LEGAL EFFECTS OF EU INTERNATIONAL AGREEMENTS Tamara Ćapeta 2015

Direct Effect and Supremacy  CJEU developed a doctrine according to which EU legal norms may directly create rights justiciable in front of domestic bodies – national courts and administration  The doctrine was at first developed in relation to Treaty rules and later applied also to EU secondary law  If a norm has direct effect, an individual can invoke it in order to claim a right and in order to cause non- application of domestic legal norm

Direct Effect  Case 26/62 Van Gend en Loos  EU legal norm creates rights for an individual which he/she may invoke in front of national courts  Conditions for direct effect: legal provision has to be sufficiently clear and unconditional

Supremacy  Case 6/64 Costa v ENEL  Case 106/77 Simmenthal  If there is a collision between two norms: an EU norm granting a right to an individual and a national norm denying such right, national court is under obligation to apply the EU norm  Thus, national norm is to be set aside for the purposes of solving particular case

Importance of the direct effects doctrine  EU law becomes and effective system of legal rules  The realisation of EU law does not depend on the implementing measures taken by Member States  Member States can no longer avoid obligations once they are agreed in the European political process, even if they have voted against them

Direct effect of EU international agreements?  Do international agreements to which EU is a party have direct effects and under which conditions?  the CJEU recognized direct effect of an international agreement in case 104/81 Kupferberg (1982) – the case concerned Trade Agreements with Portugal  Later, the CJEU recognized also direct effect of a decision adopted by a body established by an international agreement: caseC-128/89 Sevince (1990)

Conditions for direct effect  Direct effect does not depend on reciprocity  Conditions are the same as for internal EU rules: a provision has to be sufficiently precise and unconditional  However, the latter has to be interpreted in the context  Thus, if the Court considers that a general purpose of an international agreement does not uphold the recognition of direct effect, then not even particular provisions of that agreement that are clear enough will have direct effect – GATT, WTO

Association Agreements  Direct Effect possible: Rules governing establishment: cases C-63/99 Gloszczuk; C-235/99 Kondova; C-257/99 Barkoci i Malik; C-268/99 Jany Rules on the prohibition of discrimination of legally employed persons: case C-438/00 Kolpak  Direct effect of other association agreements: Case C-265/03 Simutenkov

Importance of the recognition of direct effect  Individuals, including third country nationals, to whom the EU has recognized certain rights by an international agreements, can invoke those right in front of the bodies in Member States  In Croatia – it was important because of the SAA

Interpretation of International Agreements  Dependent on the context and the purpose which the agreement aims at  Mirror provisions do not necessarily have the same meaning in an international agreement as the one given to the same norms in the Treaty  Case 270/80 Polydor

Interpretation in favour of individuals  Example: the notion of the expression ‘establishment’ in European Agreements  Right of establishment embraces also right of entry and right of residence  Can be limited for the purposes of proving the ‘real intention’ of the person at issue to establish herself in order to conduct business and not to look for job at the labour market

Example  Case Jany – the meaning of the expression ‘economic activity of self-employed person’ –the same in the context of an Europe Agreement as in the context of the Treaty  Right of establishment gives also the right of entry and residence  Third country nationals to whom the agreement applies may invoke such rights in front of Member States’ courts and other public bodies