Abstract
The founding Treaties of the European Union do not explicitly regulate the legal status or the internal effect of the international agreements concluded by the Union itself. Moreover, the diplomatic practice of the EU legislature has long shown significant resistance to expressly regulating in the text of such agreements the issue of their effectiveness in the legal systems of the respective contracting parties. As a consequence, it is the case law of the European Court of Justice that has tried to shed light on the issue as far as the EU legal order is concerned. In keeping with the common thread of this volume, this chapter carries out an analysis of the ECJ’s rulings on the direct effect of EU agreements through the prism of the EU twin principles of legal equality and non-discrimination, so as to point out the role that direct effect—and the relative ECJ case law—may play in contributing to strengthening the concrete implementation of those principles. Generally speaking, this chapter argues that a Janus-faced attitude towards the principles of equality and non-discrimination comes through in the case law of the ECJ applying the doctrine of direct effect to international agreements. More precisely, the chapter distinguishes two opposite approaches labelled ‘functionalist’ and ‘protective’. The former, it is argued, establishes a functional relationship between direct effect and the equality and non-discrimination principles . From this perspective, the Court’s affirmative finding of a direct effect may be conceived—to some extent—as one of the tools available at the EU level to strengthen a proper implementation of those principles. On the second approach, by contrast, the lack of direct effect of some international agreements entered into by the Union is justified with the need to prevent those principles from being jeopardized and, more generally, to protect EU law. The chapter also looks at the most recent practice of EU political institutions on the signing and conclusion of international agreements. By leading to the express denial of the direct effect of those agreements, that practice marks a significant shift away from the previous trend, a trend that, as mentioned, has so far been characterised by self-restraint of those EU institutions on the agreements’ internal legal effects. This new trend is illustrated in light of the two aforementioned judicial approaches, and its possible consequences on the effective implementation of the equality and non-discrimination principles are weighed.
The title of this chapter partly echoes that of one of the most relevant contributions offered in recent times by legal scholars to the study of the direct effect doctrine (Prechal 2015). Unless otherwise indicated, this chapter takes into account developments of practice and legislation until 30 September 2016.
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Notes
- 1.
The only reference to the internal effects of the international agreements concluded by the Union is present in Article 216(2) of the Treaty on the Functioning of the European Union, which reads as follows: ‘Agreements concluded by the Union are binding upon the institution of the Union and on its Member States.’
- 2.
Cf. ECJ, Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A. EU:C:1982:362, para 17. See also infra Sect. 3.4.
- 3.
- 4.
Klabbers (2001), p. 263.
- 5.
- 6.
In this respect, the notion adopted in this chapter echoes the very first definition of ‘direct effect’ offered by the ECJ in Case 26/62 van Gend & Loos EU:C:1963:1. Consequently, the notion embraces a broad attitude towards direct effect, for it is not confined to covering at the national level the enforceability of provisions explicitly conferring individual rights (in van Gend & Loos, the Court noted that ‘[t]hese rights [i.e., the rights conferred on individuals] arise not only where they are expressly granted by the [European Economic Community] Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community’; emphasis added). On this point, cf. Mendez (2013), p. 14, and Martines (2014), p. 138, who notes that in ECJ’s case law on EU international agreements, ‘[d]irect effect […] does not depend on the existence of a provision explicitly conferring rights to individuals (this would greatly reduce the number of agreements having direct effect, since international agreements very seldom provide for those rights)’. Be that as it may, the dimension of individual rights in the assessment of the direct effect of EU agreements seems to have taken on a pivotal role in the ECJ’s most recent case law: cf. Kaddous (2008), p. 311, and Cannizzaro (2012), pp. 45–46.
- 7.
The ECJ made it clear that such a link sheds light on the status of international decisions in the EU legal order. More precisely, the Court argued, ‘since they are directly connected with the Agreement to which they give effect, the decisions […], in the same way as the Agreement itself, form an integral part, as from their entry into force, of the Community [now EU] legal system’. Cf. ECJ, Case C-192/89 S. Z. Sevince v Staatssecretaris van Justitie EU:C:1990:322, para 9. See also Tancredi (2012), p. 249.
- 8.
- 9.
ECJ, Case 244/80 Pasquale Foglia v Mariella Novello EU:C:1981:302, para 14. See also von Bogdandy (2008), p. 406.
- 10.
ECJ, Case 181/73 R. & V. Haegeman v Belgian State EU:C:1974:41, paras 3–5. As already seen, the same assumption is applicable to the international decisions adopted in the framework of EU agreements: ECJ, Case C-192/89 S. Z. Sevince v Staatssecretaris van Justitie, supra n. 7. On the incorporation of EU agreements into the EU legal order, see Casolari (2008), pp. 179–248, Tietje (2008), van Rossem (2012), p. 69, and Mendez (2013), pp. 61–106.
- 11.
ECJ, Case 181/73 R. & V. Haegeman v Belgian State, supra n. 10, para 6. This assumption is also applicable to mixed agreement , at least with regard to the provisions falling within the competences of the Union. Cf. Casolari (2008), pp. 216–234 (highlighting the extensive ECJ’s jurisdiction in relation to mixed agreements) and Lenaerts (2014), p. 47.
- 12.
ECJ, Case 87/75 Conceria Daniele Bresciani v Amministrazione Italiana delle Finanze EU:C:1976:3, Opinion delivered on 14 January 1976, p. 148. Note that in the Advocate General Trabucchi’s understanding the notion of ‘direct applicability of EU law’ and that of ‘direct effect of EU law’ substantially coincide. As highlighted in the literature, the two notions, although intertwined, should be distinguished. See, generally, Winter (1972) and, with regard to international law binding the Union, Lenaerts (2014).
- 13.
ECJ, Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, supra n. 6, p. 12. See also Martines (2014), p. 138.
- 14.
It is common knowledge that this is the two-stage test the Court set out in the International Fruit case. Cf. ECJ, Joined Cases 21 to 24/72 International Fruit Company NV and others v Produktschap voor Groenten en Fruit ECLI:EU:C:1972:115, para 20. The same test is applied by the Luxembourg judges to assess the direct effect of international decisions adopted in the framework of EU agreements: ECJ, Case C-192/89 S. Z. Sevince v Staatssecretaris van Justitie, supra n. 7, para 14.
- 15.
In 2008, for instance, Sir Francis Jacobs (2008), p. 16, highlighted that ‘the modern case law does seem to depart in some respects from a previous, more stringent approach’.
- 16.
Supra Sect. 3.1.
- 17.
Infra Sect. 3.3.
- 18.
Even though the agreements considered in this subsection have been formally concluded as mixed treaties (consequently implying the Member States’ participation in the cooperation they establish), they are usually considered bilateral in nature. This is because these agreements are intended to establish bilateral contractual relations among the parties. In this respect, it does not come as a surprise that the name of these agreements is usually set within a formula as follows: ‘Agreement establishing an association / a cooperation / a partnership between the European Union and their Member States, of the one part, and [name of the third country], on the other part’ (emphasis added).
- 19.
Maresceau (2013), p. 699.
- 20.
Cf. ECJ, Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A., supra n. 2, paras 26–27.
- 21.
ECJ, Case C-235/99 The Queen v Secretary of State for the Home Department, ex parte Eleanora Ivanova Kondova EU:C:2001:489, paras 30–39, and ECJ, Case C-327/02 Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie EU:C:2004:718, para 18 (concerning the direct effect of Article 45(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, OJ 1994 L 358/3); ECJ, Case C-101/10 Gentcho Pavlov and Gregor Famira v Ausschuss der Rechtsanwaltskammer Wien EU:C:2011:462 (concerning Article 38(1) of the same Agreement).
- 22.
ECJ, Case C-257/99 The Queen v Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik EU:C:2001:491, paras 30–39, ECJ, Case C-268/99 Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie EU:C:2001:616, para 26, and ECJ, Case C-327/02 Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie, supra n. 21, para 18 (concerning the direct effect of Article 45(3) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part, OJ 1994 L 360/2).
- 23.
ECJ, Case C-63/99 The Queen v Secretary of State for the Home Department, ex parte Wieslaw Gloszczuk and Elzbieta Gloszczuk EU:C:2001:488, paras 29–38, and ECJ, Case C-327/02 Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie, supra n. 21, para 18 (concerning Article 44(3) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland of the other part, OJ 1993 L 348/2); ECJ, Case C-162/00 Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer EU:C:2002:57, paras 31–45 (concerning the direct effect of Article 37(1) of the Europe Agreement).
- 24.
ECJ, Case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol EU:C:2005:213, paras 20–29 (concerning the direct effect of Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, OJ 1997 L 327/3).
- 25.
ECJ, Case C-438/00 Deutscher Handballbund eV v Maros Kolpak EU:C:2003:255, paras 24–30 (concerning the direct effect of Article 38(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, OJ 1994 L 359/2).
- 26.
ECJ, Case C-103/94 Zoulika Krid v Caisse nationale d’assurance vieillesse des travailleurs salariés (CNAVTS) EU:C:1995:97, paras 21–24, ECJ, Case C-113/97 Henia Babahenini v Belgian State EU:C:1998:13, paras 17–18 (concerning the direct effect of Article 39(1) of the Cooperation Agreement between the European Economic Community and the People’s Democratic Republic of Algeria, OJ 1978 L 263/2).
- 27.
ECJ, Case C-416/96 Nour Eddline El-Yassini v Secretary of State for Home Department EU:C:1999:107, paras 25–32 (concerning the direct effect of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, OJ 1978 L 264/2); ECJ Case C-18/90 Office national de l’emploi v Bahia Kziber EU:C:1991:36, paras 15–23, ECJ, Case C-58/93 Zoubir Yousfi v Belgian State EU:C:1994:160, paras 16–19, ECJ, Case C-126/95 A. Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank EU:C:1996:368, paras 19–20, ECJ, Case C-23/02 Office national de l’emploi v Mohamed Alami EU:C:2003:89, para 22, and ECJ, Case C-358/02 Yamina Haddad v Belgium State, not published, para 26 (concerning the direct effect of Article 41(1) of that Agreement). Cf. also ECJ, Case C-336/05 Ameur Echouikh v Secrétaire d’État aux Anciens Combattants EU:C:2006:394, paras 39–42, and ECJ, Case C-276/06 Mamate El Youssfi v Office national des pensions (ONP) EU:C:2007:215, para 50 (concerning the direct effect of Article 65(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ 2000 L 70/2).
- 28.
ECJ, Case C-97/05 Mohamed Gattoussi v Stadt Rüsselsheim EU:C:2006:780, paras 24–28 (concerning the direct effect of Article 64(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, OJ 1998 L 97/2).
- 29.
OJ 1973 C 113/2.
- 30.
ECJ, Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd EU:C:1987:400.
- 31.
Ibid., para 23.
- 32.
Ibid.
- 33.
ECJ, Case C-262/96 Sema Sürül v Bundesanstalt für Arbeit EU:C:1999:228, paras 48–74.
- 34.
ECJ, Case C-374/03 Gaye Gürol v Bezirksregierung Köln EU:C:2005:435. Among the cases decided by the Court and dealing with non-discrimination provisions stemming from the EEC-Turkey cooperation see ECJ, Joined Cases C-102/98 and C-211/98 Ibrahim Kocak v Landesversicherungsanstalt Oberfranken und Mittelfranken and Ramazan Örs v Bundesknappschaft EU:C:2000:119, para 51, ECJ, Case C-373/03 Sakir Öztürk v Pensionsversicherungsanstalt der Arbeiter EU:C:2004:232, paras 51–53, and ECJ, Case C-152/08 Real Sociedad de Fútbol SAD and Nihat Kahveci v Consejo Superior de Deportes and Real Federación Española de Fútbol EU:C:2008:450, paras 20–32. For an updated survey of the ECJ’s case law on the EEC-Turkey AA see Mendez (2013), pp. 115–128, and 130–134, and Groenendijk (2015).
- 35.
- 36.
ECJ, Case C-18/90 Office national de l’emploi v Bahia Kziber EU:C:1990:447, Opinion delivered on 6 December 1990, para 13.
- 37.
That article incorporated the non-discrimination principle on grounds of nationality by stating that ‘[…] restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.’
- 38.
ECJ, Case 2/74 Jean Reyners v Belgian State EU:C:1974:68, paras 26–30.
- 39.
ECJ, Case C-262/96 Sema Sürül v Bundesanstalt für Arbeit, supra n. 33, para 68.
- 40.
ECJ, Case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol, supra n. 24, para 23; emphasis added.
- 41.
ECJ, Case 2/74 Jean Reyners v Belgian State, supra n. 38, paras 24–25; emphasis added.
- 42.
See, for instance, ECJ, Case C-235/99 The Queen v Secretary of State for the Home Department, ex parte Eleanora Ivanova Kondova, supra n. 21, paras 51–52: ‘[i]t must […] be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties […] According to that case-law, the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends, inter alia, on the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard […].’ Cf. also Kaddous (2008), p. 308 and Maresceau (2013), p. 710, highlighting the growing readiness of the Court to interpret the provisions of EU bilateral agreements in the same way as the corresponding provisions of EU law.
- 43.
See also, in agreement, Mendez (2013), p. 153, arguing that ‘[d]evelopments taking place seemingly at the purely internal EU law level can in due course shape the judicial approach to external EU law, and it seems likely that there is judicial awareness of the sensitivity of relying expressly on the internal EU analogy.’
- 44.
Gáspár-Szilágyi (2015b), p. 114.
- 45.
ECJ, Case 65/77 Jean Razanatsimba EU:C:1977:193.
- 46.
Ibid., para 20.
- 47.
- 48.
Jacobs (2008), p. 32.
- 49.
Such a linkage could also explain why in some cases even the first criterion of the direct effect test is interpreted by the Court in a broad way. In particular, in Simutenkov the Court acknowledged the direct effect of the relevant provisions of the Partnership and Cooperation Agreement with Russia even if the Agreement provided that recommendations by the Cooperation Council were requested to implement the non-discrimination clause. Indeed, to the Court, ‘[t]he fact that Article 27 [of the Agreement] provides that Article 23 is to be implemented on the basis of recommendations by the Cooperation Council does not make the applicability of Article 23, in its implementation or effects, subject to the adoption of any subsequent measure. The role which Article 27 confers on that Council is to facilitate compliance with the prohibition of discrimination but cannot be regarded as limiting the immediate application of that prohibition’. Cf. ECJ, Case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol, supra n. 24, para 25.
- 50.
This circumstance has recently been recalled by the Legal Service of the European Parliament in its legal opinion on compatibility with the treaties of investment settlement provisions in EU trade agreements, doc. SJ-0259/16 of 1 June 2016 (para 84). Moreover, as made clear by the European Court of Justice, even if international agreements concluded by the Union have to in fact comply with the fundamental principles of EU law, including the principles of equality and non-discrimination, this does not imply a need to ensure equal treatment of third countries: ‘[i]t must […] be borne in mind that there is no general principle of Community [now EU] law obliging the Community [the Union], in its external relations, to accord third countries equal treatment in all respects.’ ECJ, Case C-122/95 Federal Republic of Germany v Council of the European Union EU:C:1998:94, para 56.
- 51.
See, for instance, ECJ, Case C-467/98 Commission of the European Communities v Kingdom of Denmark EU:C:2002:625.
- 52.
ECJ, Case C-122/95 Federal Republic of Germany v Council of the European Union, supra n. 50, paras 72 and 82.
- 53.
ECJ, Joined Cases 21 to 24/72 International Fruit Company NV and others v Produktschap voor Groenten en Fruit, supra, n. 14. A very detailed analysis of the ECJ’s case law on WTO law is present in Mendez (2013), pp. 174–249.
- 54.
Ibid., para 21.
- 55.
ECJ, Case C-377/02 Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB) EU:C:2005:121 and ECJ, Joined Cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc. v Council of the European Union and Commission of the European Communities EU:C:2008:476.
- 56.
ECJ, Joined Cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), supra n. 55, para 128.
- 57.
ECJ, Joined Cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), supra n. 55, para 129.
- 58.
See among others Peers (2001), p. 119.
- 59.
For a comprehensive empirical analysis of the case law on WTO agreements, see Mendez (2013), pp. 174–249.
- 60.
- 61.
von Bogdandy (2008), p. 406.
- 62.
Ibid., 407.
- 63.
ECJ, Case C-149/96 Portuguese Republic v Council of the European Union EU:C:1999:574.
- 64.
Ibid., para 45.
- 65.
Cf. again von Bogdandy (2008), p. 407. Similarly, Kaddous (2008), p. 312, notes that ‘The agreements discussed in this paper [i.e. the EU bilateral agreements considered in the previous subsection of the present chapter] all, to a greater or lesser extent, seek to extend rules that are similar or identical to Community rules towards third states and their nationals. This is not the case of the WTO agreements, in which no extension of Community rules is envisaged. The WTO rather seeks to create an “alternative” system of rules, to be applied between more than 150 Member States and to which the EC has committed itself. One might consider this as an explanation, among others, for the Court’s different approach towards integration of WTO norms into the Community legal order justifying that the principle of uniformity in the interpretation and application of the agreements bears some exceptions.’ See also Ruiz-Fabri (2014), p. 158, highlighting that ‘[a]mong the reasons given by the Court for its views [… there is the fact that] direct effect would engender a lack of reciprocity towards the other WTO members and result in the non-uniform application of WTO law.’
- 66.
It goes without saying that the use of the expression ‘protective approach’ should not be taken to suggest a negative assessment of the relevant ECJ case law. It is only meant to highlight the Court’s attitude to the equality and non-discrimination principles in relation to the legal effects accorded to WTO law. On the contrary, a negative assessment is implicit in the readings offered by some scholars who maintain that the Court’s denial of the direct effect of WTO law is motivated by a protectionist attitude of the Court itself for the benefit of specific traders. Cf. Kuilwijk (1996), p. 158. For a compelling critique of Kuilwijk’s arguments, see Berkey (1998).
- 67.
Lenaerts (2014), p. 58.
- 68.
Cf. ECJ, Case C-308/06 The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport EU:C:2008:312, para 64 (concerning the United Nations Convention on the Law of the Sea ).
- 69.
Cf. ECJ, Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky EU:C:2011:125, para 45, and ECJ, Joined Cases C-401/12 P to C-403/12 P Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht EU:C:2015:4, para 55, and ECJ, Joined Cases C-404/12 P and C-405/12 P Council of the European Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe EU:C:2015:5, para 60 (concerning the direct effect of Article 9(3) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters).
- 70.
ECJ, Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change EU:C:2011:864, paras 73–77 (concerning the direct effect of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and, particularly, of its Article 2(2)).
- 71.
- 72.
OJ 2011 L 127/6.
- 73.
OJ 2012 L 354/3. In July 2014 an agreement was reached to allow Ecuador to accede to the Trade Agreement with Colombia and Peru. The approval procedures are still pending (source: http://ec.europa.eu/trade/policy/countries-and-regions/regions/andean-community/; accessed 31 December 2016).
- 74.
Cf. ex multis, ECJ, Joined Cases C-404/12 P and C-405/12 P Council of the European Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, supra n. 69, para 45.
- 75.
Tancredi (2012), p. 264.
- 76.
- 77.
Supra Sect. 3.2.1.
- 78.
That circumstance has recently been highlighted by Maresceau in a speech titled ‘The role of the EU in international relations with special regard to the neighbourhood’, which he gave at the FIDE XXVII Congress (Budapest, 18–21 May 2016).
- 79.
The Economic Partnership Agreement with Cameroon, the Central African Republic, Chad, Congo, the Democratic Republic of Congo, Equatorial Guinea, Gabon, Sao Tome and Principe is currently under negotiations. Source: http://ec.europa.eu/trade/policy/countries-and-regions/regions/central-africa/ (accessed 31 December 2016). The EU is also negotiating an EPA with Djibouti, Eritrea, Ethiopia, Sudan, Malawi, Zambia, Zimbabwe, Comoros, Mauritius, Madagascar and Seychelles. Source: http://ec.europa.eu/trade/policy/countries-and-regions/regions/esa/ (accessed 31 December 2016).
- 80.
The text of the Agreement is available at http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1471098875568&uri=CELEX:52016PC0008 (accessed 31 December 2016).
- 81.
Doc. COM(2016) 8 final, 22 January 2016, Art. 4. On 1 June 2016, the Council authorised the signature and provisional application (source: http://www.consilium.europa.eu/en/press/press-releases/2016/06/01-epa-sadc/; accessed 31 December 2016).
- 82.
Doc. COM(2016) 63 final, 11 February 2016, Article 4.
- 83.
Text available at http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1471099204852&uri=CELEX:52016PC0063 (accessed 31 December 2016).
- 84.
Doc. COM(2014) 578 final, 15 September 2014.
- 85.
Text available at http://ec.europa.eu/trade/policy/countries-and-regions/regions/west-africa/ (accessed 31 December 2016).
- 86.
As is well known, the need for a more coherent approach to shaping the EU’s external action is a mantra of the post-Lisbon narrative on the EU’s role at a global level. For a recent example of such a narrative, see the Global Strategy for the European Union’s Foreign and Security Policy adopted in June 2016 (and available at https://europa.eu/globalstrategy/sites/globalstrategy/files/eugs_review_web.pdf; accessed 31 December 2016). See also, inter alia, Duke (2011), den Hertog and Stroß (2013), and Hillion (2013).
- 87.
In fact this is the expression the drafters used for the clause precluding the direct effect of some bilateral agreements. See, for instance, Article 17(15) of the FTA with Columbia and Peru and Article X(19) of the EU-Vietnam FTA (available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437; accessed 31 December 2016).
- 88.
Article 84.
- 89.
Article 17(15) of the FTA only changes the incipit of the formula, which reads as follows: ‘For greater certainty, nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons, other than those created between the Parties under public international law’; emphasis added. The text of the Agreement, which has been referred by the European Commission to the Court of Justice for a request of an Opinion pursuant to Article 218(11) TFEU (Opinion 2/15, OJ 2015 C 363/18), is available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=961 (accessed 31 December 2016).
- 90.
OJ 2012 L 346/3.
- 91.
Emphasis added.
- 92.
Semertzi (2014), p. 1131.
- 93.
The EU legislature has decided to preclude the direct effect of the agreement. See Article 7 of Council Decision No. 2012/734/EU on the signing and provisional application of the Agreement (OJ 2012 L 346/1). Recital No. 9 of the decision sheds light on the rationale of that preclusion, recalling that it was appropriate, pursuant to Article 356 of the Agreement, to clarify that it was lacking in direct effect. See also infra Sect. 3.4.2.
- 94.
Article X(19); emphasis added. The text of the Agreement is available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1449 (accessed 31 December 2016).
- 95.
The text of the CETA has been adopted by the parties. It is available as Annex 1 to the European Commission’s Proposal for the Council Decision on its provisional application (doc. COM(2016) 470 final, 5 July 2016). Cfr. http://eur-lex.europa.eu/resource.html?uri=cellar:b922cc35-4357-11e6-9c64-01aa75ed71a1.0001.02/DOC_2&format=PDF (accessed 31 December 2016).
- 96.
Nollkaemper (2014), p. 109. A similar observation can be made in respect of international organizations.
- 97.
ECJ, Joined Cases C-404/12 P and C-405/12 P Council of the European Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, supra n. 69, para 45.
- 98.
See Annexes IV A–F to the EPA between the CARIFORUM States, of one part, and the European Community and its Member States, of the other part (OJ 2008 L 289/3); Annex 7-A-1, Annex 7-A-2, Annex 7-A-3, Annex 7-A-4, and Attachment II to the FTA with Korea; Annexes XXVII A–H to AA with Moldova (OJ 2014 L 260/4); Annexes XIV A–H to the AA with Georgia (OJ 2014 L 261/4); Annexes XVI A–C, XVI F to the AA with Ukraine (OJ 2014 L 161/3).
- 99.
Although hardly the preferable solution, the combination of the two different techniques is not excluded in the practice. For instance, both techniques are present in the above-mentioned Agreements with Canada, Central America, Colombia and Peru, Singapore, and Vietnam.
- 100.
See Article 318(2) of the Trade Agreement with Colombia and Peru. A similar provision is contained in the Agreements with Central America (Article 323(1)), Georgia (Article 266(2)), Iraq (Article 77(2) of the Partnership and Cooperation Agreement, OJ 2012 L 204/20), Kazakhstan (Article 195(3) of the Enhanced Partnership Cooperation Agreement, OJ 2016 L 29/3), Korea (Article 14(17)), Moldova (Article 402(2)), Singapore (Article 15(19)(2)), Ukraine (footnote 1 to Chapter 14 of the Association Agreement), and Vietnam (Article 22(2)). Quite significantly, this technique has also been deployed as part of the dispute-settlement mechanism negotiated between the Union and associated countries in trade matters: see, for instance, Article 18(2) of the related Protocol to the Euro-Mediterranean Agreement establishing an association with Egypt (OJ 2011 L 138/3); Article 18(2) of the Protocol to the Euro-Mediterranean Agreement establishing an association with Jordan (OJ 2011 L 177/3); Article 18(2) of the Protocol to the Euro-Mediterranean Agreement establishing an association with Lebanon (OJ 2010 L 328/21); Article 18(2) of the Agreement between the European Union and Morocco establishing a dispute settlement mechanism (OJ 2011 L 176/2); and Article 18(2) of the Protocol to the Euro-Mediterranean Agreement establishing an association with Tunisia (OJ 2010 L 40/76).
- 101.
ECJ, Joined Cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), supra n. 55, para 128. For a more detailed analysis of the interaction between direct effect and dispute-settlement mechanisms, see Bonafé (2012).
- 102.
For a similar view, see Semertzi (2014), pp. 1131–1134, who also points out that the denial of direct effect of panel rulings is not present in the recent EU bilateral agreements whose dispute-settlement bodies cannot arbitrate on a party’s rights and obligations under the WTO agreement. See, for instance, the EPA with the SADC EPA States. See also infra, Sect. 3.4.3, for a further discussion on the interaction among those agreements and WTO law.
- 103.
The cohabitation is present in the Agreements with Central America, Colombia and Peru, Korea, Singapore, and Vietnam. All these agreements also exclude the direct effect in services schedules.
- 104.
For an updated survey of the ongoing trade negotiations, see European Commission, Overview of FTA and other trade negotiations, updated May 2016, available at http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf (accessed 31 December 2016). See also Fahey (2016).
- 105.
Source: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1230 (accessed 31 December 2016).
- 106.
Cf. Article X(14) of the EU proposal tabled for discussion with the US in the negotiating round of 11–15 July 2016, which reads as follows: ‘1. Nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons, other than those created between the Parties under public international law. 2. No Party may provide for a right of action under its law against the other Party on the ground that a measure of the other Party is inconsistent with its obligations under this Agreement, or that the other Party has otherwise failed to carry out its obligations under this Agreement.’ Document available at http://trade.ec.europa.eu/doclib/docs/2016/july/tradoc_154802.pdf (accessed 31 December 2016).
- 107.
Cf. doc. ‘Government-to-government dispute settlement (GGDS) in TTIP’, available at http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153021.8%20Dispute%20settlement.pdf (accessed 31 December 2016). Emphasis added.
- 108.
Article 218(5) TFEU. See also Flaesch-Mougin and Bosse-Platière (2014).
- 109.
Cf. Article 7 of the Council Decision No. 2012/734/EU on the signing and provisional application of the Agreement with Central America; Article 7 of the Council Decision No. 2012/735/EU on the signing and provisional application of the Trade Agreement with Columbia and Peru (OJ 2012 L 354/1); Article 4 of the Proposal for a Council Decision on the signing and provisional application of the EPA with Eastern African Community (doc. COM(2016) 63 final, supra n. 82); Article 6 of the Council Decision No. 2014/494/EU on the signing and the provisional application of the AA with Georgia (OJ 2014 L 261/1); Article 8 of the Council Decision No. 2011/265/EU on the signing and provisional application of the FTA with Korea (OJ 2011 L 127/1); Article 6 of the Council Decision No. 2014/492/EU on the signing and provisional approval of the AA with Moldova (OJ 2014 L 260/1); Article 4 of the Proposal for a Council Decision on the signing and provisional application of the EPA with the SADC EPA States (doc. COM(2016) 8 final, supra n. 81); Article 5 of the Council Decision No. 2014/295/EU on the signing and provisional application of the AA with Ukraine (OJ 2014 L 161/1) and Article 3 of the Council Decision No. 2014/669/EU on the same Agreement (OJ 2014 L 278/6). The actual text of the European Commission’s proposal for the Council decision on the CETA does not provide an ad hoc provision on the Agreement’s legal effect. However, Recital No. 7 recalls the CETA Article, excluding its direct effect. See doc. COM(2016) 470 final, supra n. 95.
- 110.
Supra n. 82 and 109.
- 111.
See Articles 10(a) and 18 of the 1969 Vienna Convention on the Law of Treaties , respectively. See also Gatti and Manzini (2012), p. 1723. It should be noted that ‘the Court has held that, even though the Vienna Convention on the Law of Treaties of 23 May 1969 does not bind either the European Union or all its Member States, that Convention reflects the rules of customary international law which, as such, are binding upon the EU institutions and form part of the legal order of the European Union’. Cf. ECJ, Case C-410/11 Pedro Espada Sánchez and Others v Iberia Líneas Aéreas de España SA EU:C:2012:747, para 21.
- 112.
See in particular infra Sect. 3.4.3.2.
- 113.
OJ 2016 L 71/3. The signing of the Agreement has been authorized by means of Council Decision No. 2015/1988/EU (OJ 2015 L 290/4).
- 114.
The expression ‘major bilateral agreements’ is used here in reference to bilateral contractual relations of the Union having a broad material scope of application. The expression does not intend to limit, much less deny, the importance of the other bilateral agreements the Union concluded in the relevant period.
- 115.
Supra Sect. 3.4.
- 116.
Semertzi (2014), pp. 1147–1149.
- 117.
Although references to WTO law may be found in all of the agreements listed in Table 3.1, the main influence may be noticed in the text of the agreements aimed at establishing a free-trade area in conformity with Article XXIV of GATT 1994 and Article V of the GATS (namely, the CETA, the AA with Central America, the Trade Agreement with Columbia and Peru, the AA with Georgia, the FTA with Korea, the Stabilization and Association Agreement with Kosovo, the AA with Moldova, the EPA with the SADC EPA States, the FTA with Singapore, the AA with Ukraine, and the FTA with Vietnam). In this respect, it does not come as a surprise that the new EU strategy recently adopted for trade and investment policy not only stresses that WTO ‘must remain the cornerstone of EU trade policy’ but also maintains that the ‘EU needs to pursue bilateral and regional agreements in a manner that supports returning the WTO to the centre of global trade negotiating activity’ (European Commission, Trade for All—Towards a More Responsible Trade and Investment Policy, doc. COM(2015) 497, 14 October 2015, paras 5.1 and 5.1.2, respectively).
- 118.
Supra Sect. 3.3.
- 119.
- 120.
See again Semertzi (2014), p. 1149.
- 121.
ECJ, Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd, supra n. 30, para 9.
- 122.
ECJ, Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, supra n. 6.
- 123.
Supra Sect. 3.2.1.
- 124.
Supra n. 109.
- 125.
Obviously, this would also lead to undermining the protection of Ukrainian workers against discrimination on grounds of nationality . See also Van der Loo (2016), p. 197, considering ‘paradoxical’ the possibility that ‘an old and less ambitious PCA with Russia would have more far-reaching direct legal implications than the EU-Ukraine AA.’
- 126.
OJ 1998 L 181/3.
- 127.
OJ 1999 L 205/3.
- 128.
Cf. Article 23 of the Partnership and Cooperation Agreement with Moldova and Article 20 of the Partnership and Cooperation Agreement with Georgia.
- 129.
Cf. Van Elsuwege (2016).
- 130.
- 131.
ECJ, Case C-327/97 Sezgin Ergat v Stadt Ulm EU:C:2000:133.
- 132.
Ibid., para 41.
- 133.
Díez-Hochleitner (1998), p. 92.
- 134.
This using to the techniques illustrated supra Sect. 3.4.1.
- 135.
Supra n. 97.
- 136.
- 137.
The text of the Commission’s proposal is available at http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf (accessed 31 December 2016). For an interesting analysis of this proposal on the basis of the theory of international adjudication, see Venzke (2016).
- 138.
European Commission, Investment in TTIP and beyond—The path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court (available at http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF; accessed 31 December 2016).
- 139.
Ibid., 9.
- 140.
This link is duly highlighted by the supporters of the ISDS mechanism , who consider the latter as compensation for the preclusion of direct effect: see Thym (2015).
- 141.
- 142.
Pigeon (2016), p. 13.
- 143.
Cf. Article 8(18) of the CETA, Article 9(11)(1) of the FTA with Singapore, and Article 1(1), Subsection 1, Section 3, Chapter 8, of the FTA with Vietnam.
- 144.
Though still too timid on the point, the available ECJ case law does not seem to a priori exclude the horizontal direct effect of EU agreements. For a further discussion on the matter, see Gáspár-Szilágyi (2015b).
- 145.
Cf. Legal Service of the European Parliament, Legal opinion on the compatibility with the Treaties of investment dispute settlement provisions in EU trade agreements, supra n. 50, paras 90 and 92.
- 146.
Echoes of the criticism expressed about the lack of protection for domestic investors are present, for instance, in the 2015 Opinion of the European Committee of the Regions on the TTIP, where the European Committee argues that ‘equality before the law must also apply in this context’ (OJ 2015 C 140/7). See also Bronckers (2015), p. 663, and Petersmann (2015), p. 599. From Article 21 TEU—requiring EU institutions to be guided in the EU external action ‘by principles which have inspired its own creation, development and enlargement’—the latter author infers the need to ‘follow the constitutional practice among European democracies of access to domestic judicial remedies for everybody based on “consistent interpretations ” and “direct applicability” of multilevel economic rules in domestic and regional courts that are better placed to address investor–state disputes than ad hoc arbitrators who are often private lawyers unfamiliar with national and European constitutional law’. Govaere (2016), pp. 13–14, recalls that the ECJ will have the chance to shed light on the matter in the next months. In March 2016, indeed, the German Bundesgerichtshof decided to refer a preliminary question in relation to ISDS mechanisms encapsulated in intra-Member States bilateral investment treaties, where the discriminatory access to ISDS is put into question in the light of the EU principle of non-discrimination (Decision of 3 March 2016 – I ZB 2/15, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2016&Sort=3&nr=74606&pos=1&anz=82; accessed 31 December 2016).
- 147.
At the universal level, reference has to be made in particular to Articles 2(1) and 26 of the 1966 International Covenant on Civil and Political Rights and Article 2(1) of the 1966 International Covenant on Economic, Social and Cultural Rights . At the regional level, cf. Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Additional Protocol No. 12, Article 1(1) of the American Convention on Human Rights , Article 2 of the African Charter on Human and Peoples’ Rights, and Article 2 of the Arab Charter on Human Rights . For an overview, see Henrard (2008).
- 148.
ECtHR , Dhahbi v Italy No. 17120/09, Judgment of 8 April 2014. For a comment on the case, see Biondi Dal Monte (2014).
- 149.
OJ 1998 L 97/2.
- 150.
ECtHR , Dhahbi v Italy No. 17120/09, supra n. 148, para 45.
- 151.
Ibid.
- 152.
The argument made by Italy that the difference of treatment was due in the case at issue to ‘budgetary reasons’ was not considered sufficient by itself to justify the difference in treatment complained of. Cf. ECtHR , Dhahbi v Italy No. 17120/09, supra n. 148, para 53.
- 153.
Supra Sect. 3.4.3.
- 154.
But see supra n. 110 and the corresponding text.
- 155.
Supra Sect. 3.4.3.
- 156.
Supra Sect. 3.4.1.
- 157.
Supra Sect. 3.4.3.
- 158.
Van der Loo (2016), pp. 196–197.
- 159.
ECJ, Case C-149/96 Portuguese Republic v Council of the European Union EU:C:1999:92, Opinion delivered on 25 February 1999, para 20.
- 160.
Van der Loo (2016), p. 197.
- 161.
Supra Sect. 3.4.3.
- 162.
Van der Loo (2016), p. 197.
- 163.
So far the Court has only assessed the validity of Council decisions on the signing of EU agreements. Obviously, the possibility of declaring the invalidity of a Council decision on the signing and provisional application of an EU agreement cannot be excluded. See Flaesch-Mougin and Bosse-Platière (2014), p. 301.
- 164.
Casolari (2014).
- 165.
- 166.
ECJ, Case C-425/13 European Commission v Council of the European Union EU:C:2015:483, para 69. The principle is enshrined in Article 13(2) TEU.
- 167.
ECJ, Case C-149/96 Portuguese Republic v Council of the European Union, supra n. 159, para 20.
- 168.
ECJ, Case C-53/96 Hermès International (a partnership limited by shares) v FHT Marketing Choice BV EU:C:1997:539, para 24.
- 169.
Supra Sect. 3.4.
- 170.
ECJ, Joined Cases C-404/12 P and C-405/12 P Council of the European Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, supra n. 69, para 45. According to AG Tesauro, ‘[t]his is enough […] to justify the view that, as there is no provision for the purpose agreed by all the contracting parties, the Recital in question cannot in any case be held to be susceptible of preventing the Court from coming to a different conclusion.’ Cf. ECJ, Case C-53/96 Hermès International (a partnership limited by shares) v FHT Marketing Choice BV, supra n. 168, para 24.
- 171.
Semertzi (2014), p. 1135, referring to a possible clash with the standstill clauses contained in EU trade agreements.
- 172.
These cases make reference to the Fediol and Nakajima exceptions: see Mendez (2013), pp. 197–199.
- 173.
Martines (2014), pp. 142–143. This is not, of course, the opinion of the Court, which has recently recalled that it ‘has consistently held that the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise’. Cf. ECJ, Joined Cases C-401/12 P to C-403/12 P Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, supra n. 69, para 54; emphasis added.
- 174.
Semertzi (2014), p. 1135.
- 175.
See, by analogy, ECJ, Case C-377/12 European Commission v Council of the European Union EU:C:2014:1903, para 61.
- 176.
As is well known, in the coming months the Court is expected to deliver, for the first time ever, an opinion on whether a draft international agreement (the PNR Agreement with Canada) is compatible with the CFR (AG Mengozzi delivered an opinion on that issue on 8 September 2016: Opinion 1/15, EU:C:2016:656). That precedent could make it easier to trigger Article 218(11) procedure to determine whether draft international agreements excluding direct effects are compatible with Article 4(3) TEU in conjunction with Articles 20 and 21 CFR. It is unlikely that a similar assessment will be carried out by the Court in the Opinion related to the FTA with Singapore for the questions submitted to the Court by the European Commission only deal with the allocation of competences among the Union and Member States in signing and concluding the Agreement (Opinion 2/15, supra n. 89).
- 177.
- 178.
See Cannizzaro (2012), characterising this approach as ‘neo-monism’.
- 179.
As discussed (supra Sects. 3.4.1 and 3.4.2), the techniques used to this end vary. This variety of solutions has prompted one commentator to wonder ‘whether the political leaders in the EU and its Member States are even aware of the inconsistencies between the various positions they have been adopting in respect of the enforcement of international law’ (Bronckers 2015, p. 664).
- 180.
Global Strategy for the European Union’s Foreign and Security Policy, supra n. 86.
- 181.
Ibid., 26–27.
- 182.
Supra Sect. 3.4.3.1.
- 183.
Supra Sect. 3.4.3.
- 184.
Semertzi (2014), pp. 1135–1136.
- 185.
A control whose features have led some authors to consider Union legislature as an agent of the ECJ. See Davies (2016).
- 186.
For a similar position, see Bronckers (2015), p. 668, maintaining that ‘[b]efore resorting to the draconian measure of denying direct effect to each and every provision in all bilateral trade agreements because of a supposedly insufficient integrationist drive, the EU (and its treaty partners) would do well to distinguish more clearly between more and less ambitious agreements’.
- 187.
Supra Sect. 3.4.3.2.
- 188.
Pescatore (2015), p. 135.
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Casolari, F. (2017). The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter?. In: Rossi, L., Casolari, F. (eds) The Principle of Equality in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-66137-7_3
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DOI: https://doi.org/10.1007/978-3-319-66137-7_3
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