CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … Union’s legal framework thus differs, from the Union’s perspective, from agreements “which introduce a certain asymmetry of obligations, or create special relations of integration with the” Union. 50 In doing so, the Court delineates another aspect it considers when granting direct effect, which gradually leads us to certain exceptions. 2.3 Exceptions in the Fediol and Nakajima cases: position of objective and subjective criteria Even in the context of international treaties, where the Court generally does not grant direct effect, it has, in its case law, recognized two exceptions. The Court has accepted that private individuals may rely directly on the provisions of the WTO Agreements before the Courts of the European Union, namely, first, the situation in which the act of the European Union at issue expressly refers to specific provisions of those agreements and, second, that in which the European Union intended to give effect to a specific obligation assumed under those agreements. 51 These are the conclusions drawn from the well-known Fediol 52 and Nakajima 53 judgments, which must be interpreted restrictively. The Court has also addressed this issue within the context of the Paris Convention provision, affirming that, exceptionally, direct effect may be granted through settled exceptions, specifying their nature. 54 The first condition can be considered to be that, following the cumulative examination of the objective and subjective criteria, the provision has failed to achieve direct effect. We then proceed to the examination of the exceptions, where it is necessary, first of all, that “it must also be established, to the requisite legal standard, that the legislature has shown the intention to implement in EU law a particular obligation assumed in the context” of the agreement under consideration. 55 In this case, however, it is not sufficient “for the preamble to an EU act to support only a general inference that the legal act in question was to be adopted with due regard for international obligations entered into by the European Union. It is, on the other hand, necessary to be able to deduce from the specific provision of EU law contested that it seeks to implement into EU law a particular obligation stemming” from the agreement under consideration. 56 Although the Court has formally introduced exceptions, it has applied them rather restrictively in practice over time. To invoke an exception, it must be clearly and concretely demonstrated how a specific treaty obligation is incorporated into a particular provision of the secondary act. 57 Mere mention of the treaty in the preamble of the secondary act, which is not legally binding, is insufficient. Similarly, arguing that the wording of a provision in a regulation mirrors that of an international treaty is also insufficient. 50 Judgment of the Court of 23 November 1999, Portugal v. Council , C-149/96, EU:C:1999:574, para. 42. 51 Judgment of the Court of 27 February 2024, EUIPO v. The KaiKai Company Jaeger Wichmann , C-382/21, EU:C:2024:172, para. 64. 52 Judgment of the Court of 22 June 1989, Fediol v. Commission , C-70/87, EU:C:1989:254. 53 Judgment of the Court of 7 May 1991, Nakajima All Precision v. Council , C-69/89, EU:C:1991:186. 54 Judgment of the Court of 27 February 2024, EUIPO v. The KaiKai Company Jaeger Wichmann , C-382/21, EU:C:2024:172, para. 64. 55 Judgment of the Court of 16 July 2015, Commission v. Rusal Armenal , C-21/14 P, EU:C:2015:494, para. 45. 56 Ibid., para. 46. 57 Judgment of the Court of 27 February 2024, EUIPO v. The KaiKai Company Jaeger Wichmann , C-382/21, EU:C:2024:172, para. 66.

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