CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … It is to be observed in that regard that the effects within the Community of provisions of an agreement concluded by the Community with non-member States may not be determined without taking account of the international origin of the provisions in question. In conformity with the principles of public international law, Community institutions which have power to negotiate and conclude such an agreement are free to agree with the non-member States concerned what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. If that question has not been expressly dealt with in the agreement, it is the courts having jurisdiction in the matter and in particular the Court of Justice within the framework of its jurisdiction under the EC Treaty that have the task of deciding it, in the same manner as any other question of interpretation relating to the application of the agreement in question in the Community. 41 At the same time, it is not excluded that, within the same treaty, the Court of Justice may define some provisions as directly effective while not granting such effect to others. This was similarly the case with the Agreement with Portugal, 42 which the Court addressed in both Polydor and Kupferberg . 43 As a number of authors have pointed out, it is precisely in the subjective aspect that the Court of Justice has the possibility, if the objective criteria are met, to refrain from granting direct effect by interpreting an international agreement in a manner that avoids conflict with European Union law. 44 As is well known from the doctrine of Union law, the Court of Justice considers it problematic in principle to grant direct effect to international treaties concluded under the WTO. Naturally, this is an area which affects the rules of the internal market, which are contained in the founding treaties at the top of the hierarchy of the Union’s acquis . Therefore, it is necessary to consider the potential distortion of uniformity and effectiveness within the internal market when granting direct effect to these treaties. As noted by professors Siman and Slašťan, the US Supreme Court has also declined to grant direct effect to such treaties, suggesting that the Court of Justice may find support in this approach. 45 In the well-known and pivotal judgment in the case of International Fruit Company , the Court stated that, in addition to considering the substance, overall structure, wording, and other aspects, the objective of a mutually and reciprocal advantageous arrangement must be taken into account for direct effect to be granted. The Court observed in the provisions in question both a high degree of flexibility and the possibility of derogation from the rules laid 41 Judgment of the Court of 9 September 2008, FIAMM and Others v. Council and Commission , C-120/06, EU:C:2008:476, para. 108. 42 Agreement between the EEC and the Portuguese Republic. 43 Judgment of the Court of 9 February 1982, Polydor and Others v. Harlequin and Others , C-270/80, EU:C:1982:43. Judgment of the Court of 26 October 1982, Hauptzollamt Mainz v. Kupferberg & Cie., C-104/81, EU:C:1982:362. 44 BOURGEOIS, H. J. J. Effects of International Agreements in European Community Law: Effects of International Agreements in European Community Law: Are the Dice Cast?. In: Michigan Law Review , vol. 82, issue 5. [online]. Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3570&context=mlr last accessed on 01 July 2024. 45 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.

183