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One, however, must not
forget the broader constitutional tensions underlying the EU’s and the ECJ’s relationship
with international law. On the one hand, the ECJ emphasises that as such, it is
not against the EU’s accession to an agreement having its own dispute settlement
mechanism1.
On the other hand, the envisaged agreement and its dispute settlement body
cannot affect the constitutional framework and founding principles of the EU legal
order2. The
criteria of compatibility laid down by the ECJ have become more difficult to meet
and can be grouped in several areas.

 

One of the areas concerns
the safeguarding of EU fundamental rights. This area became a lot more relevant
after Kadi3,
as exemplified by Opinion 2/13 and has two facets to it. First, every EU act, even
EU international agreements, must respect EU fundamental rights4.
Furthermore, 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 State5.  Second area relates to the preliminary reference
procedure. First, the ECJ will not find an incompatibility if an international
agreement includes a preliminary reference procedure, provided that it is the ECJ
that has to deliver the ruling (and not the extra EU court as seen in Opinion
2/13) and that the ruling is binding on the extra-EU referring court. Third area
concerns other fundamental principles or values of the EU. According to
Opinions 2/13 and 1/09, the ECJ will not accept a system that might affect the
principles of direct effect, primacy or sincere cooperation.

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The following section will
address the compatibility of the proposed ICS with the EU legal order in light
of the afore mentioned aspects. The overall tension between the EU’s role as an
international actor and the ECJ’s role as the EU’s constitutional court will
provide the guiding thread throughout the next section about the ECJ’s exclusive
jurisdiction to provide binding interpretations of EU law.

1 Court of Justice, Opinion 1/91
paras 40 -70; Opinion 1/09, para 74; Opinion 2/13 para 182.

2 Court of
Justice, Opinion
2/13  para 158.

3 Kadi, supra note 176.

4 Court of Justice, Opinion
1/00  para 16.

5 Court of Justice, Opinion
2/13  paras 22 -24

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