Litigating against the European Union and Its Member States - Who Responds under the ILC's Draft Articles on International Responsibility of International Organizations?

In its 2009 Draft Articles on international responsibility of international organizations, the International Law Commission advocated a set of rules on attribution of conduct to the organization (Draft Articles 5-8) and additional rules on the organization's responsibility in connection with the Act of a State (Draft Articles 13-18). Moreover, it included a Draft Article 63 on lex specialis. The present article examines whether such a special rule exists for the European Union and its Member States, in particular with respect to the attribution of conduct of EU Member States to the Union where they act in the execution of EU law. It therefore reviews international case law in the field of trade, human rights, investment protection, and the law of the sea as well as the special rules of the European Union itself. The author concludes that such a rule does indeed exist and makes a suggestion for a formulation thereof.