CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … Regulation. 65 The Court reaffirmed its previous findings on the failure to satisfy the objective criterion for direct effect, as established in the case referenced earlier. It reiterated that exceptions may apply to provisions enacted to fulfill treaty obligations or where an act refers directly to the provision in question. 66 However, since Article 10 of the Regulation does not specifically reference the Convention provision, direct effect through these exceptions is precluded. Similarly, Article 9(3) of the Aarhus Convention affords significant discretion to contracting parties and thus fails to meet the objective criteria for direct effect. By not granting direct effect to the article, the Court held that the General Court had erred in law by analyzing the Regulation provision with reference to the Convention, 67 because, as stated before in article, hierarchical precedence would be given to a provision of the treaty by granting it direct effect. Regarding exceptions, it must be emphasized that even if the conditions for exceptions were met and the subjective aspect of direct effect were fulfilled, objective criteria remain a conditio sine qua non . Conclusion Examining the direct effect of provisions from international treaties within the EU legal framework proves to be inherently complex. One significant challenge stems from the diverse range of international treaties concluded by the Union, covering different ratione materiae. The direct effect of a provision of an international treaty concluded by the Union in EU law does not merely entail the ability of individuals to invoke the provision before the forum and institutions, bodies, offices, and agencies of the EU. Direct effect confers hierarchical precedence to the treaty provision over the relevant provision of secondary law, enabling the CJEU to review the validity of secondary legislation in light of the provision of the treaty in question. In evaluating direct effect, the Court of Justice considers both objective criteria—such as the requirement for clarity, precision, and unconditional nature of the provision, which does not necessitate incorporation into national or EU law—and subjective criteria concerning the intention of the parties to grant such effect to the treaty provision. The subjective aspect presents particular difficulties, as the Court has a degree of discretion in the assessment without being bound by the recognition of direct effect by other contracting parties. In assessing the subjective aspect, the Court employs its margin of appreciation. Notably, it also considers potential conflicts with rules derived from the EU’s founding treaties, which form the constitutional core of the EU legal framework. Criticism of this approach is arguably unfounded; the denial of direct effect does not diminish the binding nature of the treaty. Thus, the Court’s approach, which aims to uphold the uniformity of Union law while cautiously considering subjective factors, appears justified. The aim of this Article was to identify the requirements for granting direct effect to a provision of an international treaty concluded by the Union in Union law. In essence, criticisms aimed at the Court of Justice for its cautious approach in granting direct effect to provisions of Union-concluded international treaties seem misplaced. Taking the example of 65 Judgment of the Court of 13 January 2015, Council and Others v. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C-401/12 P, EU:C:2015:4, paras. 35–36. 66 Ibid., para. 56. 67 Ibid., paras. 58, 59, 61.

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