The Perception of the EU Legal Order in International Law: An In- and Outside View

Abstract

The EU is a strange phenomenon, whether regarded from the perspective of international or domestic law. It evokes many questions on the relationship of its legal order with international law and domestic law, respectively. Despite the increasing trend by the CJEU to emphasize the EU’s autonomy—both, internally and externally—, from an international law perspective, there is no reason to per se “detach” the EU from the international legal framework. This is in part also evident in how international dispute settlement bodies address questions touching upon the EU legal order and its relation to international law. This contribution focuses on the nature of the EU legal order as designated by international dispute settlement bodies, and particularly its relationship with the international legal order. On the basis of examples from four different fields—general international law, trade law, human rights law and investment law—, theoretical, jurisdictional and substantive reconciliatory techniques are identified. In particular, it is shown that the classification of the EU legal order as a subsystem of international law, as a de facto domestic order or as a sui generis legal order predetermines which conflict rules and reconciliatory techniques find application.