Attribution – Responsibility – Remedy. Some comments on the EU in different international regimes
SHARES Research Paper 30 (2014), ACIL 2014-14
Published in: 46(1) Revue belge de droit international (2013), pp. 57-77.
Often in the discussion of the allocation of international responsibility between an international organization and its Member States for unlawful acts pride of place is given to the allocation of powers or competences between the organization and its Member States. This is particularly true for the European Union (EU). This raises the question as to why the allocation of responsibility between the EU and its Member States is so different in the practice of the Panels and the Appellate Body of the World Trade Organization (WTO) on the one hand and on the allocation of responsibility in the agreement on the accession of the EU to the European Convention on Human Rights (ECHR) on the other hand. In the WTO dispute settlement system the result is most often allocation of responsibility to the Union, while in the agreement on the accession to the ECHR the allocation quite likely will be most often to the Member States. An analysis of the system of remedies preferred by each of these regimes shows that the WTO system favours restitutio in integrum above all other remedies, while the ECHR system is more geared towards damages as preferred remedy. It seems therefore that the system of remedies also has an important influence on the allocation of responsibility. In the WTO the EU is uniquely capable of providing restitutio in integrum, whereas in the ECHR the Member States are a more sure source of money for damages than the EU.