CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ Moreover, it concerns precedence over provisions of EU secondary law. The complexity arises from a form of supranational normative pluralism, involving two types of sources within the Union acquis : one derived from public international law and the other from Union law. The forthcoming section of this Article will address the direct effect of an international treaty provision from the perspective of Union law, aiming to propose a structured approach for identifying this effect. 2.1 Objective and subjective criteria The direct effect of a provision of an international treaty impacts not only the rights of individuals that they may invoke before national courts but also the structure and hierarchy of Union law sources concerning the relationship between an international treaty and secondary legislation. Professors Siman and Slašťan emphasize that direct effect is not automatically presumed for provisions of international treaties under Union law. When determining the effects of these provisions, it is necessary to consider the principles of international law. 25 However, this Article focuses on analyzing to what extent the Court of Justice adopts these principles. As previously mentioned, the lack of direct effect does not diminish the binding nature of the treaty itself nor the obligation of the Union as a contracting party to fulfill its treaty obligations bona fide . Additionally, the principle of reciprocity does not apply to the grant of direct effect. This means that if one party grants direct effect, the other party is not obligated to do so automatically. 26 Coming back to the Van Gend en Loos case, the literature has defined the criteria for granting direct effect in Union law, dividing them into objective and subjective criteria. 27 The objective criteria are those which the Court regularly examines for other sources of Union law, namely the existence of a sufficiently clear and unconditional right or obligation. Moreover, it is not “qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law”, and thus it does not “require any legislative intervention on the part of the states”. 28 In order for the provision to be invoked by individuals, precision requires that the right or obligation be expressed in unambiguous terms. 29 The subjective criterion is the intention of the contracting parties to grant direct effect to the provision of the treaty in question. In cases involving founding treaties and directives, the Court of Justice typically relies on objective criteria for determining direct effect. In contrast, as seen in Van Gend en Loos , we consider 25 SIMAN, M., SLAŠŤAN, M. Právo Európskej únie (inštitucionálny systém a právny poriadok Únie s judikaturou) [The law of the European Union (institutional system and legal order of the Union with jurisprudence] . Bratislava: Euroiuris, 2012. p. 384. 26 Judgment of the Court of 26 October 1982, Hauptzollamt Mainz v. Kupferberg & Cie., C-104/81, EU:C:1982:362, paras. 17, 18. 27 BOBEK, M., BŘÍZA, P., KOMÁREK, J. Vnitrostátní aplikace práva Evropské unie [National application of the law of the European Union] . 1st ed. Praha: C. H. Beck, 2011. p. 23. 28 Judgment of the Court of 5 February 1963, Van Gend en Loos v. Administratie der Belastingen , C-26/62, EU:C:1963:1. 29 Judgment of the Court of 17 September 1996, Cooperativa Agricola Zootecnica S. Antonio and Others v. Amministrazione delle Finanze dello Stato, C-246/94, EU:C:1996:329, para 19. 2. Direct effect of an international treaty provision in EU law

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