CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ treaties within the WTO, which are a subject of substantial debate, it is not merely discretion or subjectivity that causes the Court’s reluctance; rather, it is primarily the failure to meet objective criteria. The subjective aspect, although crucial, cannot outweigh the necessity to fulfill objective criteria, which are indispensable for granting direct effect to treaty provisions. While the parties’ intention to grant direct effect must be prioritized, establishing such intention is often challenging, as it is typically not stated expressis verbis in treaty texts. In the absence of explicit exclusion, adherence to objective criteria remains the sine qua non for granting direct effect. Case law of the Court of Justice has carved out exceptions to the non-granting of direct effect, specifically in the case of a cumulative failure to meet objective and subjective criteria. These exceptions from Fediol and Nakajima cases occur when the relevant secondary legislation explicitly refers to specific provisions of these agreements, or when the Union intends to fulfill a specific obligation derived from these agreements. However, subsequent case law significantly limits their practical application, and the CJEU clarified that even exemptions must not circumvent objective criteria. Therefore, under Union law, these criteria prevail. Fundamentally, without a sufficiently clear right or obligation, an individual lacks grounds for invocation before the courts. Lack of clarity and precision, necessitating specific conditions in a receiving norm, inherently undermines the fulfillment of objective criteria. Such non fulfillment could potentially lead to unequal application of the treaty across member states, which is undesirable from an EU law perspective. Consequently, while acknowledging the importance of the subjective aspect in its assessment, it is the objective criteria that ultimately determine the grant of direct effect. If we were to propose a procedure for identifying the direct effect of a treaty, the initial step would involve determining whether the intention of the parties precludes the recognition of direct effect; if so, further examination of the provision is unnecessary. Subsequently, an assessment of the objective and subjective criteria would be conducted cumulatively. Objective criteria are conditio sine qua non , while the CJEU exercises a degree of discretionary judgment with regard to subjective criteria, taking into account their impact on EU law. If a provision does not pass this test, it may be examined whether direct effect cannot be granted under any of the exceptions, which must be interpreted restrictively and cannot be activated without fulfilling objective criteria.

188