CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ down in exceptional situations. 46 Reflecting further on the arguments, the question arises: is it merely a subjective reluctance to find the intention of the parties to grant direct effect to the provisions, or rather a failure to meet objective criteria? In light of the aforementioned, the Court of Justice has assessed the provisions in question as incapable of creating direct effect. In our view, due to their flexibility, these provisions do not meet the objective requirements of certainty and precision. Furthermore, the possibility for one contracting party to unilaterally suspend an obligation and to withdraw or modify a concession, even without agreement or consultation in the event of an emergency, undermines the WTO Agreements’ ability to confer direct effect on their provisions. Although some authors focus more on the subjective aspect, we believe this directly impacts the objective aspect as well. Additionally, in the context of certain GATT provisions, the Court itself has stated that it does not consider them unconditional. 47 Therefore, irrespective of the subjective aspect, the Court cannot grant them direct effect. The Court also notes that the absence of reciprocity on the part of the Union’s trading partners in these agreements, which are “based on ‘‘reciprocal and mutually advantageous arrangements’ and which must ipso facto be distinguished from agreements concluded by the Community, may lead to disuniform application of the WTO rules”. 48 Although it is commonly asserted that the Court of Justice encounters difficulties in granting direct effect to agreements concluded within the WTO, we believe there is no inherent problem of potential collision with Union rules that the Court would resolve by failing to meet the subjective criteria. The more fundamental argument supporting the Court’s decisions is strictly objective. In our view, the provisions in question do not fully satisfy the objective criteria, particularly in their potential to produce unequal effects among the member states of the Union. The Court of Justice objectively considers this aspect in its assessment of all other agreements as well. When a provision can lead to differing legal consequences among states, can it truly be considered clearly and precisely formulated? For instance, the Kyoto Protocol presented a similar scenario where the Court scrutinized a provision stipulating a commitment to reduce greenhouse gas emissions, subject to subsequent agreement by the parties on compliance methods and deadlines. Consequently, the Court objected to the provision’s lack of clarity and unconditional nature, thereby withholding direct effect. 49 This illustrates that the Court’s approach is not biased against agreements within the WTO but rather reflects a precise evaluation of the objective criteria. An important precedent for the presumption of direct effect is found in the judgment of Portugal v. Council . In this case, the Court distinguished agreements concluded within the WTO from other agreements, for which it finds less difficulty in granting direct effect. Many preambles to international agreements within the WTO, which serve as significant interpretative materia , state that a primary objective is to conclude agreements that are mutually and reciprocally advantageous. The operation of these WTO agreements within the 46 Judgment of the Court of 12 December 1972, International Fruit Company NV and others v. Produktschap voor Groenten en Fruit , C 21-24/72, EU:C:1972:115, paras. 20–21. 47 Judgment of the Court of 5 October 1994, Germany v. Council , C-280/93, EU:C:1994:367, para. 110. 48 Judgment of the Court of First Instance of 20 March 2001, Cordis v. Commission , T-18/99, EU:T:2001:95, para. 49. 49 Judgment of the Court of 21 December 2011, Air Transport Association of America and Others., C-366/10, EU:C:2011:864, paras. 75–78.

184