Thus the ECJ stresses that, it
is not reluctant to accept an EU agreement having its own dispute settlement system1.
The ECJ emphasises that, the envisaged agreement and its “dispute settlement
body cannot affect the constitutional framework and founding principles of the
EU legal order2”. The
condtions of compatibility envisaged in the case law of the ECJ have turned out
to be more hard to comply and can be grouped in several categories.
The first category concerns the
personal, organic or institutional links between the extra-EU court and the ECJ.
As seen in Opinion 1/91, the ECJ will not agree to its own judges acting as
judges on the extra-EU court.
The second category concerns the
exclusive jurisdiction of the ECJ envisaged in Opinion 1/91. This category has
three facets. First, the extra-EU dispute settlement mechanism cannot upset the
ECJ’s exclusive jurisdiction under Article 344 TFEU to handle cases involving
EU Member States, when the application and interpretation of EU law is
concerned. Second, the extra-EU court cannot interfere with the ECJ’s exclusive
jurisdiction to invalidate secondary EU law. Third, the extra-EU court cannot
affect the ECJ’s exclusive jurisdiction to deliver binding interpretations of
The third category concerns the
safeguarding of EU fundamental rights. As exemplified by Opinion 2/13 EU actor
EU international agreements, must respect EU fundamental rights.
Under the fourth category, as
exemplified in Opinions 1/91, 2/13, the extra-EU tribunal cannot affect the
internal division of competences between the EU and its Member States. “An
assessment of the EU’s internal provisions on the division of powers would
occur, if the extra-EU court had to decide on whether a specific act or
omission is attributable to the EU or a Member State3”.
1 Opinion 1/91 paras 40–70,
Opinion 1/09 para 74.
2 Opinion 2/13 para 158.
3 Ibid, Opinion 2/13, paras 221–24.