Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 12 March 2026 (1)
Case C‑790/24 P
International Management Group (IMG)
v
European Commission
( Appeal – EU Financial Regulations – Development cooperation – Implementation of the EU budget under joint or indirect management with an international organisation – Decision refusing to recognise an entity as an international organisation with retroactive effect – Concept of an international organisation – Constituent elements – Interpretation of the international agreement establishing the organisation – Vienna Convention on the Law of Treaties – Articles 31 and 32 )
Table of contents
I.
Introduction
II.
Legal framework
A.
The Vienna Convention
B.
The Draft Articles
III.
Factual background
IV.
The proceedings before the General Court and the judgment under appeal
V.
Procedure before the Court of Justice and forms of order sought
VI.
Targeted analysis of the fifth ground of appeal, alleging incorrect assessment of the appellant’s legal status
A.
The first part, alleging errors of law vitiating the definition of the concept of ‘international organisation’
1.
The first argument, alleging an error of law as regards the requirement to establish the intention of the parties to establish an international organisation
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
2.
The second argument, alleging an error of law as regards the requirement to establish the legally binding nature of the international agreement
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
3.
The third argument, alleging an error of law as regards the assessment of the criterion relating to international legal personality
(a)
The first criticism, regarding possession of ‘legal personality’
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
(b)
The second criticism, based on the guarantees of stability, continuity and effectiveness enjoyed by the entity for the purposes of carrying out its tasks
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
B.
The second part, alleging errors of law vitiating the interpretation of the appellant’s constituent instrument
1.
The first argument, alleging an error of law as regards the interpretation of the concept of ‘international organisation’
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
2.
The second argument, alleging incorrect application of the rules of interpretation of an international agreement set out in Articles 31 and 32 of the Vienna Convention
(a)
The first criticism, alleging incorrect identification of the international agreement to be interpreted
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
(b)
The second criticism, alleging excessive formalism in the interpretation of the terms of the resolution of 25 November 1994
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
(c)
The third criticism, alleging incorrect assessment of the appellant’s initial statute as part of the relevant ‘context’
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
(d)
The fourth criticism, alleging incorrect assessment of the appellant’s initial and subsequent statutes as part of ‘subsequent practice’
(1)
The judgment under appeal
(2)
Arguments of the parties
(3)
Assessment
(i)
The alleged errors of law affecting the application of Article 31(3)(b) of the Vienna Convention on the general rule of interpretation
(ii)
The alleged errors of law affecting the application of Article 32 of the Vienna Convention relating to ‘supplementary means of interpretation’
3.
The third argument, alleging an error of law relating to the consequences to be drawn from the conclusion of headquarters agreements with the States and delegation agreements under joint or indirect management with the Commission
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
C.
The third part, alleging errors of law committed by the General Court in assessing the replies given by Belgium and Austria to the Commission’s questions
1.
The first criticism, alleging an incorrect assessment of the replies given by the Austrian authorities
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
2.
The second criticism, alleging an incorrect assessment of the replies given by the Belgian authorities
(a)
The judgment under appeal
(b)
Arguments of the parties
(c)
Assessment
D.
The fourth part, alleging errors of law relating to the identification of the appellant’s members
1.
The judgment under appeal
2.
Arguments of the parties
3.
Assessment
E.
The fifth part, alleging errors of law as regards the formal requirements for the conclusion of the resolution of 25 November 1994
1.
The judgment under appeal
2.
Arguments of the parties
3.
Assessment
F.
The sixth part, alleging failure to take account of the fact that the appellant had not been dissolved
1.
The judgment under appeal
2.
Arguments of the parties
3.
Assessment
VII.
Conclusion
I.      Introduction
1.        The present appeal, which is brought against the judgment of the General Court of the European Union of 4 September 2024, IMG v Commission, (2) raises the question of the principles in the light of which a body may be recognised as an international organisation within the meaning of the EU Financial Regulations and the rules of public international law governing the interpretation of such an organisation’s constituent instrument.
2.        That appeal is part of a long series of disputes (3) by which International Management Group (IMG), an entity specialising in the reconstruction of States in a post-conflict situation, disputes the fact that the European Commission was legally entitled, by a decision of 8 June 2021, to refuse to accord it, with retroactive effect from 16 December 2014, the status of international organisation (‘the decision at issue’), even though that institution had delegated to it, in that capacity, the implementation of programmes financed by the EU budget. By the judgment under appeal, the General Court confirmed the legality of that decision.
3.        In accordance with the request of the Court of Justice, the present Opinion will be limited to an analysis of the main new question of law which arises in the present case, namely that raised by the fifth ground of appeal, alleging that the General Court erred in law, first, as regards the definition of the constituent elements of an ‘international organisation’ and, second, as regards the interpretation of the terms of the international agreement which established IMG in the light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. (4)
4.        In the present Opinion, I shall propose that the Court of Justice uphold the fifth ground of appeal.
5.        While I accept that it may be difficult to recognise, in the terms of the international agreement which established IMG, the constituent instrument of an international organisation, I nevertheless disagree with the extremely restrictive interpretation of that agreement adopted by the General Court. By attaching decisive weight to the textual gaps in that agreement, even though it had been concluded in special circumstances relating to the urgency of the situation, by refusing to attach any interpretative value to the decisions adopting IMG’s statute, adopted on 10 March 1995, (5) even though those decisions were, in essence and functionally, part of the process of establishing IMG, and, lastly, by refusing to take into consideration the decisions adopting IMG’s statute in 2008 and 2012, (6) even though they reflected the evolution and gradual transformation of that entity, I believe that the General Court infringed the rules of interpretation set out in Articles 31 and 32 of the Vienna Convention.
6.        Furthermore, and while it is true that the appellant’s status is not clearly apparent from the international agreement establishing it, I would point out that, from the moment it was established by the Commission and the international community, it was regarded as an international organisation, with certain States concluding headquarters agreements with it and the Commission entrusting it with budget implementation tasks in that capacity over a relatively long period (1995 to 2014). Moreover, the Commission expressly acknowledges that fact. In those circumstances, I am rather puzzled by the argument that, after nearly 20
years during which it was implicitly or even expressly recognised as an international organisation, that entity could be denied that status and all the rights associated with it, retroactively from 16 December 2014, that is to say, the date on which the Commission decided to entrust the implementation, under indirect management, of the trade development programme in favour of Myanmar/Burma to an organisation other than IMG.
II.    Legal framework
A.      The Vienna Convention
7.        Article 2(1) of the Vienna Convention provides:
‘For the purposes of the present Convention:
(a)      “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
…
(i)      “international organisation” means an intergovernmental organisation.’
8.        Article 5 of the Convention states that it ‘applies to any treaty which is the constituent instrument of an international organisation … without prejudice to any relevant rules of the organisation’.
9.        In the words of Article 31 of the Convention, headed ‘General rule of interpretation’:
‘1.      A treaty shall 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.
2.      The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a)      any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b)      any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3.      There shall be taken into account, together with the context:
(a)      any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b)      any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
…
4.      A special meaning shall be given to a term if it is established that the parties so intended.’
10.      Article 32 of the Convention, headed ‘Supplementary means of interpretation’, is worded as follows:
‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a)      leaves the meaning ambiguous or obscure; or
(b)      leads to a result which is manifestly absurd or unreasonable.’
B.      The Draft Articles
11.      The Draft Articles on the responsibility of international organisations (‘the Draft Articles’) were adopted by the United Nations International Law Commission (‘the ILC’) in 2011. (7)
12.      Under Article 2(a) of the Draft Articles, the expression ‘international organisation’ means an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality and, in addition to States, an international organisation may include among its members entities other than States.
III. Factual background (8)
13.      The appellant, IMG, initially named International Management Group – Infrastructure for Bosnia and Herzegovina (IMG-IBH), was set up by the International Conference on former Yugoslavia (ICFY) under the umbrella of the Office of the United Nations High Commissioner for Refugees (‘the UNHCR’) on 16 July 1993. (9) By means of a document of 25 November 1994 concerning the establishment of the IMG-IBH (‘the resolution of 25 November 1994’), the States party to that document intended to give it an institutional structure to provide the States and international organisations participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. (10) Since then, IMG has gradually extended its activities into the fields of reconstruction and development.
14.      Following an investigation conducted by the European Anti-Fraud Office (OLAF), at the end of which the appellant’s status as an international organisation within the meaning of the EU Financial Regulations was called into question, the Commission decided, on 16 December 2014, to entrust the implementation of the Annual Action Programme in favour of Myanmar/Burma to an organisation other than IMG and then, on 8 May 2015, informed the appellant of its decision not to conclude any delegation agreements using the indirect management method with it until there was absolute certainty regarding its status. The Court of Justice held that those two decisions were unlawful in its judgment of 31 January 2019, International Management Group v Commission, (11)on the grounds that those decisions were not justified in law and fact, since the three factors on which the decisions had been based were not such as to call into question the appellant’s status as an international organisation within the meaning of the EU Financial Regulations. (12) In its order of 9 June 2020, International Management Group v Commission, (13) the Court of Justice was careful to specify that it had not decided the issue of whether, on the basis of an analysis of all the relevant factors, IMG had the status of an international organisation.
15.      For the purposes of complying with the judgment of 31 January 2019, International Management Group v Commission, (14) the Commission carried out a definitive assessment of the appellant’s status. To that end, it asked the States designated by IMG as its members whether IMG was an international organisation, whether they were members of IMG and whether they had signed an international or intergovernmental agreement establishing it as such.
16.      By letter of 19 February 2021, the Commission informed the appellant that it intended to adopt a decision refusing to accord it the status of an international organisation and invited it to submit observations. On 8 June 2021, the Commission adopted the decision at issue, refusing to accord it, with retroactive effect from 16 December 2014, the status of an international organisation provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method. (15)
17.      Lastly, in the judgment of 22 September 2022, IMG v Commission, (16) the Court of Justice recalled that the Commission was required to ensure that the entities to which it has entrusted or intends to entrust budget implementation tasks, pursuant to the provisions relating to the indirect management of the EU budget by international organisations, have that status. In addition, it noted that, in the event of doubts in that regard, that institution is under an obligation to dispel such doubt and to gather all the information necessary to justify its decision in law as well as in fact, having regard to the legal consequences of that decision for the entity concerned. (17)
IV.    The proceedings before the General Court and the judgment under appeal
18.      By application lodged at the Registry of the General Court on 18 August 2021, the appellant brought an action for annulment of the decision at issue and for compensation for the damage it had suffered. Following an examination of the substance of the action, and for the reasons set out in paragraphs 62 to 417 of the judgment under appeal, the General Court found the four grounds of appeal relied on by the appellant to be unfounded, and dismissed the appeal. (18) In addition, for the reasons set out in paragraphs 418 to 447 of the judgment, the General Court rejected IMG’s application for damages and ordered it to pay the costs.
V.      Procedure before the Court of Justice and forms of order sought
19.      By application lodged at the Court Registry on 14 November 2024, IMG brought the present appeal, asking the Court to set aside the judgment under appeal, to rule itself on its action, to uphold that action and to order the Commission to pay the costs of both the proceedings before the General Court and those before the Court of Justice.
20.      The Commission asks the Court to dismiss the present appeal and to order the appellant to pay the costs.
21.      At the hearing held on 11 December 2025, IMG and the Commission presented oral argument, focusing on the fifth ground of appeal, as requested by the Court of Justice.
VI.    Targeted analysis of the fifth ground of appeal, alleging incorrect assessment of the appellant’s legal status
22.      The fifth ground of appeal, on which the present Opinion focuses, seeks to challenge the General Court’s reasoning in paragraphs 190 to 370 of the judgment under appeal as to whether, since 16 December 2014, the appellant was eligible, as an international organisation, to implement the EU budget under joint or indirect management.
23.      For the sake of clarity and consistency, I have chosen to divide the fifth ground of appeal into six parts and to analyse them in a different order from that presented by the appellant. I shall focus my analysis on the first three parts which, in my view, merit detailed examination.
A.      The first part, alleging errors of law vitiating the definition of the concept of ‘international organisation’
24.      The first part, which is directed against paragraphs 206 to 212 of the judgment under appeal, seeks to challenge the reasoning which the General Court adopted regarding the scope of the requirements for constituting an international organisation and in the light of which it assessed, in accordance with the rules of interpretation codified in Articles 31 and 32 of the Vienna Convention, (19) the appellant’s status as an international organisation, in paragraphs 265 and 306 to 312 of the judgment.
1.      The first argument, alleging an error of law as regards the requirement to establish the intention of the parties to establish an international organisation
25.      The first argument concerns an essential element of the law of international organisations and must therefore, in my view, be examined first.
(a)    The judgment under appeal
26.      In paragraph 203 of the judgment under appeal, the General Court first cited Article 2(a) of the Draft Articles, which provides that an ‘international organisation’ means ‘an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality’.
27.      In paragraph 204 of the judgment, it then recalled that, under Article 2(1)(a) of the Vienna Convention, the term ‘treaty’ means ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. (20)
28.      Lastly, in paragraph 302 of the judgment under appeal, the General Court held that the appellant, ‘in order to be eligible to implement the EU budget using the indirect management method provided for the benefit of international organisations, must have been founded by an international agreement the purpose of which was to establish it as an international organisation’ and therefore investigated, in paragraphs 304 to 319 of the judgment, whether that was in fact the case in the light of the interpretation of its constituent instrument.
(b)    Arguments of the parties
29.      The appellant submits that the General Court deviated from the objective criteria which international law lays down for the purposes of establishing an international organisation by requiring, in paragraph 302 of the judgment under appeal, that the entity concerned be founded by an international agreement the purpose of which was to establish it as an international organisation. The appellant argues that the General Court thereby added a third condition – that relating to the intention of the parties to the international agreement to create an international organisation – which does not appear in the definition of the concept of ‘international organisation’ which it set out in paragraph 203 of the judgment.
30.      The Commission contests those arguments.
(c)    Assessment
31.      I propose that the Court of Justice reject the first argument as unfounded.
32.      It is the result of confusion between the constituent elements of an ‘international organisation’, which the court must establish are present in accordance with Article 2(a) of the Draft Articles, and the examination of the intention of the parties, which is the court’s primary task when interpreting an ‘international agreement’, pursuant to Articles 31 and 32 of the Vienna Convention. Thus, in its judgment of 23 March 2004, France v Commission, (21) in which it was called upon to determine the legally binding nature of an agreement concluded between the Commission and the United States of America, the Court focused on establishing the intention of the parties, since that constituted a ‘decisive criterion’.
33.      In public international law, it is settled law that the purpose of interpreting a treaty is to establish in the most objective and rational manner possible the common intention and will of the parties, that rule being dictated by respect for both State sovereignty and the principle of pacta sunt servanda. Article 31(4) of the Vienna Convention thus provides: ‘a special meaning shall be given to a term if it is established that the parties so intended’. (22) In its judgment of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea), the ICJ emphasised that, in order to ascertain whether an instrument constitutes a treaty, the court must, inter alia, look at the terms of the instrument, the particular circumstances in which it was drawn up and even in the subsequent conduct of the parties, for indicators of whether they intended to be legally bound by it, (23) irrespective of whether that intention is expressed or inferred. (24)
34.      Consequently, the General Court did not err in law in paragraph 302 of the judgment under appeal in requiring that it be established that the parties to the resolution of 25 November 1994 intended to establish it as an international organisation or by examining, in paragraphs 304 to 319 of the judgment, whether that was indeed the case in the light of the interpretation of its constituent instrument.
2.      The second argument, alleging an error of law as regards the requirement to establish the legally binding nature of the international agreement
35.      The second argument is directed against paragraphs 206 and 265 of the judgment under appeal. It concerns whether the General Court excessively limited the scope of the concept of ‘international agreement’, as defined in Article 2(1)(a) of the Vienna Convention, and, a fortiori, that of the concept of ‘international organisation’, provided for in Article 2(a) of the Draft Articles, by requiring that such an agreement contain provisions that are legally binding on the parties.
(a)    The judgment under appeal
36.      After recalling, in paragraph 204 of the judgment under appeal, the definition of the concept of ‘treaty’, the General Court stated, in paragraphs 206 and 265 of the judgment, that ‘a document signed by States cannot constitute an international agreement if it does not contain any provision creating rights or obligations to which those States have consented’, referring in that regard to the judgment of the ICJ of 1 October 2018, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), (25) and, by analogy, to the judgment of 6 November 2008, Greece v Commission. (26)
(b)    Arguments of the parties
37.      The appellant submits that the General Court departed from the classic definition of the concept of ‘treaty’ or ‘international agreement’ by referring to case-law which is not relevant.
38.      The Commission contests those arguments. It submits, in particular, that, by referring to the judgment of the ICJ of 1 October 2018, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), (27)the General Court intended to emphasise the difference between a non-binding international instrument and an international agreement within the meaning of the Vienna Convention, which requires the consent of the parties to be bound by it.
(c)    Assessment
39.      I consider that the second argument is ineffective.
40.      After examining the content and scope of the resolution of 25 November 1994 in the light of the criterion based on the legally binding nature of international agreements, the General Court reached a conclusion favourable to the appellant, as evidenced by paragraphs 274, 289 and 301 of the judgment under appeal. It held, in essence, in paragraphs 266 and 274 of the judgment, that that resolution contained at least one legally binding commitment for its signatories and held, consequently, that the decision at issue was vitiated by an error of law in so far as the Commission had wrongly considered that that text constituted a commitment of an exclusively political nature.
41.      The appellant expressly acknowledges in paragraph 89 of its appeal that there is no need to revisit that finding made by the General Court.
42.      In any event, the ICJ, in its judgment of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea), recalled, in general terms, that, in order to assess whether an instrument constitutes a treaty, the court must look at indications as to whether the parties intended to be legally bound by it. (28)
3.      The third argument, alleging an error of law as regards the assessment of the criterion relating to international legal personality
43.      The third argument relates to the examination which the General Court carried out in paragraphs 207 to 212 of the judgment under appeal as regards the principles and criteria on the basis of which an organisation may be regarded as having its own international legal personality. As is apparent from paragraph 213 of the judgment, it was in the light of those principles that it examined, in paragraphs 306 to 319 of the judgment, whether the resolution of 25 November 1994 had the purpose or effect of conferring on the appellant the status of an international organisation.
44.      The appellant criticises the way in which the General Court defined two of those criteria in the light of international case-law and then implemented them in paragraphs 307 to 312 of the judgment under appeal.
(a)    The first criticism, regarding possession of ‘legal personality’
(1)    The judgment under appeal
45.      In paragraphs 207 and 208 of the judgment under appeal, the General Court noted that, according to international case-law, the recognition of an international organisation is subject to the organisation concerned having ‘legal personality’. The General Court pointed out that, in the absence thereof, an entity established by States or, as the case may be, by one or more international organisations is a body dependent either on the States which established it – the Court then referring to the judgment of the ICJ of 26 June 1992, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections (29) – or on an international organisation which hosts that entity – referring to the advisory opinion of the ICJ of 1 February 2012, Judgment No 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development . (30)
(2)    Arguments of the parties
46.      The appellant submits that the case-law cited in the preceding point of the present Opinion has no connection with an international organisation having its ‘own legal personality’. Furthermore, that case-law, in so far as it concerns situations in which the entity concerned had been granted neither legal personality nor the capacity to enter into legal arrangements, does not justify the General Court’s comparison with its situation in its relationship with the States parties or the Commission,
since its own statute recognises both its legal personality and its capacity to enter into contracts.
47.      The Commission contests those arguments. In its view, the reference to the international case-law cited in
paragraph 208 of the judgment under appeal is intended to highlight certain factors which distinguish an international organisation from another organisation.
(3)    Assessment
48.      I consider that this first criticism is unfounded.
49.      First, I note that paragraphs 207 and 208 of the judgment under appeal are devoted solely to setting out general principles relating to the possession, by an entity, of international legal personality, which are not disputed by the appellant.
50.      In that context, both the judgment of the ICJ of 26 June 1992, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, (31) in paragraph 47, and its advisory opinion of 1 February 2012,  Judgment No 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, (32) paragraphs 57, 58, 60 and 61, attest to the essential nature of that condition for the purposes of recognising the status of an international organisation. In paragraphs 207 and 208 of the judgment under appeal, the General Court did not draw any parallel between the appellant’s situation and those of the entities concerned by that case-law of the ICJ; it went on to examine that particular situation in paragraph 307 of the judgment.
51.      Second, the appellant’s argument is based on a confusion between the concepts of ‘international legal personality’ and ‘legal personality under national law’, which are two different legal concepts. The provisions of the statute to which it refers confer on it the legal capacity to enter into contracts, acquire and dispose of immovable property and to institute legal proceedings, (33) which corresponds to the attributes of legal personality under national law, since it gives it the capacity to act in the legal system of the State. The observations made by both the Commission in paragraph 127 of its response (34) and by the General Court in paragraph 307 of the judgment under appeal stem from the same confusion.
52.      Although they are complementary, a distinction must be drawn between those concepts since they do not originate in the same legal system and do not produce the same effects. (35) International legal personality allows the entity having it to be regarded as an autonomous subject of law on the international plane, distinct from its members, capable of possessing rights and duties of its own in the international legal order and capable of acting (capacity to enjoy and exercise rights, for example, the conclusion of international agreements, and so forth). (36) In so far as, by its analysis, the General Court sought to determine whether IMG has the status of an international organisation within the meaning of Article 2(a) of the Draft Articles (paragraph 203 of the judgment under appeal), it was precisely the question of the appellant’s international legal personality that was raised.
(b)    The second criticism, based on the guarantees of stability, continuity and effectiveness enjoyed by the entity for the purposes of carrying out its tasks
53.      The second criticism is directed at paragraph 212 of the judgment under appeal.
(1)    The judgment under appeal
54.      After defining the principle of speciality in paragraph 211 of the judgment, the General Court stated in the following paragraph that ‘an international organisation cannot be reduced to merely an optional mechanism available to the parties which each may use or not, as it pleases. [(37)] By creating an international organisation and investing it with all the resources necessary for its operation, its founders demonstrate their intention to provide the best possible guarantees of stability, continuity and effectiveness to the performance of the tasks entrusted to that organisation, with the result that they cannot depart from that framework unilaterally, as they see fit, and put other channels of communication in its place’. The General Court referred, to that effect, to paragraphs 90 and 91 of the judgment of the ICJ of 20 April 2010, Pulp Mills on the River Uruguay (Argentina
v. Uruguay). (38)
(2)    Arguments of the parties
55.      According to the appellant, the General Court erred in law in paragraph 212 of the judgment under appeal by establishing as a principle of the law of international organisations the need for the entity concerned to be endowed with ‘guarantees of stability, continuity and effectiveness to the performance of the tasks entrusted to that organisation’, whereas that criterion is not provided for either by the law or by the practice of international organisations and cannot be inferred from the judgment of the ICJ of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay). (39) The appellant infers that the General Court’s conclusion in paragraph 309 of the judgment under appeal that it constitutes an optional mechanism is therefore incorrect.
56.      The Commission contests those arguments. It argues, in particular, that the General Court was right to point out that, under international law, an international organisation cannot be reduced to merely an optional mechanism available to the parties, the reference to the judgment of the ICJ of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay) (40) being, in that regard, all the more relevant, since the resolution of 25 November 1994 clearly defined the appellant as a temporary institution, without ‘any obligation to contribute to IMG-IBH budget or operation’.
(3)    Assessment
57.      I consider that this second criticism is unfounded.
58.      As is apparent from the wording and structure of paragraphs 207 to 212 of the judgment under appeal, the General Court did not refer to ‘the guarantees of stability, continuity and effectiveness’ with which the entity concerned is invested for the purposes of carrying out its tasks as a general principle of the law of international organisations, but as a criterion in the light of which the court must assess whether the parties actually intended to establish a distinct and autonomous subject of law on the international plane by investing it with all the resources necessary for its operation.
59.      I note that, in paragraph 212 of the judgment under appeal, the reference to paragraphs 90 and 91 of the judgment of the ICJ of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), (41) is preceded by the words ‘see, to that effect’. That is evidence of the General Court’s intention to refer to the principle identified by the ICJ while applying it in a particular way. Although it may be criticised for having reproduced, verbatim, terms used by the ICJ with regard to the particular role of the Administrative Commission of the River Uruguay (‘CARU’), (42) it did not err in law by referring to that international case-law.
60.      Indeed, while Uruguay and Argentina disagreed on the status of CARU, (43) the ICJ examined, in paragraphs 87 to 91 of the judgment of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), (44) a number of organisational and material factors in order to determine whether that entity enjoyed full autonomy and had the capacity to exercise the powers which had been expressly or implicitly conferred on it in the international legal order. The ICJ took into account the nature of its duties and the resources and facilities entrusted to it by the parties, its own permanent existence, the provisions granting it legal personality, the rights and obligations which it held within the scope of the powers conferred on it in accordance with the principle of speciality, the existence of a secretariat whose staff enjoyed privileges and immunities and the fact that it could decentralise its functions by setting up subsidiary bodies. It was in that context that the ICJ held, in paragraph 90 of that judgment, that ‘since CARU serves as a framework for consultation between the parties …, neither of them may depart from that framework unilaterally, as they see fit, and put other channels of communication in its place. By creating CARU and investing it with all the resources necessary for its operation, the parties have sought to provide the best possible guarantees of stability, continuity and effectiveness for their desire to co-operate in ensuring “the optimum and rational utilisation of the River Uruguay”.’
61.      That judgment therefore reflects the importance that the ICJ attaches to the resources provided to the entity for the purposes of its operation, as those resources are objective indicators of the autonomy accorded to it by the parties and of their willingness to commit, in a continuous, stable and effective manner, to the fulfilment of the task for which they have created it.
62.      The General Court could therefore legitimately refer to those ‘guarantees of stability, continuity and effectiveness’ as a relevant criterion for determining whether the appellant was a subject of law distinct and separate from its members.
63.      In the light of all those considerations, it is necessary, in my view, to reject the second criticism of the third argument and, more generally, the first part of the fifth ground of appeal, alleging errors of law vitiating the definition of the concept of ‘international organisation’, as unfounded.
B.      The second part, alleging errors of law vitiating the interpretation of the appellant’s constituent instrument
64.      By the second part, the appellant submits that the General Court misinterpreted its constituent instrument on account, inter alia, of an incorrect application of the rules of interpretation of an international agreement set out in Articles 31 and 32 of the Vienna Convention.
65.      In support of the second part, the appellant puts forward three arguments.
1.      The first argument, alleging an error of law as regards the interpretation of the concept of ‘international organisation’
(a)    The judgment under appeal
66.      In paragraph 197 of the judgment under appeal, the General Court noted that the concept of ‘international organisation’, within the meaning of the EU Financial Regulations, covers ‘international public sector organisations set up by international agreements’. (45) In the absence of a more precise definition of the concepts of ‘international organisation’ and ‘international agreement’, the General Court held, for the reasons set out in paragraphs 198 and 199 and paragraphs 201 and 202 of the judgment, that those concepts correspond to those used in public international law and must be interpreted in the light of the customary principles of public international law contained, inter alia, in the Vienna Convention and the Draft Articles.
67.      In paragraph 200 of the judgment, the General Court pointed out that ‘however, in so far as [those concepts] are used in the EU Financial Regulations for the specific purpose of implementing its budget, they must be interpreted narrowly, in order to protect the financial interests of the European Union’. In making that statement, the General Court referred, by analogy, to the judgments of 2 July 2015 in Demmer (46) and of 20 December 2017 in Erzeugerorganisation Tiefkühlgemüse. (47)
(b)    Arguments of the parties
68.      The appellant submits that the General Court misinterpreted the concepts of ‘international organisation’ and ‘international agreement’ used in the EU Financial Regulations by departing from the classic definition of those concepts in public international law and relying on irrelevant case-law.
(c)    Assessment
69.      I agree with the criticisms made by the appellant.
70.      First, the assertion that the concepts of ‘international organisation’ and ‘international agreement’ must be interpreted narrowly on the ground that it is necessary to protect the financial interests of the European Union finds no support in the case-law.
71.      Although the General Court draws an analogy with the principles identified by the Court of Justice in the judgments of 2 July 2015, Demmer (48) and of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse, (49) that analogy is not relevant since there is no identity of legal basis and subject matter between the cases which gave rise to those judgments and the present case. Neither of those judgments concerns the interpretation of a concept of public international law. In the first judgment, the Court of Justice interpreted the scope of the exception to the obligation to repay aid unduly paid established by Regulation (EC) No 796/2004, (50) while in the second judgment it determined the scope of the expression ‘on the holdings and/or premises of the producer organisation’ referred to in point 23 of Annex IX to Implementing Regulation (EU) No 543/2011. (51)
72.      Second, if the Court of Justice were to accept the principle laid down here by the General Court, that would result in a variable definition of a concept of public international law depending on the context in which it is used, whereas it should be interpreted uniformly, whether it is used in the context of humanitarian aid, the protection of personal data or budget implementation, for example. An international organisation, as a legal person and subject of international law, has a specific character that distinguishes it from any other form of international cooperation and from all other bodies with which the Commission may conclude delegation agreements. Consequently, in my view, it is solely in the light of the conditions laid down by public international law that the status of an entity as an international organisation should be assessed.
73.      I note that, in its judgment of 24 January 2008, Adam v Commission, (52) the Court referred solely to the concept and definition of the term ‘State’ in public international law, and refused to adopt a broader interpretation taking into account the institutional architecture of each of the Member States. (53)
74.      Similarly, in the judgment of 16 October 2012, Hungary v Slovakia, (54) when asked to determine the extent to which the status of ‘Head of State’ was capable of constituting a limitation on the right of free movement conferred by Article 21 TFEU on every citizen of the European Union, the Court of Justice held that, in the light of customary rules of general international law and multilateral treaty rules, the status of Head of State has ‘a specific character’ resulting from the fact that it is governed by international law and which has the consequence that his or her conduct internationally comes under that law, unlike other citizens of the European Union, with the result that that person’s access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens. (55) It was in the light of those particular rules of international law defining the protection or facilities granted to Heads of State, and not in the light of the specific features of EU law, that the Court accepted a restriction of the personal scope of Directive 2004/38/EC. (56)
75.      Third and lastly, although it is true that, in its judgment of 22 September 2022, IMG v Commission, (57) the Court of Justice held that the financial provisions governing the conclusion of delegation agreements under joint or indirect management with an international organisation must be understood in the light of the principle of sound financial management referred to in Article 310(5) and the first paragraph of Article 317 TFEU, (58) that does not, in my view, entail restricting recognition of the status of international organisation to the fulfilment of additional conditions, compliance with which is required neither by customary international law nor by the ICJ. Rather, the conclusion of those agreements should be subject to the specific requirements necessary for the performance of the budgetary tasks concerned, in particular the audit and control procedures expressly provided for in order to ensure the protection of the financial interests of the European Union.
76.      The first argument of the second part must therefore, in my view, be upheld.
2.      The second argument, alleging incorrect application of the rules of interpretation of an international agreement set out in Articles 31 and 32 of the Vienna Convention
77.      By its second argument, the appellant submits that the General Court’s finding that the parties did not intend to confer on it the status of international organisation is based on an incorrect interpretation of its constituent instrument resulting from an incorrect application of the rules of interpretation of an international agreement codified in Articles 31 and 32 of the Vienna Convention.
78.      I would stress that the General Court’s conclusion is based not on findings of fact, but on a legal interpretation of IMG’s constituent instrument, which it made on the basis of those provisions. It is apparent from the judgment of 21 December 2016, Council v Front Polisario, (59) that, in order to be able to draw correct legal conclusions from the provisions of an international agreement, in interpreting that agreement the General Court is bound not only to observe the rules of good faith interpretation laid down in Article 31(1) of the Vienna Convention, but also the rules laid down in the other paragraphs of that article. (60)
(a)    The first criticism, alleging incorrect identification of the international agreement to be interpreted
79.      The first criticism raises a fundamental question concerning IMG’s constituent instrument and, consequently, the text of that instrument, the terms of which the General Court had to interpret in accordance with Articles 31 and 32 of the Vienna Convention in order to determine the legal status of the appellant.
(1)    The judgment under appeal
80.      In order to determine the appellant’s legal status, in paragraphs 305 to 312 of the judgment under appeal the General Court examined the terms of the resolution of 25 November 1994. It started from the premiss that that resolution constituted the appellant’s constituent instrument, the terms of which were to be interpreted in accordance with Article 31(1) of the Vienna Convention. At the end of its analysis, the General Court concluded in paragraph 313 of the judgment that, in the light of the wording and purpose of that resolution, the parties had not intended to establish the appellant as an international organisation.
(2)    Arguments of the parties
81.      The appellant submits that the judgment under appeal is vitiated by an error of law in so far as the General Court did not correctly identify its constituent instrument. In the appellant’s view, the Court adopted a restrictive approach by examining, separately, the terms of the resolution of 25 November 1994 and those of its initial statute, which was adopted on 10 March 1995 and which contained numerous elements concerning its legal personality, institutional structure and tasks. Referring to the judgment of the ICJ of 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), (61) the appellant submits that those acts formed part of a ‘whole treaty system’ forming the ‘charter establishing the organisation’, in the light of which the General Court should have determined its legal status.
(3)    Assessment
82.      I consider that the General Court did not err in law in holding that the international agreement the terms of which it had to interpret consisted of the resolution of 25 November 1994, and did not include the appellant’s initial statute.
83.      I would point out that, under Article 2(1)(a) of the Vienna Convention, to which the General Court refers in paragraph 204 of the judgment under appeal, a treaty is defined as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. Under Article 5 of the Vienna Convention, that definition applies to any treaty which is the constituent instrument of an international organisation. The ICJ thus accepts that any agreement as to the interpretation of a provision reached after the conclusion of a treaty must be read into the treaty for the purposes of its interpretation. (62)
84.      As for the Court of Justice, it ruled in its Opinions
1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975 (63) and 2/92 (Third Revised Decision of the OECD on National Treatment) of 24 March 1995 (64) that the term ‘agreement’ means any undertaking entered into by entities subject to international law which has binding force. In line with those opinions, the Court interpreted the concept of ‘related instruments’ in Opinion
1/13 (Accession of third States to the 1980 Hague Convention) of 14 October 2014, (65) holding that, although each is effected by means of a separate instrument, two instruments are related and thus amount to an international agreement when they give expression, overall, to the convergence of intent of two or more subjects of international law. (66)
85.      In the present case, however, the resolution of 25 November 1994 and the appellant’s initial statute are acts that differ from each other not only in form but also in their object and purpose. According to the General Court’s conclusion in paragraph 301 of the judgment under appeal, the former constitutes an international agreement, evidencing the parties’ intention to create a new legal entity. The latter, on the other hand, constitute a unilateral act which was adopted by the collegiate body of that entity following a vote by the required two-thirds majority of its members – that is to say, following a procedure which differs significantly from that for the conclusion of a treaty – the purpose of which is to define the status and detailed rules of operation of that entity.
86.      The General Court could therefore legitimately consider that the resolution of 25 November 1994 constituted IMG’s constituent instrument, the terms of which had to be interpreted in their context, in the light of both its object and purpose and subsequent relevant practice.
87.      The judgment of the ICJ of 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), (67) to which the appellant refers, does not seem to me to be decisive in that regard. In that judgment, the ICJ merely took note of the fact that the parties had, for the purposes of assessing the nature and scope of their obligations, extended their arguments to the instruments related to the treaty concerned ‘in considering them as accessories to a whole treaty system, whose fate was in principle linked to that of the main part, the … Treaty’. (68)
88.      In the light of those factors, I propose that the first criticism, alleging incorrect identification of the international agreement to be interpreted, should be rejected as unfounded.
(b)    The second criticism, alleging excessive formalism in the interpretation of the terms of the resolution of 25 November 1994
(1)    The judgment under appeal
89.      In paragraphs 306 to 312 of the judgment under appeal, the General Court examined the terms of that resolution in the light of the criteria and principles which it correctly set out in paragraphs 203 to 212 of the judgment. It concluded, in paragraph 313 of the judgment, that, in the light of the wording and purpose of that resolution, ‘its authors did not intend to establish an international organisation when they founded the [appellant]’.
(2)    Arguments of the parties
90.      The appellant submits that the General Court was overly formalistic in its interpretation of the terms of the resolution of 25 November 1994, with the result that its analysis of the parties’ intention to establish it as an international organisation was vitiated by an error of law.
91.      First, it disputes the General Court’s assessment in paragraph 306 of the judgment under appeal that the resolution does not formally classify it as an ‘international organisation’ or define its legal status. According to the appellant, the General Court should have taken into account, for the purposes of its legal classification, that resolution, as clarified by the minutes of the meeting of the same day which concerned the future status of the ‘organisation’, and of the decisions adopting its initial and subsequent statute.
92.      Second, the appellant submits that the General Court’s finding in paragraph 307 of the judgment under appeal that the resolution of 25 November 1994 contains no provision granting it legal personality is ‘without foundation in the law and practice of international organisations’. In that regard, it notes that the ICJ, in its advisory opinion of 11 April 1949, Reparations for injuries suffered in the service of the United Nations, (69) recognised the legal personality of the UN as an ‘objective personality’ and not merely a personality recognised by the founding States of the UN alone. In that connection, the appellant claims it was registered as an international organisation with the authorities of Bosnia and Herzegovina, Serbia and North Macedonia and that it signed agreements with the Kingdom of Belgium and Myanmar/Burma to establish itself in their territories, which confirms that it enjoys the status of international organisation in the international order.
93.      Third, the appellant submits that the assertion, in
paragraph 308 of the judgment under appeal, that the resolution of 25 November 1994 did not provide that the appellant could enjoy immunities in the performance of its activities is incorrect, since such immunities were provided for in Article 19 of its initial statute, adopted on the basis of that resolution.
94.      Fourth, the appellant challenges the General Court’s finding in paragraph 309 of the judgment under appeal that that resolution does not confer on it ‘all the resources necessary for its operation and the best possible guarantees of stability, continuity and effectiveness for the performance of its tasks’, with the result that the parties intended to establish not an international organisation, but an optional joint financing mechanism which they might use or not, as they pleased. According to the appellant, the fact that it is, in accordance with the principle of speciality, an operational organisation for the reconstruction of post-conflict States does not limit it to being merely an optional or temporary mechanism. That conclusion is, moreover, contradicted by the adoption of its initial and subsequent statute.
95.      In that context, the appellant submits that, contrary to what the General Court held in paragraph 310 of the judgment under appeal, the provisions providing for the review of its activities every six months and, where appropriate, the integration of those activities into a more comprehensive framework or the phasing out of those activities, point not to a lack of stability and continuity of the tasks assigned to it, but, on the contrary, their effectiveness. The role entrusted to its collegiate bodies by Article 3 of the resolution of 25 November 1994 with regard to the monitoring of IMG’s activity proves, in the appellant’s view, that the parties intended to ensure the operational effectiveness of that organisation which had been established in an emergency situation and in the context of war, as well as its stability.
96.      The appellant adds that the approach adopted by the General Court in paragraph 311 of the judgment under appeal as regards the nature of the contributions of its members corresponds to the approach traditionally adopted with regard to large international organisations, which is not applicable to international operational organisations whose funds are specifically financed by voluntary contributions.
97.      Fifth and lastly, the appellant disputes the General Court’s assessment in paragraph 312 of the judgment under appeal that the resolution of 25 November 1994 did not provide for the transfer of mandatory powers by the States to the appellant.
98.      The Commission contests those arguments. It replies, in particular, that the legal personality of the UN derives from Article 104 of its Charter, which is supplemented by a convention on privileges and immunities, Article 1 of which expressly confers legal personality on the UN. (70) No similar provision appears in the resolution of 25 November 1994. Second, the Commission asserts that, contrary to what the appellant claims, the condition for granting an entity the status of international organisation that relates to the provision of all the resources necessary for its operation and the best possible guarantees of stability, continuity and effectiveness for the performance of its tasks is clear from the case-law cited in paragraph 212 of the judgment under appeal. The Commission adds that it is clear from the wording of that resolution, in particular from paragraphs 4 and 5 thereof, that participation in the appellant was optional and that it was initially a temporary mechanism, to be renewed every six months.
(3)    Assessment
99.      I consider that the General Court’s strict interpretation of the terms of the resolution of 25 November 1994 is incorrect in so far as it seeks to reduce the question of the appellant’s legal status to that of the content of that resolution. (71)
100. Thus, the mere absence in that resolution of express provisions relating to the appellant’s legal status and the recognition of its own international legal personality is not a decisive and sufficient factor to establish that the parties did not intend to grant it the status of an international organisation.
101. First, many constituent instruments of international organisations do not contain any provision by which the parties expressly recognise the entity concerned as such. (72) Such a requirement would disregard the evolving nature of the organisation.
102. Second, it is accepted, both by practice and case-law, that an international organisation possesses international legal personality either because its constituent instrument expressly grants such status to it, (73) or because an instrument that is related to the constituent instrument expressly grants it such status, or because it is accepted, where the relevant provisions are silent, that it is implicitly endowed with such a status. (74) Thus, there are two different approaches. (75) The first approach, employed by the ICJ in its advisory opinion of 11 April 1949, Reparation for injuries suffered in the service of the United Nations, (76) seeks to infer international legal personality from a body of objective evidence, the aim being to examine whether the organisation was intended to exercise and enjoy functions and rights which can only be explained on the basis of the possession of such international personality. (77) The second approach seeks to infer that personality from the international legal order itself, with the constituent instrument merely demonstrating the intent of the parties, declared expressly or by implication, to create ‘new subjects of law’, separate from the parties, as stressed by the ICJ in its advisory opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict. (78)
103. Third, similarly, the absence, in the constituent instrument, of express provisions relating to the grant of immunities does not mean that the entity concerned lacks the status of ‘international organisation’. (79)In paragraph 210 of the judgment under appeal, the General Court pointed out that the immunities of international organisations are ‘as a general rule’ conferred by the treaties establishing those organisations. The most well-known example is Article 105 of the Charter of the United Nations. That is a general provision which is supplemented by an additional protocol. However, it appears that, in the case of organisations that are relatively small in comparison with the UN, the constituent instruments do not contain any provision in that regard and the grant of privileges and immunities is therefore the subject of specific multilateral conventions (80) or bilateral conventions, foremost among which are headquarters agreements or agreements relating to operational activities. (81) Thus, it must be noted that, in paragraph 330 of the judgment under appeal, the General Court stated that ‘[the appellant’s] initial statute [Article 19(2)] … provided that some of its staff would benefit from the system of immunities enjoyed by the UNHCR’. I would add that Article 19(1) of that statute also provides that the proper exercise of the functions entrusted to the entity and the attainment of the objectives assigned to it ‘shall require the organisation to enjoy all necessary privileges and immunities’.
104. Therefore, the mere absence of express provisions in the resolution of 25 November 1994 did not, in my view, cast doubt on the grant of such immunities to the appellant.
105. Fourth and lastly, I do not agree with the General Court’s conclusion in paragraph 309 of the judgment under appeal that it is apparent from the wording of that resolution that the parties did not intend to establish an organisation endowed with all the resources necessary for its operation and the best possible guarantees of stability, continuity and effectiveness for the performance of its tasks, but an optional mechanism available which each may use or not, as it pleases.
106. First, the General Court failed to carry out an overall assessment of the organisational and substantive elements contained in the resolution of 25 November 1994, contrary to what appears to be required by the international case-law on which it expressly relied in paragraph 212 of the judgment under appeal. There is no indication that all the resources necessary for the operation of an organisation must be mentioned in its constituent instrument. Thus, it is accepted that, while the powers conferred on international organisations are normally expressly set out in their constituent instruments, those powers may nevertheless be based on more informal grounds or be inferred by application of the theory of implied powers. That is due to the particular nature of the constituent instruments of international organisations, recognised by the ICJ in its case-law and to which the General Court expressly refers in paragraph 211 of the judgment, in particular because of their hybrid character, which is
‘conventional and at the same time institutional’. (82)
107. Second, in assessing those guarantees of stability, continuity and efficiency for the performance of the appellant’s tasks, the General Court failed to take account of the role assigned to the organisation, the nature of its tasks or the scope of its activities. However, the parties may provide for different guarantees depending on whether the organisation concerned has a general or universal purpose or, on the contrary, a special or regional one, and depending on whether the tasks assigned to it are permanent or temporary. (83)
108. Thus, with regard to an entity such as IMG which was established while Bosnia and Herzegovina was still at war, and which had the mandate to participate in the reconstruction and rehabilitation of that State, the fact that the resolution of 25 November 1994 provides for the review, integration or phasing out of its activities, as the General Court pointed out in paragraph 310 of the judgment under appeal, does not necessarily mean, in my view, that that entity lacks the best possible guarantees of stability and continuity for the performance of its tasks. In paragraph 367 of the judgment, the General Court also acknowledged that the signatories to that resolution had intended, when adopting the subsequent statutes, to provide it with a degree of stability and to entrust it with specialised tasks in the fields of reconstruction and development beyond the territory of that State.
109. It seems to me, therefore, that there can be no question of requiring the tasks for which the entity has been established to be stable and continuous in order for it to qualify for the status of international organisation; to hold otherwise would be to disregard the fundamental diversity of international organisations, their evolving nature and the nature of the tasks entrusted to them. (84)
110. In the light of those considerations, I propose that the second criticism, alleging excessive formalism in the interpretation of the terms of the resolution of 25 November 1994, be upheld.
(c)    The third criticism, alleging incorrect assessment of the appellant’s initial statute as part of the relevant ‘context’
111. In the event that the Court of Justice upholds the General Court’s assessment that the relevant international agreement consists solely of the resolution of 25 November 1994, the question is whether it interpreted the terms of that agreement correctly, by taking into account the context of that agreement, in accordance with Article 31(1) and (2) of the Vienna Convention.
(1)    The judgment under appeal
112. In paragraphs 313 to 318 of the judgment under appeal, the General Court examined the context in which the resolution of 25 November 1994 was adopted and referred, in that regard, to a number of documents, namely the minutes of 29 November 1994 (paragraph 314 of the judgment), IMG-IBH’s terms of reference (paragraphs 315 and 316 of the judgment), the attestation of 14 December 1994 drawn up by the coordinator of the UNHCR special operation in the former Yugoslavia, who had chaired the meeting of 25 November 1994 at which the resolution of the same day had been adopted (paragraph 317 of the judgment) and, lastly, the invitation to that meeting (paragraph 318 of the judgment under appeal).
113. As is apparent from paragraphs 313 and 319 of the judgment, the General Court held that the elements of that context corroborated the interpretation of the wording and purpose of the resolution of 25 November 1994, according to which that instrument had neither the purpose nor the effect of conferring on the appellant the status of an international organisation.
(2)    Arguments of the parties
114. The appellant submits that the General Court incorrectly defined the relevant context in which the resolution of 25 November 1994 was adopted, by excluding consideration of its initial statute and preferring to refer to its terms of reference, annexed to that resolution, and to the reservations expressed by certain participants at the meeting of 25 November 1994.
115. The Commission contests those arguments.
(3)    Assessment
116. I consider that the General Court misconstrued the scope of the general rule of interpretation set out in Article 31 of the Vienna Convention by separating the wording of the resolution of 25 November 1994 from the immediate context of which that instrument formed part and, in particular, from its initial statute.
117. According to Article 31(1) of the Vienna Convention, ‘a treaty shall 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’. In its advisory opinion of 23 July 2025, Obligations of States in respect of Climate Change, the ICJ recalled that each of those means of interpretation is to be considered ‘by way of a single combined operation’. (85) Those means of interpretation must be considered not separately but together and their ‘appropriateness in any given case depends on the particular context and on a subjective appreciation of varying circumstances’. (86) In addition, in its comments on the Draft Articles on the Law of Treaties, (87) the ILC had already stressed that all the various elements of interpretation must be thrown ‘into the crucible’ and that their interaction gives the legally relevant interpretation. (88)
118. Moreover, it is apparent from Article 31(2) of the Vienna Convention that the terms of a treaty are inseparable from its context, which comprises, in addition to the treaty’s text, preamble and annexes, elements including ‘any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’. (89) That official English translation of the French expression ‘à l’occasion de la conclusion du traité’ implies that its connotation is more causal than temporal.
119. The initial statute, adopted on 10 March 1995, was, both in essence and in function, part of the process of establishing the appellant, which was formalised by the resolution of 25 November 1994.
120. There is a clear link between those two instruments. As the General Court pointed out in paragraphs 266 to 273 of the judgment under appeal, the resolution of 25 November 1994 refers to ‘the agreement of the representatives of the governments and international organisations … to formalise, as of that date, the establishment of the [appellant]’ (paragraph 266 of the judgment), in accordance with the annex to that resolution relating to the functioning and operations of the appellant, and to approve the ‘organisational rules [of IMG-IBH]’ (paragraph 271 of the judgment). That resolution, in the annex thereto adopted on the same day, thus expressly refers, in its subject line, to the ‘future status of IMG-IBH’.
121. In addition, the expressions of intent in those two instruments correspond as regards the objective pursued, namely the establishment of an autonomous body with sufficient expertise to participate in the reconstruction of Bosnia and Herzegovina and the return of displaced persons. (90) As is apparent from paragraph 332 of the judgment under appeal, the adoption of the initial statute was preceded by a preparatory meeting of the steering committee on 13 February 1995 which was, on that date, composed of States which had all signed the resolution of 25 November 1994, and it was in accordance with paragraph 3 of that resolution that that body approved the statute by the required majority of two thirds of its members.
122. The initial statute formally provided the appellant with an institutional structure by establishing, inter alia, its headquarters, its collegiate bodies and its secretariat. It refers to the tasks of the appellant, as defined when that resolution was adopted, and describe the decision-making process. In particular, Article 18 of that statute confers on the appellant legal personality under national law, giving it the capacity to contract, acquire, rent and dispose of immovable property, as well as the ability to receive and disburse private and public funds and, lastly, to institute legal proceedings. Article 19 of the statute confers on it the benefit of the privileges and immunities necessary for the performance of its tasks.
123. It seems to me, therefore, that the initial statute was an essential part of the fundamentally consensual approach on which the resolution of 25 November 1994 was based and was much more relevant to the context than the preparatory work on which the General Court relied in paragraph 318 of the judgment under appeal.
124. I would point out, in that regard, that, although it may reflect the intention of the parties, the preparatory work, in so far as it forms part of the very specific framework of international negotiation procedures, is merely a supplementary means of interpreting the treaty, falling not under Article 31 of the Vienna Convention, but under Article 32 thereof. (91) Moreover, the General Court rightly points that out in paragraph 325 of the judgment under appeal.
125. In the light of those factors, I consider that the appellant’s argument that the General Court was required to take into account its initial statute as part of the relevant context for the purposes of interpreting the resolution of 25 November 1994 must be upheld, since the Court failed to have regard to the scope of the general rule of interpretation laid down in Article 31(1) and (2) of the Vienna Convention.
(d)    The fourth criticism, alleging incorrect assessment of the appellant’s initial and subsequent statutes as part of ‘subsequent practice’
126. The fourth criticism is directed against paragraphs 321 to 346 of the judgment under appeal.
127. It concerns the extent to which the appellant’s initial and subsequent statutes constituted a ‘subsequent practice’ falling either within the framework of the general rule of interpretation set out in Article 31(3)(b) of the Vienna Convention because they established the agreement of the parties regarding the interpretation of the resolution of 25 November 1994, or in the context of the supplementary means of interpretation referred to in Article 32 of the Convention, in so far as they demonstrated the conduct of one or more parties in the application of that resolution. The practice of one or more parties will have less interpretative value than the consistent practice of all the parties. (92)
128. The question of the taking into account of the appellant’s initial statute under the heading of a subsequent agreement or practice would arise only in the event that the Court of Justice were to find that the statute does not form part of the context in which the resolution of 25 November 1994 was adopted (Article 31(1) and (2) of the Convention).
(1)    The judgment under appeal
129. In paragraphs 323 to 326 of the judgment under appeal, the General Court set out the principles which govern the taking into account of subsequent practice.
130. In paragraphs 323 and 324 of the judgment, it pointed out, inter alia, that, under Article 31(3)(a) and (b) of the Vienna Convention, instruments cannot be regarded as subsequent practice if they were adopted without the support of all the States parties to that treaty, referring for that purpose to the judgment of the ICJ of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (93)
131. In paragraphs 325 and 326 of the judgment under appeal, the General Court also stated that, under Article 32 of the Convention, recourse may be had to supplementary means of interpretation in order to confirm the meaning resulting from the general rule of interpretation – the wording, context and object and purpose – or to be used where the resulting meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
132. As is apparent from paragraph 327 of the judgment, it was in the light of those principles that the General Court examined, in paragraphs 328 to 345 of the judgment, whether the appellant was entitled to rely on the subsequent practice of its members, as set out in its initial statute and its subsequent statute.
133. First, the General Court ruled out the application of Article 32 of the Vienna Convention. In paragraph 328 of the judgment under appeal, it noted that, in the light of its previous assessments, the provisions of the resolution of 25 November 1994 were not in any way confusing or ambiguous and did not lead to a manifestly absurd or unreasonable interpretation, within the meaning of that
Article 32. The General Court therefore concluded, in paragraph 329 of the judgment, that it was necessary to establish that the amendments to the interpretation of the provisions of that resolution made by the initial and subsequent statutes had been approved by ‘all the signatories to that resolution, or, at least, all of the [appellant’s] members’ in order for those statutes to form part of a subsequent practice within the meaning of Article 31(3)(b) of the Convention.
134. Second, the General Court set out the reasons why that condition was not satisfied. It held, in paragraph 346 of the judgment, that ‘that subsequent practice, following the adoption of the resolution of 25 November 1994, and then the adoption of the initial statute and the 2012 statute, did not demonstrate a sufficiently wide and clear recognition of the [appellant’s] status as an international organisation, both on the part of the signatories to that resolution and on the part of the [appellant’s] members’.
(2)    Arguments of the parties
135. The appellant disputes the General Court’s reasoning, set out in paragraphs 321 to 346 of the judgment under appeal, according to which its initial and subsequent statutes do not reflect an agreement subsequently adopted between the parties or a practice subsequently followed by them that is relevant for the purposes of interpreting the resolution of 25 November 1994.
136. In the first place, it submits that the General Court misconstrued Article 31(3)(a) and (b) of the Vienna Convention.
137. First, the General Court erred in law, in the appellant’s view, in paragraph 324 of the judgment under appeal, in stating that all the parties to an international agreement must have contributed to the practice at issue in order for that practice to be taken into account for the purposes of interpreting that agreement. The judgment of the ICJ of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (94) to which the General Court referred, is not relevant since, according to the appellant, that judgment concerned recommendations, which were not binding and which had been adopted without the support of all the States parties to the convention concerned and, in particular, without the consent of the main State concerned.
138. The appellant submits that that error of law vitiated the assessments set out in paragraphs 329, 331, 336 and 337 of the judgment under appeal. Thus, the General Court could not make the taking into account of the appellant’s subsequent statute ‘subject to the condition that all … [its] members have approved such an amendment’ (paragraph 329 of the judgment) or criticise it for not having established that its initial and subsequent statutes reflected ‘the intention of all the signatories to the resolution of 25 November 1994 or, at least, of its members, to confer on it the status of international organisation’ (paragraph 331 of the judgment).
139. Second, the appellant criticises the General Court’s assessment, in paragraphs 322 and 346 of the judgment under appeal, that subsequent practice should demonstrate a ‘sufficiently wide and clear recognition of the … status as an international organisation’ in order to be taken into account.
140. Third, the appellant submits that, even if the parties to the resolution of 25 November 1994 did not have the formally expressed intention of establishing an international organisation, the General Court should have taken into account the subsequent statute as evidence of an evolving interpretation of that resolution.
141. Fourth, the appellant criticises the General Court for failing to examine, contrary to the requirements of Article 31(3)(b) of the Vienna Convention, whether the practice adopted by the Commission in the context of the implementation of the EU budget under joint or indirect management reflected the existence of an agreement between the Commission and the appellant on its status as an international organisation.
142. Fifth, the appellant submits that the General Court distorted the evidence which it had provided at first instance by stating, in paragraph 335 of the judgment under appeal, that the appellant had maintained at the hearing that its 2012 statute had been signed by France, Italy, Finland, Sweden and Norway, whereas it is apparent from that evidence that the statute in question was adopted unanimously by the steering committee. Furthermore, the appellant maintains that the letter from the Swedish authorities of 2 July 2020 is irrelevant and that the General Court distorted its content in paragraph 339 of the judgment.
143. Sixth, the appellant criticises the General Court for referring to documents relating to the report drawn up by OLAF at the end of its investigation (95) which the Commission had expressly decided to disregard for the purposes of adopting the decision at issue.
144. Seventh and lastly, the appellant submits that the General Court failed to fulfil its duty to state reasons by not explaining why it excluded from its assessment the documents relating to Italy and Norway referred to at first instance.
145. In the second place, the appellant submits that the General Court misapplied Article 32 of the Vienna Convention.
146. In its view, the General Court erred in law in holding that the conditions for the application of that article were not satisfied, wrongly refusing to draw all the appropriate conclusions from the coordination provided for between Articles 31 and 32 of the Vienna Convention.
147. Contrary to the General Court’s findings in paragraph 328 of the judgment under appeal, the result of the interpretation based on Article 31 of the Convention should, on the contrary, be described as ‘absurd and unreasonable’ in so far as the Commission had recognised its status as an international organisation for more than 20 years before suddenly denying it that status. In that context, the appellant criticises the General Court for failing to regard the delegation agreements signed by the Commission in connection with the implementation of the budget as constituting ‘conduct by one or more parties in the application of the treaty, after its conclusion’ within the meaning of Article 32 of the Convention, referred to in paragraph 326 of the judgment.
148. The Commission contests those arguments. In particular, it submits that the reference to the ICJ judgment of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (96) which merely repeats the legal criterion set out in Article 31(3) of the Vienna Convention, is relevant. It adds that the General Court did indeed take account of the ‘evolving interpretation’ of the international agreement, recalling, in that context, that it considered the appellant to be an international organisation until such time as, faced with uncertainty as to that status, it was not required to conclude new delegation agreements with it.
(3)    Assessment
149. As a preliminary point, I would point out that, contrary to what the appellant appears to assume in support of its arguments, its initial and subsequent statutes cannot be understood as falling under Article 31(3)(a) of the Vienna Convention, which refers to ‘subsequent agreement[s] between the parties’. Those statutes were adopted by a decision taken by the appellant’s collegiate body, the steering committee, by the required majority of two thirds of its members. Thus, the parties adopted the statutes acting as members of a treaty body and not as parties to an international agreement. (97) On the other hand, as is clear from the conclusions of the ILC, the practice of an organisation does indeed fall within the concept of ‘subsequent practice’. (98)
(i)    The alleged errors of law affecting the application of Article 31(3)(b) of the Vienna Convention on the general rule of interpretation
150. International case-law on the meaning and scope of ‘subsequent practice’ has been shaped in a series of ICJ advisory opinions on the practice of bodies of international organisations. (99) It is worth recalling the main points of that case-law before examining the various criticisms made by the appellant. The ICJ judgment of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (100) to which the General Court rightly referred, is the most recent development.
151. First of all, the ‘subsequent practice’ referred to in Article 31(3)(b) of the Vienna Convention plays a particularly important role in the interpretation of the constituent instruments of an international organisation. As the ICJ noted in relation to the UN in 1949, ‘the rights and duties of an entity such as the [UN] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’. (101)
152. Next, subsequent practice is regarded as an authentic element of interpretation of the will of the parties and is therefore relevant to the interpretation of an international agreement only in so far as it reflects the common understanding of the parties as to the meaning of that agreement. The General Court thus correctly referred to the principle set out by the ICJ in its judgment of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (102) according to which instruments cannot be regarded as a subsequent practice establishing the agreement of the parties regarding the interpretation of a treaty, within the meaning of Article 31(3)(b) of the Vienna Convention, if those instruments were adopted without the support of all the States parties to that treaty.
153. The interpretative value of the practice in question will therefore depend on whether the States parties have adopted clear and consistent conduct over a sufficient period of time, as the ICJ emphasised in its judgment of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea). (103) According to the ILC, factors such as consistency and scale are relevant factors. (104)
154. However, the ICJ does not require that each party to a treaty expressly consent to the practice in question. It is sufficient that the practice has been accepted by all the parties or that they have tacitly consented to it, without any of them having made a direct and explicit protest. Thus, in the advisory opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (105) the ICJ assumed tacit acceptance by the other States parties since the circumstances were such that the absence of reaction or opposition could reasonably be regarded as agreement. (106) As explained by the ILC, that does not require every party to have individually engaged in that practice. It suffices that it should have accepted the practice. (107)
155. In the same way, the Court of Justice, in the judgment of 11 March 2015, Oberto and O’Leary, (108) held that ‘the case-law of the Complaints Board of the European Schools … should be considered to be a subsequent practice in the application of the Convention defining the Statute of the European Schools [(109)], within the meaning of Article 31(3)(b) of the Vienna Convention’. (110) Since that practice has never been the subject of challenge by the parties to that convention …, the absence of any challenge by those parties must be regarded as reflecting their tacit agreement to such a practice’. (111)
156. Lastly, where dissent is clearly expressed, as was the case in the matter that gave rise to the judgment of the ICJ of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (112) or where an instrument has been adopted despite the opposition of a number of States, as was the case in the matter that gave rise to the advisory opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (113) there is no agreement and, as a result, no subsequent practice within the meaning of Article 31(3)(b) of the Vienna Convention. (114) However, the ICJ takes into account the context in which the relevant instruments were adopted. (115) Thus, in the advisory opinion of 20 July 1962, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), (116) the ICJ held that resolutions of a body such as the United Nations General Assembly, which were adopted by a two-thirds majority of its members and despite dissenting votes, nonetheless carry interpretative weight. (117)
157. It is in the light of those principles that the various criticisms made by the appellant must be examined.
158. First, the appellant’s argument that the conclusion of delegation agreements under joint or indirect management reflected the existence of an agreement between the Commission and the appellant on its status as an international organisation and, thus, of a relevant practice within the meaning of Article 31(3)(b) of the Vienna Convention, must be rejected. The Commission is not a party to the resolution of 25 November 1994 and the conclusion of those agreements did not involve any party to that resolution. (118)
159. Second, it is also necessary to reject the appellant’s argument that the judgment of the ICJ of 31 March 2014, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), (119) to which the General Court referred, is not relevant since, according to the appellant, the decisions adopting its statute are legally binding. That judgment clearly demonstrates that the essential element of subsequent practice is based on the mutual consent of the States parties as to the substance of the agreement rather than on the form or designation of the instruments concerned or their binding force.
160. Third, and contrary to what the appellant claims, the General Court did not err in law in paragraphs 322 and 346 of the judgment under appeal by requiring, in essence, that the practice at issue attest to a ‘sufficiently wide and clear recognition of the [appellant’s] status as an international organisation’.
161. On the other hand, I consider that the General Court made two errors of law which led to the decisions adopting the appellant’s initial and subsequent statutes being denied any interpretative value.
162. In the first place, the General Court applied a stricter standard of proof than that required by international case-law. It could not require the appellant to establish the consent of all the signatories to the resolution of 25 November 1994 or, at least, of its members, to the adoption of that statute.
163. The ICJ proceeds on the basis that an instrument adopted by a body of an international organisation, composed of representatives of the States parties, is presumed to have been accepted by all the parties, unless it is established that there was disagreement, opposition or manifest dissent within that body. (120)
164. In the present case, the statute was adopted in accordance with the procedural and voting rules laid down by the parties in the resolution of 25 November 1994, that is to say, by the representatives of the States parties sitting on the steering committee, by the required majority of two thirds of its members (paragraphs 268 and 333 of the judgment under appeal). There is nothing to indicate that those representatives expressed their disagreement with the scope of Articles 18 and 19 of the initial statute, by which the appellant is granted legal capacity and the benefit of immunities, or with the content of Article 1 of the 2012 statute, which expressly recognises its status as an international organisation. The argument set out by the General Court in paragraph 339 of the judgment under appeal, according to which the Swedish authorities stated in 2014, following OLAF’s investigation, and in 2020, following the Commission’s request for information, that IMG was not an international organisation, even though the Swedish ambassador in Belgrade (Serbia), who was chairing IMG’s steering committee at that time, signed the 2012 statute recognising IMG as an international organisation, leaves me puzzled. The term ‘international organisation’ is a specific expression. Where a legal term is used in a treaty, it must be presumed that the parties intended to give it the meaning it usually has in international law. Furthermore, while it is true, as the General Court observed in paragraph 333 of the judgment under appeal, that the Finnish authorities made a declaration concerning the political nature of the initial statute, I note that they signed that statute and agreed with the subsequent statute in which the appellant was described as an ‘international organisation’. (121)
165. I also consider that it was not possible for the positions expressed by the parties in 2014, following OLAF’s investigation, and then in 2019 and 2020, following the Commission’s request for information, and to which the General Court refers in paragraphs 338 to 341 of the judgment under appeal, to take precedence over the actual wording of the initial and subsequent statutes. (122) If the parties disagreed with the appellant’s practice, if their intentions were neither to create an international organisation nor to confer on it international legal personality, then it was incumbent on them to express their disapproval, especially since the proposed amendments appear to have been brought to the attention of the parties at a preparatory meeting, as the appellant claims. As the ICJ recalled in its advisory opinion of 20 December 1980, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, (123) the very fact of being a member of an organisation ‘entails certain mutual obligations of cooperation and good faith’. (124)
166. In the second place, I consider that the General Court erred in law by failing to take account of the evolving nature of the appellant as evidenced by the adoption of the subsequent statute.
167. Contrary to what the Commission argued at the hearing, it seems to me that the subsequent practice of the organisation, in so far as it acts in the exercise of its competence, may lead to the reinterpretation of the terms of its constituent instrument without it being necessary for a new international agreement to be formally concluded.
168. The rules of interpretation laid down in Articles 31 and 32 of the Vienna Convention allow account to be taken of such circumstances and of the evolving nature of international organisations.
169. The ICJ has thus accepted that the Charter of the United Nations may legitimately be interpreted, reinterpreted and even amended on the basis of the practice of the UN, considering that the text of an organisation’s constituent instrument is inherently evolving in nature, incompatible with an interpretation that crystallises its meaning at a given point in time. (125)
170. The ILC, in its commentary on Article 2 of the Draft Articles, also noted the need to ‘strike a balance between the rules enshrined in the constituent instruments and formally accepted by the members of the organisation, on the one hand, and the need for the organisation to develop as an institution, on the other hand’. (126) In 2018, as part of its work, the ILC also stressed that the subsequent practice of the parties may reflect an interpretation of the treaty that is contemporaneous, just as validly as one that is evolutive, depending on the circumstances and in view of the other means of interpretation. (127) It did not exclude it with regard to the organisation’s subsequent practice.
171. In addition, it is interesting to note Denys Simon’s views in his thesis on the judicial interpretation of the treaties of international organisations: (128) ‘the court must endeavour to give effect less to the original intention of the parties, as expressed once and for all, when the treaty was concluded, than to the current intention of the Member States, as expressed throughout the application of the convention. … In other words, in the interpretation of institutional treaties, conclusions must be drawn from the passage of time, the essential importance of which we have shown … in the very definition of the founding acts of international organisations: the consensus that led to the conclusion of the convention has not been exhausted in the drafting of a text; the application of such a convention necessarily presupposes the permanent renewal of the Member States’ adherence to the content of legal rules, of which the signed instrument is only a solemn but, in essence, ephemeral expression’. (129)
172. Thus, for example, the Treaty of Economic, Social and Cultural Collaboration and Collective Self-Defence (130) laid down some principles and established a simple consultative council. It was difficult to see it as the founding instrument of an international organisation. It was subsequent practice that truly created the international organisation known as the Western Union. The treaty was amended and supplemented by a protocol signed on 23 October 1954. That instrument re-established the organisation, which became the Western European Union, giving it an institutional basis and granting it international legal personality. (131) Thus, the establishment of an international institution by a treaty instrument is a strong indication which, in so far as it is supported by the recognition of international legal personality and financial autonomy, leads to the conclusion that an international organisation has been put in place. The founding statutes of international organisations may themselves consist of a charter and subsequent agreements which specify the organisation’s structure and functions. (132)
173. Some forms of international cooperation evolve over time into international organisations by becoming more structured and institutionalised. As the appellant had pointed out in its submissions to the General Court, that is a common dynamic in the law of international organisations.
174. In the light of all those considerations, I consider that the General Court erred in law by incorrectly assessing the interpretative value of the appellant’s initial and subsequent statutes, under Article 31(3)(b) of the Vienna Convention.
175. There is therefore no need, in my view, to examine the last three criticisms by which the appellant alleges that the General Court distorted certain items of evidence, that it referred to documents that the Commission had expressly decided to disregard for the purposes of adopting the contested decision and, lastly, that it failed to fulfil its duty to state reasons.
(ii) The alleged errors of law affecting the application of Article 32 of the Vienna Convention relating to ‘supplementary means of interpretation’
176. The appellant disputes the merits of the assessments set out in paragraphs 328 and 329 of the judgment under appeal. In those paragraphs, the General Court held that the conditions for the application of Article 32 of the Vienna Convention were not satisfied, with the result that there was no need to take account of the subsequent conduct of certain parties to the resolution of 25 November 1994, such as the adoption of the appellant’s statute, the conclusion of headquarters agreements with certain States or the signing of delegation agreements with the Commission.
177. While I agree with the appellant’s criticisms in that regard, I nevertheless note that the General Court’s finding in paragraph 328 of the judgment concerning the conditions for the application of Article 32 of the Vienna Convention is based on its examination, in paragraphs 304 to 319 of the judgment under appeal, of the wording and context of the resolution of 25 November 1994, which I consider to be erroneous for the reasons set out in points 99 to 110 and 116 to 125 of the present Opinion.
178. Consequently, in my view, there is no need to examine those criticisms.
179. In the light of all those considerations, I therefore propose that the Court should declare the second argument of the second part, alleging incorrect application of the rules of interpretation of an international agreement set out in Articles 31 and 32 of the Vienna Convention, to be well founded, since the General Court, in my view, incorrectly applied those articles by refusing to give any interpretative value to the appellant’s initial and subsequent statutes, whether on the basis of the relevant context (under Article 31(1) and (2) of the Vienna Convention), as part of the subsequent relevant practice (within the meaning of Article 31(3)(b) of that Convention), or as a supplementary means of interpretation (under Article 32 of the Convention).
3.      The third argument, alleging an error of law relating to the consequences to be drawn from the conclusion of headquarters agreements with the States and delegation agreements under joint or indirect management with the Commission
180. The third argument is directed against paragraphs 348 to 365 of the judgment under appeal.
(a)    The judgment under appeal
181. Paragraphs 348 to 365 of the judgment under appeal, against which the third argument is directed, address two issues relating to the recognition of the appellant’s status as an international organisation resulting from the conclusion of delegation agreements under joint or indirect management with the Commission and from the signing of headquarters agreements with certain States.
182. First, in paragraphs 349 to 358 of the judgment, the General Court examined the first argument which the appellant had raised in that regard and which it summarised as follows: ‘the [appellant] submits that the conclusion of agreements between itself and the Commission under joint or indirect management necessarily entailed an obligation on the part of that institution to recognise its status as an international organisation pursuant to Articles 27 and 46 of the Vienna Convention’ (paragraph 349 of the judgment).
183. After ruling out the application of the Convention on the grounds referred to in paragraphs 350 and 351 of the judgment under appeal, the General Court examined the argument in the light of Article 27(2) and (3) and Article 46(2) and (3) of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, (133) and rejected it as unfounded for the reasons set out in paragraphs 353 to 358 of the judgment.
184. Second, in paragraphs 360 to 365 of the judgment, the General Court examined the second argument which the appellant had raised, alleging that the Commission had vitiated the decision at issue by an error in law in refusing to take into account the replies of the Kingdom of Belgium and the Republic of Austria in respect of the headquarters agreements concluded, in so far as such agreements expressed the recognition of its status as an international organisation by the host States, whether or not they were members of that organisation.
185. The General Court rejected that argument on the ground set out in paragraph 364 of the judgment under appeal. In its view, the fact that States which have not acceded to the agreement establishing an organisation and which are not, or are no longer, members of it consider it to have the status of an international organisation cannot entail any obligation for the Commission to recognise that entity as having such status, for the purpose, inter alia, of authorising it to implement the EU budget under indirect management. The General Court held, in paragraph 363 of the judgment, that recognition of the status of international organisation results from the convergence of intent on the part of the States and, as the case may be, the international organisations which are parties to the agreement establishing the organisation concerned, that intention having to be clear from that agreement or subsequent agreements or practice, provided that the latter express such recognition on the part of all the parties to the establishment agreement.
(b)    Arguments of the parties
186. The appellant raises three criticisms.
187. As regards the issue of the recognition of IMG’s status as an international organisation on the basis of the conclusion of delegation agreements under joint or indirect management with the Commission, the appellant submits, first, that the General Court distorted its arguments in paragraph 349 of the judgment under appeal. The appellant argued, in its action, that the conclusion by the Commission of delegation agreements under the joint management mode with an international organisation made it possible to assume that the Commission regarded it as having that status, within the meaning of the EU Financial Regulations.
188. Second, the appellant disputes the General Court’s finding in paragraph 351 of the judgment under appeal that Articles 27 and 46 of the Vienna Convention can no longer be relied on, even though it had relied on that Convention on several occasions in the judgment. It submits, first, that the Convention is applicable to treaties constituting international organisations and, second, that those provisions, reproduced in the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, reflect international practice and custom and are therefore applicable as such.
189. Third, as regards the issue of the recognition of the appellant’s status as an international organisation on the basis of the signing of headquarters agreements with certain States, the appellant submits that the General Court erred in law in its understanding of the concept of ‘recognition’ in international law. In particular, it criticises the Court for confusing, on the one hand, the act by which an international organisation is created, which is constitutive and results from the convergence of intent on the part of the States, and, on the other hand, the act by which a State recognises an entity as an international organisation, which is declaratory, results from a unilateral legal act and may be relied on against it. In that regard, the appellant submits that the conclusion by the Commission of delegation agreements under joint or indirect management with an international organisation constitutes an act recognising its status as an international organisation. Finally, relying on paragraph 51 of the judgment of the ICJ of 12 October 2021, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), (134) the appellant submits that its status as an international organisation may be relied on against the Commission and against any State or organisation which has expressly or tacitly recognised it.
(c)    Assessment
190. The first criticism, alleging distortion of the arguments put forward by the appellant in support of its action, is, in my view, well founded.
191. The appellant relied on Articles 27, 45 and 46 of the Vienna Convention with a view to refuting the Commission’s argument based on the existence of an infringement of the procedural rules laid down by the TFEU, and submitted that it had been recognised as an international organisation by virtue of the conclusion, by the Commission, of delegation agreements under joint or indirect management in accordance with the EU Financial Regulations.
192. That is apparent from paragraphs 189 to 196 of its appeal, in which the appellant did in fact bring up two different legal issues which the Commission addressed in the decision at issue.
193. The first issue concerned the Commission’s participation in the creation of IMG (paragraph A.7(a) of the decision at issue).
194. The appellant argued, in paragraphs 189 to 192 of its appeal, that the Commission could not challenge its participation in the creation of IMG on the basis of Article 218 TFEU, which lays down the procedure for the conclusion of agreements between the European Union and an international organisation. In that regard, it relied on three provisions of the Vienna Convention: first, Article 27, under which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty, second, Article 46, under which a defect in consent may be invoked only in the event of a manifest breach of a fundamental provision of its internal law, and, finally, Article 45, which provides, inter alia, that a party may no longer invoke that ground of invalidity if ‘it must by reason of its conduct be considered as having acquiesced in the validity of the treaty …, as the case may be’. The appellant argued, in paragraph 192 of its appeal, that the Commission’s subsequent practice and the fact that the Commission had never raised any objection since 1994 concerning the validity of the agreement at issue precluded the possibility of relying on Article 218 TFEU.
195. The second issue concerned the Commission’s recognition of its status as an international organisation (paragraph B.2(c) of the decision at issue).
196. The appellant submitted, in paragraphs 193 to 195 of its appeal, that the decision at issue was vitiated by a manifest error of assessment since the conclusion by the Commission of delegation agreements using the joint or indirect management method necessarily entailed recognition of its status as an international organisation, especially since the doubts and uncertainties on which the Commission had based its decisions of 16 December 2014 and 8 May 2015 had proved to be unfounded.
197. In the light of those factors, it seems to me that the terms in which the General Court summarised those arguments in paragraph 349 of the judgment under appeal are not consistent with the terms in which the appellant set them out in its appeal. By conflating the two issues raised by the appellant, the General Court vitiated the analysis it carried out in paragraphs 351 to 359 of the judgment under appeal.
198. In those circumstances, I propose that the Court of Justice uphold that criticism. In the light of that conclusion, there is no need to examine the second criticism.
199. As regards the third criticism, concerning the understanding of the concept of ‘recognition’ in international law, I consider that the General Court erred in law in holding, in paragraph 363 of the judgment under appeal, that ‘recognition of the status of international organisation results from the convergence of intent on the part of the States and, as the case may be, the international organisations which are parties to the agreement establishing the organisation concerned’.
200. The General Court was called upon to examine the extent to which the conclusion of a headquarters agreement could attest to the recognition by the host State of the status of the entity concerned as an international organisation. (135) As is apparent from the wording of paragraph 363 of the judgment under appeal and, in particular, from the reference to paragraphs 204 to 212 and 323 to 325 of the judgment, the General Court defined the concept of ‘recognition of the status of international organisation’ by reference to the concept of ‘international agreement establishing an international organisation’. However, in public international law, recognition is a unilateral or collective act by which one or more subjects of international law, which did not participate in the creation of a situation or in the enactment of an act, formally acknowledge that an entity, such as a State or government, or a situation, such as a border, satisfies the criteria required for that purpose and accept that that situation or act is binding on them. (136) For example, on 12 June 2006, the Council of the European Union formally recognised Montenegro. That process is therefore distinct from the establishment of a subject of international law by an international agreement.
201. In the light of those elements, I believe that the third argument of the second part, alleging an error of law relating to the consequences to be drawn from the conclusion of headquarters agreements with the States and delegation agreements under joint or indirect management with the Commission, is well founded.
C.      The third part, alleging errors of law committed by the General Court in assessing the replies given by Belgium and Austria to the Commission’s questions
202. The appellant disputes the General Court’s analysis in paragraphs 233 to 248 of the judgment under appeal, at the end of which it held, in essence, that the Commission had not erred in law in finding that the positions adopted by the Kingdom of Belgium and the Republic of Austria as regards the legal status of the appellant and as regards their status as members of the appellant did not call into question the legality of the decision at issue. As is apparent from paragraph 233 of the judgment, the appellant argued before the General Court that it should be recognised as an international organisation on the ground that at least two of the States questioned by the Commission, namely the Kingdom of Belgium and the Republic of Austria, first, recognised its status as an international organisation and, second, were or had been founding members.
203. The third part consists of two criticisms.
1.      The first criticism, alleging an incorrect assessment of the replies given by the Austrian authorities
204. The first criticism is directed against paragraphs 235 to 239 of the judgment under appeal.
(a)    The judgment under appeal
205. It is apparent from paragraphs 235 and 237 of the judgment under appeal that, by its reply of 8 April 2020 to the Commission’s request for consultation, the Republic of Austria recognised the appellant’s status as an international organisation and its own status as a member of it.
206. In paragraphs 238 and 239 of the judgment, the General Court held that that reply did not affect the conclusion reached by the Commission as to the legal status of the appellant for two reasons: first, IMG had not been established as an international organisation by an international agreement and, second, subsequent practice did not demonstrate a wide and clear recognition of its status as an international organisation.
(b)    Arguments of the parties
207. The appellant submits that that assessment is based on an incorrect premiss on the grounds, first, that the General Court characterised the resolution of 25 November 1994 as an ‘international agreement’, second, that it could not require that the intention of the parties to constitute an international organisation be established and, third, that it failed to take account of subsequent relevant practice.
208. The Commission contests those arguments.
(c)    Assessment
209. I propose that the Court of Justice should not examine the first criticism. Indeed, the General Court’s finding in paragraph 239 of the judgment under appeal is based on an analysis which, for the reasons set out in points 99 to 110, 116 to 125 and 149 to 179 of the present Opinion, seems to me to be incorrect.
2.      The second criticism, alleging an incorrect assessment of the replies given by the Belgian authorities
210. The second criticism is directed against paragraphs 240 to 247 of the judgment under appeal.
(a)    The judgment under appeal
211. In paragraph 240 of the judgment under appeal, the General Court reported the content of the Belgian authorities’ reply of 30 June 2020 as follows: ‘although those authorities confirmed their participation in the meeting of 25 November 1994 at which the [appellant] was created, Belgium, however, did not consider itself to be a member of the [appellant] organisation. The Belgian authorities also stated that the [appellant] could, in their view, be considered as an international organisation which is why Belgium and the [appellant] had signed a headquarters agreement on 13 June 2012 which, however, did not grant the [appellant] all of the fiscal privileges usually granted to international organisations’.
212. According to the General Court, the Commission could legitimately consider that reply to be irrelevant to the decision at issue, for two reasons in particular. First, the headquarters agreement concluded between the Kingdom of Belgium and the appellant in 2012 was irrelevant in so far as that State had indicated that it was not a member of that entity (paragraph 242 of the judgment under appeal). Second, the participation of the Belgian authorities in the creation of the appellant in 1994 and in the meetings of its collegiate body until 2013 was also irrelevant since it did not establish that the Kingdom of Belgium was a member of the organisation on the date on which the decision at issue took effect, namely 16 December 2014 (paragraph 246 of the judgment).
(b)    Arguments of the parties
213. The appellant submits that that analysis is vitiated by errors of law.
214. First, it submits that the General Court erred in law in assessing the Kingdom of Belgium’s status as a member of the appellant solely on 16 December 2014, without taking into account that State’s participation in the creation of the appellant and in the meetings of its collegiate body.
215. Second, it submits that the General Court erred in law by not attributing any effect to the headquarters agreement which that State had concluded with the appellant, since the fact that it does not consider itself to be a member of that organisation is, in its view, irrelevant in that regard.
216. Third and lastly, the appellant argues that the Kingdom of Belgium characterised it as an ‘international organisation’ on the basis of objective criteria and that that recognition continued beyond 16 December 2014, with the result that the opinion expressed by the Belgian authorities in 2019 and 2020 as to their membership status was not relevant.
217. The Commission contests those arguments. According to the Commission, by signing the resolution of 25 November 1994, the States did not become permanent members of the appellant, since they were not required to contribute to the budget or to participate in its operations. Therefore, the Kingdom of Belgium legitimately considered itself as no longer being a member of the appellant. In addition, the wording of the resolution suggests, in the Commission’s view, a ‘temporary creation’, in that the parties provided for a review every six months of the need to maintain the appellant’s activity and envisaged the possibility of its integration into the overall framework for the reconstruction of Bosnia and Herzegovina.
(c)    Assessment
218. In the first place, I believe that the General Court did in fact err in law in holding that the opinion expressed by the Belgian authorities in 2019 and 2020 regarding their membership of the appellant on 16 December 1994 was a relevant criterion for the purposes of assessing the intention of the parties when signing the resolution of 25 November 1994.
219. I would point out that, according to paragraph 302 of the judgment under appeal, the question to be decided was whether, by signing that resolution, the parties intended to establish the appellant as an international organisation within the meaning of Article 2(a) of the Draft Articles. In order to examine that condition, it was necessary to seek the intention of the parties as it emerged from the terms of that resolution, taken in its context and in the light of its object, purpose and subsequent relevant practice, in accordance with the rules of interpretation set out in Articles 31 and 32 of the Vienna Convention.
220. I consider that an opinion expressed 25 years after the signing of an international agreement could not prevail over the consistent practice which the Kingdom of Belgium subsequently followed in the application of that instrument. It is apparent from paragraphs 242 to 244 and 246 of the judgment under appeal that the conduct of that State was clear and consistent over a period of 19 years since, after having participated in the meeting at which the appellant was established on 25 November 1994, it participated in the meetings of its collegiate bodies until 2013 (at which IMG’s various statutes were adopted) and, at the same time, signed headquarters agreements with IMG in 2009 and 2012 (which imply recognition of its international legal personality). I therefore share the appellant’s view that recognition by the Kingdom of Belgium of its status as an international organisation continued beyond 16 December 2014. In so far as the status of an international organisation requires that specific conditions laid down by international law be satisfied, I consider that, once those conditions have been met, the entity concerned has the status of a subject of international law and its existence in law must be presumed, unless it can be demonstrated by material evidence that it has ceased to exist in law or has become obsolete. The opinion expressed by the Kingdom of Belgium was therefore, rather, a reflection of the fact that it had terminated its participation in the appellant. (137)
221. In that regard, I would point out that, in its judgment of 18 July 1966, South West Africa, Second Phase, (138) and in its advisory opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (139) the ICJ established the principle that treaty texts must be interpreted ‘in the setting of their period’ and recalled ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion’, ‘intentions that might have been formed … in the knowledge of circumstances … that could never originally have been foreseen, … not [being] relevant’. (140)
222. In the second place, I consider that it was possible for the conclusion of a headquarters agreement between the Kingdom of Belgium and the appellant to be an indication and to constitute a supplementary means of interpretation of the resolution of 25 November 1994, within the meaning of Article 32 of the Vienna Convention. A headquarters agreement is generally defined as a bilateral agreement concluded between a host State and an international organisation and, by signing a headquarters agreement, the host State necessarily recognises that the organisation concerned has international legal personality and, by granting it the capacity to contract, acquire property and institute legal proceedings, legal personality under national law. (141)
223. In the light of those factors, I propose that the Court uphold the second criticism and find that the third part, alleging errors of law committed by the General Court in assessing the replies given by the Republic of Austria and the Kingdom of Belgium to the Commission’s questions, is well founded.
D.      The fourth part, alleging errors of law relating to the identification of the appellant’s members
224. The fourth part is directed against paragraphs 218 to 232 of the judgment under appeal.
1.      The judgment under appeal
225. In paragraphs 215 to 232 of the judgment under appeal, the General Court examined the appellant’s argument that the Commission had incorrectly identified its members by making an artificial distinction between the founding States, the contributing States and the members of its collegiate bodies.
226. In paragraphs 216 and 217 of the judgment, the General Court noted that it was not apparent from the statement of reasons for the decision at issue that the Commission had formally drawn such a distinction, since it had merely stated that none of the States consulted following the judgment of 31 January 2019, International Management Group v Commission, (142) with the exception of Austria, had acknowledged that they had been a member of the appellant since 16 December 2014.
227. In paragraphs 218 to 231 of the judgment under appeal, the General Court went on to examine that argument ‘even if [that decision] could be interpreted as drawing [such] a distinction’. After examining the terms of the resolution of 25 November 1994, the appellant’s statute and the positions adopted by certain States, the General Court dismissed that argument as unfounded in paragraph 232 of the judgment.
2.      Arguments of the parties
228. The appellant challenges the analysis carried out by the General Court in paragraphs 218 to 232 of the judgment under appeal. In its view, the General Court ruled ultra petita and redefined the argument the appellant had raised at first instance, based on an erroneous distinction in the decision at issue between the appellant’s founding States and donor States.
3.      Assessment
229. I agree with the Commission that this part of the ground of appeal is ineffective in so far as it is directed against a ground included in the judgment under appeal purely for the sake of completeness.
230. The General Court found, in paragraph 216 of that judgment, that the Commission had not formally drawn that distinction. The General Court thus ruled on the argument raised by the appellant without altering its terms and without the appellant contesting that conclusion or claiming that the evidence had been distorted.
231. It was for the sake of completeness and, in the General Court’s words, ‘even if’ the decision at issue could be interpreted as drawing a distinction between the States that it went on to examine the extent to which the Commission could be criticised for not having considered certain States or certain international organisations to be the appellant’s members, having regard to their seats in the appellant’s bodies or to the nature of their contributions.
232. I therefore propose that the Court reject the fourth part, alleging errors of law relating to the identification of the appellant’s members, as ineffective.
E.      The fifth part, alleging errors of law as regards the formal requirements for the conclusion of the resolution of 25 November 1994
233. The fifth part consists of two arguments alleging an incorrect assessment, first, of the requirement that the resolution of 25 November 1994 be signed by representatives with powers to that effect and, second, of the production of an instrument of ratification. I propose to examine them jointly, as they seem to me to be ineffective for identical reasons.
1.      The judgment under appeal
234. As regards whether the Commission had vitiated the decision at issue by an error of law by requiring the States questioned about its legal status to produce the powers authorising the negotiators to adopt the resolution of 25 November 1994, the General Court held in paragraph 286 of the judgment under appeal that, in the absence of approval by all the representatives of the States accredited at the International Conference on the Former Yugoslavia (ICFY), that resolution, adopted within the framework of a working group, could not be regarded as a treaty adopted in the framework of that conference, in accordance with Article 7(2)(c) of the Vienna Convention. However, it set out, in paragraphs 288 and 289 of that judgment, the reasons why the signature of that resolution had subsequently been confirmed by at least two States. It was in those circumstances that the General Court held that the Commission had therefore vitiated the decision at issue by an error of law in refusing to classify the resolution as an ‘international agreement’ on account of the absence of full powers of the participants in the meeting of the same day.
235. As regards whether the Commission had vitiated the decision at issue by an error of law by requiring the States to produce evidence of the signature or ratification of the resolution of 25 November 1994, the General Court held, in paragraph 295 of the judgment under appeal, that that was not the case. In that regard, the General Court recalled that, in accordance with the principles laid down in Articles 11 and 12 of the Vienna Convention, the signature of an agreement is one of the methods of expressing the consent of a State to be bound by it. In addition, the General Court held, in paragraph 298 of the judgment, that, in the light of the wording of Article 14(1)(b) to (d) of the Convention, the intention to proceed by ratification could have been expressed during the negotiation or signature of that resolution.
2.      Arguments of the parties
236. The appellant disputes, in particular, the assessments set out in paragraphs 285 and 286 of the judgment under appeal in so far as the fact that the resolution of 25 November 1994 was approved and signed within a working group has no effect on the question of ‘full powers’. In addition, it challenges the analysis carried out by the General Court in paragraphs 291 to 300 of the judgment, at the end of which it held, in essence, that the Commission could require proof of signature of the constituent instrument or the production of an instrument of ratification. In its view, Article 12(1) of the Vienna Convention grants unlimited freedom in the manner in which the consent of States to be bound is expressed. In the present case, the resolution was an agreement in a simplified form, recognised in international law, concluded in circumstances of urgency and which did not lay down any formal requirements. In that context, it argued, the signing of the resolution by President Bijleveld and Ms Nordtsröm-Ho was sufficient to authenticate the agreement.
237. The Commission submits, in essence, that those arguments are ineffective, since, despite the absence of such powers, the General Court concluded, on the basis of Article 8 of the Vienna Convention, that the resolution of 25 November 1994 is an international agreement. (143)
3.      Assessment
238. For the same reasons as those set out by the Commission, I consider that the fifth part of the fifth ground of appeal is ineffective. The General Court reached a conclusion favourable to the appellant, as evidenced by paragraphs 274, 289 and 301 of the judgment under appeal.
F.      The sixth part, alleging failure to take account of the fact that the appellant had not been dissolved
239. The sixth part is directed against paragraphs 366 to 369 of the judgment under appeal.
1.      The judgment under appeal
240. In those paragraphs, the General Court examined the appellant’s argument that the decision at issue was vitiated by an error of law on the ground that the Commission had failed to take account of the fact that it had not been dissolved by the parties and that it satisfied the principle of speciality. After noting that examination of the appellant’s criticisms had not made it possible to establish the existence of a unanimous or, at the very least, majority intention to confer on it the status of an international organisation, the General Court rejected that argument on the ground that those factors were not sufficient to establish such an intention.
2.      Arguments of the parties
241. The appellant challenges the General Court’s analysis in paragraphs 367 to 370 of the judgment under appeal concerning the failure to dissolve the entity. Contrary to the General Court’s findings
in paragraph 368 of that judgment, the appellant submits that the resolution of 25 November 1994 and the initial and subsequent statutes demonstrate the existence of an international organisation, which could be dissolved on the basis of the provisions of the statute or, failing that, following a unanimous decision of the members under Article 54 of the Vienna Convention.
3.      Assessment
242. I do not think it necessary to examine the sixth part.
243. For the reasons I have set out in points 99 to 110, 116 to 125 and 149 to 179 of the present Opinion, I take the view that the General Court erred in law in its assessment of the parties’ intention to establish an international organisation by failing to have due regard to the various means of interpretation set out in Articles 31 and 32 of the Vienna Convention. Those errors of law therefore vitiate the conclusion drawn by the General Court in paragraph 369 of the judgment under appeal.
VII. Conclusion
244. In the light of all those considerations, I propose that the Court of Justice uphold the fifth ground of appeal, alleging an incorrect assessment of the appellant’s legal status.
1      Original language: French.
2      T‑509/21, ‘the judgment under appeal’, EU:T:2024:590.
3      See paragraphs 7 to 25 of the judgment under appeal.
4      Signed on 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331, No 18232 (1980)); entered into force on 27 January 1980; ‘the Vienna Convention’.
5      ‘The initial statute’.
6      ‘The subsequent statute’.
7      See Report A/66/10 of the ILC to the United Nations General Assembly on the work of its sixty-third session, Yearbook of the ILC, 2011, Vol. II, Part Two, paragraph 87, p. 38.
8      The background to the dispute was set out in detail in paragraphs 2 to 24 of the judgment under appeal.
9      See Special Report No 2/97 of the Court of Auditors concerning humanitarian aid from the European Union between 1992 and 1995 together with the Commission’s replies (submitted pursuant to Article 188c, paragraph 4, indent
2, of the EC Treaty) (OJ 1997 C 143, p. 1), Part
3, entitled ‘Mobilisation of humanitarian aid by the Commission’, in particular point 3.6(b), under the section on the ‘mobilisation of appropriations (global plans)’ (p. 12), and endnote 33.
10      In her book À la recherche de la Bosnie-Herzégovine, La mise en œuvre de l’accord de paix de Dayton, Presses universitaires de France, Paris, 2003, Chapter
3, entitled ‘Les négociations et l’accord de Dayton’, pp. 72 to 128, in particular paragraph 76, Marianne Ducasse-Rogier explains that the proliferation of international organisations, particularly regional ones, which were mandated to implement the Dayton Peace Accords signed in Paris on 14 December 1995, resulted from the United Nations (UN) being sidelined in the implementation of those accords. The EU, which retained its mandate to administer the city of Mostar (Bosnia and Herzegovina), was in parallel entrusted with powers relating to the economic reconstruction of the country (see conclusions of the Peace Implementation Conference held in London on 8 and 9 December 1995, paragraph 41) and to organise, together with the World Bank, the fundraising conferences for that economic reconstruction. For more information on the role and function of the IMG, see 1st, 2nd and 3rd reports of the High Representative for Implementation of the Bosnian Peace Agreement in Bosnia and Herzegovina to the Secretary-General of the United Nations, available at: https://www.ohr.int/cat/hrs-reports/page/9/.
11      C‑183/17 P and C‑184/17 P, EU:C:2019:78.
12      See judgment of 31 January 2019, International Management Group v Commission, (C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraphs 92 to 97 and 104).
13      C‑183/17 P-INT, EU:C:2020:447, paragraph 23.
14      C‑183/17 P and C‑184/17 P, EU:C:2019:78.
15      Article 53(c) and Article 53d of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Regulation (EU, Euratom) No 1081/2010 of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 311, p. 9), and Article 58(1)(c) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), confer on the Commission the responsibility for implementing the EU budget, while providing for several methods of implementing that budget, one of which, referred to as ‘joint management with international organisations’ in the first of those regulations, then ‘indirect management’ in the second, allows that institution to ‘entrust budget implementation tasks’ to such organisations, an option within the framework of which it enjoys broad discretionary powers.
16      C‑619/20 P and C‑620/20 P, EU:C:2022:722.
17      See judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 111).
18      Those grounds of appeal are set out in
paragraphs 58 and 59 of the judgment under appeal.
19      In its advisory opinion of 23 July 2025, Obligations of States in respect of Climate Change, the International Court of Justice (‘the ICJ’) recalled that, in identifying and clarifying the obligations arising from a treaty, it is necessary to apply the rules of interpretation to be found in Articles 31 to 33 of the Vienna Convention, which also reflect customary international law (paragraph 176
and the case-law cited).
20      See also the judgment of the ICJ of 2 February 2017, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections (I.C.J.
Reports 2017, p. 3, paragraph 42).
21      C‑233/02, EU:C:2004:173, paragraphs 42 to 44.
22      See Draft Articles on the Law of Treaties, available in the Report of the ILC to the United Nations General Assembly on the work of its eighteenth session, Yearbook of the ILC, 1966, Vol. II, Part Two, in particular commentary on the draft Article 27, p. 240, paragraph 11, which subsequently became Article 31 of the Vienna Convention; Daillier, P., Forteau, M., and Pellet, A., Droit international public, 9th ed., Librairie générale de droit et de jurisprudence, Paris, 2022, in particular paragraph 206, and Kammerhofer, J., International Investment Law and Legal Theory, Expropriation and the Fragmentation of Sources, Cambridge University Press, Cambridge, 2021, especially Chapter
4, entitled ‘Treaty Interpretation’, pp. 68-143, in particular p. 114.
23      See judgment of the ICJ of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea) (paragraph 73).
24      See judgment of the ICJ of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea) (paragraph 72).
25      I.C.J.
Reports 2018, p. 507.
26      C‑203/07 P, EU:C:2008:606.
27      I.C.J. Reports 2018, p. 507.
28      See judgment of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea) (paragraph 73). See also the legal opinion on the status of the resolution establishing the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), United Nations Juridical Yearbook 2012, pp. 507-523, in particular paragraph 5.1.
29      I.C.J.
Reports 1992, p. 240, paragraph 47.
30      I.C.J.
Reports 2012, p. 10, paragraphs 57 and 61.
31      I.C.J.
Reports 1992, p. 240.
32      I.C.J.
Reports 2012, p. 10.
33      See, also, paragraph 330 of the judgment under appeal.
34      The Commission refers to Article 104 of the Charter of the United Nations, signed in San Francisco on 26 June 1945, and to Article 1 of the Convention on the Privileges and Immunities of the United Nations, signed on 13 February 1946 (United Nations Treaty Series, Vol. 1, p. 15, No 4 (1946-1947)), which entered into force on 17 September 1946. Those articles recognise the legal personality of the United Nations under national law in each Member State.
35      See Martin, J.-C., ‘La personnalité juridique interne de l’organisation internationale’, in Lagrange, É. and Sorel, J.-M., Droit des organisations internationales, Librairie générale de droit et de jurisprudence, Paris, 2013, pp. 465-488, in particular paragraphs 915 to 917, and Amerasinghe, C.F., Principles of the Institutional Law of International Organizations, Cambridge University Press, Cambridge, 2009, in particular Chapter
3, entitled ‘Legal Personality’, pp. 66-104, in particular p. 79.
36      In its advisory opinion of 11 April 1949, Reparation for injuries suffered in the service of the United Nations (I.C.J.
Reports 1949, p. 174), the ICJ found that the UN is a subject of international law with international legal personality because it is ‘capable of possessing international rights and duties, and … has capacity to maintain its rights by bringing international claims’ (p. 179). See Schermers, H.G. and Blokker, N.M., International Institutional Law, 7th ed., Nijhoff, Leyde, 2025, in particular Chapter
11, entitled ‘Legal Status’; Collins, R., ‘Beyond Binary Oppositions? The Elusive Identity of the International Organization in Contemporary International Law’, International Organizations Law Review, Nijhoff, Leyde, 2023, Vol. 20, No 1, pp. 28-51, in particular p. 43; D’Argent, P., ‘La personnalité juridique internationale de l’organisation internationale’, in Lagrange, É. and Sorel, J.-M., op. cit., pp. 439-464, in particular p. 441; Gazzini, T., ‘Personality of international organizations’, Research Handbook on the Law of International Organizations, Edward Elgar Publishing, Cheltenham, 2011, pp. 33-55, in particular p. 34; Amerasinghe, C.F., op. cit., pp. 68 and 78; and Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 371.
37      The principle of speciality, described as a ‘general principle’ by the ICJ and the cornerstone of the law of international organisations, requires that organisations be invested ‘by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them’ (advisory opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (I.C.J.
Reports 1996, p. 66, paragraphs 25 and 26)). That principle defines the scope of action of an international organisation and its responsibilities in the international legal order, and limits its capacity to act to the exercise of the powers expressly or implicitly conferred upon it.
38      I.C.J.
Reports 2010, p. 14.
39      I.C.J.
Reports 2010, p. 14.
40      I.C.J.
Reports 2010, p. 14.
41      I.C.J.
Reports 2010, p. 14.
42      The expression ‘channels of communication’, which the General Court used on three occasions, in paragraphs 212, 312 and 343 of the judgment under appeal, is associated with the specific mission of CARU, which constituted a framework for exchange and communication between Uruguay and Argentina.
43      CARU was established by a treaty signed between Uruguay and Argentina, the former taking the view that the entity, like any other river commission, was not a body with autonomous powers, but rather an optional mechanism established to facilitate cooperation between the parties (judgment of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay) (I.C.J.
Reports 2010, p. 14, paragraph 84)), and the latter maintaining that it was a key body, establishing ongoing and close cooperation, to which referral was mandatory (paragraph 85 of the judgment).
44      I.C.J.
Reports 2010, p. 14.
45      See, also, judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 91).
46      C‑684/13, EU:C:2015:439.
47      C‑516/16, EU:C:2017:1011.
48      C‑684/13, EU:C:2015:439.
49      C‑516/16, EU:C:2017:1011.
50      Commission Regulation of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18).
51      Commission Implementing Regulation of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1).
52      C‑211/06 P, EU:C:2008:34. In the case which gave rise to that judgment, the Court was called upon to rule on the payment of an expatriation allowance to an EU official.
53      See judgment of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraphs 28 and 44).
54      C‑364/10, EU:C:2012:630.
55      See judgment of 16 October 2012, Hungary v Slovakia (C‑364/10, EU:C:2012:630, paragraphs 49 to 51).
56      Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).
57      C‑619/20 P and C‑620/20 P, EU:C:2022:722.
58      See judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 150).
59      C‑104/16 P, EU:C:2016:973.
60      See judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973, paragraph 81 et seq.).
61      I.C.J.
Reports 1997, p. 7, paragraph 26.
62      See judgment of the ICJ of 13 December 1999, Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J.
Reports 1999, p. 1045, paragraph 49), which refers to the Yearbook of the ILC, 1966, Vol. II, Part Two, p. 221, paragraph 14).
63      EU:C:1975:145.
64      EU:C:1995:83.
65      EU:C:2014:2303.
66      See Opinion
1/13 (Accession of third States to the 1980 Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraphs 38 and 41). In that opinion, the Court found that the successive expressions of intent in the instrument of accession to the Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980, and in the declaration of acceptance of that accession, were corresponding expressions as regards the objective pursued by the States concerned (namely that each State should undertake under international law to apply the convention in their bilateral relations) and held that those acts, although each effected by means of a separate instrument, gave expression, overall, to the convergence of intent of the States concerned and thus amounted to an international agreement (paragraphs 39 and 41 of the opinion). See, for related legal literature, Mehdi, R. and Nourrissat, C., ‘L’Avis 1/13, ou comment la Cour de justice confirme une conception traditionnellement extensive de sa compétence et privilégie l’efficacité des règlements de l’Union sur l’unité des conventions internationales’, available on the website of the research group Réseau Universitaire européen dédié à l’étude du droit de l’Espace de liberté, sécurité et justice (‘European network of universities dedicated to studying the law of the area of freedom, security and justice’, 7 December 2014.
67      I.C.J.
Reports 1997, p. 7.
68      See judgment of the ICJ of 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (I.C.J.
Reports 1997, p. 7, paragraph 26).
69      I.C.J. Reports 1949, p. 174, in particular p
185.
70      See footnote 34 of the present Opinion.
71      See D’Argent, P., op. cit., p. 441.
72      See Schermers, H.G. and Blokker, N.M., op. cit., paragraphs 1564 and 1565.
73      The parties may decide to confer international legal personality expressly in the constituent instrument, or may, in the same way, decide to deprive the entity of international legal personality (see, by way of illustration, Article 2(2) of the Treaty relating to the establishment of the functional airspace block ‘Europe Central’ between the Federal Republic of Germany, the Kingdom of Belgium, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Swiss Confederation, signed in Brussels on 2 December 2010; entered into force on 1 June 2013).
74      See Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 535; Amerasinghe, C.F., op. cit., p. 81; Schermers, H.G. and Blokker, N.M., op. cit., paragraphs 1564 to 1566, as well as Schmalenbach, K., ‘International Organizations or Institutions, General Aspects’, Max Planck Encyclopedia of Public International Law (online), 2020, according to which ‘the persisting debate in doctrine and practice has its seed in the fact that most constitutions of international organizations lack explicit provisions on legal personality under international law’ (paragraph 20).
75      See Amerasinghe, C.F., op. cit., p. 79.
76      See advisory opinion of 11 April 1949, Reparations for injuries suffered in the service of the United Nations (I.C.J.
Reports 1949, p. 174).
77      In that opinion, the ICJ acknowledged that, despite the silence of the Charter of the United Nations, the international legal personality of the UN resulted implicitly, but necessarily, from the intention of the founders, from the needs expressed by them in that constituent instrument and in the subsequent practice of the international community (pp. 178 and 179). See also d’Aspremont, J., ‘La composition des organes et le processus décisionnel’, in Lagrange, É. and Sorel, J.-M., op. cit., pp. 403-433, in particular p. 431.
78      I.C.J.
Reports 1996, p. 66, in particular p. 75. See D’Argent, P., op. cit., paragraphs 878 and 879, and Schmalenbach, K., op. cit., paragraph 20 et seq.
79      See El Sawah, S., Les immunités des États et des organisations internationales, Larcier, Brussels, 2012, in particular Chapter 3, entitled ‘Les immunités des organisations internationales’, pp. 203-229, in particular pp. 210 and 211. See also Fox, H. and Webb, P., The Law of State Immunity, 3rd ed., Oxford University Press, Oxford, 2015, p. 571 et seq.; Blokker, N.M., ‘International Organizations: the Untouchables?’, International Organizations Law Review, Nijhoff, Leyde, 2013, Vol. 10, No 2, pp. 259-275, in particular p. 260, and Dominicé, C., ‘L’immunité de juridiction et d’exécution des organisations internationales’, Recueil des cours de l’Académie de droit international de La Haye, Nijhoff, Dordrecht, 1984, Vol. 187, pp. 145-238, in particular p. 163.
80      See, in particular, the Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff signed in Ottawa on 20 September 1951, which defines the privileges and immunities of that organisation, replacing the North Atlantic Treaty, signed in Washington D.C. on 4 April 1949.
81      See, in that regard, the full study by Dominicé, C., op. cit., pp. 168 and 169. See also Schermers, H.G., and Blokker, N.M., op. cit., paragraphs 325 and 1606; Pingel, I., ‘Les privilèges et immunités de l’organisation internationale’, in Lagrange, É. and Sorel, J.-M., op. cit., pp. 626-656, in particular paragraph 1247, and Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 538.
82      See advisory opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (I.C.J.
Reports 1996, p. 66, paragraph 19), and Monaco, R., Le caractère constitutionnel des actes institutifs d’organisations internationales, Éditions A. Pedone, Paris, 1974, pp. 153-172.
83      For example, the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty [Organization] was established on 19 November 1996 as a temporary international organisation (see legal opinion cited in footnote 28 of the present Opinion).
84      On the diversity of international organisations, see Klabbers, J., ‘Unity, Diversity, Accountability: The Ambivalent Concept of International Organisation’, Melbourne Journal of International Law, University of Melbourne, Melbourne, 2013, Vol. 14, No 1, pp. 149-170.
85      See advisory opinion of the ICJ of 23 July 2025, Obligations of States in respect of Climate Change (paragraph 177).
86      See Yearbook of the ILC, 1966, Vol. II, Part Two, p. 218, paragraph 5. See also Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 206.
87      See footnote 22 of the present Opinion.
88      See Yearbook of the ILC, 1966, Vol. II, Part Two, p. 219, paragraph 8.
89      Emphasis added.
90      In its legal opinion cited in footnote 28 of the present Opinion, the Secretariat of the CTBTO noted that, in the relevant context, there was an inextricable linkage between two instruments, namely the resolution of 19 November 1996 establishing the Preparatory Commission for the CTBTO and the annex to that resolution establishing the status of that Commission, a founding document and a constituent instrument of the Commission (pp. 508, 514 and 521).
91      Such work is often considered to be chaotic, confidential or inconclusive, and can only be used to confirm an interpretation obtained by other means or when those means do not produce a useful result. In practice, it would even seem that preparatory work should not be included in the interpretation of a constituent instrument because it favours the views of certain members over others, which would not be compatible with the principle of equality of States (see Peters, A., ‘L’acte constitutif de l’organisation internationale’, in Lagrange, É. and Sorel, J.-M., op. cit., pp. 201-245, in particular paragraphs 408 and 409).
92      See conclusion
4, entitled ‘Definition of the subsequent agreement and subsequent practice’, of the draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties and commentaries thereto (ILC Report A/73/10 to the United Nations General Assembly on the work of its seventieth session, Yearbook of the ILC, 2018, Vol. II, Part Two (‘the draft conclusions’), and commentary
33 (p. 38).
93      I.C.J.
Reports 2014, p. 226.
94      I.C.J.
Reports 2014, p. 226.
95      See point 14 of the present Opinion.
96      I.C.J.
Reports 2014, p. 226.
97      On the definition of the concept of ‘subsequent agreement’ under Article 31(3)(a) of the Vienna Convention, see conclusion
4 of the draft conclusions and commentary on paragraph 1 of that conclusion, p. 33 et seq.
98      Article 31(3)(b) of the Vienna Convention refers to ‘any … practice’ without expressly restricting such a practice to the practice of the parties, thus differing from the wording of Article 31(3)(a) of the Convention, which refers to ‘any … agreement between the parties’, that provision referring to the practice of States parties to a bilateral or multilateral convention in which the States meet as contracting parties and not as members of treaty bodies. See conclusion
12, entitled ‘Constituent instruments of international organisations’, of the draft conclusions, p. 74 et seq.
99      For related legal literature, see Kadelbach, S., ‘International Law Commission and role of subsequent practice as a means of interpretation under Articles 31 and 32 VCLT?’, Questions of International Law (online), 2018; Arato, J., ‘Treaty Interpretation and Constitutional Transformation: Informal Change in International Organisations’, Yale Journal of International Law, 2013, Vol. 38, No 2, pp. 289-357; Raffeiner, S., ‘Organ Practice in the Whaling Case: Consensus and Dissent between Subsequent Practice, Other Practice and a Duty to Give Due Regard’, European Journal of International Law, European University Institute, Florence, 2016, Vol. 27, No 4, pp. 1043-1059; and Peters, C., ‘Subsequent Practice and Established Practice of International Organisations: Two Sides of the Same Coin?’ Göttingen Journal of International Law, Universitätsverlag Göttingen, Göttingen, 2011, Vol. 3, No 2, pp. 617-642.
100      I.C.J.
Reports 2014, p. 226.
101      See advisory opinion of the ICJ of 11 April 1949, Reparations for injuries suffered in the service of the United Nations (I.C.J.
Reports 1949, p. 174, in particular p. 180).
102      I.C.J.
Reports 2014, p. 226.
103      See judgment of 19 May 2025, Land and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea) (paragraphs 83 to 91). In that judgment, the ICJ attached great weight to the clear and consistent conduct of both parties over many years of negotiations disregarding the Convention delimiting the land and sea borders of Equatorial Guinea and Gabon (‘the Bata Convention’) entirely (paragraph 91).
104      See conclusion
9 of the draft conclusions, entitled ‘Weight of subsequent agreements and subsequent practice as means of interpretation’, and commentary
12, p. 60.
105      I.C.J.
Reports 1971, p. 16.
106      See advisory opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (I.C.J.
Reports 1971, p. 16, paragraph 22).
107      See Yearbook of the ILC, 1966, Vol. II, Part Two, p. 222, paragraph 15. When drafting Article 31(3)(b) of the Vienna Convention, the Commission replaced the expression ‘the understanding of all the parties’ with ‘the understanding of the parties’ in order to emphasise that not all the parties need necessarily actively engage in a subsequent practice. See conclusion
12 of the draft conclusions and commentary
22, p. 78.
108      C‑464/13 and C‑465/13, EU:C:2015:163.
109      Concluded in Luxembourg on 21 June 1994 between the Member States and the European Communities (OJ 1994 L 212, p. 3).
110      See judgment of 11 March 2015,
Oberto and O’Leary (C‑464/13 and C‑465/13, EU:C:2015:163, paragraph 65).
111      See judgment of 11 March 2015,
Oberto and O’Leary (C‑464/13 and C‑465/13, EU:C:2015:163, paragraph 66).
112      I.C.J.
Reports 2014, p. 226. In that judgment, the ICJ thus recognised the relevance of resolutions which, although non-binding, were adopted by consensus or unanimously by the treaty body and rejected those which were adopted without the support of all States parties to the convention and where there were differences of opinion (paragraphs 46 and 83).
113      I.C.J.
Reports 1996, p. 66.
114      See advisory opinion of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (I.C.J.
Reports 1996, p. 66, paragraph 27).
115      See point 154 of the present Opinion.
116      I.C.J.
Reports 1962, p. 151.
117      See advisory opinion of the ICJ of 20 July 1962, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) (I.C.J.
Reports 1962, p. 151, pp. 151-174).
118      Nor can those agreements constitute subsequent ‘conduct’ in the application of the treaty, relevant within the meaning of Article 32 of the Vienna Convention. See conclusion
4 of the draft conclusions (p. 32).
119      I.C.J.
Reports 2014, p. 226.
120      See footnote 113 of the present Opinion.
121      There was nothing to prevent the parties from inserting a provision stating that the resolution of 25 November 1994 did not create an international organisation with international legal personality (see, inter alia, Article 2(2) of the treaty cited in footnote 73
of the present Opinion).
122      In that regard, I would point out that, in its judgment of 1 July 1994, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility (I.C.J.
Reports 1994, p. 112, paragraph 29), the ICJ rejected the argument that account should be taken, on the one hand, of the intention of the parties (a declaration of a political nature), since they had signed a text recording commitments accepted by their governments and since such an intention cannot prevail over the actual terms of the instrument in question, and, on the other hand, of their subsequent conduct (indicating that they had never regarded that text as an international agreement).
123      I.C.J. Reports 1980, p. 73.
124      Advisory opinion of 20 December 1980, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (I.C.J.
Reports 1980, p. 73, paragraph 43).
125      See Simon, D., L’interprétation judiciaire des traités d’organisations internationales; Morphologie des conventions et fonction juridictionnelle, éditions A. Pedone, Paris, 1981, p. 384; and Schermers, H.G. and Blokker, N.M., op. cit., paragraph 30. With regard to case-law, see advisory opinions of 20 July 1962, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) (I.C.J.
Reports 1962, p. 151, in particular p. 160), and of 9 July 2004,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (I.C.J.
Reports 2004, p. 136, paragraph 88).
126      See, to the same effect, the separate opinion of Judge Lauterpacht attached to the advisory opinion of 7 June 1955, South-West Africa – Voting Procedure (I.C.J.
Reports 1955, p. 57), in particular p. 106.
127      See conclusion
8, entitled ‘Interpretation of treaty terms as capable of evolving over time’, of the draft conclusions and commentaries
4 and 5 (p. 56), and Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 213.
128      Simon, D., op. cit.
129      Simon, D., op. cit., p. 378.
130      Signed in Brussels on 17 March 1948.
131      See Coulée, F., ‘La fondation de l’organisation internationale’, in Lagrange, É. and Sorel, J.-M., op. cit., pp. 147-167, in particular paragraph 304.
132      See Blokker, N.M., ‘Constituent Instruments’, in Cogan, J.K., Hurd, I. and Johnstone, I., The Oxford Handbook of International Organizations, Oxford University Press, Oxford, 2016, pp. 943-961.
133      Signed in Vienna on 21 March 1986.
134      I.C.J.
Reports 2021, p. 206.
135      See Bonucci, N., Cosnard, M. and Nganga Malonga, A., ‘Les rapports entre l’organisation internationale et l’État hôte’, in Lagrange,
É. and Sorel, J.-M., op. cit., pp. 601-625, in particular paragraph 1204.
136      See, in that regard, judgment of the ICJ of 3 February 1994, Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J.
Reports 1994, p. 6), in which the ICJ emphasised that ‘the word ‘recognise’ … indicates that a legal obligation is undertaken. To recognise a frontier is essentially to ‘accept’ that frontier, that is, to draw legal consequences from its existence, to respect it and to renounce the right to contest it in future’ (paragraph 42). See, also, Daillier, P., Forteau, M. and Pellet, A., op. cit., paragraph 510.
137      See Burriez, D., Cahin, G. and Lagrange, É., ‘Le retrait des États des organisations internationales: actualité récente (UNESCO, OEA, CPI …)’, Annuaire Français de droit international, CNRS, Paris, 2018, pp. 373-382. That procedure is equivalent to a simple denunciation of the constituent instrument based on a unilateral and discretionary act of the State.
138      I.C.J.
Reports 1966, p. 6.
139      I.C.J.
Reports 1971, p. 16.
140      See judgment of the ICJ of 18 July 1966, South West Africa, Second Phase (I.C.J.
Reports 1966, p. 6, paragraphs 16 and 17), and advisory opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (I.C.J.
Reports 1971, p. 16, paragraph 53).
141      See Dominicé, C., op. cit., p. 162.
142      C‑183/17 P and C‑184/17 P, EU:C:2019:78.
143      The Commission adds, incidentally, that it did not wish to ‘burden the appeal proceedings by adding a cross-appeal on the question of the existence of an international agreement’, but that it remains ‘sceptical’ as to the reasons set out in paragraphs 276 to 289 of the judgment under appeal.