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The Court of Justice of the European Union: International or Domestic Court?

Jed Odermatt

Keywords: Court of Justice of the European Union; International Law; European Law; EU Legal Order; International Court; Domestic Court; Kadi; Mox Plant; Air Transport Association of America; Brita; Hungary v Slovak Republic; Diakité

This article discusses how the Court of Justice of the European Union (CJEU) deals with international law issues. While the EU and the Court itself are often presented as being ‘friendly’ towards international law, recent cases have shown a trend towards a more guarded approach by the Court. The article first examines recent literature on the CJEU's relationship with international law which demonstrates an oscillation between ‘openness’ towards international law and an approach that emphasises the autonomy of the EU legal order. It then discusses what rules exist to guide the Court in determining its relationship with international law. To what extent do the EU Treaties, the legal traditions of the Member States or international law itself determine how the CJEU should deal with international law issues? The next part examines how the CJEU has dealt with international law in practice. The CJEU has progressively developed tools to limit the effect of international law, as it attempts to strike a balance between respect for international law and the need to safeguard the integrity of the EU legal order. It discusses some recent cases where the CJEU dealt with key international law issues in order to demonstrate how this relationship is shaped in practice. The final part seeks to understand why the Court seems to oscillate between an open and a closed approach to international law. It is posited that this can partly be explained by whether the Court is acting in its capacity as an international or a domestic court.

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