Essay Exploring Direct Effect in the Context of European Union Law and International Treaties

The case law of the Court of Justice has introduced some fundamental principles into the functioning of the European Union. Thus, in 1963, in the Van Gend en Loos judgment, the court proclaimed the direct effect of European law, that is to say, the right for each litigant, whether citizen or business, to directly invoke this European law before a judge when he is in dispute with his State or with another natural or legal person. While the treaty very clearly provided that customs duties were prohibited between member states, the Van Gend en Loos company had been asked for such customs duties when crossing the Belgian-Dutch border. Without obviously contesting the existence of the text, the Netherlands had defended the thesis that this text of the treaty was ultimately only the equivalent of a convention between States and that it therefore only bound between them the signatories of this treaty, namely the States themselves even without creating any obligations for them vis-à-vis citizens or businesses. This denial of direct effect was the rule in classical international law, but the Court of Justice ruled that due to the specificity of the new European legal order, the creation of a new community of law, the direct effect should become the rule and no longer the exception on pain of seeing the system collapse.

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The direct effect refers to the conditions necessary for an individual to invoke a rule of European Union law, before national courts or administrations, to satisfy his interests. The requirements necessary for a rule to have a direct effect are familiar to public international law, particularly the conditions that are established in the international legal order for a rule to be self-executing. The direct effect was affirmed by the jurisprudence of the Court of Justice of the European Union (CJEU), requiring the invocable provision to be clear, precise, and unconditional, containing no reservation given to the Member State or requiring any implementing measures.

Regarding the primacy principle and the direct effect law, EU law takes precedence over the law of each state, in case of conflict. That is if the European standard says "A" but the country's standard says "B", what the European regulations say will be of preferential application, so that individuals (citizens and companies) can claim and invoke directly in their favor the European standard, both before the courts of one’s country and before the courts of the EU.

The “direct effect” of European law has two aspects that are worth highlighting: A vertical direct effect that works in relationships between individuals and various public administrations (for example, when a company bids for a public contract or when a European standard sets minimum environmental standards). A direct horizontal effect that intervenes in relationships between individuals, which means that an individual can directly enforce a European standard against another person (in this sense, the European consumer protection regulations against companies are very relevant). Although in this globalized world and increasingly polarized between large international actors, it is crucial to have harmonized rights and obligations of millions of citizens with very diverse social and political cultures(thus raising the level of legal protection for many of them), the direct effect law has several shortcomings.

Shortcomings of the Direct Effect Law

The direct effect has several shortcomings. The first main shortcoming is that it is poorly named. Although it sounds like it provides a simple and practical application of the EU in several situations, this is not the case. It is not only poorly constructed but also weighed down with qualifications and exceptions making it difficult to be easily applied. The notion of direct effect implies a situation where the rights and obligations of an individual are created directly at the international level. Individuals who have been granted rights or possibly imposed obligations under an international agreement remain subjects of internal law, and not of international law, they are only the beneficiaries of these international standards.

The CJEU shows a strong concern with the individual protection of citizens, emphasizing that the subjects of the treaties are not only the States but also the individuals, whose judicial protection would be vulnerable if they were exhausted in an action for non-compliance directed by the Commission against the States. Particularly important was the recognition of the direct effect of the rules contained in the Community directives, stating to the Court that such provisions would need to be sufficiently precise (i), that is to say, the rule in question cannot be too vague or generic, having to contain an obligation specific; they would have to be unconditional (ii), that is, the discretionary power of the State or any community body could not be interposed between the Community rule and its application.

By a teleological and objective interpretation, the Court first recognized the direct effect of a long list of provisions of the Treaties constituting the Communities as well as of provisions of secondary Community law, namely regulations, directives, and decisions. The Court has placed this notion at the center of the logic of this legal system: the direct effect has thus become one of the main characteristics and one of the pillars of this new autonomous legal system. There is, in fact, a kind of positive presumption in favor of the direct effect of Community provisions. On this point, Community law becomes substantially different from general international law.

The Court of Justice has also established a list of the objective characteristics that a Community standard must satisfy to recognize it as having a direct effect: the provision must be precise, clear, and unconditional in itself, and implementation must not be accompanied by subsequent measure and must leave no margin of appreciation as to its application. The actual will of the creator of this norm is not taken into account directly and must be deduced from the provision in question, and not from a subsequent authentic interpretation. Since this is a Community concept, it is for the Court of Justice to interpret it and determine its specific effects. This concept is, in a way, imposed from the community level to national law.

This principle of direct applicability results from community case law: against a State since 1963 (Van Gend en Loos judgment of 05/02/1963) and against an individual since 1976 (Defrenne judgment, 04/08/1976). While Community standards benefit from the principle of primacy over national law, they are not, however, all of the direct effects. Thus the direct effect is applicable for: first, all regulations which are by definition directly applicable in any Member State. Secondly, the decisions, have a direct effect of a vertical nature when designating a Member State as the recipient. Thirdly, the directives, have a direct effect of vertical nature only and under certain conditions: unconditional provisions that are clear and precise and if the Member States have not reversed the directive on time. Fourth, the international agreements concluded by the European Community if their provisions are sufficiently precise and unconditional.

Courts and tribunals are not always very clear in formulating criteria for direct effect. Sometimes the Court of Cassation recognizes the direct effect of the provision of an international treaty without any comment. In other cases, the Court simply applies the provision of the international treaty and does not even use the term 'direct effect'. In the Lootens judgment, for example, the Court of Cassation recognized for the first time the direct effect of a provision of the European Convention on Human Rights, to be specific Articles 5 and 8 of this convention. In doing so, the Court in no way referred to the criteria based on which it reached its conclusion. Additionally, courts and tribunals often implicitly recognize a direct effect of the provision of an international treaty. The implicit recognition of direct effect, in the present case of the Covenant on Civil and Political Rights, is most often deduced from the fact that the jurisdiction seized intends to meet fundamentally the means formed before it under the visa of provisions of the Covenant, which necessarily supposes that the direct effect has been recognized beforehand.

In light of this case law, it is not surprising that the doctrine also lacks consistency. Nevertheless, doctrine and jurisprudence have traditionally advanced two criteria that the provisions of an international treaty must meet to have a direct effect. The prerequisite is that the provision of the international treaty applies in the internal legal order, i.e. that the treaty is signed, approved by the legislative chambers, published and ratified at the international level, and entered into force.

The first criterion is the subjective criterion which refers to the intention of the parties to the treaty based on which individuals can invoke rights. Treaties, however, rarely contain explicit and unequivocal expressions of will by which rights are granted to individuals. The subjective criterion finds its origin in the jurisprudence of the Permanent Court of International Justice. In the case concerning the jurisdiction of the Danzig courts, the Court had to decide whether an agreement between the city of Danzig and the Polish Railways, created direct rights for Polish officials. The Court believed that the answer to this question depended on the intention of the parties to the treaty and decided that the agreement conferred rights on individuals. Since here the reference is made to the intention of the parties to the treaty, the criterion is international par excellence in the sense that in principle it must be applied equally in all legal orders of the parties to the treaty.

However, the application of the criteria formulated above gives rise to problems in the case law. The direct effect criteria have evolved and become more nuanced over time. On the one hand, the question of whether the provision of a treaty confers subjective rights, that is to say, the first criterion, has become less important. This is reflected above all in the use of the direct effect in what is called objective litigation where this criterion cannot be used. However, case law does not stick consistently to this new development. Additionally, there is often confusion regarding the question of what judges base themselves on when determining whether a provision is clear or not.

Furthermore, it is not certain that, when examining the criteria of direct effect, the judge is effectively guided by the intention of the parties and the terms of the provision of the treaty and that these techniques of interpretation tell the judge which direction to take. If it can be shown that the judge does not allow himself to be guided or allows himself to be guided superficially by the text of the treaty and the will of the parties to the treaty, and that, on this basis, it is not possible to help to find the conditions of direct effect, the danger of the activism of the judge is no longer imaginary. The judge then has the room to maneuver to confer direct effect on the provision of a treaty at his will and based on specific political considerations. On the other hand, it is not always clear to what extent there is already an interpretation of the treaty provision when determining direct effect in the first phase of the formation of the judgment.