Opinion of the Court of Justice (Grand Chamber) in case 1/13

Nikolay Bandakov

This article aims to present and analyse Opinion 1/13 of the Court of Justice of the EU according to which the European Union has exclusive competence to approve the accession of third countries to the Convention on the civil aspects of international child abduction concluded in the Hague on 25 October 1980.

From a systematic point of view the article is structured in six parts. The introductory part explains the problem and briefly describes its genesis. The next three parts of the paper summarise the facts of the case, the applicable law, the Opinion of the Advocate General and the reasoning of the Court of Justice. The following conclusions are reached in the last part of the article.

The Court of Justice reaffirms with Opinion 1/13 the constitutional foundations of the Union relating to the rules governing the distribution of powers between the Union and its Member States. On the one hand, the Member States may not undertake unilateral actions aiming at the conclusion of international treaties falling into the scope of the exclusive competence of the Union, notwithstanding whether the latter is explicit or implicit. If the Member States nonetheless did so, the respective international agreements would have to be considered as concluded by the wrong party and as such could be found incompatible with the legal order of the EU and as a consequence as not enforceable against the Union. On the other hand, the latter replaces the Member States in the exercising of their powers to amend or supplement existing international treaties in force in case these treaties fall in the scope of the Union’s exclusive competence. The EU is vested with the powers to undertake preliminary actions binding for the Member States in order to define their coordinated position regarding the amendment of such international agreements. The Court of Justice actually establishes a kind of obligation for the Member States to refrain from taking action (obligation non facere) and to await the reaction of the Union in the spheres of his exclusive external competence.

The above enriches and complicates the analysis of the interrelation between the international law and the EU law, especially in the area of freedom, security and justice. The article emphasizes on the conclusion drawn by the Court of Justice that the Regulation Brussels IIbis and the Hague Convention on the civil aspects of international child abduction form a unitary body of rules which should be taken into consideration as a whole and in its integrity in the process of the law enforcement. The author takes the view that the regulations dealing with the judicial cooperation in civil matters should be regarded as supplements and logical continuation of the legal acts which are the result of the work of the Hague Conference on Private International Law.

The article ends with the general conclusion that Opinion 1/13 shows that the Court of Justice readily defends the integrity and the autonomy of the Union’s legal order and willingly, whenever possible, intensifies the possible “expansion“ of the external competence of the EU.

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Link to the article in Bulgarian language: ОТНОСНО ИЗКЛЮЧИТЕЛНАТА КОМПЕТЕНТНОСТ НА СЪЮЗА ДА СКЛЮЧВА НЯКОИ МЕЖДУНАРОДНИ СПОРАЗУМЕНИЯ

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