The Acquis of the European Union and International Organisations*

• DOI: http://doi.org/10.1111/j.1468-0386.2005.00257.x
• Published date: 01 March 2005
• Date: 01 March 2005

The Acquis of the European Union and

International Organisations*

Loïc Azoulai**

Community Law has an ’intimate’relationship with international law. Community law

owes international law a great part of its acquis,including its’origins’,1and even its

‘foundations’.2The question of knowing whether Community law merely constitutes a

branch of international law or whether it is characterised by a fundamental original-

ity, continues to divide legal and academic opinion.3But this is not the only question.

It is common to ask what Community law owes to international law, without ever

turning the question around. However, it is diff‌icult to believe that the development of

the European Community in the last f‌ifty years could have no impact on the interna-

tional law and community.4

What distinguishes the European Community from other, so-called ‘classical’ inter-

national organisations, is its dynamism. The Community construction is entirely ori-

ented towards the future.5It was conceived, from its origin, as a ‘phenomenon of

progressive development’,6comparable to that of a living organism. It does not follow

a single trajectory,but proceeds by a continual mutation of forms and creation of diver-

gent species, under the combined inf‌luence of internal circumstances and external

pressures. Such a system, which never ceases evolving to construct a more and more

complicated machine, must refer to some types of acquired characteristics, guarantees

of its integrity. If the Community process is a ‘living process’,7there must at least be a

European Law Journal, Vol.11, No. 2, March 2005, pp. 196–231.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*This is an English translation of an article previously published in French in La Revue des Affaires

Européennes.

** Professor of Public Law (University of Rouen), Référendaire at the Court of Justice of the European

Communuties.

1D. Simon, ‘Les fondements de l’autonomie du droit communautaire’, in Societé Française pour le Droit

International Droit international et droit communautaire: perspectives actuelles (Pedone, 2000), 208.

2A. Pellet, ‘Les fondements legals internationaux du droit communautaire’, Collected Courses of the

Academy of European Law,vol. V, book 2, at 193.

3See R. Abraham, Droit international, droit communautaire et droit français (Hachette, 1989), at 136;

J-C. Gautron and L. Grard,‘Le droit international dans la construction de l’Union européenne’, in Droit

international et droit communautaire: perspectives actuelles (Pedone, 2000).

4J. Verhoeven, ‘Conclusions générales,’in Droit international et droit communautaire: perspectives actuelles,

(Pedone, 2000), at 444.

5J-P.Jacqué, ‘Cours général de droit communautaire’, in Collected Courses of the Academy of European

Law,vol.I, book 1, 247–248.

6R. Monaco, ‘Notes sur l’intégration legal dans les Communautés européennes’, in W. J. Ganshof van

der Meersch (ed.), Miscellenea,vol.II (Bruylant, 1972), at 309.

7On the judicial construction, see J.Dutheil de la Rochère,‘L’Espace Economique Européen sous le regard

des juges de la Cour de justice des Communautés européennes’, (1992) RMC at 606.

continuity of genetic identity. The acquis is a construction of the organisation to ensure

its continuity.8The term evokes that which resists against transformations, the hard

unyielding core, transgression of which would lead to effects of blockage or disinte-

gration. As well as a collection constituted by rules and principles, the acquis appears

as the constantly renewed projection of an initial solidarity and impulse. It is the incar-

nation of the ‘teleology of integration’.9

The ideal of an organisation, constantly moving, such as the EU, faces multiple

obstacles, internal as well as external. In this regard, ‘the growing role of international

organisations in all the domains of politics constitutes a real risk for the acquis com-

munautaire’.10 To respond to this risk, the intensif‌ication of the Community’s relations

with the outside world appears, since the beginning of the 1990s, as a necessity. It is

essential for the European Community to aff‌irm the dynamism and the presence of the

EU on the international scene.11 The acquis becomes, in a way, the motor of a more

aff‌irmed external policy. The notion thus gains in extension, but incontestably loses in

precision.12 In this sense, it comprehends all elements of the normative patrimony of

the Community that can further this external self-aff‌irmation. Because of their inf‌lu-

ential position, international organisations constitute focal points of such a policy of

projection of the acquis of the European Union.

This project immediately encounters a serious diff‌iculty. Towards the Member States

of the Community and the EU, the acquis can, to a certain extent, be imposed. On the

contrary, the autonomy of each organisation, laid down in their respective charters,

forbids any unilateral projection of the acquis of the Union13.The only means avail-

able to the Community in this respect is the promotion of the acquis in the framework

of mechanisms for cooperation or participation, on the basis of Treaty provisions.14

This ‘projection-promotion’ takes a dual approach. On one hand, the Community

March 2005 The Acquis of the EU and International Organisations

© Blackwell Publishing Ltd. 2005 197

8K. E. Jørgensen, The Social Construction of the Acquis Communautaire: A Cornerstone of the European

Edif‌ice,European Integration online Papers,vol. 3 no. 5, 1999. Available at

t./eiop/texte/1999-005.html>.

9See ‘The Acquis of the European Union’, (2001–2002) Revue des Affaires Européennes 7–8.

10 J. Sack, ‘The European Community’s Membership of International Organizations’, (1995) CMLR,

at 1228.

11 It should be emphasised that it is essentially the European Community that acts in the international order,

even if the EU plays a decisive role of representation. There is an increasingly frequent use of the expres-

sion “European Union” in the internal documents of the Union and in international practice.

12 It will be recalled that the establishment of a list constituted of the whole of derived law forming ‘the

acquis communautaire’ is a requirement linked to the process of enlarging the Union with the candidate

countries. But, at the end of the 1992 Lisbon Summit, the term took on a wider signif‌icance. The Con-

clusions of the Presidency effectively foresee the establishment by the European Union of a regulatory

environment which would be clear, eff‌icient and operational in a world market which is rapidly evolving.

To this end, the Commission published in 2001 a communication on ‘La codif‌ication de l’Acquis com-

munautaire’(COM(2001) 645 f‌inal). It recognised that ‘the identif‌ication of the acquis’ is a ‘diff‌icult task’.

This is deemed to be necessary to ‘permit access to a more transparent legislative framework for the

benef‌it of citizens and businesses, as much in the European Union as in the candidate countries wishing

to join the Union’. On 6 December 2001, the Commission announced its intention to reduce the amount

of the acquis communautaire by at least 25% before January 2005 (press communiqué, IP/01/1762,

).

13 However, the case of relations between the Community and the European Economic Area is a different

matter, governed by specif‌ic procedures of transposition and of following ‘the acquis communautaire’.

14 There is no disposition permitting the participation of the Communities in international organisations,

but several provisions of the Treaty instituting the European Community deals with relations of coop-

eration. There should thus be cited, for provisions relative to to organic cooperation,Art 302 EC (evoking

useful liaisons with the organs of the United Nations), 303 EC (useful cooperation with the Council of

deploys its normative capacity in the whole of the sectors of economic and social life.

It can use a broad ‘substantial acquis’related to Article 2 TEU. On the other hand, the

Community and the EU are endowed with a unique and sophisticated institutional

framework. Such is the ‘institutional acquis’that f‌inds its expression in Article 3 TEU.

From an internal point of view, these two aspects are rigorously linked. The institu-

tional unity manifests a deeper economic, social and political unity as the Community

and the EU advance their integration. But, on the exterior, the two aspects are disso-

ciated. The international legal system remains external to the necessity of coherence

inherent in the Community and EU. As an organisation of economic and social regu-

lation, the Community tends to project its normative achievements in the international

order; as an organisation of integration, it tends to project its internal unity in the inter-

national organisations.15

However, there are numerous obstacles to an aff‌irmation of the EU acquis in the f‌ield

of international relations. In order to ‘export’ itself, the Community is forced to adapt

to the conditions of existence imposed on it in the external order. But does it not run

the risk of losing its fundamental prerogatives and its own character? The Court of

Justice has expressly admitted that ‘any attack on the acquis communautaire in the f‌ield

of the unity of the market would risk unleashing...mechanisms of disintegration’ of

the Community enterprise.16 By this it means the fundamental acquis,touching on the

‘economic constitution’ of the Community.17 But the remark can be extended to the

institutional acquis,insofar as it represents ‘the internal constitution of the Commu-

nity’.18 Thus, mechanisms for protectionof the fundamental acquis have been instituted.

The notion of the acquis focuses here on the fundamental principles of its social and

economic order and its institutional structure.19

The study shows that, in this f‌ield, two opposing movements are at work, on two

parallel fronts, complementing each other. The Community tends to project its acquis

on the substantial level as well as on the institutional level; at the same time, the Com-

munity protects what it considers to be its fundamental acquis,constitutional princi-

ples and institutional autonomy.

It must not be thought that the question of the projection of the acquis is resolved by

a few simple principles. The study presents considerable diff‌iculties, as a result of the

complexity of the international relations of the Community and the EU. This complex-

ity arises from two main points: the proliferation of international organisations and the

expansion of the internal and external competences of the Community following the

European Law Journal Volume 11

198 © Blackwell Publishing Ltd. 2005

Europe), 304 EC (cooperation with the Organisation for Economic Co-operation and Development), but

equally, favouring sectorial cooperation, 149(3) EC (in the f‌ield of education, in particular with the

Council of Europe), 150(3) EC (in the f‌ield of professional training), 151(3) EC (in the cultural f‌ield,

notably with the Council of Europe), 152(3) EC (in the f‌ield of public health), 170 EC (in the f‌ield of

technological research and development), 174 EC (in the environmental f‌ield), 111 EC (in the f‌ield of

monetary union).

15 R. Kovar, ‘La contribution de la Cour de justice au développement de la condition internationale de la

Communauté européenne’, (1978) CDE at 527.

16 ECJ,20 April 1978, Joined Cases 80 and 81/77 Commissaires Réunis v Receveurs des douanes,[1978] ECR

947.

17 L-J. Constantinesco,‘La constitution économique de la C.E.E.’, (1977) RTDE, at 244.

18 Opinion 1/76, [1977] ECR 758.

19 On the idea of a hierarchy within the acquis,see P. Pescatore, ‘Aspects judiciaires de l’acquis commu-

nautaire’, (1981) RTDE at 617.