CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ Therefore, this Article aims to determine how to approach attributing direct effect to an international treaty provision in EU law, relying on the case law of the CJEU. The CJEU has the competence to interpret international treaties concluded by the Union and to determine whether a provision has direct effect in the context of a preliminary ruling on interpretation. It also addresses this question in other proceedings, such as when assessing the validity of an act of secondary law referring to an international agreement. Therefore, we will rely mainly, but not exclusively, on the case law of the Court of Justice. From our perspective, the subject is becoming increasingly relevant. In practice, many competences initially defined as common are gradually becoming exclusive competences of the Union through the AETR-type of implied competence. 3 It can be assumed that with the expansion of harmonization at the internal Union level, the Union will also be active externally in these areas. The exercise of certain powers by the Union renders the member states legislatively paralyzed, so it can be expected that the Union will increasingly take the lead in concluding treaties. Moreover, beyond the harmonized areas, if we consider the conclusion of a treaty as essential for achieving the Union’s established objectives, it is not even necessary to have internal legislation at the Union level in this area . 4 1. The importance of examining the direct effect of international treaties in EU Law 1.1 The international law perspective International treaties concluded by the Union, from their entry into force, become an inherent part of the Union’s legal order, 5 which as a whole, has primacy over the legal order of the member states. 6 Upon the Union’s accession to an international treaty, the treaties concluded by the Union become binding on the member states as well. 7 The direct effect of a provision of an international treaty allows an individual to invoke the provision directly before a national judicial authority without the need for any reception into national law. Some authors also refer to this as the condition that the provision in question becomes part of the “law of the land” . 8 The direct effect of EU law was first comprehensively addressed by the Court of Justice in Van Gend en Loos judgment. Although this case dealt with a provision of primary law, certain conclusions can be applied by analogy to the international treaties under review. The Court held that: “The Community constitutes EECKHOUT, P. Exclusive External Competences: Constructing the EU as an International Actor. In: The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case- law. Hague: Asser Press, 2013. p. 628. 5 Judgment of the Court of 30 September 1987, Demirel v. Stadt Schwäbisch Gmünd , C-12/86, EU:C:1987:400, para. 7. 6 Judgment of the Court of 15 July 1964, Flaminio Costa v. E.N.E.L., C 6/64, EU:C:1964:66. 7 Art. 216(2) of the Consolidated version of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, pp. 47–390) (TFEU). 8 HINAREJOS, A. On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-Executing, Supreme?’ In: European Law Journal , 5, (2008) 14, 620. – In: MARSDEN, S. Invoking direct application and effect of international treaties by the European Court of Justice: implications for international environmental law in the European Union. In: The International and Comparative Law Quarterly , vol. 60, no. 3, 2011, p. 743. 3 Judgment of the Court of 31 March 1971, Commission v. Council , C-22/70, EU:C:1971:32. 4

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