Direct Effect Of International Agreements


December 6, 2020

In addition, international agreements with third countries or international organisations are also an integral part of EU law. These agreements are separate from primary and derivative law and constitute a sui generis category. According to some court judgments, they can sometimes have a direct effect and their legal value is greater than derivative law, which must therefore be respected. If the subject of an agreement is not within the exclusive competence of the EU, EU countries must also sign the agreement. These are called mixed agreements. This means that EU countries become contracting parties to third countries, in addition to the EU itself. Mixed agreements may also require the adoption of an EU boarding school to distribute commitments between EU countries and the EU. The European Union`s constituent treaties do not explicitly regulate the legal status or internal effect of international agreements concluded by the Union itself. Moreover, the diplomatic practice of the EU legislator has long been opposed to the text of such agreements explicitly regulating the question of their effectiveness in the respective legal systems of the contracting parties. Therefore, it is the jurisprudence of the European Court of Justice that has attempted to clarify the question of the legal order of the Union.

In line with the thread of this volume, this chapter analyses the ECJ`s judgments on the direct effect of EU agreements through the prism of the EU`s twin principles of legal equality and non-discrimination, in order to underline the role that this direct effect – and the relative jurisprudence of the ECJ – can play in strengthening the concrete implementation of these principles. In general, this chapter argues that Janus` attitude to the principles of equality and non-discrimination is adopted in the jurisprudence of the Court of Justice, which applies the doctrine of direct effect to international agreements. Specifically, the chapter distinguishes between two opposing approaches, described as “functionalists” and “protectors.” The former, according to the argument, establish a functional link between the direct effect and the principles of equality and non-discrimination. From this point of view, the Court`s positive view that the direct effect is immediate can, to some extent, be conceived as one of the instruments available at EU level to strengthen the proper implementation of these principles. With regard to the second approach, the lack of direct effect of certain international agreements concluded by the Union is justified by the need to avoid compromising these principles and, more generally, to protect EU law. The chapter also discusses the recent practice of EU political institutions in signing and concluding international agreements. By expressly rejecting the direct effect of these agreements, this practice marks a clear abandonment of the previous trend which, as has already been mentioned, has been characterized by the self-limitation of these EU institutions with regard to the internal legal effects of the agreements. This trend is illustrated by the two judicial approaches mentioned above and its potential impact on the effective implementation of the principles of equality and non-discrimination is balanced. This book presents an analysis of the institutional and constitutional impact of the EU`s international agreements, focusing on their potential impact on private parties. The European Union has concluded a number of international agreements that raise serious concerns about fundamental rights due to the lack of parliamentary and judicial oversight.

The book addresses these issues in the context of the developments of the Lisbon Treaty, with an emphasis on primary and secondary sources, including Franco-German scholarships, as well as EU and national state jurisprudence.

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