Breaches of EC Law and the International Responsibility of Member States

The role of subsystems or special regimes, of which the European Community (EC) has been cited as the most striking example, within public international law has been a focus of attention of academic writing in recent years. Such regimes, strictly understood, exclude the operation of secondary rules of international law, substituting their own rules. As well as providing a useful descriptive framework for certain aspects of international law, subsystems analysis poses the issue of the effect on the overall efficacy of the international law system of such regimes. Applied to the EC, use of the term 'subsystem' as strictly understood is debateable. A number of scenarios indicate the potential applicability and need for the regime of state responsibility of general international law. First, a member state may be liable in international law for breach of EC law where that EC law is an international agreement to which the Community is a party. Secondly, Simma's 1985 conclusions concerning the EC as a self-contained regime, assessed in light of recent developments in EC law on state liability, arguably remain applicable, suggesting that international responsibility for breaches of EC law by member states, in extremis, cannot be absolutely excluded.