CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … subjective criteria to be less significant, focusing instead on the consistency of granting direct effect with the nature, scheme, and wording of the provision in question. 30 Here we delve into the specification of defined criteria concerning international treaties. Assessing the direct effect of a provision from an international treaty necessitates a specific approach, where the Court of Justice must adhere to principles of international law. Examining the judgments of the US Supreme Court mentioned above, it is evident that when granting direct effect under EU law, the CJEU draws inspiration from established rules in public international law, which it applies analogously within the Union’s legal framework. These judgments underscore the necessity to evaluate both objective and subjective criteria. Particularly concerning international treaties, we observe an emphasis on the subjective aspect, which contrasts with the settled nature of such examination in primary law under existing case law. Essentially, it can be argued that the case law of the Court of Justice favors a constitutionalist approach by equating the relationship between international law and EU law to that between international law and national legislation of a state as a contracting party. 31 In assessing the effects of the provisions of an international treaty, the Court always examines to some extent the cumulative fulfilment of both objective and subjective criteria. For example, we can mention the judgment in case Pêcheurs de l’étang de Berre where the court followed a progression from objective criteria to subjective, to the purpose. 32 Naturally, in our opinion, if the court excluded consideration of the subjective criteria, it would not assess the objective criteria either, and vice versa. In the same way that objective criteria are examined in international law, the Court of Justice of the European Union has adopted a similar approach. In principle, it can be said that this is a question that does not generate significant debate, even within the academic sphere, as numerous judgments of the Court of Justice have clearly defined this approach: [A] provision in an agreement concluded by the Communities with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. 33 Some authors further add that such a provision must be capable of being applied to the specific case under consideration, 34 which naturally follows from the fulfillment of objective criteria. There are divergent views among experts regarding the status of subjective criteria in relation to objective criteria. In our view, unless the parties’ intention not to grant direct effect is explicitly expressed, the objective criteria serve as a first test for direct effect. Without 30 Judgment of the Court of 5 February 1963, Van Gend en Loos v. Administratie der Belastingen , C-26/62, EU:C:1963:1. 31 ZIEGLER, K. S. The Relationship between EU Law and International Law. In: A Companion to EU and International Law . [online]. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=49710403102110709 1081097021127107004003044057035002028109092102094001122081101106007024026006007024061 1141140641210210650190240490610900390810150961140860761131070710070180541110810861021 12102094125007099088123015068006075028067121004072101117074127020&EXT=pdf&INDEX=TR UE last accessed on 30 Jun 2024. 32 Judgment of the Court of 15 July 2004, Pêcheurs de l’étang de Berre , C-213/03, EU:C:2004:464, paras 39–43. 33 Judgment of the Court of 12 April 2005, Simutenkov , C-265/03, EU:C:2005:213, para. 21. 34 SCHÜTZE, R. European Union Law. 3. ed. Oxford: Oxford University Press, 2021.

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