A Look at EU International Agreements through a US Lens - Different methods of interpretation, tests...

EU International Agreements through a US Lens: Different Methods of Interpretation, Tests and the

Issue of “Rights”

By

Szilárd Gáspár-Szilágyi

Reprinted from European Law Review Issue 5, 2014

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Swiss Cottage London

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EU International Agreements through aUSLens:DifferentMethods of Interpretation, Tests and theIssue of “Rights”Szilárd Gáspár-Szilágyi*Aarhus University

Comparative law; Direct effect; Enforcement; European Court of Justice; European Union; Purposiveinterpretation; Treaties; Treaty interpretation; United States

AbstractInspired by the questions US courts and American scholarship ask when confronted with the domesticenforcement of international agreements, this article looks at the methods of interpretation and tests usedby the Court of Justice of the European Union (CJEU) in its “direct effect” analysis of internationalagreements, which are binding on the European Union, as well as the issue of “rights” and its role in the“direct effect” analysis. It is argued that the current case law is split when it comes to the methods ofinterpretation and tests used in the “direct effect” analysis. Moreover, the CJEU’s case law is not clearon whether a primary right or the right to seek a remedy needs to be conferred by international agreements,or whether a right should be conferred at all.

IntroductionThe idea of the current article finds its source in the questions that the US courts and American scholarsask when confronted with the domestic enforcement of international agreements: (1) How do treaties1

become the laws of the land? (2) When is a treaty judicially enforceable? (3) What does the notion of“self-execution” entail? (4) What methods of interpretation, judicial canons and factors do the courts useand take into consideration during the “self-execution” analysis? (5) How can private parties rely ontreaties and obtain remedies for their breach? Many of these questions are still hotly debated in Americanlegal literature and some of them have also undergone rigorous European scholarship. Recent Europeanresearch has focused on the way the EU legal order integrates international law,2 on the intricacies of

*PhD fellow. Former Grotius Visiting Research Fellow at University ofMichigan Law School. The author’s researchfocuses on the direct enforcement of international agreements and its consequences in the EU and US legal orders.He would like to express his gratitude towards Professor Karsten Engsig Sørensen (Aarhus University) and ProfessorDavid Sloss (University of Santa Clara) for their constructive comments.

1 In the United States the term “treaty” only refers to international agreements concluded under art.II of the USConstitution. Besides “treaties” the United States also concludes several types of “executive agreements”. SeeCongressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate(US Government Printing Office, 2001), p.38.

2E. Cannizzaro, P. Palchetti and R. Wessel (eds), International Law as Law of the European Union (Leiden:Brill/Nijhoff, 2012); M. Cremona, “Who Can Make Treaties? The European Union” in D. Hollis (ed.), The OxfordGuide to Treaties (Oxford: Oxford University Press, 2012).

6012014 E.L.Rev., Issue 5 © 2014 Thomson Reuters (Professional) UK Limited and Contributors

mixed agreements3 and on the usage of judicial avoidance techniques by the CJEU when faced withchallenges to EU law over its conformity with international agreements.4 However, it seems that some ofthe aforementioned questions have been tackled to a lesser extent in European scholarship.First, European scholarship does not devote enough criticism to the usage of the chameleon-type concept

of “direct effect” when discussing the effects of EU international agreements in the EU legal order. Onemust recall that “direct effect” was initially developed in order to describe the effects of EU law in theMember State legal orders.5 Therefore, caution should be applied when using this term in the context ofthe effects of international law in the EU legal order and when applying theoretical models developed inorder to explain the relationship between the primacy and direct effect of EU law to the world ofinternational agreements.6On the other hand, the US notion of “self-execution” was developed exclusivelyto explain the effects of treaties and other international agreements in the US legal order. Moreover, thereis ample academic and court discussion on the distinct issues the notion of “self-execution” mightencompass.7

Secondly, a more critical approach is needed to the methods of interpretation and approaches used bythe CJEU in its “two-tier direct effect test”8 of international agreements. The current case law is split. TheCJEU either commences the analysis with the overall nature and objectives of the agreement, in the courseof which purposive interpretation takes the centre role; or it starts the analysis with the wording of thespecific provision invoked by the claimant, with textual interpretation dominating the analysis. Incomparison, US legal literature focuses more extensively on the methods of interpretation and tests usedby the Supreme Court and federal courts when granting effects to international agreements.9 Even thoughthe Supreme Court has lately been favouring protectionist techniques, throughout its history the SupremeCourt has been fairly consistent on how it starts the “self-execution” analysis. It first looks at the text of

3C. Hillion and P. Koutrakos (eds),Mixed Agreements Revisited: The EU and its Member States in the World(Oxford and Portland: Hart Publishing, 2010); P. Eeckhout, EU External Relations Law (Oxford: Oxford UniversityPress, 2011), Ch.7.

4M.Mendez, “The Legal Effects of CommunityAgreements:Maximalist Treaty Enforcement and Judicial AvoidanceTechniques” (2010) 21 E.J.I.L. 83; M. Mendez, The Legal Effects of EU Agreements: Maximalist Treaty Enforcementand Judicial Avoidance Techniques (Oxford: Oxford University Press, 2013).

5For a recent discussion on the various facets of “direct effect”, see F. Martinez, “Direct Effect of InternationalAgreements of the European Union” (2014) 25 E.J.I.L. 129.

6K. Lenaerts and T. Corthaut, “Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law” (2006)31 E.L. Rev. 287, 298–300; K. Lenaerts and T. Corthaut, “Towards an Internally Consistent Doctrine on InvokingNorms of EU Law” in S. Prechal and B. van Roermund (eds), The Coherence of EU Law: The Search for Unity inDivergent Concept (Oxford: Oxford University Press, 2008), p.508. The authors apply the “primacy” model to theWTO case law. See also S. Gáspár-Szilágyi, “The ‘Primacy’ and ‘Direct Effect’ of EU International Agreements”forthcoming in European Public Law (May 2015).

7C. Vázquez, “The Four Doctrines of Self-Executing Treaties” (1995) 89 A.J.I.L. 695; D. Sloss, “Executing Fosterv. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties” (2012) 53 Harvard I.L.J. 135; Medellinv Texas 552 U.S. 491, fn.2 (2008).

8A term used by Koutrakos and Schütze. See P. Koutrakos, EU International Relations Law (Oxford and Portland:Hart Publishing, 2006), pp.241–244. R. Schütze, European Constitutional Law (Cambridge: Cambridge UniversityPress, 2012), p.339.

9C. Bradley, “Intent, Presumptions, and Non-Self-Executing Treaties” (2008) 102 A.J.I.L. 540; and C. Bradley,“Self-Execution and Treaty Duality” (2008) 1 Supreme Court Rev. 131 (on the use of the textualist method and theintent of the US treaty makers); Sloss, “The Two-Step Approach to Analyzing Self-Executing Treaties” (2012) 53Harvard I.L.J. 135 (offering a critique of the intent-based approach); C. Vázquez, “Treaties as Law of the Land: TheSupremacy Clause and the Judicial Enforcement of Treaties” (2008–09) 122 Harvard L. Rev. 599 (intent of thecontracting parties v intent of the US treaty makers); S. Riesenfeld and F. Abbott, “The Scope of U.S. Senate Controlover the Conclusion and Operation of Treaties” (1992) 67 Chicago-Kent L. Rev. 571 (on non-self-executingdeclarations).

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the specific treaty provision being invoked and only afterwards does it consider other factors such as thetreaty’s nature, purpose, drafting history and the intent of the contracting parties or the US treaty makers.10

Thirdly, academic discussion is needed in the European Union on whether international agreementsneed to confer a primary right,11 a right to seek a certain remedy, or whether they can be relied on, evenif no right is granted to private parties. There is heated debate on this issue in the United States. Theinternationalists or transnationalists favour the extensive enforcement of treaty rights and argue that treatiesonly need to confer a “primary right” on the claimant. Nationalists, on the other hand, favour the limitedenforcement of treaty rights and argue that a treaty has to confer both the primary right and the right toseek a specific remedy.12

With the above in mind, this article seeks to achieve several goals. First, to critically look at how theCJEU handles the aforementioned three major issues: terminological and analytical clarity, differentmethods of interpretation, and the place of “rights” in the “direct effect” analysis. Secondly, to initiatefurther academic debates; and thirdly, to provide a set of suggestions in the hope of providing a better andmore consistent way of enforcing international agreements in the European Union.Before continuing, the limits of the current article also have to be set. First, unlike their American

counterparts,13 Member States of the European Union are sovereign entities with treaty-making powers.Still, this article is only concerned with agreements which are “binding” on the European Union, be theysole EU or “mixed” agreements. Secondly, this article only looks at the private enforcement of internationalagreements.14 Thirdly, the issue of damages for breaches of international agreements is succinctly touchedupon and it will be dealt with in more detail in a subsequent comparative article15 with the United States.Fourthly, the aim is not to provide a comparative study of the way in which the two legal orders handlethe enforcement of international agreements, or to apply the otherwise intricate and complex US doctrineof “self-executing” treaties in the EU context. This article only focuses on treaty enforcement in theEuropean Union, by asking certain questions American courts and academics were confronted with overthe more than 200-year-old US jurisprudence on treaty enforcement, hoping that some new angles can betaken to elucidate European problems.As to its structure, the second part is meant to provide some terminological and analytical clarity by

pointing out several distinct steps which should be taken during the direct enforcement of internationalagreements. The third part handles in detail the two different approaches the CJEU uses when grantingeffects to international agreements, focusing on the methods of interpretation. This is followed by therarely discussed issue of “rights” and their role in the direct enforcement process. The last part is reservedfor several suggestions. Throughout this work, references will be made to the US way of handling suchmatters.

10Chew Heong v United States 112 U.S. 536 (1884); Bacardi Corp v Domenech 311 U.S. 150 (1940); SumitomoShoji America, Inc v Avagliano 457 U.S. 176 (1982); El Al Israel Airlines, Ltd v Tsui Yuan Tseng 525 U.S. 155 (1999);Breard v Greene 523 U.S. 371 (1998); Federal Republic of Germany v United States 526 U.S. 111, 111 (1999);Sanchez-Llamas v Oregon 548 U.S. 331 (2006);Medellin v Texas 552 U.S. 491 (2008).

11The terms are explained in more detail in the section “What about private rights and remedies?”, below.12For further discussions see Vázquez, “Treaty-based Rights and Remedies of Individuals” (1992) 92 Columbia

L. Rev. 1082; D. Sloss, “When do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks theIssue in Hamdan and Sanchez-Llamas” (2006) 45 Colum. J. Transnat'l L. 20; S. Kalantry, “The Intent-to-Benefit:Individually Enforceable Rights Under International Treaties” (2008) 44 Stanford J. Int. L. 63; D. Sloss, “The UnitedStates” in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge UniversityPress, 2010).

13US Constitution art.1, §10: “No State shall enter into any Treaty, Alliance, or Confederation …”.14 In a previous article the reliance of Member States on international agreements has been handled. See S.

Gáspár-Szilágyi, “EU Member State Enforcement of ‘Mixed’ Agreements and Access to Justice: Rethinking DirectEffect” (2013) 40 L.I.E.I. 163.

15Currently under review.

A Look at EU International Agreements through a US Lens 603


Direct integration, application or effect?This part will demonstrate some initial analytical and terminological clarity before continuing with themore intricate issues of the different methods of interpretation used during the “direct effect” analysis andthe question of “rights”.The first question courts on both sides of the Atlantic are faced with is whether the international

agreement becomes part of domestic law. The process of turning international law into domestic law cantake place in different ways and different authors use different terms to describe similar incorporationmethods.16 In order to keep in line with the CJEU’s terminology,17 this article uses the term “directintegration” when referring to the process of integrating an international agreement into the domestic legalorder, without further transposing measures.Even though the Supremacy Clause in the United States declares “all treaties” concluded under the

authority of the United States to be “supreme law of the land”,18 both nationalists andinternationalists/transnationalists agree that treaties cannot come into conflict with the federal Constitutionor with the internal division of competences.19 Compared with its US counterpart, art.216(2) TFEU is lessgenerous on the question of “direct integration” as it only declares international agreements concluded bythe European Union to be binding on the European Union’s institutions and the Member States. Someauthors read this as a confirmation of the monist approach, as there is no need for international law to betransposed into EU law.20 However, defining the European Union as a purely monist system, basing thisclassification only on the provisions of the TFEU, would lead to an erroneous conclusion.21 The CJEUfilled in the gaps of art.216(2) TFEU, and fromHaegeman onwards has consistently held that agreementswhich bind the Union form an “integral part” of EU law. However,22 in order for an agreement to beconsidered as such it has to pass a set of obstacles.23

16The often-cited and traditional methods are that of monism and dualism. See Schütze, European ConstitutionalLaw (2012), p.306. D. Sloss, “Domestic Application of Treaties” in D. Hollis (ed.), The Oxford Guide to Treaties(Oxford: Oxford University Press, 2012), p.368.Mendez introduces the concepts of “automatic” and “non-automatic”treaty incorporation. See Mendez, The Legal Effects of EU Agreements (2013), p.17 and beyond. In his classic articleWinter talks about turning international law into domestic law through the “adoption” or the “transformation” of theinternational agreement. See J. Winter, “Direct Applicability and Direct Effect: Two Distinct and Different Conceptsin Community Law” (1972) 9 C.M.L. Rev. 425, 427.

17The CJEU considers international agreements to be an “integral part” of EU law.18United States Constitution art.VI.2. Following the controversialMedellín v Texas 552 U.S. 491(2008), some

authors raised concerns that it was not clear whether the Supreme Court meant that non-self-executing treaties arenot part of US law or that they are part of US law, but are not judicially enforceable. See Bradley, “Self-Executionand Treaty Duality” (2008) 1 Supreme Court Rev. 131, 150.

19Reid v Covert 354 U.S. 1, 17 (1956); Restatement (Third) of the Foreign Relations Law of the United States(1987), p.43; Vázquez, “The Four Doctrines of Self-Executing Treaties” (1995) 89 A.J.I.L. 695; D. Moore, “Do U.S.Courts Discriminate against Treaties?: Equivalence, Duality, and Non-Self-Execution” (2010) 110 Columbia L. Rev.2228, 2233.

20K. Kuilwijk, The European Court of Justice and the GATT Dilemma: Public Interest versus Individual Rights?(Beuningen: Nexed Editions, 1996), p.84; C. Kaddous, “Effects of International Agreements in the EU Legal Order”in M. Cremona and B. de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford: HartPublishing, 2008), p.293.

21See R. Wessel, “Reconsidering the Relationship between International and EU Law: Towards a Content-BasedApproach?” in International Law as Law of the European Union (2012).

22Haegeman v Belgian State (181/73) [1974] E.C.R. 449; [1975] 1 C.M.L.R. 515 at [5]–[6]; Meryem Demirel vStadt Schwäbisch Gmünd (12/86) [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421 at [7]; Biret International SA v Council(C-93/02 P) [2003] E.C.R. I-10497; [2006] 1 C.M.L.R. 17 at [60]; Lesoochranárske zoskupenie VLK v Ministerstvoživotného (Slovak Brown Bear) (C-240/09) [2011] 2 C.M.L.R. 43 at [30].

23See J. van Rossem, “The EU at Crossroads: A Constitutional Inquiry into the Way International Law is Receivedwithin the EU Legal Order” in International Law as Law of the European Union (2012), p.78.



First, according to the CJEU the EU legal order is separate from public international law,24 andinternational agreements must respect the constitutional values of the European Union,25 as well as itsinternal division of competences.26 Von Bogdandy is of the opinion that the relationship betweeninternational law and domestic law should be understood in the spectrum of “legal pluralism”.27 However,the CJEU’s highly pluralistic approach in the post-Kadi era seems to contrast with the European Union’straditional image of respecting international law.28

Secondly, the European Union can become bound by an agreement even when it is not a party to it if,in the fields covered by the agreement, it has taken over the powers previously exercised by the MemberStates in their entirety.29 This method has only been successfully applied to the GATT 1947, but wasunsuccessfully invoked for the Marpol Convention,30 the Warsaw Convention31 and the ChicagoConvention.32 Furthermore, under the doctrine of delegation, the European Union can be bound by aninternational agreement to which it is formally not a party if theMember States, when ratifying or accedingto the agreement, acted in the interest and on the behalf of the Union and there is EU legislation in placewhich functions as an incorporating device for the agreement.33

Thirdly, even though according to the CJEU all agreements that bind the European Union form anintegral part of the EU legal order, it allows Member State courts to decide on the effects of those partsof mixed agreements which fall under exclusive Member State competence.34 Therefore, at least for thepurposes of their effects, it seems that only those parts of mixed agreements form an integral part of EUlaw which fall under exclusive or shared EU competences.35

Fourthly, according to the CJEU, international agreements signed exclusively by the European Unionor “mixed” agreements have primacy over secondary EU law.36 Therefore, they are situated between the

24Van Gend en Loos v Nederlandse Administratie (26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105 at [12]; Opinion1/91, on the conclusion of the EEA Agreement, Recital 21.

25Kadi and Al Barakaat International Foundation v Council and Commission (Kadi I) (C-402/05 P and C-415/05P) [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41 at [285];European Commission v Kadi (Kadi II) (C-584/10 P, C-593/10P and C-595/10 P) [2014] 1 C.M.L.R. 24 at [67]. This approach is extremely similar to the Solange approach usedby the German Constitutional Court.

26Commission v Ireland (Mox Plant) (C-459/03) [2006] E.C.R. I-4635; [2006] 2 C.M.L.R. 59 at [123].27A. von Bogdandy, “Pluralism, Direct Effect, and The Ultimate Say: On the Relationship between International

and Domestic Constitutional Law” (2008) 6 I.J.C.L. 397, 405.28L. Gordillo, Interlocking Constitutions: Towards and Interordinal Theory of National, European and UN Law

(Oxford: Hart Publishing, 2012), pp.308–309.29 International Fruit Company v Produktschaap voor Groenten (21/72) [1972] E.C.R. 1219; [1975] 2 C.M.L.R. 1

at [14]–[18]. See Cremona, “Who Can Make Treaties?” in The Oxford Guide to Treaties (2012).30 International Convention for the Prevention of Pollution from Ships 1973 and modified in 1978 (Marpol 73/78).

See Criminal Proceedings against Peralta (C-379/92) [1994] E.C.R. I-3487 at [16]; and Intertanko v Secretary ofState (C-308/06) [2008] E.C.R. I-4057; [2008] 3 C.M.L.R. 9 at [49].

31Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 (WarsawConvention); Irène Bogiatzi v Deutscher Luftpool (C-301/08) [2009] E.C.R. I-10185 at [27]–[34].

32Convention on International Civil Aviation 1944 (Chicago Convention); Air Transport Association of Americav Secretary of State for Energy and Climate Change (C-366/10) [2012] 2 C.M.L.R. 4 at [61]–[71].

33Rossem, “The EU at Crossroads” in International Law as Law of the European Union (2012), p.78. Libor Cipraand Vlastimil Kvasnicka v Bezirkshauptmannschaft Mistelbach (C-439/01) [2003] E.C.R. I-745 at [23]–[24] is theonly case thus far in which the CJEU used this technique.

34Parfums Christian Dior SA v TUK Consultancy BV (C-300/98 and C-392/98) [1998] E.C.R. I-11344; [2001]E.T.M.R. 26 at [49];Merck Genéricos v Merck & Co (C-431/05) [2007] E.C.R. I-7001; [2007] 3 C.M.L.R. 49 at [34];Slovak Brown Bear (C-240/09) [2011] 2 C.M.L.R. 43 at [32].

35See also E. Neframi, “Mixed Agreements as a Source of European Union Law” in International Law as Law ofthe European Union (2012), pp.291–324.

36Commission v Germany (International Dairy Agreement) (C-61/94) [1996] E.C.R. I-3989; [1997] 1 C.M.L.R.281 at [52]; Bellio Fratelli Srl v Prefettura di Treviso (C-286/02) [2004] E.C.R. I-3465; [2004] 3 C.M.L.R. 34 at [33];



founding Treaties and secondary EU legislation.37 From an EU law perspective,38 EU law also has primacyover Member State law and, because international agreements which bind the European Union form anintegral part of EU law, they will also have primacy over Member State law.Once the agreement passes the constitutional hurdles set up by the domestic legal order, the next question

is whether it can be enforced directly by the courts. Using the words of Professor Van Alstine, mostsystems which directly integrate international agreements are “hybrid monist” as not all internationalagreements may be judicially enforceable in their domestic legal orders.39 The question of judicialenforceability implies more than just the analysis of the overall agreement or provisions of it. The internaldivision of competences and the question of which branch of government has the power to enforce theagreement becomes an important factor.40 Moreover, in the case of federal states or federal-like entitiessuch as the European Union, another dilemma emerges when an international agreement covers a field ofinternal competence which at least partially lies in the hands of the constituent state.41

After an agreement is held to be judicially enforceable, the last question in need of an answer is whetherprivate parties can rely on it and obtain remedies. This is an area where more analytical clarity is neededin the European Union. In the United States the notion of “self-execution” was developed in order todescribe those types of treaties which could function as judicially enforceable law without the need ofCongressional action.42 However, most US authors and the Supreme Court agree that the issue ofself-execution and the issue of rights and remedies must be separated. On the other hand, the CJEU usesthe concepts of “direct applicability”43 and “direct effect” interchangeably, concepts which it originallydeveloped to describe the effects of primary and secondary EU law in the Member State legal orders, andwhich often entail the creation of rights. However, caution should be applied when using these terms inorder to describe the effects of international agreements.First, it must be recalled that the direct effect of EU law was developed in a time when a new body of

supranational law had to be legitimised in the domestic legal orders of the Member States and the privateenforcement of EU rules before Member State courts had to be assured. The question of direct effect arosein a case launched by a private party. Thus, “rights” became intertwined with “direct effect”, without aclear analytical separation between the question of judicial enforceability and the creation of rights.Secondly, even though international agreements form an “integral” part of the EU legal order and are

thus a source of EU rights, they are a product of diplomacy and are drafted as much for political purposes

Intertanko (C-308/06) [2008] E.C.R. I-4057 at [42]; Kadi I (C-402/05 P and C-415/05 P) [2008] E.C.R. I-6351 at[307]; Air Transport Association of America (C-366/10) [2012] 2 C.M.L.R. 4 at [50].

37S. Marsden, “Invoking Direct Application and Effect of International Treaties by the European Court of Justice:Implications for International Environmental Law in the European Union” (2011) 60 I.C.L.Q. 737, 742.

38For a discussion on how the primacy of EU law, direct effect and the issue of competence interrelate see M.Avbelj, “Supremacy or Primacy of EU Law—(Why) does it Matter?” (2011) 17 E.L.J. 744.

39M. van Alstine, “Summary and Conclusions” in The Role of Domestic Courts in Treaty Enforcement (2010),p.578.

40 J. Wouters and L. De Smeet, “The Legal Position of Federal States and their Federated Entities in InternationalRelations—The Case of Belgium”, Working Paper No.7, K.U. Leuven, Institute for International Law (2011), p.21,available at http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP07e.pdf [Accessed September 19, 2014].

41 J. Weiler, “The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle” in J. Weiler,The Constitution of Europe: “Do the New Clothes have an Emperor?” (Cambridge: Cambridge University Press,1999), p.133.

42See M. Garcia, “International Law and Agreements: Their Effect upon U.S. Law”, CRS Report for Congress7-5700 (January 26, 2010), p.7.

43On the different meanings of the “direct applicability” of EU law see Winter, “Direct Applicability and DirectEffect” (1972) 9 C.M.L. Rev. 425, 436, who differentiates between the “direct applicability” of regulations as foundin art.288 TFEU, and “direct applicability” in the sense of creating rights which individuals can enforce before thecourts.



as for legal effect.44 According to the CJEU their effects within the European Union cannot be determinedwithout taking into account their international origin.45 This “outside” origin can explain why the reasonsfor considering EU law as directly effective may not necessarily apply to international law binding on theUnion, even where a provision of an international agreement would be capable of having direct effect asa similarly worded provision of EU law.46According to Professor DeWitte, the CJEU takes a less generousview on the conditions needed for the direct effect of international agreements in the EU and MemberState legal orders than it takes for the conditions needed for the direct effect of domestic EU law.47 Thisoutside origin also means that the CJEU might take into consideration factors which are not consideredwhen the effects of EU law are concerned, such as whether the parties have decided on the effects of theagreement,48 separation of powers issues or the balancing of domestic policies and external interests ofthe European Union.49

Thirdly, in the process of legitimising EU law, the EEC Treaty and later on the Treaties gainedconstitutional significance, which international agreements do not possess as they are based on the formalconsensus of the contracting parties. Compared with the ambitious objectives of the Treaties, mostinternational agreements pursue more modest aims.50

With the above in mind, it would have been wiser if the CJEU had chosen a more neutral concept,which is less prone to confusion, such as direct judicial enforceability, in order to define the capacity ofan international agreement to function in the EU legal order as law, which can be directly applied by thecourts. Once this test was satisfied, the question of creation of individual rights would have depended onwhether a private party, a Member State or an EU institution sought to invoke the agreement and thereasons for invoking the agreement.51 If the Court chose to use already existing terms, it could have madea clear distinction between the concept of “direct applicability”, in order to define the former analyticalstep and “direct effect”, in order to define the latter analytical step.

Different approaches, different methods of interpretationAs mentioned in the introduction, the CJEU applies a two-tier “direct effect” test. The “nature, objectiveor purpose” analysis refers to the international agreement as a whole. On the other hand, the “sufficientlyclear, precise and unconditional” test refers to a specific provision of the agreement. However, it is notthe existence of these conditions but their construction that has an effect on the direct effect formula.52

The CJEU’s case law can be split into two categories: the cases in which it first looks at the overallagreement and then the specific provision, with a dominance of purposive interpretation, and cases in

44A. Glashauser, “Difference and Deference in Treaty Interpretation” (2005) 40 Villanova L. Rev. 25, 30–31.45Hauptzollamt Mainz v C.A. Kupferberg & Cie KG aA (Kupferberg) (104/81) [1981] E.C.R. 3641; [1983] 1

C.M.L.R. 1 at [17]; Biret (C-93/02 P) [2003] E.C.R. I-10497 at [60]; FIAMM and Fedon v Council and Commission(C-120/06 P and C-121/06 P) [2008] E.C.R. I-6513 at [108].

46J. Bourgeois, “Effects of International Agreements in European Community Law: Are the Dice Cast?” (1983–84)82 Michigan Law Review 1250, 1261.

47B. de Witte, “Direct Effect, Primacy and the Nature of the EU legal Order” in P. Craig and G. de Búrca (eds),The Evolution of EU Law, 2nd edn (Oxford: Oxford University Press, 2011), p.336.

48Kupferberg (104/81) [1981] E.C.R. 3641 at [17]; Portugal v Council (C-149/96) [1999] E.C.R. I-8395 at [34];Air Transport Association of America (C-366/10) [2012] 2 C.M.L.R. 4 at [49].

49Handled in the section “The GATT and the WTO test” below.50G. Bebr, “Agreements Concluded by the Community and their Possible Direct Effect: From International fruit

Company to Kupferberg” (1983) 20 C.M.L. Rev. 35, 37.51Netherlands v Parliament and Council (C-377/98) [2001] E.C.R. I-7079; [2001] 3 C.M.L.R. 49 at [54] is an

oddity, because it is one of those rare occasions when the Court expressly differentiates between “direct effect” inthe sense of the creation of individual rights and in the sense of a Member State’s possibility to review EU legislationfor its conformity with international agreements.

52Koutrakos, EU International Relations Law (2006), p.241.



which the specific provision takes the centre role, with textual interpretation being dominant. While theUS trend in recent decades is to apply protectionist measures to treaty enforcement, US case law is fairlyconsistent when it comes to how the courts begin the self-execution analysis. US courts first look at thetext of the specific provision and then take into consideration more general factors such as the purposeand objectives of the agreement, its drafting history or the intent of the US treaty makers or the contractingparties.

The “general to specific” approach—the dominance of purposive interpretationIn a number of high-profile cases the CJEU decided to first look at international agreements as a wholein order to ascertain whether they were of a nature to be applied by the courts.53 If this test was satisfied,it then turned to the clear, precise and unconditional nature of the specific provision being invoked. Thissection first looks at this method in the context of the GATT and WTO cases, and then looks at how thisapproach was applied to other agreements.

The GATT and WTO testThe effects of the WTO Agreement never caused too much controversy in the United States. The WTOAgreement was adopted as a congressional executive agreement, approved by both Houses of Congressthrough statute.54 Congress enacted the Uruguay Round Agreements Act (1994, URAA) which providesthat any conflicting provisions of the Uruguay Round agreements with US law shall not have effect.55 Italso contains special provisions relating to the relationship of these agreements to state law.56 Furthermore,private parties do not have a cause of action and cannot obtain private remedies based on the agreements.57

In other words, the US legislative power reserved the right to decide on the effects of these agreements.On the other hand, the Council of Ministers never enacted such an unambiguous piece of implementinglegislation when adopting the WTO agreements. Council Decision 94/800 approving the Uruguay Roundagreements only states in Recital 14 of its Preamble that they are “not susceptible to being directly invokedin Community or Member State courts” and does not clearly specify their effects vis-à-vis private parties,Member State or EU institutions. Therefore, it was up to EU judiciary to decide on the effects of theWTOagreements.The GATT and the WTO methods58 are not identical, but have similar features. In its case law on the

GATT, the CJEU first looked at the “spirit, general scheme and terms” of the agreement, regardless ofwhether it was relied on in an action for annulment or in art.267 TFEU proceedings, and regardless of

53P. Kuijper, “Epilogue: Symbiosis?” in J. Prinssen and A. Schrauwen (eds), Direct Effect: Rethinking a Classicof EC Legal Doctrine (Groningen: Europa Law, 2002), p.258. For a thorough overview of the GATT jurisprudence,see Kuilwijk, The European Court of Justice and the GATT Dilemma (1996), pp.122–160.

54See Garcia, “International Law and Agreements: Their Effect upon U.S. Law”, CRS Report for Congress 7-5700(January 26, 2010), pp.4–6 on the “supreme law of the land” character of agreements not concluded under the TreatyPower.

55URAA §102(a).56URAA §102(b).57URAA §102(c). See J. Barceló III, “The Status of WTO Rules in U.S. Law”, Cornell Law Faculty Publication,

Paper 36 (2006), p.45, http://scholarship.law.cornell.edu/lsrp_papers/36 [Accessed September 2, 2014]; J. Grimmett(Congressional Research Service), “World Trade Organization (WTO) Decisions and Their Effect in US Law”, CornellUniversity ILR School (2011), http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1812&context=key_workplace [Accessed September 29, 2014].

58For a recent discussion on the direct effect of the WTO Agreement, see H. Ruiz Fabri, “Is There a Case—Legallyand Politically—for Direct Effect of WTO Obligations?” (2014) 25 E.J.I.L. 151.



whether it was invoked by private parties or Member States.59 In the line of cases relating to the WTOAgreement the CJEU used a slightly different approach, looking at the “nature and structure” of theagreement.60 However, this latter test denotes the same method through which the CJEU looks first at thepurpose and the objectives of the agreement.61

Purposive interpretation62 plays a prominent role among the interpretative methods used by the CJEUand with the help of this method it was able to secure the direct effect and supremacy of EU law. Thepurposive approach was warranted in Van Gend en Loos because the EEC Treaty was drafted as aframework treaty containing general terms designed to be incomplete and imprecise. The existing legalgaps had to be filled by the CJEU and the other EU institutions.63 In this case the purposive method resultedin individuals being able to rely on former art.12 TEEC, even if the text of the article was directedexclusively towards Member States. US advocates of textual interpretation point out that a legal provisionhas to be given a “permissible meaning”, one which the phrase, sentence or word can bear.64 In its questto secure the autonomous nature of the EU legal order through the channels of individually enforceableEU rights, the CJEU gave a meaning to the text of art.12 TEEC which it might not have been able to bearif a purely textualist approach had been chosen.The purposive approach also dominates the GATT and WTO case law to the detriment of the actual

wording or terms of the specific provisions being invoked. While in Van Gend en Loos purposiveinterpretation acted as a spear and helped EU law penetrate Member State law, in the case of theGATT/WTO it acted as a shield and protected possible inconsistent EU measures from being reviewedfor their conformity with international obligations. According to former Advocate General Maduro,purposive interpretation in EU law does not refer exclusively to the aim of a particular legal provision,but it also considers the broader context provided by the EU legal order and its constitutional telos.65 Thus,the overall purpose of an international agreement might be influenced by the overall objectives of theautonomous EU legal order. It follows that as a result of EU purposivism, direct effect might be grantedto an EU norm in situations when the text of the legal instrument does not specify any individual rights,but this method may also strike against the direct effect of international agreements, even if the specifictext of the legal instrument is sufficiently clear, precise and unconditional to allow for the creation ofindividual rights.66

The Supreme Court is known to use different approaches for the interpretation of constitutional, federalstatutory provisions and even international agreements. On the other hand, the CJEU does not use distinct

59 International Fruit Co (21/72) [1972] E.C.R. 1219 at [20]; Amministrazione Delle Finanze v SPI and SAMI(267/81) [1983] E.C.R. 801; [1984] 1 C.M.L.R. 354 at [23];Germany v Council (Bananas I) (C-280/93) [1994] E.C.R.I-4973 at [105].

60Portugal v Council (C-149/96) [1999] E.C.R. I-8395 at [61]; Biret (C-93/02) [2003] E.C.R. I-10497 at [61];FIAMM and Fedon (C-120/06 P and C-121/06 P) [2008] E.C.R. I-6513 at [111].

61Kuijper, “Epilogue: Symbiosis?” in Direct Effect: Rethinking a Classic of EC Legal Doctrine (2002), p.258.62On the different meanings of this term in different legal systems, see A. Barak, Purposive Interpretation in Law

(Princeton: Princeton University Press, 2005). See U. Neergaard and R. Nielsen, “Where did the Spirit and its FriendsGo? On the European Legal Method(s) and the Interpretational Style of the Court of Justice of the European Union”in U. Neergaard, R. Nielsen and L. Roseberry (eds), European Legal Method: Paradoxes and Revitalisation (DJØFPublishing, 2011).

63K. Lenaerts, “Interpretation and the Court of Justice: A Basis for Comparative Reflection” (2007) 41 InternationalLawyer 1011, 1018.

64A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012), p.31.65M. Maduro, “Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism” (2008)

1 E.J.L.S. 1, 5.66Lenaerts and Courthaut admit that the provisions of the GATT are as clear, precise and unconditional as those

of other agreements concluded by the European Union, such as the EEAAgreement, the provision of which may havedirect effect. See Lenaerts and Corthaut, “Of Birds and Hedges” (2006) 31 E.L. Rev. 287, 299.



approaches to the interpretation of primary or secondary EU law.67 This is also true for a large number ofinternational agreements. However, as mentioned, the CJEU is of the opinion that when granting effectsto international agreements, account must be taken of their international origin. This entails that internationalagreements should be interpreted as much as possible according to international rules.The two Vienna Conventions (VCLT 1969, 1986) put the emphasis on a good faith interpretation of

international agreements “in accordance with the ordinary meaning to be given to the terms of the treatyin their context and in the light of its object and purpose”.68According to the International LawCommission(ILC) the application of the various methods of interpretation found in art.31 VCLT 1969 is a “singlecombined operation” and there is no “hierarchical order” for the application of the various methods.69

However, the obligation to interpret an agreement in good faith has certain consequences. “When a treatyis open to two interpretations, one of which does and the other does not enable the treaty to have appropriateeffects”, good faith requires that the interpretation that better enables the treaty to have appropriate effectsbe adopted.70 In several cases the CJEU held that art.31 VCLT 1969 and the “good faith” interpretationof international agreements embodies general customary international law, and relied on the VCLT articleto substantiate its own method of interpreting international agreements.71 The obvious rhetorical questionis whether it applied the utmost good faith when interpreting the WTO Agreement and whether it chosean outcome which enabled the Agreement to have “appropriate effects”.Starting the analysis with the overall nature and purpose of the agreement, instead of the terms of a

specific provision, can give the judiciary a lot more freedom to declare that an agreement is not privatelyenforceable, even if the terms of the specific provision being invoked are sufficiently clear, precise andunconditional. However, this type of “freedom” might actually stretch the boundaries of the “good faith”interpretation, by introducing certain avoidance factors against the direct enforcement of the agreement.A similar decline in the good faith interpretation of treaties can also be seen in US jurisprudence.72 Fornow, let us succinctly enumerate some of the factors the CJEU took into account as relevant in this phaseof the analysis:First, the CJEU departed from its prior Kupferberg holding, according to which it should not matter

whether the other contracting parties apply the provisions of an agreement directly or not.73 It took intoconsideration the unwillingness of the European Union’s major contracting parties to apply the WTOagreements directly.74 Secondly, the CJEU acknowledged that a different treatment in the case of themultilateral WTO agreement was warranted, because it did not create the same asymmetry of obligationsas the bilateral Partnership or Association agreements.75 Thirdly, the CJEU argued that by allowing WTO

67Lenaerts, “Interpretation and the Court of Justice” (2007) 41 International Lawyer 1011, 1014–1015.68See art.31(2) of the Vienna Convention on the Law of Treaties 1969; and art.31(2) of the Vienna Convention on

the Law of Treaties between States and International Organisations 1986.69 ILC Report 1966, Yearbook of the ILC, Vol.II, p.219, para.8.70 ILC Report 1966, Yearbook of the ILC, Vol.II, p.219, para.6.71Aldona Malgorzata Jany v Staatssecretaris van Justitie (C-268/99) [2001] E.C.R. I-8615; [2003] 2 C.M.L.R. 1

at [35]; and IATA and ELFAA v Department of Transport (C-344/04) [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20 at[40].

72M. van Alstine, “The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection” (2005) 93Georgetown L.J. 1885.

73Kupferberg (104/81) [1981] E.C.R. 3641 at [18].74A. Antoniadis, “The European Union andWTOLaw: ANexus of Reactive, Coactive, and Proactive Approaches”

(2007) 6World Trade Review 45, 52. For two opposing views on the matter see P. Kuijper and M. Bronckers, “WTOLaw in the European Court of Justice” (2005) 42 C.M.L. Rev. 1315, 1322. A.G. Saggio in Portugal v Council(C-149/96) [1999] E.C.R. I-8395 at [21]; and E. Petersmann, “Application of GATT by the Court of Justice of theEuropean Communities” (1983) 20 C.M.L. Rev. 397, 427.

75For a criticism of these factors see P. Eeckhout, “Judicial Enforcement ofWTOLaw in the European Union—SomeFurther Reflections” (2002) 5 J.I.E.L. 91, 95; Mendez, The Legal Effects of EU Agreements (2013), p.211.



Agreements to become a benchmark for a validity review would have the consequence of depriving thelegislative or executive organs of the possibility afforded to them by the WTO Agreement to enter intonegotiated arrangements even on a temporary basis.76 Fourthly, a last factor was the set-up of the GATTand later on theWTO dispute settlement mechanism.77 InOmega Air78 the CJEU explained that the decisivefactor in its WTO dispute settlement argument is that WTO law is based on negotiations, and whilewithdrawal of unlawful measures is indeed the solution recommended by WTO law, other solutions arealso authorised, such as the payment of compensation, settlement or suspension of concessions.79 Whilesome argue that the current case law does not support the idea that the denial of direct enforcement isinfluenced by the existence of a dispute settlement mechanism,80 it seems that the presence of stronginternational (adjudicative) bodies such as the WTO Appellate Body, ITLOS or the UN Security Councilmight prompt the CJEU to adhere to a more dualist reception of international law.National constitutional courts as well as supranational courts with constitutional functions, such as the

CJEU, are often faced with the difficult task of “balancing” different interests.81 Depending on the interestsinvolved, courts can show enhanced judicial activism, but also “self-restraint”, when they choose to defercertain issues to the political institutions. However, deferring an issue to the executive or legislative mightamount to a denial of justice.82 It can be in the CJEU’s advantage to start the analysis with the overallnature and purpose of the agreement, as this might become a playing field where it can balance the differentdomestic and external interests of the European Union. Still, art.216(2) TFEU, a piece of primary EU law,clearly states that international agreements concluded by the European Union are binding not just on theMember States, but also on the EU institutions, including the CJEU. As the CJEU has repeatedly stated,being bound by an international agreement also entails that it has to be carried out in “good faith”.83 Thus,when the CJEU decides not to interfere with the policy objectives of the Commission or Council, whichare in contradiction with the European Union’s international obligations, the European Union mightactually allow EU institutions to circumvent their primary EU law obligations, something the CJEU wasnot willing to allow Member States to do.84

An interesting feature of the GATT and the WTO case law is that the CJEU either does not mentionthe clear, precise and unconditional nature of the specific provision being invoked or, when it does, it willnot engage into an examination of whether the specific provision meets those criteria.85 A possible

76Portugal v Council (C-149/96) [1999] E.C.R. I-8395 at [40]; FIAMM and Fedon (C-120/06 P and C-121/06 P)[2008] E.C.R. I-6513 at [45] citing [111] of the General Court’s judgment.

77Portugal v Council (C-149/96) [1999] E.C.R. I-8395 at [36].78R. (on the application of Omega Air Ltd) v Secretary of State for Environment, Transport and the Regions (C-27/00)

[2002] E.C.R. I-2569; [2002] 2 C.M.L.R. 9.79Omega Air (C-27/00) [2002] E.C.R. I-2569 at [89]. For a criticism see Kuijper and Bronckers, “WTO Law in the

European Court of Justice” (2005) 42 C.M.L. Rev. 1315, 1344.80B. Bonafé, “Direct Effect of International Agreements in the EU Legal Order: Does it Depend on the Existence

of An International Dispute Settlement Mechanism” in International Law as Law of the European Union (2012),p.234.

81S. Carrera and B. Petkova, “The Potential of Civil Society and Human Rights Organizations through Third-PartyInterventions before the European Courts: The EU’s Area of Freedom, Security and Justice” in M. Dawson, B. deWitte and F. Muir (eds), Judicial Activism at the European Court of Justice (Cheltenham: Edward Elgar, 2013), p.237.

82Carrera and Petkova, “The Potential of Civil Society and Human Rights Organizations through Third-PartyInterventions before the European Courts” in Judicial Activism at the European Court of Justice (2013), p.237.

83Kupferberg (104/81) [1981] E.C.R. 3641 at [18]; Portugal v Council (C-149/96) [1999] E.C.R. I-8395 at [35];International Dairy Agreement (C-61/94) [1996] E.C.R. I-3989 at [30].

84E.g. International Dairy Agreement (C-61/94) [1996] E.C.R. I-3989.85FIAMMand Fedon (C-120/06 P and C-121/06 P) [2008] E.C.R. I-6513 at [110]. The CJEU unified the GATT/WTO

two-tier test with the one found in IATA and ELFAA (C-344/04) [2006] E.C.R. I-403 at [39]; and Intertanko (C-308/06)[2008] E.C.R. I-4057 at [45].



explanation is that both the GATT and the WTO agreements as a whole failed to pass the initial test ofthe overall nature of the agreement, so there was no need to look at the wording of the specific provisions.With this in mind, some preliminary conclusions are warranted. The use of “purposive interpretation”

by the CJEU is not without criticism, but by now it is “deeply rooted”86 in EU law. In its mission to helpindividuals benefit from the provisions of the “new and autonomous legal order”, the CJEU took anexpansive approach to purposive interpretation, which can easily be criticised for promoting judicialactivism. After all, judicial law-making is tantamount to the exercise of legislative power.87 However, theultimate goal of legitimising the existence of EU law and ensuring that individuals could also benefit fromits provisions provides a plausible excuse for the CJEU’s activism. However, as mentioned above, purposiveinterpretation in EU law does not only look at the purpose of the individual legal instrument, but also howit fits into the overall purpose of the EU legal order. And given this systematic approach to purposiveinterpretation, in the case of the WTO the scales seem to tip in favour of the protection of general EUinterests over the individual interests of private parties.88 The collateral damage of this balancing of differentinterests is to the individual trader. Let us not forget that the European Union’s unwillingness to complywith itsWTO obligations and the Appellate Body reports concerning the bananamarket led to US retaliatorymeasures in other trade areas which caused actual damage for European firms that had nothing to do withbanana trading.89 Some of the damage might have been avoided if the CJEU had preferred an approachmore similar to the one encompassed in art.31 VCLT 1969 and interpreted the agreements in good faith,in order to grant them appropriate effects.

Outside the WTO contextThe CJEU commences the two-tier test with the overall nature and purpose of the agreement in caseswhich involve other bilateral or multilateral agreements as well. For example in the text-book Kupferberg,handed down a decade after International Fruit (the first GATT case) and over a decade before Portugalv Council (the first WTO case), the CJEU analysed “the nature and structure” of the EEC-PortugalAgreement and came to the conclusion that it could not prevent a trader from relying on it.90 Interestingly,when analysing the Agreement’s “direct application”, the CJEU did not accept the type of reciprocityarguments it accepted and accepts in the GATT/WTO framework.91 As Cottier notes, granting direct effectto the EEC-Portugal Agreement had the potential to create less conflict between the CJEU and the Union’spolitical institutions.92 In this case the overall objectives of the Agreement93 were in line with the externalpolicy objectives of the Union in constructing Europe. Several years earlier, in Bresciani,94 the CJEU alsolooked at the “special nature” of the Second Yaoundé Convention95 and granted it direct effect. The outcomeseems to be easily explained, because the agreement was a product of the objectives initially included in

86Neergaard and Nielsen, “Where did the Spirit and its Friends Go?” in European Legal Method (2011), p.109.87O. Pollicino, “Legal Reasoning of the Court of Justice in the Context of the Principle of Equality between Judicial

Activism and Self-restraint” (2004) 5 German L.J. 284, 290.88SeeKuilwijk, The European Court of Justice and the GATTDilemma (1996), pp.244–247 on the CJEU’s preference

of the public interest over individual rights.89FIAMM and Fedon (C-120/06 P and C-121/06 P) [2008] E.C.R. I-6513. In this case a battery and a spectacle

producing company suffered losses as a result of US retaliatory measures against the European Union’s unwillingnessto change its banana import policy.

90Kupferberg (104/82) [1981] E.C.R. 3641 at [22].91Kupferberg (104/82) [1981] E.C.R. 3641 at [18].92T. Cottier, “International Trade Law: The Impact of Justiciability and Separations of Powers in EC Law” (2009)

5 E.C.L.R. 307, 314–315.93EEC-Portugal Agreement, Preamble, Recital 1.94Bresciani v Amministrazione Italiana delle Finanze (87/75) [1976] E.C.R. 129; [1976] 2 C.M.L.R. 62.95Between the EEC and 19 African States (1971).



art.131 TEC (now art.198 TFEU) to promote economic and social development of a number of overseasterritories and third countries that certain EU Member States had strong ties with.The United Nations Convention on the Law of the Sea (UNCLOS) did not have a similar faith to these

earlier trade agreements. In Intertanko,96 concerning a validity challenge to an EU directive in light ofUNCLOS, the CJEU considered that the “nature and broad logic” of the Convention “as disclosed inparticular by its aim, preamble and terms, preclude examination of the validity of [EU] measures in thelight of its provisions”.97 Two possible explanations exist for this outcome. First, the CJEU might haveapplied this avoidance technique in order to protect the EU act from the over-intrusion of internationallaw. Secondly, it is also possible that the Court did not wish to be bound by the interpretations of a stronginternational court. The International Tribunal on the Law of the Sea (ITLOS) is known to have stated instrong words that it is the final authority charged with the interpretation of the Convention.98

In the recent Air Transport Association of America99 the CJEU only looked at the “nature and broadlogic” of the Kyoto Protocol and the EU-US Open Skies Agreement. The Chicago Convention wasdismissed as the European Union was not a contracting party and functional succession did not occur.100

With regard to the Kyoto Protocol, this is one of the few instances when the CJEU, outside the WTO andGATT framework, takes into consideration the flexibility and the dispute settlement mechanism of anagreement when denying an agreement direct effect.101 A possible explanation could be that the CJEUtook a protectionist stance in order to shield a possibly better set of EUmeasures fromweaker internationalscrutiny. Even though both the Kyoto Protocol and the EuropeanUnion have as an objective102 the protectionof the environment and the lowering of greenhouse emissions,103 the European Union is a leader when itcomes to tackling the problems of climate change.104 Progress through the International Civil AviationOrganization (ICAO) as envisaged by art.2(2) Kyoto Protocol had been extremely slow compared withthe significant progress made by the European Union when it decided to include aviation in its emissionstrading scheme.105

Turning to the “nature and broad logic” of the EU-US Open Skies Agreement, the CJEU reiterated theargument used in Kupferberg that the institutional framework for compliance is not sufficient to excludeall judicial application of the agreement.106 Just several paragraphs before, the CJEU used the compliancemechanism of the Kyoto Protocol as an argument to deny it direct applicability, and now the CJEU all ofa sudden resurrects the old Kupferberg claim that the compliance mechanism of the agreement should notmatter in the nature and broad logic analysis. However, on a closer reading the CJEU seems to suggestthat the compliancemechanism of an agreement is not “sufficient” to exclude direct application.107 In other

96For a commentary see P. Eeckhout, “Case C-308/06, The Queen on the application of Intertanko and Others vSecretary of State for Transport, Judgment of the Court of Justice (Grand Chamber) of 3 June 2008, nyr” (2009) 46C.M.L. Rev. 2041, 2053.

97 Intertanko (C-308/06) [2008] E.C.R. I-4057 at [54].98Gáspár-Szilágyi, “EU Member State Enforcement of ‘Mixed’ Agreements and Access to Justice” (2013) 40

L.I.E.I. 163, 168.99Air Transport Association of America (C-366/10) [2012] 2 C.M.L.R. 4 at [53].100Air Transport Association of America (C-366/10) at [60]–[72].101Air Transport Association of America (C-366/10) at [75].102The European Union has shared competence under art.4(2)e TFEU in matters concerning the environment.

According to art.11 TFEU, “Environmental protection requirements must be integrated into the definition andimplementation of the Union policies and activities”. Title XX of the TFEU is dedicated to environmental policy.

103The European Union’s Kyoto Emissions Targets, http://ec.europa.eu/clima/policies/g-gas/kyoto/index_en.htm[Accessed September 9, 2014].

104See the European Union’s climate change programme, http://ec.europa.eu/clima/policies/brief/eu/index_en.htm[Accessed September 2, 2014].

105 J. Melzer, “Climate Change and Trade—The EU Aviation Directive and the WTO” (2012) 15 J.I.E.L. 111, 114.106Air Transport Association of America (C-366/10) at [83].107Air Transport Association of America (C-366/10) at [63].



words, it is not the decisive factor in the first leg of the analysis, just another factor. Moreover, in the caseof the Open Skies Agreement, owing to its bilateral nature, the European Union could exercise a strongerbargaining power and was capable of aligning the agreement more with domestic policy objectives.The second part of the two-tier test looks at certain features of the specific provision being relied on.

However, until recently the CJEU was not too explicit on how this test is conducted. In Bresciani it didnot mention these conditions, while in Kupferberg it held that the unconditional and sufficiently precisenature of a specific stipulation must be considered in the context of the agreement.108 It found that art.21(1)of the EC-Portugal Agreement laid down an unconditional rule against discrimination.109

In the more recent IATA and ELFAA case, the CJEU in one paragraph concluded that three articles ofthe Montreal Convention “appear, as regards their content, to be unconditional and sufficiently precise”in order to allow for the validity review of acts of the EU institutions.110 The CJEU did not explain in moredetail how it arrived to this conclusion. One explanation for the ease with which the CJEU granted theagreement direct effect is provided by a US author. According to Professor Sloss, treaties can createrelationships between states, between private parties and the state, or between private parties. In general,domestic courts are willing to directly apply treaty provisions that regulate cross-border relationshipsbetween private actors, like the Montreal Convention, because they do not create significant new dutiesfor governments. However, they are less willing to do so when treaties regulate private party-state situations,because these treaties implicate the public functions of government.111 In IATA and ELFAA both theregulation and the Convention mainly created obligations for airlines and not for government actors.Therefore, granting direct effect to the Convention did not create significant new duties for the EuropeanUnion. Still, even though direct effect was granted, the CJEU did not find any incompatibility betweenthe Convention and the said regulation, which was meant to provide protection to passengers for delayedor cancelled flights.Air Transport Association of America provides a breakthrough, as both the CJEU and A.G. Kokott

undertook an extremely detailed analysis of the precise and unconditional nature of the specific provisionsof the EU-US Open Skies Agreement. The Advocate General enumerates several reasons why art.7 of theOpen Skies Agreement meets those criteria: (1) the provision is unconditional as it does not require anyinternal implementing rules on the part of the contracting parties; (2) it is sufficiently precise “to havetangible legal consequences” because it describes in detail the type of laws and regulations to which itrelates and it “categorically” states that the laws and regulations “shall be applied”; (3) it also addressesitself specifically to airlines, passengers and crew.112 The CJEU summarised the Advocate General’sconclusions and held that the specific article lays down a “precise and specific” obligation which appliesto aircrafts.113 Next, the Advocate General found art.11(2)(c) of the agreement to be sufficiently preciseas it specifically stated which items were exempted. However, the provision was not unconditional as itgranted exemptions only on “the basis of reciprocity”.114 The CJEU disagreed with the Advocate Generaland found that the condition of reciprocity under the circumstances of the case could not affect the directapplicability (the term used by the CJEU) of the provision, as both contracting parties have reciprocallyperformed their obligations.115 It also disagreed with the unconditional and sufficiently precise nature ofthe first sentence of art.15(3). According to the Advocate General it did not meet the threshold criteria as

108Kupferberg [1981] E.C.R. 3641 at [23].109Kupferberg [1981] E.C.R. 3641 at [26].110 IATA and ELFAA (C-344/04) [2006] E.C.R. I-403 at [39].111See Sloss, “Domestic Application of Treaties” in The Oxford Guide to Treaties (2012), pp.377–378.112Opinion of A.G. Kokott in Air Transport Association of America (C-366/10) [2012] 2 C.M.L.R. 4 at [103].113Air Transport Association of America (C-366/10) at [86].114Opinion in Air Transport Association of America (C-366/10) at [104].115Air Transport Association of America (C-366/10) at [93].



it referred to ICAO standards and did not itself govern the issue.116 However, according to the CJEU, thatsentence imposed an obligation on the contracting parties to follow the ICAO standards, except wheredifferences have been filed. This last element constituted a possibility of derogation and not the obligationof the European Union to follow those standards.117 Both the CJEU and the Advocate General agreed thatthe second sentence of art.15(3) was sufficiently precise and unconditional as it set out a specific obligationof the contracting parties vis-à-vis air carriers.118

Several interim conclusions can be drawn. First, the provision of an international agreement isunconditional if it does not require further implementing measures. If the provision is based on reciprocity,the unconditional nature is satisfied if both parties have reciprocally performed their obligations. Moreover,the CJEUwill also look at the margin of discretion enjoyed by the contracting parties. Secondly, a provisionis sufficiently precise if it specifically defines the subjects it applies to, if it specifically lists possibleexemptions or it specifies in an imperative language certain obligations. Thirdly, the CJEU’s discretionin applying these criteria is high and requires an amount of subjectivity. As seen, it did not agree with allthe conclusions of the Advocate General.With the exception of Kupferberg and Bresciani, all other cases dealt with in this section concerned a

direct or indirect challenge to secondary EU law. Strangely, in none of these cases did the CJEU invalidatethe secondary EU rules. In some cases, such as those concerning UNCLOS or the Kyoto Protocol, thecompatibility between EU law and the agreement was not possible to assess because the agreement didnot pass the initial “nature and broad logic” test. In other cases, even though the agreement passed bothparts of the two-tier test, the CJEU did not find any incompatibility (EU-US Open Skies Agreement).Therefore, these cases show that even if an agreement is granted direct effect, the CJEUmight be reluctantto invalidate EU legislation for their incompatibility with international agreements.119

First the “wording” of the specific provision, then the overall “purpose”—the dominanceof textual interpretationAccording to the Supreme Court, textual interpretation is a “time-honored” method of interpreting treatiesin the United States.120 In Foster v Neilson Chief Justice Marshall favoured basing its assessment on thetext of the specific provision of the 1819 treaty with Spain121 and several years later in Percheman the textof the Spanish version of the treaty was decisive for the Justice to change his previous holding in Foster.122While there is recent debate on whether the Supreme Court is favouring textualism over other methods,123

such as the purpose of the agreement, its drafting history or the intent of the contracting parties,124 throughoutits jurisprudence the Supreme Court is consistent in commencing the self-execution analysis with the

116Opinion in Air Transport Association of America (C-366/10) at [105].117Air Transport Association of America (C-366/10) at [95].118Opinion in Air Transport Association of America (C-366/10) at [96]–[98].119 J. Klabbers, “The Validity of EU Norms Conflicting with International Obligations” in International Law as

Law of the European Union (2012), p.125. Some exceptions includeOpel Austria v Council (T-115/94) [1997] E.C.R.II-39; [1997] 1 C.M.L.R. 733, although according to Klabbers it is not entirely sure whether the regulation wasannulled because of its incompatibility with the EEA Agreement or because it went against the EU principle oflegitimate expectations. The appellants in Petrotub v Council and Commission (C-76/00) [2003] E.C.R. I-79 at[54]–[55] managed to successfully annul a regulation which was not in line with the WTO Antidumping Agreement.However, the case fell under the Nakajima exception.

120Medellin v Texas 552 U.S. 491, 514 (2008).121Foster & Elam v Neilson 27 U.S. (2 Pet.) 253, 306–307 (1829).122United States v Percheman 32 U.S. 51, 88–89 (1832).123Bradley, “Intent, Presumptions, and Non-Self-Executing Treaties” (2008) 102 A.J.I.L. 540, 541–543.124Choctaw Nation of Indians v United States 318 U.S. 423, 431–432 (1943); Air France v Saks 470 U.S. 392, 396

(1985); Zicherman v Korean Air Lines Co 516 U.S. 217, 226 (1996); United States v Stuart 489 U.S. 353 (1989).



terms or language of the specific treaty provision.125 It has also clarified that most weight has to be givento the actual text of the treaty.126 Moreover, in the first half of the 20th century the Supreme Courtemphasised in several cases that treaties are to be construed in a liberal fashion.127

In the predominant number of cases involving the free movement of third-country nationals under theAnkara Agreement,128 the Europe Agreements129 or the Euro-Mediterranean Agreements,130 the CJEU alsoprefers to put more emphasis on textualism. The two-tier test is not so clearly defined in this line of caselaw and the CJEU uses a different order in its analysis from that in the aforementioned cases. It first looksat the “terms” or “wording” of the specific provisions invoked by the parties. After this it succinctly looksat the “nature”, “subject-matter” or “purpose of the agreement or in certain cases it will not even takethese factors into consideration.131 This test was also used recently for certain multilateral environmentalagreements.132

Association, partnership and co-operation agreementsWith regard to the Ankara Agreement, the CJEU held in Demirel that the provisions of the AnkaraAgreement had to “contain a clear and precise obligation, which is not subject, in its implementation oreffects, to the adoption of subsequent measures”.133 The programmatic nature of the agreement, which hadto be implemented in stages through Association Council recommendations, meant that the two provisionsrelied on were not sufficiently precise and unconditional to be capable of governing directly the movementof workers.134 Later on in Sevince the CJEU found that the specific article of the Association Council’sDecisions contained clear, precise, unconditional and unequivocal terms.135 The deficiencies of the Ankara

125Whitney v Robertson 124 U.S. 190, 192–193 (1888); Asakura v City of Seattle 265 U.S. 332, 365–366 (1924);Medellin v Texas 552 U.S. 491, 508 (2008).

126Maximov v United States 373 U.S. 49 (1963).127Choctaw Nation of Indians v United States 318 U.S. 423 (1943); Factor v Laubenheimer 290 U.S. 276, 294–295

(1933); Cook v United States 288 U.S. 102, 112 (1933).128Agreement Establishing an Association between the European Economic Community and Turkey 1963.129 “The Europe agreements were association agreements between the EU and its Member States and the Central

and Eastern European countries that joined the EU in 2004/2007.” See European Commission, “Enlargement—EuropeAgreement”, http://ec.europa.eu/enlargement/policy/glossary/terms/europe-agreement_en.htm [Accessed September2, 2014].

130“The [EU] concluded Euro-MediterraneanAssociationAgreements between 1998 and 2005with seven countriesin the southern Mediterranean. [They] serve as a basis for the gradual liberalisation of trade in the Mediterraneanarea, and set out the conditions for economic, social and cultural cooperation between the EU and each partnercountry.” See http://europa.eu/legislation_summaries/external_relations/relations_with_third_countries/mediterranean_partner_countries/r14104_en.htm [Accessed March 13, 2014].

131R. (on the application of Gloszczuk) v Secretary of State for the Home Department (C-63/99) [2001] E.C.R.I-6369; [2001] 3 C.M.L.R. 46 at [30]; R. (on the application of Barkoci) v Secretary of State for the Home Department(C-257/99) [2001] E.C.R. I-6557; [2001] 3 C.M.L.R. 48 at [31]; R. (on the application of Kondova) v Secretary ofState for the HomeDepartment (C-235/99) [2001] E.C.R. I-6427; [2001] 3 C.M.L.R. 47 at [31]; Jany v Staatssecretarisvan Justitie (C-268/99) [2001] E.C.R. I-8615; [2003] 2 C.M.L.R. 1 at [35]; Land Nordrhein-Westfalen vPokrzeptowicz-Meyer (C-162/00) [2002] E.C.R. I-1049; [2002] 2 C.M.L.R. 1 at [19]; Simutenkov v Ministerio deEducación y Cultura and Real Federación Española de Futból (C-265/03) [2005] E.C.R. I-2579; [2005] 2 C.M.L.R.11 at [21].

132Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la région v Électricité de France(EDF) (L’Étang de Berre I) (C-213/03) [2004] E.C.R. I-7357; [2004] 3 C.M.L.R. 19 involving the Protocol for theProtection of the Mediterranean Sea against Pollution from Land-Based Sources (Athens Protocol) attached to theConvention for the protection of theMediterranean Sea against pollution 1976 (Barcelona Convention); Slovak BrownBear (C-240/09) [2011] 2 C.M.L.R. 43, involving the Aarhus Convention.

133Demirel v Stadt Schwabisch Gmund (12/86) [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421 at [14].134Demirel (12/86) [1987] E.C.R. 3719 at [23].135S.Z. Sevince v Staatssecretaris van Justitie (C-192/89) [1990] E.C.R. I-3461; [1992] 2 C.M.L.R. 57 at [17]–[18].



Agreement did not stop the Decisions implementing the agreement from having direct effect. The Decisionsreferred specifically to the articles of the agreement they were meant to implement.136 Moreover, theunconditional nature was not affected by the fact thatMember States had to establish the national proceduresfor applying the rights of Turkish workers. Those provisions merely clarified the obligation of theMemberStates to take such administrative measures.137

The CJEU reiterated theDemirel test in its case law on the Europe Agreements.138 For example art.44(3)of the EC-Poland Agreement laid down in clear, precise and unconditional terms a prohibition preventingdiscrimination against Polish workers.139 The rule of equal treatment laid down a “precise obligation” toproduce a specific result.140 The same words were used for art.45(1) of the EC-Bulgaria Agreement141 andart.45(3) of the EC-Czech Republic Agreement.142 The CJEU also relied on the Demirel test in its caselaw on the Euro-Mediterranean Agreements.143 For example, in El-Yassini, art.40 of the EEC-MoroccoAgreement was found not to be programmatic in nature. It laid down a,

“clear and unconditional principle the nature of which [was] sufficiently practical that it [could] beapplied by national courts and [was] therefore capable of directly governing the legal situation ofindividuals.”144

In Yousfi and Hallouzi-Choho, art.41(1) of the same agreement was found to be sufficiently clear, preciseand unconditional as the obligation not to discriminate Moroccan workers and their family members inthe field of social security was not subject to further implementingmeasures and was precise.145AsMendeznotes, in these cases,

“the CJEU has only rarely diverged from commencing with the express wording of the relevantprovision. And on no occasion has the second part of the test alone, concerned with the purpose andnature of the Agreement, stood in the way of according direct effect to a provision.”146

However, the successful direct effect outcomes might not only be conditioned by beginning the analysiswith the textual approach, but other factors can also have a role to play.First, all the aforementioned cases involve challenges to Member State measures. Thus, in order to

protect the European Union’s international interests over inconsistentMember State measures, it is possiblethat the CJEU is more willing to enforce international agreements against Member States in an effort toensure Member State compliance.

136Sevince (C-192/89) [1990] E.C.R. I-3461 at [21].137Sevince (C-192/89) [1990] E.C.R. I-3461 at [22]–[23].138Gloszczuk (C-63/99) [2001] E.C.R. I-6369 at [30]; Barkoci (C-257/99) [2001] E.C.R. I-6557 at [31]; Kondova

(C-235/99) [2001] E.C.R. I-6427 at [31].139Gloszczuk (C-63/99) [2001] E.C.R. I-6369 at [32].140Gloszczuk (C-63/99) [2001] E.C.R. I-6369 at [33].141Kondova (C-235/99) [2001] E.C.R. I-6427 at [33]–[34].142Barkoci (C-257/99) [2001] E.C.R. I-6557 at [33]–[34].143Office national de l’emploi v Bahia Kziber (C-18/90) [1991] E.C.R. I-199 at [15]; El-Yassmi v Secretary of State

for the HomeDepartment (C-416/96) [1999] E.C.R. I-1209; [1999] 2 C.M.L.R. 32 at [25];Gattoussi v Stadt Rüsselsheim(C-97/05) [2006] E.C.R. I-11917 at [25]; Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank (C-126/95)[1996] E.C.R. I-4807 at [19].

144Yousfi and Belgian State (C-58/93) [1994] E.C.R. I-1353 at [22]; Hallouzi-Choho (C-126/95) [1996] E.C.R.I-4807 at [31].

145Yousfi (C-58/93) [1994] E.C.R. I-1353 at [16] and Hallouzi-Choho (C-126/95) [1996] E.C.R. I-4807 at [19].146Mendez, The Legal Effects of EU Agreements (2013), p.151.



Secondly, most of the agreements were association, partnership or co-operation agreements which area venue through which the EU projects its acquis on applicant or associate countries.147 Therefore, whenthe Court decides to grant them direct effect, the potential for creating conflicts between the EuropeanUnion’s international obligations and the domestic policy objectives of the political institutions are minimal.Thirdly, all these agreements are bilateral, which means that the European Union possesses a strongerbargaining power at the negotiating table than in the case of multilateral agreementsFourthly, in a predominant number of cases involving bilateral agreements, the free movement provisions

all contained the principle of non-discrimination based on nationality. Knowing the importance of thisprinciple148 in the overall EU acquis and given that part of this acquiswas “exported” via these agreements,the CJEU might have been more willing to enforce those provisions.

Environmental agreementsThe CJEU also used this test in several cases concerned with environmental agreements. In L’etang deBerre I149 the Athens Protocol to the multilateral Barcelona Convention was successfully invoked againstan electricity company owned by the French state. In the recent Slovak Brown Bear case the CJEU wasasked to give a preliminary ruling on whether art.9(3) of the Aarhus Convention (signed by the EuropeanUnion and the Member States under “joint” competence) could be viewed as “directly applicable” and“directly effective”.150 The CJEU in one paragraph held that art.9(3) of the Convention did not contain“any clear and precise obligation capable of directly regulating the legal position of individuals”. It arguedthat only members of the public “who meet the criteria, if any, laid down in national law” are entitled toexercise the rights provided in art.9(3). Thus, the provision was still subject to the adoption of subsequentmeasures.151 In the next paragraphs, in an effort to remedy this, the CJEU held that it was the duty ofnational courts to interpret their national laws to the fullest extent possible, in such a way as to ensure thatan environmental protection organisation can challenge before a national court a decision taken followingadministrative proceedings liable to be contrary to EU environmental law.152

One explanation for the negative direct applicability and direct effect outcome could be that the specificprovision of the Aarhus Convention did not in fact create a sufficiently precise obligation. However,another explanation may be that the CJEU once again exercised its “self-restraint” on a controversial issue.In 2003 the Commission submitted a proposal to the Parliament and Council on access to justice inenvironmental matters, which was meant to implement this specific provision. However, the proposal hita brick wall before the Council and was never adopted.153 Therefore, it seems possible that the CJEU chosenot to upset the institutional balance between the EU judiciary and the European Union’s political bodies,just as it has done in case of the WTO Agreement.Before continuingwith the issue of rights, the following interim conclusions can bemade. The importance

of starting the analysis with the wording of the agreement and not with its purpose and nature is quiteevident. If the provision relied on is sufficiently clear, precise and unconditional, denying direct effectbased on the agreement’s intended purpose is fairly difficult to argue. These criteria are met if the provision

147C. Hillion, “The EU’s Neighbourhood towards Eastern Europe” in A. Dashwood and M. Maresceau (eds), Lawand Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge: Cambridge UniversityPress, 2008), p.311.

148See E. Muir, “The Transformative Function of EU Equality Law” (2013) 21 European Review of Private Law1231.

149L’etang de Berre I (C-213/03) [2004] E.C.R. I-7357.150Slovak Brown Bear (C-240/09) [2011] 2 C.M.L.R. 43 at [23].151Slovak Brown Bear (C-240/09) at [45].152Slovak Brown Bear (C-240/09) at [48]–[51].153See P. Oliver, “Access to Information and to Justice in EU Environmental Law: the Aarhus Convention” (2013)

36 Fordham Int. L. J. 1423, 1456.



contains a precise obligation, directed towards the Member States (or even private parties) which are notsubject to further implementation by the legislative, executive or a special body set up by the agreement.The provision also needs to clearly define what or whom it addresses, and for whom it creates rights andobligations. Taking these findings into consideration, the outcome of the GATT andWTO case law mighthave been different. For example art.III.2 GATT 1994 provides in imperative language that the productsoriginating from one contracting party shall not be subjected, directly or indirectly, to internal taxes orcharges in excess of those applied to domestic products. This provision lays down a precise andunconditional obligation, directed towards the importing contracting party. It is also clear that it benefitsindividual traders who deal with the import or export of goods. Therefore, if the CJEU started the analysiswith provisions of the different WTO agreements, which lay down precise and unconditional obligations,it would have been difficult to argue that the overall objectives of the agreement did not envisage theprotection of individuals.

What about private rights and remedies?Another issue which needs some attention has its roots in the questions US courts and legal researchersask when private parties seek to enforce international agreements. Even though the notion of“self-execution” might encompass several distinct issues, most of the authors and the Supreme Court atleast agree that the notion of self-execution has to be separated from the question of rights.154 Theinternationalists or transnationalists favour the extensive enforcement of treaty rights and argue that treatiesonly need to confer a “primary right” on the claimant. On the other hand, nationalists who favour thelimited enforcement of treaty rights argue that there is a presumption against judicially enforceable treatyrights, and treaties have to confer both the primary right and the right to seek a specific remedy.155 Aprimary right is the mere observance of a primary duty. An individual has a primary right under a treatyif the treaty imposes a duty on the state party to do or not do to do something for an individual. A secondaryright or a right of action is the capacity of the private party to seek judicial remedies for the breach of theprimary right.156 While in more recent decades some federal courts and the Supreme Court are more infavour of the nationalist presumption against enforceable treaty rights, for a long period of time, whenthe Supreme Court was more receptive to international law, it applied the canon of liberal interpretation.If two constructions of a treaty provision were possible, the one favouring the conferral of rights had tobe chosen.157 The question thus posed to EU scholars and the CJEU is whether an international agreementneeds only to confer a primary right or does it also need to confer the right to seek a certain remedy.

EU rights and the direct effect of primary and secondary EU lawVan Gend en Loos was not just important for creating the “autonomous” EU legal order and introducingthe concept of “direct effect”, but also for consolidating the concept of EU individual rights.158 Two obviousquestions arose in the legal literature. First, what is an EU right? Secondly, are EU rights a consequence

154S.Metz, “Medellin v. Dretke andMedellin v. Texas: International LawCan’t Mess with Texas” (2007) 36 CapitalUniversity L. Rev. 1131, 1165; Y. Iwasawa, “The Doctrine of Self-Executing Treaties in the United Stated: A CriticalAnalysis” (1985–86) 26 V.J.I.L. 627, 648; Vázquez, “Treaty-based Rights and Remedies of Individuals” (1992) 92Columbia L. Rev. 1082; Sloss, “Executing Foster v. Neilson” (2012) 53 Harvard I.L.J. 135; Medellin v Texas 552U.S. 491, fn.2 (2008).

155Vázquez, “Treaty-based Right and Remedies of Individuals” (1992) 92 Columbia L. Rev. 1082; and Sloss,“When do Treaties Create Individually Enforceable Rights?” (2006) 45 Colum. J. Transnat'l L. 20.

156Sloss, “When do Treaties Create Individually Enforceable Rights?” (2006) 45 Colum. J. Transnat'l L. 20, 29–30.157Bacardi Corp v Domenech 311 U.S. 150, 163 (1940); Jordan v Tashiro 278 U.S. 123, 127 (1928); Factor v

Laubenheimer 290 U.S. 276, 294 (1933).158Van Gend en Loos (26/62) [1963] E.C.R. 1 at [13].



of the direct effect test being satisfied or do they precondition direct effect and are thus a part of the directeffect test?159 For the purposes of this article a third issue, which is most important for us, concerns therelationship between rights and direct effect in the context of international agreements.With regard to the first question, former A.G. Van Gerven ventured into the “mission impossible” of

defining the concept of (“subjective”) rights. In his view a right refers to a legal position which a personrecognised as such by the law (the “subject”) may have and which can be enforced by that person againstothers before a court of law by means of one or more remedies.160 Remedies are then a class of actionswhich the “subject” can use in order to make good the infringement of its rights, in accordance withprocedures governing the exercise of such actions.161 He argues that a “directly effective” right will giverise to a remedy and the conditions that give rise to the right have to be same for the existence of theremedy.162 Because of the recognised EU law principle of ubi ius, ibi remedium (where there is a rightthere must be a remedy), such an EU right will also benefit from an EU remedy, or where no such remedyexists, from one found in Member State law.163 As Van Gerven points out, an EU “right” may refer to “thegeneral right, and accompanying remedy, to have a court set aside national measures which conflict” witha provision of EU law, but,

“may also refer to a specific right which [EU law] grants to private parties, and which, together withother conditions, gives rise, to a right and an accompanying remedy for compensation in respect ofharm sustained”.164

Thus, an EU “right” can either refer to, using US parlance, the “right of action” to seek a remedy or a“primary” right.The CJEU in Van Gend en Loos held that EU rights “arise not only where they are expressly granted

by the Treaty”, but they can also be derived from precise obligations which are imposed by EU law onprivate parties, Member States or EU institutions.165 It seems that the CJEU uses a Hohfeldian approach166

to the existence of rights. The existence of a duty can give rise to a correlative right. However, the weaknessof the Hohfeldian approach is that it does not provide for the means of determining who the beneficiaryof the right correlative to an obligation is.167 For example, ex art.12 TEC contained a clear prohibition, anegative obligation (“shall refrain”) addressed to theMember States. The correlative right of this prohibitionwas the right not to have any new customs duties or charges be imposed—but who was the beneficiaryof this right? Following a textual approach, the beneficiary would be another Member State who couldenforce his right by directly or indirectly launching infringement proceedings. Another approach would

159C. Hilson and T. Downes, “Making Sense of Rights: Community Rights in E.C. law” (1999) 24 E.L. Rev. 121,131.

160Van Gerven defines “remedies” as classes of actions intended to make good the infringement of the rightsconcerned. See W. van Gerven, “Of Rights, Remedies and Procedures” (2000) 37 C.M.L. Rev. 501, 502. On thecomplicated issue of rights, standing, rights of action and remedies in US law see C. Vázquez, “Treaty-based Rightsand Remedies of Individuals” (1992) 92 Columbia L. Rev. 1082.

161Van Gerven, “Of Rights, Remedies and Procedures” (2000) 37 C.M.L. Rev. 501, 502.162Van Gerven, “Of Rights, Remedies and Procedures” (2000) 37 C.M.L. Rev. 501, 503.163Van Gerven, “Of Rights, Remedies and Procedures” (2000) 37 C.M.L. Rev. 501, 503.164Van Gerven, “Of Rights, Remedies and Procedures” (2000) 37 C.M.L. Rev. 501, 507. See Becker v Finanzamt

MünsterInnenstadt (8/81) [1982] E.C.R. 53; [1982] 1 C.M.L.R. 499 at [25].165Van Gend en Loos (26/62) [1963] E.C.R. 1 at [2].166Wesley Newcomb Hohfeld (1879–1918) noticed that the term “right” was sometimes indiscriminately used to

refer to other concepts such as a privilege, immunity or a power. In his analysis he developed jural “opposites” andjural “correlatives”. The jural opposites were: right/non-right; privilege/duty; power/disability; immunity/liability.The jural correlatives were: right/duty; privilege/no-right; power/liability; immunity/disability. See W. Hohfeld,Fundamental Legal Conceptions as Applied in Judicial Reasoning: and Other Legal Essays (Yale University Press,1923).

167Hilson and Downes, “Making Sense of Rights” (1999) 24 E.L. Rev. 121, 123.



be the “intent-to-benefit”’ approach, when courts have to interpret a legislative provision in such a wayas to ascertain whether the legislative power intended to create a right in favour of the claimant.168 In thecase of Van Gend en Loos, the purposive approach was coupled with the effet utile argument in order tomould the meaning of art.12 TEEC in such a way as to benefit individuals as well.The more controversial issue is whether an EU right preconditions direct effect, or whether it is a

consequence of direct effect. The inclusion of the “rights” language in the Van Gend en Loos direct effectanalysis had two main reasons. First, the CJEU somehow had to mask the idea of supranationalism in thelanguage of rights as the EEC Treaty did not contain any provisions on the supremacy of EU law. It waseasier to sell the idea to the Member States that the rights of individuals must be protected than to say thatMember States must be controlled.169 Secondly, the creation of rights was called in aid to persuade nationaljudges to take up their role as EU judges and help in the enforcement of those rights.170 According toJustice Prechal, the CJEU uses the term “rights” rather indiscriminately, because it sometimes labels directeffect as “the right to rely on” EU law provisions in order to challenge national measures.171 In other words,a right might precondition the direct effect of EU law, or the “right to rely on” EU law might bepreconditioned by direct effect.According to Lenaerts and Corthaut, “direct effect” should only define the technique which allows

individuals to enforce (subjective) rights against a state or private actor—rights which are only availablein the national legal order in an instrument that comes from outside that order.172 However, at least in thefield of primary and secondary EU norms, the creation of rights is not always necessary. Hilson andDownes conclude, after a thorough analysis of the CJEU’s case law on directives and Treaty articles, thatdirect effect may involve rights, but it may also involve immunities or “effective interests”.173 An interestis “effective” if it supports effet utile. For example, in the context of directives, a directive will be grantedvertical direct effect, even if it does not confer a right on an individual, if it creates some interest, theprotection of which will assist the result intended by the directive.174 Direct effect is, thus, a chameleonterm just as is the concept of “rights”. Rights are no longer a necessary precondition for direct effect, andcertain types of interests will suffice.175 If the proof of a specific interest suffices for direct effect, than thissituation is not so much different from the issue of judicial standing in certain countries, which only requireclaimants to show that they have a sufficient interest to bring proceedings.176

Rights and the direct effect of international agreementsUnlike the United States, there is not much discussion in the European Union on whether the directlyapplicable or directly effective character of an international agreement should be separated from its capacityto create rights. The previous section has shown that the direct effect of EU law can function even if no

168Hilson and Downes, “Making Sense of Rights” (1999) 24 E.L. Rev. 121, 123. For the United States see Kalantry,“The Intent-to-Benefit” (2008) 44 Stanford J. Int. L. 63.

169S. Prechal and L. Hancher, “Individual Environmental Rights: Conceptual Pollution in EU Environmental Law”(2002) 2 Y.E.E.L. 89, 104–105.

170A.Ward, “More than an ‘Infant Disease’: Individual Rights, ECDirectives, and the Case for Uniform Remedies”in Direct Effect (2002), p.50.

171S. Prechal, “Does Direct Effect Still Matter?” (2000) 37 C.M.L. Rev. 1047, 1057.172Lenaerts and Corthaut, “Of Birds and Hedges” (2006) 31 E.L. Rev. 287, 310.173 In a Hohfeldian sense an “immunity” is one’s freedom from the legal power or control of another as regards

some legal relation. See Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923), p.60.174Hilson and Downes, “Making Sense of Rights: Community Rights in E.C. Law” (1999) 24 E.L. Rev. 121, 133.175Hilson and Downes, “Making Sense of Rights” (1999) 24 E.L. Rev. 121, 138.176E.g. Italy, France, Poland. See European Parliament, Directorate-General for Internal Policies, “Standing up for

Your Right(s) in Europe: Locus Standi. A Comparative Study on Legal Standing (Locus Standi) before the EU andMember States’ Courts”, Study PE 462.478 (2012), p.15.



specific right is granted. This means that if rights appear as an extra condition in order to prove the directeffect of international agreements, then this might provide evidence that the CJEU applies a more stringenttest to international agreements than it does to directives and articles of the Founding Treaties.Turning now to the GATT and WTO case law, what strikes the eye is that even in the earlier cases in

which the CJEU does not mention the clear, precise and unconditional criteria of the provision, it mentions“rights”. In International Fruit one of the conditions the CJEU had clearly attached to the validity reviewof secondary EU law in light of the GATTwas the capacity of the provisions of international law to conferrights on citizens of the European Union which they can invoke before the courts.177 As is known, owingto the structural features of the GATT the specific provision was not capable of conferring rights oncitizens.178 In this case it is not clear whether the CJEU refers to a primary right or the right to seek a certainremedy. Later on in Omega Air the “rights” language disappears. The CJEU only reiterates its argumentsfrom Portugal v Council, based on the nature and structure of the WTO Agreement which in principledid not allow a validity review in light of the WTO agreements.179 What is interesting in FIAMM andFedon in comparison with other WTO cases is the extensive use of the “rights” language. In the two casespreceding the appeal, the General Court decided that the Dispute Settlement Body (DSB) decision did notconfer on persons the “right to rely on” it when contesting the validity of EU legislation.180 Thus, accordingto the CJEU, the DSB decision did not confer the right on individuals to rely on it in order to seek a specificremedy.In Air Transport Association of America the CJEU mentions that the EU-US Open Skies Agreement

contained provisions which were designed to confer rights and impose obligations on airlines.181 Theagreement also created rights and freedoms which were capable of being relied upon against the partiesto the agreement.182 Once the direct effect conditions were satisfied, the airlines could rely on the specificprovisions in the context of a preliminary ruling proceeding involving the validity assessment of a secondaryEU law.183 Thus, it seems that the CJEU mainly referred to primary rights.The CJEU’s case law on association, partnership and co-operation agreements is interesting because

the CJEU does not specifically mention the creation of rights as part of the direct effect test. When lookingat the terms of the agreement, the CJEU does not use a “rights” language but prefers to refer to “preciseobligations” which produce a “specific result”.184 A common aspect of these cases is that they all revolvearound the principle or “rule” of non-discrimination in the areas of social security and employment rights.In such cases, the applicants are clearly the intended beneficiaries of the rights and immunities protectedby those provisions. If the unconditional and sufficiently precise criteria are satisfied, there is no point infurther arguing that the applicants are the beneficiaries of an individual right or immunity, as this is clearfrom the legal provision.185

What then about the recurring statements in these cases, according to which, owing to the precise andunconditional nature of the provisions, individuals have the “right to invoke” or the “right to rely on” theinternational provision before the national courts in order to “set aside” or “disapply” the discriminatory

177 International Fruit Company (21/72) [1972] E.C.R. 1219 at [8].178 International Fruit Company (21/72) [1972] E.C.R. 1219 at [27].179Omega Air (C-27/0) [2002] E.C.R. I-2569 at [89]–[93].180FIAMM v Council and Commission (C-120/06 P and C-121/06 P) [2008] E.C.R. I-6513 at [97].181Air Transport Association of America (C-366/10) [2012] 2 C.M.L.R. 4 at [86].182Air Transport Association of America (C-366/10) at [84].183Air Transport Association of America (C-366/10) at [87].184Gloszczuk (C-63/99) [2001] E.C.R. I-6369 at [33]; Barkoci (C-257/99) [2001] E.C.R. I-6557 at [34]; Kondova

(C-235/99) [2001] E.C.R. I-6427 at [34]; Kziber (C-18/90), at [17]; El-Yassini (C-416/96), at [27]; Simutenkov(C-265/03) [2005] E.C.R. I-2579 at [22]; Sema Sürül v Bundesanstalt für Arbeit (C-262/96) [1999] E.C.R. I-2685 at[63].

185Hilson and Downes, “Making Sense of Rights” (1999) 24 E.L. Rev. 121, 132.



national provisions?186 This “right” has to be distinguished from the primary rights granted by the specificnon-discrimination provisions. Those rights refer to the substantive right to be treated equally in mattersof employment and social security. The “right to invoke” or the “right to rely on” a provision is a proceduralright to seek remedies in order to redress the violation of the substantive rights. These cases show that,even if the creation of rights is not expressly mentioned in the overall direct effect analysis, the need forsuch rights to exist which benefit individuals is a tacit precondition of “direct effect”. This can be inferredfrom a Hohfeldian analysis of the precise obligations of the contracting parties. The “duty” of equaltreatment gives rise to the correlative right of the foreign workers to be treated equally as regards accessto jobs, social security or employment conditions. The consequence of this narrow direct effect will bethat individuals will possess the procedural right to obtain remedies, such as the setting aside of inconsistentnational law. In conclusion, at least in the case of association agreements, the tacit existence of substantiverights preconditions the direct effect of the international agreement, while in turn direct effect preconditionsthe existence of a procedural right to seek remedies.Let us now turn to other cases in which the CJEU first looked at the wording of the international

agreement, but the agreement did not concern an association or partnership. In Etang de Berre I the CJEUdoes not mention rights at all in its direct effect analysis. Article 6(3) of the Athens Protocol provides thatdischarges into the Mediterranean Sea “shall be” strictly subject to the authorisation of the nationalauthorities in line with Annex II to the Protocol. According to the CJEU this article clearly, precisely andunconditionally lays down the obligation for Member States to subject discharges of certain substancesto strict authorisation.187 A simple right/duty approach does not seem to be able to provide an answer forwhy the CJEU allowed a private association to rely on this agreement. The duty is to subject the dischargeof certain substances to prior authorisation—but what is the correlative right to this? Is it the right to aclean environment? And if so, how do we know who is the intended beneficiary of this right?The CJEU offers a hint when it states that the provisions of the Protocol have direct effect “so that any

interested party is entitled to rely on those provisions”.188 In the case of directives, Hilson and Downeshave already proven that certain interests, which do not amount to rights or immunities, suffice for thepurposes of proving direct effect.189 It looks as if, for the direct effect of certain international agreements,the proof of an “effective interest” is sufficient. In this case the interest of the syndicate was to protect thewaters of the Etang de Berre area, which was in line with the objectives of the international agreementand thus enhanced its effet utile. However, it is also worth noting that in this case the applicants challengedthe measures of a French state-owned company.190 As we have seen, the CJEU might be more generousin its direct effect analysis when Member State measures are concerned.In Slovak Brown Bear the referring national court askedwhether individuals and environmental protection

associations may derive a right from the Aarhus Convention to bring proceedings under EU law againstcertain national measures.191 In its direct effect criteria, the CJEU once again enumerates the need for theinternational provision to contain a clear and precise obligation.192 As is well known, the CJEU found that

186Gloszczuk (C-63/99) [2001] E.C.R. I-6369 at [33]; Barkoci (C-257/99) [2001] E.C.R. I-6557 at [34]; Kondova(C-235/99) [2001] E.C.R. I-6427 at [34]; Simutenkov (C-265/03) [2005] E.C.R. I-2579 at [23]; Pokrzeptowicz-Meyer(C-162/00) [2002] E.C.R. I-1049 at [22]; Proceedings brought by Wählergruppe Gemeinsam (C-171/01) [2003]E.C.R. 4301; [2003] 2 C.M.L.R. 29 at [58].

187Etang de Berre I (C-213/03) [2004] E.C.R. I-7357 at [41].188Etang de Berre I (C-213/03) [2004] E.C.R. I-7357 at [47] (emphasis added).189Hilson and Downes, “Making Sense of Rights” (1999) 24 E.L. Rev. 121, 132.190Up until November 19, 2004 (the judgment was handed down on July 15, 2004), EDF was a state-owned

corporation. See http://www.edfenergy.com/about-us/about-edf-energy/who-owns-us.shtml [Accessed September 2,2014].

191Slovak Brown Bear (C-240/09) at [28].192Slovak Brown Bear (C-240/09) at [44].



art.9(3) of the Convention did not contain a clear and precise obligation as only members of the publicwho met the national standing criteria, if any, could exercise the “rights provided for in the agreement”.193

In this case the primary rights that were contained in the agreement were not substantive but of a proceduralnature as they concerned access to domestic environmental proceedings. The question is whether aninterest-based approach, such as in Etang de Berre I, would have resulted in a positive decision on directeffect. The answer would probably be in the negative, as the test did not fail because of the non-existenceof the right, but because of the conditional nature of the obligations of the contracting parties.Based on the above sections, no hard conclusions can be drawn. It seems that in most cases the agreement

needs to confer either expressly or tacitly a primary right. There is also one exception when it seems thatan “effective interest” will suffice. On the other hand, similarly to US jurisprudence, there seems to beconfusion over whether the right to seek a certain remedy should be conferred by the agreement. Whilethe American confusion is partially explainable owing to the presumption against implied statutory remediesand the non-acknowledgement of the ubi jus ibi remedium principle,194 the EU confusion is less explainable,as the principle that every right has a remedy is acknowledged in the European Union.

ConclusionThis article was meant to start a debate on certain issues regarding the enforcement of internationalagreements in the European Union, by looking at questions which are amply discussed in Americanjurisprudence, but are discussed to a lesser extent in European scholarship, such as the methods ofinterpretation and tests used by the courts during the enforcement of international agreements, as well asthe issue of primary rights and remedies. Prior studies have concluded that the CJEU seems to favour EUmeasures and policies over international obligations and Member State measures. Still, in keeping true toits responsibilities, it should strive to obtain better coherence in its case law and better enforcement ofinternational agreements. After all, the CJEU is also bound by international agreements concluded by theEuropean Union and the customary international rule of the good faith interpretation of treaties. Therefore,the following suggestions are made.First, as a matter of terminological and analytical clarity, the CJEU and scholars should be careful when

applying the notions of “direct applicability” and “direct effect” to the world of international agreements,knowing that they were developed to describe a different type of legal relationship. A clearer distinctionis needed between the capacity of an international agreement to function as directly applicable law by thejudiciary and its capacity to be invoked by individuals in order to further their rights or interests.Secondly, keeping in line with the recommendations of the International Law Commission and art.31

of the two Vienna Conventions, the CJEU should interpret international agreements in good faith, andwhen two readings are possible, one which affords them appropriate effects and one which denies sucheffects, the former should be chosen.Thirdly, similar to US courts and to its case law on association, partnership and co-operation agreements,

as well as certain environmental agreements, the CJEU should strive to commence its “direct effect”analysis with the terms or language of the specific provisions being relied on by the claimants. Only ifthe provisions are not sufficiently clear, precise and unconditional should the CJEU look at the overallpurpose and objectives of the agreement.Fourthly, following the US academic debate, more scholarship is needed on the issue of rights conferred

by international agreements.When the CJEU prefers to adopt “rights” language in its direct effect analysis,the primary right in need of protection needs to be conferred by the agreement, but the right to seek

193Slovak Brown Bear (C-240/09) at [45].194Scalia and Garner, Reading Law (2012), p.317; Touche Ross & Co v Redington 442 U.S. 560, 575–579 (1979);

Alexander v Sandoval 532 U.S. 275, 288–289 (2001).



remedies for its breach is already present in EU law or Member State law. This is a consequence of theubi jus ibi remedium principle. In instances when the existence of a right is not discernable, for examplein the situation of public interest groups and NGOs, the CJEU should enforce the agreement if an interestexists which furthers the effet utile of the international agreement, regardless of whether the challengedmeasure is a Member State or an EU one.



A Look at EU International Agreements through a US Lens - Different methods of interpretation, tests...

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