290
preserve the autonomy of the EU legal system,
30
in particular by ensuring the uniform and consistent interpretation and application thereof. Art. 344 TFEU provides
that “Member States undertake not to submit a dispute concerning the interpretation
or application of the Treaties to any method of settlement other than those provided
for therein”.
31
Therefore, if a dispute arises between EU Member States involving
EU law, those states must bring the dispute exclusively before the ECJ.
32
Only after
the ECJ has determined that EU law issues are not involved in the dispute would the
Member States be allowed to bring the case before another dispute settlement body.
The preservation of the ECJ’s exclusive jurisdiction is of crucial importance for the
ECJ, as it is considered the decisive guardian of the EU legal order’s autonomy.
33
Under Art. 344 TFEU, the ECJ’s competence is exclusive and binding on the EU
Member States. This court ruled that the arguments put forward by a Member State
concerning the advantages that arbitration proceedings under Annex VII UNCLOS
would present in comparison with Art. 344 TFEU could not be accepted.
34
On the
contrary, doing so would involve the risk that a different judicial forum would rule
on the scope of obligations imposed on the Member States according to EU law.
35
In this regard, Art. 344 TFEU seems to be the solution adopted by the ECJ against
forum shopping,
36
whereby an EU Member State might otherwise choose a different
forum in a dispute with another EU Member State. This is a clear manifestation of
the ECJ’s desire to protect its exclusive jurisdiction from the growing number of
international courts and tribunals, which part of the doctrine considers a perfect
expression of the fragmentation of current international law.
37
In this regard, in the past 60 years, only four cases have been brought before the
ECJ involving one Member State bringing an action against another.
38
Nevertheless,
the scope of the ECJ’s exclusive jurisdiction, as provided for by Art. 344 TFEU, is
subject to a significant limitation, namely, for the ECJ to have jurisdiction over a
legal dispute, the procedure referred to in Articles 258 and 259 TFEU has to be
launched.
39
30 Commission v. Ireland, para. 132.
31 For a detailed analysis of Art. 344 TFEU, see Virzo (2010).
32 ECJ, Opinion 1/91 delivered pursuant to the second subparagraph of Article 228(1) of the Treaty,
ECLI:EU:C:1991:490, Opinion, 4 December 1991, para. 35; ECJ, Opinion 1/00 pursuant to
Article 300(6) EC — Proposed agreement between the European Community and non-Member
States on the establishment of a European Common Aviation Area, EU:C:2002:231, Opinion, 18
April 2002, paras 11–12; Commission v. Ireland, para. 123.
33 In this regard, see Eicher (2008), pp. 381–382.
34 Commission v. Ireland, para. 136.
35 Ibidem, para. 177.
36 For an overview of forum shopping and the challenges it poses for current international law, see
Eicher (2008), pp. 367–394, and Forteau (2013).
37 See: Martín y Pérez de Nanclares (2011), and Riquelme Cortado (2013).
38 See: ECJ, France v. United Kingdom, 141/78, EU:C:1979:225, Judgment, 4 October 1979; ECJ,
Belgium v. Spain, C-388/95, EU:C:2000:244, Judgment, 16 May 2000; Commission v. Ireland;
ECJ, Spain v. United Kingdom, C-145/04, EU:C:2006:543, Judgment, 12 September 2006.
39 For an overview of this situation, see Lavranos (2006a), p. 296, and (2006b), p. 490.
G. A. Oanta
preserve the autonomy of the EU legal system,
30
in particular by ensuring the uniform and consistent interpretation and application thereof. Art. 344 TFEU provides
that “Member States undertake not to submit a dispute concerning the interpretation
or application of the Treaties to any method of settlement other than those provided
for therein”.
31
Therefore, if a dispute arises between EU Member States involving
EU law, those states must bring the dispute exclusively before the ECJ.
32
Only after
the ECJ has determined that EU law issues are not involved in the dispute would the
Member States be allowed to bring the case before another dispute settlement body.
The preservation of the ECJ’s exclusive jurisdiction is of crucial importance for the
ECJ, as it is considered the decisive guardian of the EU legal order’s autonomy.
33
Under Art. 344 TFEU, the ECJ’s competence is exclusive and binding on the EU
Member States. This court ruled that the arguments put forward by a Member State
concerning the advantages that arbitration proceedings under Annex VII UNCLOS
would present in comparison with Art. 344 TFEU could not be accepted.
34
On the
contrary, doing so would involve the risk that a different judicial forum would rule
on the scope of obligations imposed on the Member States according to EU law.
35
In this regard, Art. 344 TFEU seems to be the solution adopted by the ECJ against
forum shopping,
36
whereby an EU Member State might otherwise choose a different
forum in a dispute with another EU Member State. This is a clear manifestation of
the ECJ’s desire to protect its exclusive jurisdiction from the growing number of
international courts and tribunals, which part of the doctrine considers a perfect
expression of the fragmentation of current international law.
37
In this regard, in the past 60 years, only four cases have been brought before the
ECJ involving one Member State bringing an action against another.
38
Nevertheless,
the scope of the ECJ’s exclusive jurisdiction, as provided for by Art. 344 TFEU, is
subject to a significant limitation, namely, for the ECJ to have jurisdiction over a
legal dispute, the procedure referred to in Articles 258 and 259 TFEU has to be
launched.
39
30 Commission v. Ireland, para. 132.
31 For a detailed analysis of Art. 344 TFEU, see Virzo (2010).
32 ECJ, Opinion 1/91 delivered pursuant to the second subparagraph of Article 228(1) of the Treaty,
ECLI:EU:C:1991:490, Opinion, 4 December 1991, para. 35; ECJ, Opinion 1/00 pursuant to
Article 300(6) EC — Proposed agreement between the European Community and non-Member
States on the establishment of a European Common Aviation Area, EU:C:2002:231, Opinion, 18
April 2002, paras 11–12; Commission v. Ireland, para. 123.
33 In this regard, see Eicher (2008), pp. 381–382.
34 Commission v. Ireland, para. 136.
35 Ibidem, para. 177.
36 For an overview of forum shopping and the challenges it poses for current international law, see
Eicher (2008), pp. 367–394, and Forteau (2013).
37 See: Martín y Pérez de Nanclares (2011), and Riquelme Cortado (2013).
38 See: ECJ, France v. United Kingdom, 141/78, EU:C:1979:225, Judgment, 4 October 1979; ECJ,
Belgium v. Spain, C-388/95, EU:C:2000:244, Judgment, 16 May 2000; Commission v. Ireland;
ECJ, Spain v. United Kingdom, C-145/04, EU:C:2006:543, Judgment, 12 September 2006.
39 For an overview of this situation, see Lavranos (2006a), p. 296, and (2006b), p. 490.
G. A. Oanta