IN THE PROPOSED MATTER OF

THT EU – ISRAEL ASSOCIATION AGREEMENT

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OPINION

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1. I have been asked to advise on the issue whether Israel’s actions in Gaza since the

launch of the operation Cast Lead on 27 December 2008 is in breach of the EU –

Israel Association Agreement (hereinafter “the Agreement”)1 and, if so, whether

any interested parties may have any cause of action against the European

Community (hereinafter “the Community” or “EC”) on the basis of EC law.

2. The following questions, in particular, have been put to me:

a. Can it be said that Israel’s actions in Gaza since the launch of the

operation Cast Lead on 27 December 2008 have been in breach of the

Agreement?

b. If so, what are the remedies, if any?

c. In particular, is the Community required to take any action against Israel

under the terms of the Agreement or, more generally, as a matter EC law?

1 Euro-Mediterranean Agreement, establishing an association between the European communities and their member states and Israel, Official Journal of the European Communities 21.6.2000, L 147/32 to L 147/156.

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d. Can any of the following require the Community to take action and, if so,

what action?

i. Palestinians living in Gaza;

ii. NGOs based in Gaza;

iii. Members of the UK Parliament;

iv. Palestinians living in the UK and thus directly affected by the

failure to comply with the Agreement.

e. Is it possible for any of the above persons or entities to claim damages

against the Community?

3. In summary, my view is as follows:

a. On the assumption that Israel’s actions under operation Cast Lead amount

to a serious and persistent violation of human rights,

i. Israel is in breach of the human rights clause contained in

Article 2 of the Agreement;

ii. The Community may take appropriate measures against

Israel under the non-execution clause of Article 79(2) of the

Agreement;

iii. As the case law currently stands, it is unlikely for the

European Court of Justice to decide that private parties may

require the Community to take action under Article 79(2);

iv. It is arguable that the Community’s failure to take

appropriate action against Israel amounts to a breach of its

own obligations under the human rights clause of Article 2;

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v. It is difficult for private parties to enforce the Community’s

obligations under Article 2 through an action for annulment,

an action for failure to act, or an action in damages;

4. I will proceed as follows: I will first provide an overview of the Agreement. I will

then examine successively the human rights clause of Article 2 and the national

security derogation of Article 76(c). I will then draw some interim conclusions

and proceed to discuss the non-execution clause of Article 79(2). I will then

examine more closely the obligations imposed on the Community by Article 2

and discuss in detail the possible remedies for their violation. I will finally answer

the specific questions stated above.

5. I will assume for the purposes of this opinion that a claim that Israel has

committed a serious and persistent violation of human rights as a result of the

operation Cast Lead can be substantiated on the basis of specific evidence that can

be submitted to the Court of First Instance (hereinafter “CFI”) and the Court of

Justice of the European Community (hereinafter “ECJ” or the “Court”).

6. This opinion covers only issues of EC law and does not examine issues of

international law.

I. The Agreement

7. The Agreement was concluded in Brussels on 20 November 1995 and came into

force in June 2000. It is part of a series of trade and cooperation agreements

concluded between the EC and third countries in pursuance of the EU’s European

Neighbourhood Policy. It is a so-called “mixed” agreement. This means that it has

been concluded both by the Community and the Member States acting as

contracting parties vis-à-vis Israel.

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8. Mixed agreements are an established feature of EC external relations and, in

general, are used either when the subject-matter of an international agreement

falls partly within the competence of the Community and party within the

competence of the Member States or when both the Community and the Member

States share competence in the area covered by the agreement.2

9. In accordance with its character as a mixed agreement, Article 81 of the

Agreement defines the term “Parties” (hereinafter “the Parties”) to mean

“the Community, or the Member States, or the Community and the

Member States, in accordance with their respective powers, of the one

part, and Israel of the other part.”

10. The Agreement establishes an association between, on the one hand, the

Community and the Member States and, on the other hand, the State of Israel. It

contains 85 Articles divided into nine titles and is accompanied by seven annexes

and five protocols.

11. The aims of the Agreement, as set out in Article 1, are the following:

- to provide an appropriate framework for political dialogue, allowing the

development of close political relations between the Parties;

- through the expansion, inter alia, of trade in goods and services, the

reciprocal liberalisation of the right of establishment, the further

progressive liberalisation of public procurement, the free movement of

capital and the intensification of cooperation in science and technology, to

promote the harmonious development of economic relations between the

Community and Israel and thus foster the advance of economic activity,

2 For a typology of mixed agreements, see A. Rosas, The European Union and Mixed Agreements, in A. Dashwood and C. Hillion, The General Law of E.C. External Relations, Sweet & Maxwell, 2000, chapter 13, pp. 200-220.

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the improvement of living and employment conditions, and increased

productivity and financial stability;

- to encourage regional cooperation with a view to the consolidation of

peaceful coexistence and economic and political stability;

- to promote cooperation in other areas which are of reciprocal interest.

12. Article 2 of the Agreement, contains a human rights clause. This is supported by

Article 79(2) which provides for a non-execution clause. Furthermore, Article

76(c) contains a national security derogation. These provisions are crucial to this

case and I will examine them in detail below.

13. Title I (Articles 3-5), which is headed “Political Dialogue”, provides for the

establishment of a regular political dialogue and cooperation between the Parties,

the purpose of which is to strengthen their relations, contribute to the

development of a lasting partnership, and increase mutual understanding and

solidarity.3 More specifically, the dialogue seeks to pursue the following

objectives: develop better mutual understanding and an increasing convergence of

positions on international issues, in particular, those likely to have substantial

effects on one or the other Party; enable each Party to consider the position and

interests of the other; and enhance regional security and stability.4 The dialogue

covers all subjects of common interest and aims to open the way to new forms of

cooperation with a view to common goals, in particular, peace, security and

democracy.5 The dialogue is to take place at various levels, including ministerial

level, senior official level, and diplomatic level.6

3 Article 3(1). 4 Article 3(2). 5 Article 4. 6 Article 5.

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14. Title II (Articles 6-28), headed “Free Movement of Goods”, provides for the

establishment of a free trade area between the Community and Israel and, among

others, prohibits, subject to certain exceptions, customs duties, discriminatory

taxation, and quantitative restrictions on trade.

15. The other titles to the Agreement cover the following. Title III (Articles 29-30)

deals with the right of establishment and supply of services; Title IV (Articles 31-

39) deals with Capital Movements, Payments, Public Procurement, Competition

and Intellectual Property; Title V (Article 40) deals with scientific and

technological cooperation; Title VI (Articles 41-57) provides for economic

cooperation, including regional cooperation, industrial cooperation and

cooperation in diverse sectors such as agriculture, the environment, energy,

transport and drugs and money laundering; Title VII (Articles 58-62) deals with

cooperation on audiovisual and cultural matters, information and communication;

Title VIII (Articles 63-66) covers social matters. Finally, Title IX (Articles 67-

85) deals with institutional, general, and final provisions.

16. For the better understanding of the Agreement, it is helpful to examine briefly

some of the provisions included in Title IX.

17. The Agreement provides for the establishment of an Association Council which

must meet at ministerial level at least once a year and which consists of the

members of the Council of the EU and members of the Commission, on the one

hand, and members of the Government of Israel, on the other hand.7

18. The function of the Association Council is to examine any major issues arising

within the framework of the Agreement and any other bilateral or international

issues of mutual interest.8 It has the power to take decisions in the cases provided

in the Agreement for the purpose of attaining its objectives. These decisions are

7 See Articles 67 and 68. 8 Article 67.

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binding on the Parties which must take the measures necessary to implement

them.9 The Association Council also has power to make appropriate

recommendations. Decisions and recommendations are to be drawn by the

Association Council by agreement between the Parties.10

19. The Agreement also provides for the establishment of an Association Committee

which, subject to the powers of the Association Council, is responsible for the

implementation of the Agreement. The Association Council may delegate to the

Association Committee in full or in part any of its powers.11 The Association

Committee meets at official level and consists of representatives of the members

of the Council of the EU and members of the Commission, on the one hand, and

representatives of the Government of Israel, on the other hand.12

20. The Association Committee may take binding decisions for the management of

the Agreement and in the areas in which the Association Council has delegated its

powers to it.13 Decisions of the Association Committee are drawn up by

agreement between the Parties.14

21. The Association Council may decide to set up any working group or body

necessary for the implementation of the Agreement.15

22. Article 75 provides for a dispute resolution mechanism. It states as follows:

“1. Each of the Parties may refer to the Association Council any dispute

relating to the application or interpretation of this Agreement.

2. The Association Council may settle the dispute by means of a decision.

9 Article 69(1). 10 Article 69(2). 11 Article 70. 12 Article 71(1). 13 Article 72(1). 14 Article 72(2). 15 Article 73.

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3. Each Party shall be bound to take the measures involved in carrying out

the decision referred to in paragraph 2.

4. In the event of it not being possible to settle the dispute in accordance

with paragraph 2, either Party may notify the other of the appointment of

an arbitrator; the other Party must then appoint a second arbitrator within

two months. For the application of this procedure, the Community and the

Member States shall be deemed to be one Party to the dispute. The

Association Council shall appoint a third arbitrator. The arbitrators'

decisions shall be taken by majority vote. Each party to the dispute must

take the steps required to implement the decision of the arbitrators.”

23. Article 82 states that the Agreement is concluded for an unlimited period. Each of

the Parties may denounce the Agreement by notifying the other Party in which

case the Agreement shall cease to apply six months after the date of such

notification.

24. Article 83 specifies the territorial scope of the Agreement. The Agreement

applies, on the one hand, to the territories in which the Treaties establishing the

European Community and the European Coal And Steel Community are applied

and under the conditions laid down in those Treaties and, on the other hand, the

territory of the State of Israel.

25. The Agreement is accompanied by an Action Plan.16 The Action Plan seeks to

build the foundations for developing EU-Israel relations further and facilitate the

fulfillment of the objectives of the Agreement. It represents a “declaration of

mutual objectives and commitments” and establishes a set of priorities for action

in areas within the scope of the Agreement and beyond. These areas include, inter

alia, political dialogue and co-operation, increased economic integration,

16 Available at http://ec.europa.eu/world/enp/pdf/action_plans/israel_enp_ap_final_en.pdf

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strengthening co-operation in migration-related issues, and promoting co-

operation in transport and energy.

26. The Action Plan describes the actions to be taken in the above areas in a general

manner and lacks specificity. Progress in meeting the priorities set out in the

Action Plan are to be monitored in working groups to be established under the

institutional framework provided in the Agreement.

II. The Human Rights Clause of Article 2

27. Article 2 of the Agreement states as follows:

“Relations between the Parties, as well as all the provisions of the

Agreement itself shall be based on respect for human rights and

democratic principles, which guides their internal and international policy

and constitutes an essential element of this Agreement”.

28. Article 2 falls in the category of human rights clauses or so-called “essential

element clauses”, which are typically included in international agreements

concluded by the Community. It may be interesting to provide here a brief

background to those clauses.

29. In 1995, it became official Community policy to include essential element clauses

in all new trade and cooperation agreements negotiated with third countries.17

Such clauses now apply, directly or indirectly, to EU’s treaty relations with

around 150 countries.

17 See Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95) 216, and Commission Communication on the European Union and the External Dimension of Human Rights Policy: From Rome to Maastricht and Beyond, COM(95) 567.

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30. It has been said that the impact of human rights clauses has been modest.18 They

have promoted dialogue and, in some instances, led to the establishment of

committees for the discussion of human rights but the Community has taken

concrete action against human rights violations in very few cases. In all of those

cases, action has been taken under the ACP-EC Partnership Agreement, singed in

Cotonou in 2000, which is the pillar of the Community’s development policy.19 In

some cases, the Community has suspended or redirected financial aid and other

cooperation. In one case, it suspended an obligation to impose no restrictions on

payments between residents of the Community and Zimbabwe in order to allow

for the freezing of funds of listed members of the Zimbabwe Government.20

31. The Community’s inconsistency in enforcing human rights clauses has been

criticized by, among others, Amnesty International21 and the European

Parliament.22

32. I will now deal in turn with the following questions:

a. Does Article 2 impose binding obligations on the Parties?

b. If so, what are the standards of human rights that it requires the Parties to

observe?

II.1 Does Article 2 impose binding obligations on the Parties?

18 L. Bartels, Human Rights Conditionality in the EU’s International Agreements, Oxford, p.37. 19 Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, as amended. See OJ 2000, L 317/3 and OJ 2005 L 209/26. 20 Council Decision 148/2002, OJ 2002 L 50/64. 21 See Towards Sustainable Peace and Security: the Human Rights Imperative for the Barcelona Process, Memorandum to the Euro-Mediterranean Ministerial Meeting in Valencia/Spain, 22-23 April 2002, 5, available at www.amnesty-eu.org/static/documents/Valencia_Memorandum_April2002.doc. 22 See EU Parliament Interim Report on the proposal for a Council Decision on a framework procedure for implementing Article 366a of the Fourth Lome Convention (COM (96) 69), A4-0175/97, 10 and see, further, European Parliament Resolution on human rights in the world in 2002 and the European Union's policy (2002/2011(INI)), P5_TA(2003)0375, paras 5-20; European Parliament Resolution on human rights in the world in 2003 and the European Union's policy on the matter (2003/2005(INI)), P5_TA(2004)0376, para 29; and [1999] OJ C98/270, para 3.

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33. The first issue that needs to be determined is whether Article 2 establishes any

normative obligations on the Parties to respect human rights and democratic

principles or whether it has merely an aspirational character providing only a

general, programmatic declaration. If Article 2 were interpreted to be merely of a

programmatic nature, it would follow that no concrete binding obligations would

ensue and breach of it by one Party would not entitle the other to invoke the non-

execution clause of Article 79(2) nor would it give rise to any other remedies.

34. In my view, Article 2 imposes binding legal obligations.

35. Under Article 31(1) of the Vienna Convention on International Treaties, a treaty

must be interpreted in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in the light of its object and

purpose. Article 31(2) states that the context comprises the text, including, among

others, its preamble and annexes.

36. It is true that Article 1(2) of the Agreement, which defines its objectives, does not

include the protection of human rights as one of them: see above paragraph 11. In

my view, however, this does not deny the binding effect of Article 2. Both a

literal and a contextual interpretation support the view that Article 2 is intended to

create legally binding obligations.

37. The ICJ has stated that “interpretation must be based above all upon the text of

the treaty”.23 The importance of literal interpretation, as the starting point, has

also been stressed by the ECJ24 and also other international tribunals, for

example, the WTO Appellate Body.25

23 See Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, para 41. 24 See e.g. Joined Cases C-310 and C-406/98 Hauptzollamt Neubrandenburg [2000] ECR I-1797, para 32, and, more recently, see Case C-127/08, Metock v Minister for Justice, Equality and Law Reform, judgment of 25 July 2008. 25 See WTO Appellate Body Report , US-Shrimp, WT/DS58/AB/R, adopted on 6 November 1998, para 114.

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38. The text of Article 2 is clear and unambiguous. Article 2 grants to the protection

of human rights a cardinal position in the Agreement. As indicated by the use of

the term “shall”, it uses peremptory language. This is a clear indication that the

Parties intended to undertake binding commitments and not merely to make

empty proclamations. The opposite view, would turn Article 2 into empty

rhetoric.

39. Furthermore, Article 2 elevates respect for human rights to an “essential element”

of the Agreement. No other provision refers expressly to any other aspect of the

Agreement as being essential. It would be odd if the only provision which is

stated to be essential were interpreted not to impose binding obligations on the

Parties. Such an interpretation would endanger the character of the Agreement as

a binding international treaty and would thus run counter to the clear intention of

the Parties.

40. The binding effect of Article 2 is also supported by its position in the Agreement.

It is placed in the introductory part, which precedes the individual titles

containing the areas of cooperation included in the Agreement. It follows

immediately after Article 1, which establishes the association between the

Community and its Member States and Israel, and precedes even the objectives of

the Agreement, which are defined in Article 3. It is thus an umbrella provision

which is designed to underpin all provisions of the Agreement as it is expressly

stated in Article 2 itself.

41. Finally, the binding character of Article 2 is supported by the case law. In

Portugal v Council26 the Court was concerned with the interpretation of the

human rights clause of the Community - India Cooperation Agreement27 which is

phrased in less peremptory language than Article 2. Article 1(1) of that

Agreement states as follows:

26 Case C-268/94 Portugal v Council [1996] ECR I-6177. 27 Cooperation Agreement between the European Community and the Republic of India on Partnership and Development, OJ 1994 L 223/23.

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“Respect for human rights and democratic principles is the basis for the

cooperation between the Contracting Parties and for the provisions of this

Agreement, and it constitutes an essential element of the Agreement.”

42. The Court examined Article 1(1) in the context of an argument pertaining to the

legal basis of the Community – India Cooperation Agreement. La Pergola AG

took the view that that provision imposed an obligation on the parties to respect

human rights. He stated as follows:28

“Article 1… is designed to allow the Community to exercise the right to

terminate the Agreement, in accordance with Article 60 of the Vienna

Convention, where the non-member State has failed to respect human

rights within its own legal system.”

43. Although the Court used more cautious language, its judgment did not deny that

Article 1(1) imposes binding obligations. The Court stated that Article 1(1) “may

be, amongst other things, an important factor for the exercise of the right to have a

development cooperation agreement suspended or terminated where the non-

member country has violated human rights”.29

44. I therefore conclude that Article 2 of the Agreement imposes an obligation on

each of the Parties to respect human rights. It follows that a Party who considers

that the other Party has failed to respect human rights may avail itself of the non-

execution clause of Article 79(2). I will examine that provision in due course. I

now turn to examine the normative content of Article 2.

II.2 The applicable standards of human rights

28 See paragraph 28 of the Opinion. 29 See paragraph 27 of the judgment.

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45. Article 2 does not define the term “human rights”. The preamble to the

Agreement is also reticent in this respect. Recital 3 refers to

“the importance which the Parties attach to the principle of economic

freedom and to the principles of the United Nations Charter, particularly

the observance of human rights and democracy, which form the very basis

of the Association”.

46. In this respect, the Agreement is different from other Community agreements.

The preamble to the Cotonu ACP-EC Partnership Agreement, for example, is

replete with references to international instruments for the protection of human

rights.30

47. I also note that, in contrast to Article 2, human rights clauses included in other

agreements concluded by the Community refer to respect for human rights as

defined in the Universal Declaration of Human Rights and, sometimes, in addition

to other instruments,31 although the Community’s practice is by no means

uniform.32

48. The most advanced human rights clause in Community agreements is contained in

the Cotonu ACP-EC Partnership Agreement. Article 9 of that Agreement bears

the heading “Essential elements regarding human rights, democratic principles

and the rule of law, and fundamental element regarding good governance”. It

states, among others, that the parties refer to their international obligations and

commitments concerning respect for human rights. They reiterate their deep

attachment to human dignity and human rights, and undertake to promote and

30 Op.cit., n. 19 above. See the Preamble, recitals 5,7 and 8 of the ACP-EC Partnership Agreement. 31 For example, EC agreements with a number of OSCE countries (Organisation for Security and Cooperation in Europe) make reference, in addition to the Universal Declaration of Human Rights, to a number of OSCE documents. 32 Thus, the EC agreements with Argentina, Brasil, India, Macao, Mongolia, Nepal, Paraguay, Sir Lanka, Uruguay and Vietnam do not refer to any specific instruments for the protection of human rights.

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protect all fundamental freedoms and human rights, be they civil and political, or

economic, social and cultural.”33

49. Since Article 2 of the Agreement does not incorporate by express reference any

specific standards of human rights, I take the view that the Parties are bound to

respect, at the very least, the standards imposed by jus cogens, customary

international law, and the principles of the UN Charter.

50. There is also an argument to be made that they must observe the standards

imposed by international instruments to which they are signatories and by which

they have agreed to be bound. In others words, in my view, Article 2 should be

read as incorporating an undertaking by each of the Parties to the other to comply

with human rights as protected by international conventions which have come

into force and which they have ratified. This interpretation seems to me to be

justified by the binding character of Article 2 and the central place accorded to

human rights, observance of which is an essential element of the Agreement.

51. If I am correct, the international agreements which the Parties have committed

themselves to observe under Article 2 include, among others, the Geneva

Conventions.

52. Clearly, Israel is not required by virtue of Article 2 to observe human rights as

they are recognized in Community law. By contrast, the Community and the

Member States are under an obligation to observe human rights as they are

protected in Community law in taking action under the Agreement. This

obligation flows from Articles 6(1) and 6(2) of the Treaty on European Union

(hereinafter “TEU”)34 and the case law of the Court on fundamental rights, which

bind the Community not only in regulating intra-Community affairs but also in

conducting its external relations.

33 Article 9(2). 34 For the text of Article 6(2), see below, para 109.

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53. Thus, in my view, in exercising any discretion that they may have under the

Agreement, the Community institutions and its Member States must comply with

Community standards of fundamental rights. I will return to this issue below.

54. I now turn to examine the specific obligations imposed by Article 2. These are the

following.

55. First, under Article 2, the Parties are bound to respect human rights.

56. Secondly, respect for human rights forms the basis of all the provisions of the

Agreement. I understand this to mean that all provisions of the Agreement must

be interpreted in the light of respect for human rights and that that principle must

guide the Parties in the execution of all their obligations under the Agreement.

57. Thirdly, Article 2 requires the Parties to base their relations with each other on

respect for human rights. If this is interpreted literally, it appears to go beyond the

mere obligation on each Party to ensure that its own actions comply with human

rights and require each Party to base its relations with the other on mutual respect

for human rights. It is thus arguable that, if Israel violates human rights and such

violation is serious and persistent the Community fails to take appropriate steps, it

will be failing in its duties under Article 2 because it will not be basing its

relations with Israel on respect of human rights. I will return to this aspect of

Article 2 below.

58. Finally, it is arguable that Article 2 imposes not only negative but also positive

obligations on each Party to respect human rights, prevent violations, and take

steps to terminate them where such violations occur.

59. This interpretation is supported by Article 79(1) of the Agreement which states as

follows:

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“1. The Parties shall take any general or specific measures required to

fulfill their obligations under the Agreement. They shall see to it that the

objectives set out in the Agreement are attained.”

60. Article 79(1) seems to me to impose positive obligations on the Parties to fulfill

their obligations under Article 2. It is true that in Demirel35 the ECJ took a

restrictive view of Article 7 of the EC-Turkey Association Agreement. That

provision states as follows:

“The contracting parties shall take all appropriate measures, whether

general or particular, to ensure the fulfillment of the obligations arising

from this agreement.

They shall refrain from any measure liable to jeopardize the attainment of

the objectives of this agreement.”

61. In Demirel, the ECJ described the effect of Article 7 as follows:36

“That provision does no more than impose on the contracting parties a

general obligation to cooperate in order to achieve the aims of the

Agreement and it cannot directly confer on individuals rights which are

not already vested in them by other provisions of the Agreement”.

62. It seems to me, however, that the above dictum does not detract from the

reinforcing effect that Article 79(1) has on Article 2 of the Agreement. It may be

correct to say that Article 79(1) does not create any new obligations in itself but,

nonetheless, it strengthens and supplements the human rights clause of Article 2.

35 Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719. 36 Op.cit, para 24.

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63. I will return to examine the duties imposed on the Community institutions by

Articles 2 and 79(1) but, before doing so, it is necessary to discuss the national

security clause of Article 76(c) and the non-execution clause of Article 79(2).

III. Article 76 paragraph (c)

64. Article 76 paragraph (c) of the Agreement contains a national security derogation.

It states as follows:

“Nothing in the Agreement shall prevent a Party from taking any

measures:

…

(c) which it considers essential to its own security in the event of serious

internal disturbances affecting the maintenance of law and order, in time

of war or serious international tension constituting threat of war or in order

to carry out obligations it has accepted for the purpose of maintaining

peace and international security.”

65. Article 76(c) allows a Party, in the circumstances provided therein, to take any

measures which it considers essential to its own security without being in breach

of the Agreement.

66. There is no doubt that Article 76(c) grants to a Party very broad discretion both in

considering whether the conditions for its application are satisfied and also in

choosing what measures are “essential to its own security”. In my view, Article

76(c) is not restricted to cases where the circumstances for its application, namely

a serious internal disturbance affecting the maintenance of law and order, war, or

a serious international tension constituting threat of war, are caused by factors

beyond the responsibility of the Party. Even if, for example, a Party intentionally

engaged in an aggressive war against another State, it would still be able to

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invoke Article 76(c) vis-à-vis the other Party to the Agreement, subject to what I

state below.

67. The discretion of a Party to invoke the derogation clause of Article 76(c) is not

unlimited and the conditions for its application are subject to objective

determination. It should thus be objectively verifiable if there is a serious internal

disturbance affecting the maintenance of law and order, war or a serious threat of

war. Furthermore, I take the view that what measures are essential is also subject

to review. The measures that a Party may take must be proportionate but the

standards of proportionality in this context are much lower than those which

normally apply under Community law. Israel is bound by the standards of

proportionality applicable on the Community and the Member States. In any

event, even under Community law, a low standard of proportionality is here

dictated by the nature of the interest at stake, namely national security.

68. Nonetheless, Article 76(c) does not entitle a Party to breach human rights insofar

as they are protected by the UN Charter, rules of customary international law or

rules of jus cogens. Nor does it entitle it to breach international law rules which

are applicable in the circumstances which justify its application. Where, for

example, a Party invokes Article 76(c) to derogate from the provisions of the

Agreement in case of war, it is not entitled by virtue of that provision to breach

international treaties governing armed conflict, which would otherwise apply to

the conduct in issue.

69. It follows that action by a Party which is taken on the ground that it is essential to

its security but is in violation of the UN Charter, customary international law, jus

cogens or applicable international treaties cannot be justified under Article 76(c)

and is in breach of Article 2. It is difficult to see how such a violation of human

rights could be “essential’ for the protection of national security. This

interpretation is further supported by Article 2, under which respect for human

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rights forms the basis of “all the provisions of the Agreement”, including,

therefore, Article 76(c).

70. If a Party considers that the other Party has made improper recourse to Article

76(c), it may take appropriate measures under the non-execution clause provided

for in Article 79(2) of the Agreement.

IV. Interim conclusion

71. Thus, to summarize the discussion so far:

a. Article 2 of the Agreement imposes binding obligations on the Parties to

observe human rights;

b. Under Article 2, the Parties are bound to observe human rights as they are

protected by jus cogens, customary international law, the UN Charter, and

international agreements which are in force and by which they have

agreed to be bound;

c. Where a Party considers that the other Party has failed to observe Article

2, it may have recourse to the non-execution clause of Article 79(2).

d. Article 76(c) does not authorize a Party to violate the UN Charter,

customary international law, jus cogens or binding international

agreements insofar as they apply to the situations envisaged by that

provision.

e. Article 2 imposes positive obligations on both Parties so that a where a

Party engages in a serious and persistent violations of human rights, the

failure of the other Party to take any steps is in itself a violation of Article

2.

V. The non-execution clause of Article 79(2)

72. Article 79(2) states as follows:

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“If either Party considers that the other Party has failed to fulfill an

obligation under the Agreement, it may take appropriate measures. Before

so doing, except in cases of special urgency, it shall supply the

Association Council with all relevant information required for a thorough

examination of the situation with a view to seeking a solution acceptable

to the Parties.

In the selection of measures, priority shall be given to those which least

disturb the functioning of the Agreement.

These measures shall be notified immediately to the Association Council

and shall be the subject of consultations within the Association Council if

the other Party so requests.”

73. The following points may be made in relation to this provision.

74. Article 79(2) provides for a mechanism for consultations prior to the suspension

of the Agreement. It seeks to enable the Parties to find a mutually acceptable

solution and is thus designed “to keep the agreement operational whenever

possible”.37 It is known as the “Bulgarian clause” because it was first included in

an agreement between the Community and Bulgaria. Similar non-execution

clauses are nowadays included in virtually all Community agreements which

contain a human rights clause. Such non-execution clauses were historically

designed by the Community specifically in order to reinforce human rights

clauses38 but they use more general language and appear to be of wider

application: Article 79 is not restricted to violations of Article 2 and appears to

apply to violations of all obligations imposed by the Agreement.

37 See Commission Communication, above. 38 See Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95) 216 final, Brussels, 23 May 1995, p. 8.

21

75. Article 79(2) lays down a procedure under which the Party who considers that a

violation has occurred must, before taking any measures, raise the matter with the

Association Council. This procedural step need not be fulfilled in cases of

“special urgency”, in which case the Party in question may proceed to taking

appropriate action against its counterparty without going through the Association

Council.

76. Article 79(2) must be read in conjunction with the dispute resolution mechanism

of Article 75. That provision states that each of the parties may refer to the

Association Council any dispute relating to the application or interpretation of the

Agreement. The Association Council may settle the dispute by a decision or, if

this is not possible, the matter is referred to arbitration: see above, paragraph 22.

77. The mechanism of Article 75 is optional for the Parties. I read Article 79(2) as

being a lex specialis in relation to Article 75. Where a Party considers that the

other Party has failed to fulfill its obligations under the Agreement, it must, before

taking any appropriate measures, raise the matter with the Association Council

except in cases of special urgency.

78. The Agreement does not specify the meaning of the terms “cases of special

urgency”. I note that, in other agreements concluded by the Community, this term

has been defined to include violation of essential elements of the agreement. This

has been the case, for example, in relation to the association agreements

concluded between the Community and the Slovak and Czech Republics before

their accession to the EU.39 In the absence of any definition of those terms, it is

not clear whether, under the Agreement, the violation by one of the Parties of

Article 2, as an essential element of the Agreement, would entitle the other party

to take appropriate measures without first following the procedure specified in

Article 79(2).

39 See e.g. the Joint Declarations on the meaning of the term “cases of special urgency” accompanying the Association Agreements concluded between the Community and the Slovak and Czech Republics on 4 October 1993. [1994] OJ L 359/2 and [1994] OJ L 360/2.

22

79. In my view, even if it were accepted that a breach of Article 2 is not in itself a

case of special urgency, the following would be such cases within the meaning of

Article 79(2):

(a) a violation of jus cogens;

(b) a serious and persistent violation of human rights.

80. I note that the Commission itself takes the view that a serious and persistent

violation of human rights or serious interruption of democratic process is a case of

special urgency.40

81. Where a Party considers that there is a case of special urgency, it may:

(a) terminate or suspend the Agreement in accordance with Article 60 of

the Vienna Convention;

(b) take appropriate measures.

82. I will discuss each of these remedies in brief. I will then examine the question

whether a private party may require the Community to activate the non-execution

procedure of Article 79(2).

V.1 Article 60 of the Vienna Convention

83. The reason why the remedies provided in Article 60 of the Vienna Convention

apply only in circumstances of special urgency is that, under Article 60(4) of that

Convention, the provisions of Article 60(1) to (3) are without prejudice to any

provision in the treaty applicable in the event of a breach. Thus, in the absence of

40 See Commission Communication, op.cit., p. 8.

23

cases of special urgency, the Parties have to follow the procedure of Article 79(2)

of the Agreement and refer the matter to the Association Council.

84. Article 60(1) of the Vienna Convention states that “A material breach of a

bilateral treaty by one of the parties entitles the other party to invoke the breach as

a ground for terminating the treaty or suspending its operation in whole or in

part”.

85. Under Article 60(3), “A material breach, for the purposes of this Article, consists

in:

(a) a repudiation of the treaty not sanctioned by the present Convention;

(b) the violation of a provision essential to the accomplishment of the

objective or purpose of the treaty”.

86. The procedure for terminating an agreement or suspending its operation is

provided for in Article 65 of the Vienna Convention. In general terms, it involves

allowing a period of three months between notification and suspension, except in

cases of special urgency, and an additional period of grace where an amicable

solution is being sought.

87. Since, under Article 79(2) of the Agreement, a Party may not have recourse to

Article 60 except in cases of special urgency, it follows that the requirement of

Article 65 to allow a period of three months does not apply. A Party may

therefore terminate the Agreement or suspend its operation in whole or in part

forthwith, subject to the procedural requirements of Article 65.

V.2 Appropriate measures

24

88. Appropriate measures may include, inter alia, the suspension of contacts, financial

aid, or technical cooperation. The Commission, in particular, considers that,

among the measures that may be taken in response to serious human rights

violations by parties to international agreements concluded by the Community are

the following:41

-- alteration of the contents of cooperation programmes or the

channels used;

-- reduction in cultural, scientific and technical cooperation

programmes;

-- postponement of a Joint Committee meeting;

-- suspension of high-level bilateral contacts;

-- postponement of new projects;

-- refusal to follow up partner’s initiatives;

-- trade embargoes;

-- suspension of arms sales and or military cooperation;

-- suspension of cooperation.

89. I note that only in very rare occasions has the Community treated a case as one of

special urgency for the adoption of appropriate measures.42

41 Commission Communication, op.cit., p. 17. 42 This occurred against Liberia. See Council Decision 631/2003 of 25 August 2003 adopting measures concerning Liberia under Article 96 of the ACP-EC Partnership Agreement in a case of special urgency [2003] OJ L220/3.

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VI.3 Is it possible for a private party to require the Community to activate the non-

execution procedure of Article 79(2)?

90. Article 79(2) uses language of facilitation and not language of compulsion. The

use of the word “may” appears to suggest that, if the Community considers that

Israel has violated the human rights clause of Article 2, it has discretion but is

under no obligation to take appropriate measures. The Community, in particular,

has discretion both in deciding whether to take any measures and in deciding what

measures to take.

91. Given the language of Article 79(2), it is difficult to deny the Community very

broad discretion in deciding what are appropriate measures in the circumstances

of a specific violation. It is not easy to see, save perhaps in very exceptional

circumstances, how an individual can require the Community to take action.

92. This interpretation appears also to be supported by the case law on enforcement

actions. Under Article 226 of the EC Treaty, the Commission, as the guardian of

the EC Treaty, may take enforcement action against a Member State if it

considers that a State has failed to fulfill its obligations.

93. According to established case law, a private party may not require the

Commission to take enforcement action under Article 226. The ECJ has held that

it is for the Commission alone to decide whether or not it is appropriate to bring

proceedings against a Member State,43 and the Commission’s discretion in this

regard excludes the right for individuals to require it to adopt a specific position.44

This is the case irrespective of the nature of the infringement of Community law

43 Case C-394/02 Commission v Greece [2005] ECR I-4713, para 16. 44 See Case 247/87 Star Fruit v Commission [1989] ECR 291, paras 11-12. For recent confirmation, see Case C-445/06 Danske Slagterier v Bundesrepublik Deutschland, judgment of 24 March 2009, para 44.

26

alleged.45 The Commission has discretion both in relation to whether and in

relation to when to take action.46

94. Thus, a natural or legal person may not bring an action for failure to act under

Article 232 EC47 seeking to compel the Commission to initiate enforcement

proceedings against a Member State.48 Such an action will be rejected as

inadmissible without the Court looking into the merits of the application.49

95. There is an additional reason, apart from the Commission’s discretion, why

natural or legal persons may not bring an action for failure to act. By requesting

the Commission to initiate an enforcement procedure under Article 226 EC, the

applicants would in fact be seeking the adoption of an act which would not be of

direct and individual concern to them and therefore would be unable to challenge

in an action for judicial review under Article 230(4) of the EC Treaty.50 Thus, if

the Commission refused to take action against a Member State as requested by

private parties, the latter would not be able to challenge the Commission’s refusal

before the CFI for lack of standing. The rules on standing are further explained

below: see paragraph 133.

96. Furthermore, a natural or legal person may not bring an action in damages against

the Commission. Since the Commission is under no obligation to commence

infringement proceedings, its decision not to do so is not unlawful and thus cannot

give rise to non-contractual liability on the part of the Community under Article

288(2) of the EC Treaty.51

45 Case T-201/96 Smanor SA and Segaud v Commission [1997] ECR II-1081, para 24 (appeal rejected: C-317/97 P [1998] ECR I-4269); Case T-13/94 Century Oils Hellas v Commission [1994] ECR II-431, para 15. 46 Case 7/71 Commission v France [1971] ECR 1016, para 5; Case 324/82 Commission v Belgium [1984] ECR 1861; C-207/97 Commission v Belgium [1999] ECR I-290, paras 23-27. 47 For the text of Article 232, see below paragraph 145. 48 For Article 232 EC, see below 49 Star Fruit, op.cit., Smanor, op.cit., para 22. 50 See Star Fruit, cited above, paragraph 13; Century Oils Hellas, cited above, paragraph 14; and Case T-47/96 SDDA v Commission [1996] ECR II-1559, para 43. 51 Smanor, op.cit., para 30; Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, para 13; Case T-571/93 Lefebvre and Others v Commission [1995] ECR II-2379, para 61.

27

97. In the field of competition law, the Court has adopted a more nuanced approach.

It has accepted that the Commission is, at the very least, under an obligation to

respond to a complaint. Thus, where an individual submits a complaint that an

undertaking has infringed Articles 81 and 82 EC, the Commission is not under an

obligation to adopt a definitive decision as to the existence of the infringement

nor is it normally under an obligation to make an investigation following the

complaint. It is however under the following obligations. It is required to adopt a

definitive position on the complaint itself which is (a) duly and properly reasoned;

and (b) does not contain any manifest error or misuse of powers. These duties

emanate from the right to judicial protection and the duty of good

administration.52 This approach, however, currently remains confined to

competition law and does extend to enforcement proceedings under Article 226.

98. So far, the ECJ has not examined whether an individual can force the Community

to take measures against a contracting party to an international agreement where

that party breaches the agreement by violating human rights. There are good

grounds for arguing that the principles articulated above in relation to Article 226

apply with equal force, if not a fortiori, to Article 79(2) of the Agreement. As

already stated, that article vests the Community with discretion both in relation to

whether to take action and what action to take. The policy considerations which

underlie the Commission’s discretion in the context of Article 226 apply also to

taking enforcement action against third States. This is particularly so since the

European Union may wish to deal with the third State’s violation of human rights

through instruments of the Common Foreign and Security Policy (“CFSP”). It is

thus possible, if not likely, that Community responses under the Agreement would

be closely linked and dependent on political action taken under the auspices of

CFSP. According to Article 46 of the Treaty on European Union, which defines

the jurisdiction of the ECJ, such political action under CFSP is not justiciable.

52 See e.g. Case T-24/90 Automec v Commission [1992] ECR II-2223; and the cases referred by Schermers and Waaelbroeck, Judicial Protection in the European Union, Kluwer, Fifth Ed., at p.479, note 821-824.

28

99. Thus, regrettably, as the case law stands at present, I consider that it will be

difficult to persuade the Court to take the view that an individual or a

representative association may require the Community to take action under

Article 79(2).

100. In my view, this situation is not satisfactory. It is not appropriate to

consider that the Community has no limits whatsoever in exercising its choices

under Article 79(2). The recognition of unfettered discretion would be

incompatible both with the provisions of Article 2 and 79(1) of the Agreement

and with the general principle of judicial protection which is one of the

fundamental principles of Community law.

101. Furthermore, in my view, it should be accepted that the Community’s

discretion under Article 79(2) is confined by, first, its obligation to respect

fundamental rights and, secondly, its obligation to respect international law. Both

obligations are well-established in the case law.

102. It could thus be argued that, if Israel has engaged in a serious and

persistent violation of human rights, a private party who is a victim of that

violation may require the Community to invoke the non-execution clause of

Article 79(2). For the reasons stated above, I think that the Court is unlikely to

accept that argument although it may put pressure on the Community to explain

its stance vis-à-vis Israel.

103. An alternative argument could be made on the basis of Article 2 of the

Agreement. If it is accepted that Article 2 imposes concrete obligations on the

Community where Israel violates human rights, it may be possible to seek

enforcement of those obligations without challenging directly the Community’s

discretion to have recourse to the procedure of Article 79(2). I articulate this

argument below but, as it will become apparent, it also faces substantial obstacles.

29

VI. The obligations of the Community under Article 2

104. Article 2 states that “relations between the parties… shall be based on

respect for human rights”. The meaning of this expression has not been examined

by the ECJ. As stated above, however, it is arguable that it goes beyond the mere

obligation on each Party to ensure that its own actions comply with human rights

and requires it to base its relations with the other Party on mutual respect for

human rights. See above, paragraph 57.

105. Furthermore, the Community’s powers and obligations under Article 2,

and more generally under the Agreement, must be interpreted in the light of its

obligation (a) to respect fundamental rights and (b) observe international law,

both of which are overriding requirements of Community law flowing from the

EC Treaty itself.

106. Thus, in my view, if Israel engages in a serious and persistent violation of

human rights and the Community fails to take steps, it will be in breach of Article

2 because it will not be basing its relations with Israel on respect of human rights.

It will also be in breach of Article 79(1) which establishes positive obligations on

the Parties to observe human rights.

107. The following questions arise in this context: first, what specific steps

must the Community take to comply with Article 2 in the event that Israel

engages in a serious and persistent violation of human rights? Secondly, is it

possible for an individual to rely on Article 6 to require the Community to take

such action? Thirdly, what remedies are there under Community law?

108. I will examine these questions in turn. Before doing so, however, it is

necessary to examine briefly the binding effect of fundamental rights and

international law on the Community institutions. At this stage, it suffices to make

30

brief comments although, in the event of litigation, this point will need to be

expanded further.

109. Article 6(2) TEU states as follows:

“The Union shall respect fundamental rights, as guaranteed by the

European Convention for the Protection of Human Rights and

Fundamental Freedoms signed in Rome on 4 November 1950 and as they

result from the constitutional traditions common to the Member States, as

general principles of Community law.”

110. Article 6(2) TEU is justiciable insofar as it applies within the scope of EC

law: see Article 46(d) TEU. It follows that it binds the Community institutions in

relation to action undertaken by them in the context of the Agreement.

111. Furthermore, according to settled case law, fundamental rights form an

integral part of the general principles of law whose observance the Court

ensures.53 Respect for human rights is thus a condition of the lawfulness of

Community acts.54 In Schmidberger, the Court reaffirmed that ‘measures which

are incompatible with the observance of human rights … are not acceptable in the

Community’.55

112. The paramount importance which the ECJ attributes to the principle of

respect for human rights became evident in its recent judgment in Kadi56 where it

held that a Community regulation implementing UN Security Council resolutions

was subject to full review on grounds of compatibility with human rights as they

are protected in the Community legal order.

53 Case 5/88 Wachauf [1989] ECR 2609, para 17; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, para 17; Case C-94/00 Roquette Frères [2002] ECR I-9011, para 23. 54 Opinion 2/94 on the Accession of the EC to the ECHR [1996] ECR I-1759, para 34. 55 Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 73. 56 Joined Cases C-402/05 P & C-415/05 P Kadi & Al Barakaat International Foundation v Council and Commission, judgment of 3 September 2008.

31

113. Furthermore, the Court has held that the Community must respect

international law in the exercise of its powers57 and that rules of customary

international law are binding upon the Community institutions and form part of

the Community legal order.58

114. I now proceed to examine the issues raised above, namely the specific

obligations imposed on the Community by Article 2 and the possible remedies for

their enforcement.

VI.1 Specific Community obligations under Article 2

115. In the light of the case-law referred to in relation to Article 79(2), it is

difficult to avoid the conclusion that the Community enjoys discretion as to the

action that it may take as a response to a breach of human rights by Israel. Thus, I

do not think that it would be possible, save perhaps in highly exceptional

circumstances, to claim that the Community’s failure to terminate the Agreement

under Article 60 of the Vienna Convention would be a breach of its obligations

under Article 2.

116. I consider, however, that the Community is under a set of obligations

which flow from Article 2 interpreted in the light of the general principle of

Community law to respect fundamental rights and the general requirement to

respect international law. In this context, the International Law Commission’s

draft articles on Responsibility of States for internationally wrongful acts are of

particular importance. Although these articles are not binding and their precise

effect can be debated, in my view, considering their source, they are a legitimate

57 Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, para 9; Case C-162/96 A. Racke GmbH & Co v Hauptzollamt Mainz, judgment of 16 June 1998, para 45. 58 Racke, op.cit., para 46.

32

point of reference for the interpretation of the Community’s obligations under

Article 2.59

117. These obligations are the following.

118. First, the Community is under an obligation not to assist another State in

the commission of an internationally wrongful act which entails breach of

fundamental rights. This obligation derives from Article 6 TEU in combination

with Article 16 of the draft Articles on the responsibility of States for

internationally wrongful acts.

119. Secondly, where a State commits a serious breach of an obligation arising

under a peremptory norm of general international law, the Community must:

(a) not render aid or assistance to that State in maintaining that breach;

(b) not recognise as lawful the situation created as a result of that breach;

(c) cooperate with other States in order to bring an end to that breach

through lawful means.

120. This set of obligations derives from Article 6 TEU in combination with

Article 41 of the Articles on Responsibility.

121. If these obligations were recognised, the Community would still enjoy

discretion in deciding what action to take against Israel. It seems to me however

59 The International Law Commission was established under Article 13 of the UN Charter which provides that the UN General Assembly should initiate studies and make recommendations for the purpose of, inter alia, encouraging the progressive development of international law and its codification. On 21 November 1947, the General Assembly adopted Resolution 174(II) establishing the International Law Commission and approving its Statute. It is to be noted that in its judgment in Behrami Behrami and Saramati v France, Germany and Norway, judgment of 2 May 2007 (application no 71412/01 and application no 78166/01) the European Court of Human Rights placed particular emphasis on the Commission’s Draft Articles on the Responsibility of International Organisations adopted in 2003.

33

that the Community would be, at the very least, under an obligation to take the

following steps:

(a) raise the violations committed by Israel with the Association Council

and require Israel to take immediate steps to stop the violation;

(b) suspend any financial assistance that it grants to Israel under the

Agreement;

(c) suspend any tariff concessions that it grants to Israel under the

Agreement.

122. It should be noted that, in order to establish a claim against the

Community on the basis of the above obligations, there has to be a determination

that Israel has committed an internationally wrongful act or a serious breach of an

obligation arising under a peremptory norm of general international law. In the

absence of such a determination by a competent body, for example the

International Court of Justice or the UN Security Council, the ECJ may be

reluctant to make such a determination although it is arguable that it has

jurisdiction to do so.

123. A further problem is the capacity of private parties to invoke Article 2.

Does an individual have a right to rely on Article 2 to require the Community to

base its relations with Israel on respect for fundamental rights and therefore take

the action outlined above?

124. An individual may rely on Article 2 only if it is accepted that that

provision has direct effect. According to the case law of the ECJ, a provision in an

agreement concluded by the Community with a third country may be regarded as

being directly effective when, regard being had to its wording and the purpose and

nature of the agreement itself, the provision contains a clear and precise

34

obligation which is not subject, in its implementation or effects, to the adoption of

any subsequent measure.60

125. On the basis of the above test, it is unlikely that the ECJ will take the view

that Article 2 by itself is intended to have direct effect. Article 2 does not contain

a precise and clear obligation. As already stated, the Community enjoys discretion

in deciding what measures to take in the event of a violation of human rights by

Israel.

126. However, the obligations of the Community under Article 2 must be

viewed in close connection with its duties to comply with international law and,

especially, the general principle of respect for human rights which is clearly

intended to protect individuals. Viewed in that light, it is arguable that the

combined effect of Article 2, the principle of respect for fundamental rights, and

the duty to comply with international law impose an obligation on the Community

to take specific action in the circumstances stated above and that obligation can be

relied upon by a private party.

VII. The Remedies available

127. I now turn to examine the possible remedies available to a private party

where the Community breaches Article 2 by its failure to take steps against Israel.

128. Community law does not recognise a general remedy against the

Community in the form of declaratory relief. It is thus not possible for an

interested party to seek a declaration to the effect that the Community has failed

to fulfill its obligations under the Treaty.

129. There are three possible remedies under the EC Treaty:

60 See Demirel, op.cit., para 14.

35

(a) An action for annulment under Article 230;

(b) An action for failure to act under Article 232;

(c) An action in damages under Article 288(2).

Jurisdiction to hear those forms of action lies in the first instance with the

Court of First Instance (“CFI”) and, on appeal, the ECJ. I will examine

each form of action in turn.

VII. 1 Action for annulment

130. Under Article 230 EC, the Court of Justice has jurisdiction to review the

legality of acts adopted by the Community institutions. The grounds of review are

the following: lack of competence, infringement of an essential procedural

requirement, infringement of the EC Treaty or of any rule of law relating to its

application, and misuse of powers: see Article 230(2). Proceedings must be

instituted within two months of the publication of the act, or of its notification to

the applicant, or, in the absence thereof, of the day on which it came to the

knowledge of the applicant: see Article 230(5).

131. According to the case law, any Community act, irrespective of its form,

which is intended to produce binding legal effects is subject to review.61 Thus, a

decision of the Council or the Commission to grant aid to Israel under the

Agreement will be a reviewable act within the meaning of Article 230. Such a

decision could be challenged on the ground that it runs counter to the obligations

of the Community under Article 2 of the Agreement in combination with its

obligations to observe human rights and international law.

61 22/70 See e.g. Commission v Council (ERTA Case) [1971] ECR 263.

36

132. However, a major hurdle for a natural or legal person in this context would

be to establish locus standi.

133. Article 230 distinguishes three categories of applicants. These are the

following:

(a) “privileged applicants”, who can challenge any binding Community act

without need to prove a specific interest in the outcome of the

proceedings. These are the Member States, the Council, and the

Commission: see Article 230(2).

(b) “prerogative-based applicants”, who can initiate proceedings only for

the purpose of protecting their prerogatives. These are the Court of

Auditors and the European Central Bank: see Article 230(3).

(c) “non privileged applicants”, namely, natural and legal persons. Under

Article 230(4), a non-privileged applicant may challenge:

(1) a decision addressed to the applicant or

(2) “a decision which, although in the form of a regulation or a

decision addressed to another person, is of direct and individual

concern” to the applicant.

134. Since any decision adopted by the Community under the Agreement

would not be specifically addressed to the prospective applicants in this case, they

could not challenge it unless they are able to prove “direct and individual

concern” within the meaning of Article 230(4).

135. The requirement of direct concern is relatively easy to satisfy. An

applicant is directly concerned by a measure where the adverse change it his legal

37

position is the direct result of that measure. Thus, in order for direct concern to be

established, the addressee of the measure should have no discretion on how to

apply it. Implementation must be purely automatic. Where the addressee enjoys

discretion, any adverse effects that the measure may have on the applicant do not

derive directly from it but from the implementing action taken by the addressee.62

136. The requirement of individual concern is much more difficult to fulfill.

The case law of the ECJ in this respect is notoriously restrictive. Under the

Plaumann formula,63

“Persons other than those to whom a decision is addressed may only claim

to be individually concerned if that decision affects them by reason of

certain attributes peculiar to them, or by reason of circumstances in which

they are differentiated from all other persons and by virtue of these factors

distinguishes them individually just as in the case of the person

addressed.” (emphasis added).

137. This formula effectively requires the applicant to be a member of a closed

group of persons. The fact that the applicant has suffered loss or may do so does

not in itself suffice to establish standing.64

138. The restrictive interpretation of Article 230(4) has been confirmed

numerous times and it is now well-established in the case law. In its judgments in

UPA and Jégo Quéré the ECJ reiterated the Plaumann formula despite attempts

by Advocate General Jacobs and the Court of First Instance respectively to

liberalise standing.65

62 Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207; Case C-403/96 P Glencore Grain Ltd v Commission [1998] ECR I-2405. 63 Case 25/62 Plaumann v Commission [1963] ECR 95 at 107. 64 Case C-321/95 Stichting Greenpeace Council v Commission [1998] ECR I-1651. 65 C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 and Opinion of Opinion of Advocate General Jacobs delivered on 21 March 2002; Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-02365, reversed on appeal C-263/02 P Commission v Jégo Quéré [2004] ECR I-3425.

38

139. The case law has also followed a strict approach in relation to

associations, representative bodies and pressure groups. A representative

association cannot claim individual concern unless its members can do so or

unless it has played a role in the procedure leading to the adoption of the act

subject to challenge.66

140. The reason for this restrictive interpretation of Article 230(4) appears to be

that a natural or legal person can challenge a Community act of general

application indirectly via the preliminary reference procedure in proceedings

initiated before a national court. It is however clear that such indirect challenge is

not a sufficient substitute for a direct action before the ECJ.

141. Thus, under the Plaumann conditions, it would be very difficult for an

individual or a representative association to establish standing to challenge a

Community decision adopted in relation to the Agreement and addressed to Israel.

142. It is true that the case law has not examined the standing of individuals

under Article 230(4) in circumstances where the applicant is a victim of a

persistent and serious violation of human rights. In may be argued that there are

circumstances where insistence on individual concern as understood in the

Plaumann formula would run counter to the fundamental right to judicial

protection and might be intolerable to the ECJ.

143. Thus, for example, if the Community knowingly provided funding to

Israel for launching a bombing campaign against Palestine contrary to

international law, it would be committing a breach of Article 2 of the Agreement,

Article 6 TEU, the general principle of respect for fundamental rights and the duty

to observe international law. In such a case, although there is no case law on the

66 See e.g. Case C-321/95 Stichting Greenpeace Council v Commission [1998] ECR I-1651; Joined Cases 67, 68 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219 Case C-313/90 CIRFS v Commission [1993] ECR I-1125.

39

issue, it might be open to those who have been the target of the bombing

campaign to challenge the Community’s decision to provide funding to Israel

under Article 230(4) EC. In such a case, it seems to me that it would also in

principle be open to a party who suffers loss as a result of the Community’s action

to bring an action in damages under Article 288(2) of the EC Treaty.

VII. 2 Action for failure to act

144. Under Article 232 of the EC Treaty an action may be brought against a

Community institution for failure to act.

145. Article 232 states as follows:

“Should the European Parliament, the Council or the Commission, in

infringement of this Treaty, fail to act, the Member States and the other

institutions of the Community may bring an action before the Court of

Justice to have the infringement established.

The action shall be admissible only if the institution concerned has first

been called upon to act. If, within two months of being so called upon, the

institution concerned has not defined its position, the action may be

brought within a further period of two months.

Any natural or legal person may, under the conditions laid down in the

preceding paragraphs, complain to the Court of Justice that an institution

of the Community has failed to address to that person any act other than a

recommendation or an opinion.

The Court of Justice shall have jurisdiction, under the same conditions, in

actions or proceedings brought by the ECB in the areas falling within the

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latter's field of competence and in actions or proceedings brought against

the latter.”

146. In terms of standing, an action for failure to act would encounter the same

problems as an action for annulment.

147. Under Article 232, paragraph 3, the institution in question may define its

position by issuing an act which cannot be challenged under Article 230(4)

because the applicant lacks direct and individual concern. Thus, for example, if a

natural or legal person requested the Council to stop the granting of preferential

tariffs to products originating from Israel, it would be open to the Council to

respond by refusing to do so. Such refusal would amount to a definition of

position within the meaning of Article 232(3) and thus render an action for failure

to act inadmissible. The person concerned, however, would not be able to

challenge the Council’s response by way of an action for annulment, unless he

could prove direct and individual concern in relation to the act which it requested

the Council to adopt. For the reasons explained above, however, it is unlikely that

a private party would have direct and individual concern in relation to a decision

granting or withdrawing tariff preferences to Israel.

148. Thus, as the case law stands at present, an action for failure to act is

unlikely to be an effective way of forcing the Community institutions to take

action against Israel.

149. I should stress that the case law has not examined the possibility of

standing in circumstances where private parties seek to enforce the human rights

clause of an international agreement. It could be argued that, if Israel commits a

serious and persistent breach of human rights, the failure of the Community to

take concrete steps amounts to a breach of its own obligations under Article 2 of

the Agreement, in combination with its duties to respect human rights and

international law and that the victims of such breach may require the Community

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to take action under Article 232. The chances of success of such an argument

would be higher if it were proved that Israel has committed a breach of jus cogens

but it remains uncertain whether the ECJ would be prepared to break new ground.

VII.3 Action for damages

150. The non-contractual liability of the Community is governed by Article

288(2) of the EC Treaty. This provision states that the Community must, in

accordance with the general principles common to the laws of the Member States,

make good any damage caused by its institutions.

151. The Court has articulated three basic conditions of liability. There must be

(a) unlawful act, (b) damage, and (c) direct causal link between the unlawful act

and the damage sustained by the injured parties. I will examine briefly each of

these conditions.

Unlawful act

152. It is a sine qua non condition of liability that there must be an unlawful act

attributable to the Community.67 Liability may arise not only as a result of

positive action but also as a result of inaction, where there is an obligation act.68

153. Under the judgment in Bergaderm,69 the requirement of unlawfulness

means, in particular, that:

(a) there must be breach of a rule of Community law intended for the

protection of individuals; and

67 Joined Cases C-120/06 P and C-121/06 P FIAMM v Council, judgment of 9 September 2008. 68 Case C–146/91 KYDEP v Council and Commission [1994] ECR I–4199. 69 Case C–352/98 Laboratoires Pharmaceutiques Bergaderm and Goupil SA v Commission [2000] ECR I–5291.

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(b) the breach must be serious.

154. Community liability may arise from the breach of any rule which is

binding on the Community institutions. This includes, inter alia, the EC Treaty,

general principles of Community law, such as the protection of fundamental

rights, international treaties concluded by the Community, and Community

legislation.

155. It is a condition for liability to arise, however, that the rule of law

breached must be intended for the protection of the individual. As stated above,

although it is doubtful whether Article 2 of the Agreement is in itself such a rule,

it is arguable that that provision in combination with Article 6(2) TEU and the

obligation to observe fundamental rights and international law form rules intended

for the protection of individuals.

156. The requirement of seriousness is linked with the degree of discretion

enjoyed by the Community institutions. The decisive test for finding that a breach

is sufficiently serious is whether the Community institution concerned manifestly

and gravely disregarded the limits of its discretion. Where the institution has only

considerably reduced, or even no, discretion, the mere infringement of

Community law may be sufficient to establish the existence of a sufficiently

serious breach.70

157. In my view, if the Community:

(a) provided assistance to Israel to commit or maintain a serious violation

of human rights, and

70 Bergaderm, op.cit., paras 43 and 44.

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(b) did so with a view to facilitating the commission or maintenance of

such a violation or with reckless disregard of the possibility that such

violations might be committed by Israel,

it would be committing a serious breach of Community law for the purposes of

liability.

158. Thus, for liability to arise, it is not sufficient for the Community merely to

continue to perform its obligations under the Agreement despite Israel’s failure to

respect human rights. It must be established that the Community does so in

circumstances where it knows or ought to know that the performance of its

obligations under the Agreement will facilitate the breach of human rights by

Israel.

The requirements of damage and direct causation

159. In an action for damages, the applicant must indicate clearly the injuries

suffered and quantify the material damage that has occurred. Moral damage may

also be compensated. The requirement of causation is satisfied where the damage

is the ‘direct’ consequence of the breach.71 It must thus be proved that any

damage suffered by the applicants is the direct result of the Community’s failure

to take action against Israel. This may be easier to satisfy in relation to moral

damage than in relation to material damage.

160. It seems to me that the second condition of liability, namely that the

breach must be serious, would be the most difficult to satisfy. For this reason, I

am inclined to think that the chances of success of an action in damages would be

limited.

71 Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 Dumortier Frères v Council [1979] ECR 3091.

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VIII. Answer to the questions asked

161. On the basis of the above analysis, I now proceed to answer the questions

that have been put to me.

a. Can it be said that Israel’s actions in Gaza since the launch of the

operation Cast Lead on 27 December 2008 have been in breach of the

Agreement?

162. If it is established that Israel’s actions in Gaza have been a violation of

human rights as protected by jus cogens or rules of customary international law or

the UN Charter or international conventions which were in force and applicable to

Israel at the material time, such actions would be in breach of Article 2 of the

Agreement.

163. In view of the political nature of the issues in this case, in the absence of a

finding by a competent body, such as the International Court of Justice or the UN

Security Council that Israel has committed a violation of human rights as

described above, the CFI or the ECJ may be reluctant to make such a finding

although arguably they have jurisdiction to do so.

b. If Israel’s actions in Gaza are in breach of the Agreement, what are the

remedies, if any?

164. If Israel has breached Article 2 of the Agreement, the Community may

have recourse to the non-execution clause of Article 79(2) and take appropriate

measures after raising the matter with the Association Council.

165. If Israel has committed a violation of jus cogens or a serious and persistent

violation of human rights, that would amount to a case of special urgency which

would entitle the Community to (a) terminate or suspend the Agreement in

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c. Is the Community required to take any action against Israel under the

terms of the Agreement or, more generally, as a matter EC law?

166. As the case law stands at present, it will be difficult to persuade the Court

to take the view that an individual or a representative association may require the

Community to take action under Article 79(2).

d. Can any of the following require the Community to take action and, if

so, what action?

i. Palestinians living in Gaza;

ii. NGOs based in Gaza;

iii. Members of the UK Parliament;

iv. Palestinians living in the UK and thus directly affected by the

failure to comply with the Agreement

e. Is it possible for any of the above persons or entities to claim damages

against the Community?

167. If Israel commits a serious and persistent violation of human rights and the

Community fails to take any action, it is arguable that the Community is in breach

of its obligations under Article 2 of the Agreement in combinations with its

obligations under Article 6(2) TEU, the general principle to respect fundamental

rights and, its duty observe international law.

168. There are three possible remedies under the EC Treaty:

(a) An action for annulment under Article 230;

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(b) An action for failure to act under Article 232;

(c) An action in damages under Article 288(2).

169. All persons and entities referred in question (d) belong to the category of

“non-privileged applicants” under Article 230(4) EC. A non-privileged applicant

may bring an action for annulment against a Community measure addressed to

Israel only if it is able to establish direct and individual concern. For the reasons

mentioned in the analysis, I consider that, in the circumstances, this will be very

difficult.

170. The restrictive locus standi requirement of Article 230(4) imposes a major

impediment also to an action for failure to act against a Community institution.

171. Under Article 288(2) EC, for the Community to be liable in damages, the

following conditions must be fulfilled:

(a) there must be a breach of a rule of law intended for the protection of

individuals;

(b) the breach must be serious;

(c) there must be material or moral damage; and

(d) there must be direct causal link between the breach and the damage.

172. In my view, if the Community:

(a) provided assistance to Israel to commit or maintain a serious violation

of human rights, and

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(b) did so with a view to facilitating the commission or maintenance of

such a violation or with reckless disregard of the possibility that such

violations might be committed by Israel,

it would be committing a serious breach of Community law for the

purposes of liability.

It would then be possible to claim moral damage.

Summary

173. In summary my view is as follows:

a. On the assumption that Israel’s actions under operation Cast Lead amount

to a serious and persistent violation of human rights,

i. Israel is in breach of the human rights clause contained in

Article 2 of the Agreement;

ii. The Community may take appropriate measures against

Israel under the non-execution clause of Article 79(2) of the

Agreement;

iii. As the case law currently stands, it is unlikely for the

European Court of Justice to decide that private parties may

require the Community to take action under Article 79(2);

iv. It is arguable that the Community’s failure to take

appropriate action against Israel amounts to a breach of its

own obligations under the human rights clause of Article 2;

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v. It is difficult for private parties to enforce the Community’s

obligations under Article 2 through an action for annulment,

an action for failure to act, or an action in damages.

IX. Next steps

174. It is clear from the above analysis that any attempt to seek a judicial

remedy for the failure of the Community to take steps against Israel will

encounter a number of obstacles.

175. In my view, should the instructing solicitors wish to pursue the matter, the

following steps should be taken:

(a) The Council and the Commission should be asked by formal letters

addressed to each of them to indicate the steps that they have taken in

relation to Israel following operation Cast Lead. In particular, they should

be asked, inter alia, the following:

(i) to indicate if the Community has taken any concrete

steps against Israel in view of Israel’s violation of

fundamental rights and, if so, what these steps are;

(ii) to indicate whether the Community has referred Israel’s

violations to the Association Council and what action, if

any, the Association Council has taken;

(iii) to provide details of any specific measures, decisions,

or steps that they have taken by the Community since the

launching of the operation Cast Lead in implementation of

the Agreement;

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(iv) to disclose any documents relevant to (i) to (iii) above.

I note, in this context, that a request for disclosure of

documents may be made to Community institutions under

Regulation No 1049/2001 regarding public access to

European Parliament, Council and Commission

documents.72 Although that regulation provides for various

grounds on the basis of which the requested institution may

refuse disclosure, including “international relations”, such a

refusal would be open to review by the CFI. This may in

itself provide the forum for litigating indirectly the

Community’s conduct vis-à-vis Israel following operation

Cast Lead.

(b) Depending on the answers received by the Council and the

Commission to the above points, both institutions should be asked to

define their position under Article 232 of the Treaty.

(c) Instructing solicitors are kindly asked to assist in identifying:

(i) specific violations of human rights by Israel in the

course of the Cast Lead operation that can substantiate the

existence of a serious and persistent breach of human

rights.

(ii) specific groups of who might be affected by the

Agreement or action taken by the Community in

implementation of the Agreement with a view to

72 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145/43.

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51

establishing possible applicants in an action for annulment

under Article 230(4).

176. I would of course be happy to provide further assistance in relation to any

points that may require clarification or if there are other matters that arise.

PROFESSOR TAKIS TRIDIMAS

Matrix,

Griffin Building,

Gray’s Inn,

London WC1R 5LN

1 May 2009