CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ a substantive right or obligation and a clear, unconditional formulation, it is difficult to imagine what an individual would invoke before the forum. Therefore, we consider the objective criteria as conditio sine qua non . The subjective element of direct effect consists of the intention of the parties to grant direct effect to the provision in question. As some authors have pointed out, this aspect is precisely reflected in the general policy considerations pursued by the CJEU. 35 It is for the Court of Justice to determine whether the subjective aspect is fulfilled, even though this aspect does not usually have to be explicitly stated in the agreement . It is undisputed that the Court has a certain degree of discretion in examining the subjective aspect, specifically the intention of the parties. In assessing intent, the Court examines the provision in question in light of the object and purpose of the agreement as well as its context. 36 Some authors argue that the Court’s assessment of objective criteria is quite flexible and tends to focus more on the subjective aspect. 37 Since we consider the objective criteria to be the conditio sine qua non and acknowledge that the court has a certain degree of discretion with regard to the subjective criteria, the argument in question can, in our view, be accepted only in relation to the exclusion of direct effect. In other words, once the Court has ruled out the intention of the parties to give direct effect to the entire treaty, it no longer needs to focus on examining the individual articles in light of the fulfillment of the objective criteria. Conversely, if the issue concerns granting direct effect, the Court’s approach to examining the objective criteria is indeed precise, as we shall demonstrate in the next part of the article. 2.2 CJEU case law: navigating the borderline between objective and subjective criteria From the CJEU’s case law, we can clearly conclude that in the case of international treaties, it indeed cumulatively examines the fulfillment of both subjective and objective criteria. In some judgments, the Court first defines the fulfillment of the objective criteria and then examines the subjective ones. 38 In others, it first states that the subjective aspect does not preclude direct effect and then addresses the objective criteria. 39 In essence, in assessing direct effect, the Court of Justice considers the founding treaties as the constitutional core of EU law. Naturally, within the limits to which the consistency and uniformity of EU law could be undermined, the Court is more cautious in granting direct effect than in cases where a limitation of the effects of national law is under consideration. Numerous authors have pointed to the Court’s less restrained approach to granting direct effect in the latter scenario. 40 In principle, there is no need to criticize the Court of Justice from our point of view; rather, it is a legitimate protection of EU law. We can only quote the Court of Justice directly: 35 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. 36 Judgment of the Court of 26 October 1982, Hauptzollamt Mainz v. Kupferberg & Cie., C-104/81, EU:C:1982:362, para. 23. 37 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. 38 Judgment of the Court of 15 July 2004, Pêcheurs de l’étang de Berre , C-213/03, EU:C:2004:464, paras. 39–43. 39 Judgment of the Court of 10 January 2006, IATA and ELFAA , C-344/04, EU:C:2006:10, para. 39. 40 CRAIG, P., DE BÚRCA, G. EU law – text, cases, and materials. 4th ed. New York: Oxford University Press, 2008. p. 208.

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