposals', Art. 20), the Joint Parliamentary Commission ('Recommendations',Art. 26), and the Economic-Social Consultative Forum ('Recommendations', Art.29).

The legal effect of the binding Mercosur decisions within the legal orders of themember states is different from the legal effect of EC decisions. According toArticle 42 of the Protocol of Ouro Preto, these decisions are 'binding and, whennecessary, must be incorporated in the domestic legal systems in accordance withthe procedures provided for in each country's legislation.' Articles 38-40 of thisProtocol lay down more specific rules for the internal application in the memberstates of these decisions. Member states must take all measures necessary toensure compliance with the binding Mercosur decisions and are required to informthe Mercosur Secretariat of these measures. The Secretariat informs all memberswhen each of them has reported incorporation in its legal system. Thirty days afterthe date of communication to the members, the decisions in question enter intoforce.

5.4 The Southern African Development Community

If we now move to the African continent, there are clear parallels with LatinAmerica. As in Latin America, Africa has a considerable history of integrationefforts.148 On a number of occasions a new integration initiative was launched withgreat enthusiasm, but sooner rather than later many of these initiatives failed tomeet the high expectations; often, 'the logic of fragmentation has been stronger

148. See S. Akintan, The Law of International Economic Institutions in Africa (Leiden, Sijthoff1977); D. Mazzeo, ed., African Regional Organizations (Cambridge, Cambridge University Press1984); P.-F. Gonidec, Les organisations Internationales africaines: etude comparative (Paris,L'Harmattan 1988); P. Pennetta, Le organizzazioni internazionali deipaesi in via di sviluppo, Volumeprimo: Le organizzazioni economiche regionali africane (Bari, Cacucci 1998).

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than the logic of integration.''49 Most recently, the collapse of the Soviet Unionand the conclusion of the Uruguay Round of multilateral trade negotiationprovided new incentives for integration efforts also in Africa. In 1991, the Treatyestablishing the African Economic Community was concluded within theframework of the Organization of African Unity.150 Just as LAIA for LatinAmerica, this African Economic Community provides for a continent-wideumbrella, as a framework for specific integration organizations within the region.It is provided that 'the Community shall be established gradually in six stages ofvariable duration over a transitional period not exceeding 34 years.'151 At presentthere are six of such regional integration organizations, two of which are discussedbelow.152

The Southern African Development Community (SADC) was created in 1992and replaced the Southern African Development Coordination Conferenceestablished in 1980, following a number of regional and global developments,such as the dismantling of statutory apartheid, the collapse of the Soviet Union,the end of the Cold War and the wish to pursue closer integration.153 At presentSADC has fourteen member states including Malawi and South Africa. Itsheadquarters are in Gabarone (Botswana).

SADC has a wide range of economic and political objectives (Art. 5 SADCTreaty), inter alia, to achieve development and economic growth, to evolvecommon political values, systems and institutions, and to promote and defendpeace and security. According to Article 6.5, 'member states shall take allnecessary steps to accord this Treaty the force of national law'. The supremepolicy-making institution of SADC is the Summit of Heads of State orGovernment. Further 'institutions' are the Council (composed of one ministerfrom each member state), commissions (for designated sectoral areas), and theStanding Committee of Officials. These institutions all meet at least once a yearand take decisions by consensus. Finally, SADC has a Secretariat and the SADCTreaty provides that a Tribunal 'shall be constituted to ensure adherence to and theproper interpretation of the provisions of this Treaty and subsidiary instruments...'

149. Peiia, op. cit. n. 143, at p. 161.150. 30/ZJW(1991)p. 1241.151. Treaty establishing the African Economic Community, Art. 6.1.152. See further T. Mulat, 'Multilateralism and Africa's Regional Economic Communities', 32 JWT

(1998) pp. 115-138.153. The constitution of SADC is reproduced in 32 ILM (1993) p. 116. See also the introductory

note by R.H. Thomas, for a brief analysis of developments explaining the replacement of SADCC bySADC, as well as SADC's website www.sadc-online.com. I am grateful to my colleague Dr. Elsbethde Vos for giving me documents and further information concerning SADC.


(Art. 16.1). There is a draft version of a Protocol establishing the Tribunal, but thishas not yet been adopted by the Summit.

The SADC Treaty has no specific article on decisions of the organization. Onlyit provides that 'unless otherwise provided in this Treaty, the decisions of theSummit shall be taken by consensus and shall be binding' (Art. 10.8). The legalforce of decisions of the other policy-making organs is not specified. According tothe draft protocol on the Tribunal, which has not yet been adopted by the Summit,the Tribunal has jurisdiction over all disputes and all applications referred to itwhich relate to, inter alia, the interpretation, application or validity of theprotocols, all subsidiary instruments adopted within the framework of theCommunity, and acts of the institutions of the Community.

5.5 The Common Market for Eastern and Southern Africa

The Treaty establishing Comesa was concluded in 1993.154 At present it has 21member states in Eastern and Southern Africa, including Ethiopia, Sudan andNamibia. One of its objectives is to launch a free trade area in October 2000. Thesupreme organ of Comesa is the Authority, meeting once a year and composed ofthe heads of state or government of the member states. Other organs are theCouncil, the Court of Justice, the Secretariat, and a large number of TechnicalCommittees. It is clear that the EC institutional structure has been used as anexample.155 A number of elements of this structure are almost copied from the EC.One example is the Comesa Court of Justice (that replaces judicial bodies createdunder the previously existing Preferential Trade Area for Eastern and SouthernAfrican States). The competences of the Court - whose seven judges have beenappointed on 29 June 1998 - include the following. Individuals may refer fordetermination by the Court the legality of Comesa or member state decisions onthe grounds that such decision is unlawful or an infringement of the Treatyprovisions.156 National courts may, and in certain cases must request a preliminaryruling from the Comesa Court.157 In addition, the Court may give advisory

• • 1SK

opinions.The EC has also been considered a source of inspiration if it comes to the types

of decisions that may be adopted by the Council. Article 10 of the Comesa Treatyprovides:

154. 33ILM (1994) p. 1067. See also Comesa's website: www.comesa.int.155. As is explicitly mentioned on the Comesa's website: 'The Comesa Court of Justice is modelled

along the lines of the European Court of Justice'.156. Comesa Treaty, Art. 26.157. Comesa Treaty, Art. 30.158. Comesa Treaty, Art. 32.

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1. The Council may, in accordance with the provisions of this Treaty, make regulations,issue directives, take decisions, make recommendations or deliver opinions.2. A regulation shall be binding on all the member states in its entirety.3. A directive shall be binding upon each member state to which it is addressed as to theresult to be achieved but not as to the means of achieving it.4. A decision shall be binding upon those to whom it is addressed.5. A recommendation and an opinion shall have no binding force.

Article 11 provides that regulations, directives and decisions shall state the reasonson which they are based and shall refer to any proposals or opinions which wererequired to be obtained. Rules on the entry into force of these three types ofdecisions are laid down in Article 12.

5.6 Conclusion

The brief survey above demonstrates that the example of EC decisions has beenfollowed in some cases but not in others. Of the organizations discussed, the AndeanCommunity and Comesa use types of decisions that resemble EC decisions. Otherelements of the institutional stmcture of these organizations bear the influence of theEC as well. This is different for Mercosur and SADC. The SADC Treaty only refersto 'decisions' without any further differentiation. Mercosur uses different types ofdecisions that only become effective indirectly, through incorporation in the legalorders of the member states.

6. CONCLUDING OBSERVATIONS

Decisions of international organizations are legal instruments in which organs expresstheir volonte distincte. This volonte is not in every single case necessarily similar to thewill of each individual member. This is after all inherent in the establishment ofinternational organizations. Institutionalized cooperation in a particular area isconsidered to be in the common interest. Neither the prohibition of the use of chemicalweapons nor the regulation of world trade or the prosecution of war criminals can befully effectuated at the national level. This is one of the consequences of thephenomenon for which regularly new catchwords are used such as global village,interdependence and, most recently, globalization. In order to control thesedevelopments to a certain degree, states often have no alternative but to cooperatewithin international organizations. This implies, on the one hand, that they controlexternal influences through their participation in decision-making in theseorganizations. On the other hand, it also implies that such control is a collective,organic effort, a shared responsibility that is not exclusively in the hands of one


member. While this general idea is accepted, its full consequences are not. Memberstates are reluctant to consent to the possibility that some future decision of aninternational organizations may be in the common interest, but not in their individualinterest as they perceive it.

The existing different types of decisions of international organizations, as analyzedin this contribution, are just as many compromises in this setting. There is sharedcontrol by member states, embodied in a decision expressing the volonte distincte of aninternational organ, but at the same time there are different ways and means for themember states to escape or limit the risk of having to comply with unwanted decisions.These compromises, as embodied in the different types of decisions of internationalorganization, are never absolute or static. Rather, they vary in place, time and subjectmatter. Integration in Europe is different from integration in Africa or Asia; hence, ECregulations cannot simply be copied and perform the same function in other parts of theworld. Compromises vary also in time because the degree of interdependence atpresent is much more intense as compared to previous times when different catchwordswere used. Finally, compromises vary according to subject matter: creating an internalmarket requires different legal instruments than implementing a common foreign andsecurity policy.

Against this background it is fascinating to analyze the concept of decisions ofinternational organizations and its development. Recommendations and conventionsare the archetypes of decisions of international organizations. On the one hand they arethe traditional instruments through which organizations express their own will. On theother hand they are imperfect legal instruments either because they are not legallybinding or because they require a separate consent to be bound by member states.From a legal point of view the much more serious intrusions on the principle of statesovereignty are binding unilateral decisions of international organizations such ascertain resolutions of the UN Security Council, the ICAO or the M O . The overviewabove has demonstrated that the popular image of international organizations astalkshops producing at most decisions that member states do not consider to be of theirconcern is misleading. Recommendations may have numerous legal consequences,conventions are binding, and unilateral binding decisions are too often forgotten andleft out of the analysis. Therefore, if EU decisions are compared to decisions of otherinternational organizations they must be compared not to this popular image, thisstereotype, but to the real nature and effect of such decisions.

The overview above of EU decisions has demonstrated that EC decisions inparticular embody a Fortentwicklung of the concept of decisions of internationalorganizations. This was first of all the will of the member states when they created theCommunities and defined regulations, directives and Decisions as legal instruments ofa largely different nature than those of other organizations, necessary in view of theenvisaged integration objectives. But it has also been the Court - of course, a creation

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of the member states as well - that has elaborated the distinct nature of these ECdecisions. At the same time, notwithstanding this innovative character of EC decisions,they never can perform their functions without active involvement of the memberstates. In particular at the level of implementation of EC decisions, member statescontinue to play an important if not decisive role.

This Fortentwicklung of the concept of decisions of international organizationswithin the EC has in turn influenced other frameworks and organizations. First of allthe influence is manifest within the Union itself. The Amsterdam Treaty hasintroduced considerable changes in the different types of decisions of the Second andThird Pillar, and some of these changes clearly bear the marks of the EC experience.Secondly, EC decisions can be recognized in a number of regional organizations inother parts of the world. In some of these cases, in particular Comesa and the AndeanCommunity, the concept of EC decisions as well as parts of the institutional structurehave largely been copied. In other cases, in particular the case of S ADC, the influenceof the EC is less noticeable.

The further development of the concept of decisions of international organizationswithin the European Communities is remarkable. To a certain extent it provides alaboratory from which other organizations may benefit,159 just as the EC itself hasbenefited from the earlier development of this concept. But there will only be suchbenefit if the EC decisions experience is seen in the context of European integration.Simply copying institutions, procedures and decisions and including them in anothersuperstructure that is superimposed on a completely different infrastructure does notwork. The infrastructure of an international organization must always be receptive tothe introduction of such integration instruments in order to prevent them frombecoming a corpus alienum.

159. Cf., W. Friedmann, The Changing Structure of International Law (London, Stevens 1964) pp.113-114.

Decisions of International Organizations the Case of EU

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