Casolari: The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter?

Federico Casolari (Università di Bologna - Law) has posted The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter? (in The Principle of Equality in EU Law, L.S.Rossi & F. Casolari eds., forthcoming). Here's the abstract:

The founding Treaties of the European Union do not explicitly regulate the legal status or the internal effect of the international agreements concluded by the Union itself. Moreover, the diplomatic practice of the EU legislature has long shown significant resistance to expressly regulating in the text of such agreements the issue of their effectiveness in the legal systems of the respective contracting parties. As a consequence, it is the case law of the European Court of Justice that has tried to shed light on the issue as far as the EU legal order is concerned. In keeping with the common thread of this volume, this chapter carries out an analysis of the ECJ’s rulings on the direct effect of EU agreements through the prism of the EU twin principles of legal equality and non-discrimination, so as to point out the role that direct effect—and the relative ECJ case law—may play in contributing to strengthening the concrete implementation of those principles. Generally speaking, this chapter argues that a Janus-faced attitude towards the principles of equality and non-discrimination comes through in the case law of the ECJ applying the doctrine of direct effect to international agreements. More precisely, the chapter distinguishes two opposite approaches labelled ‘functionalist’ and ‘protective’. The former, it is argued, establishes a functional relationship between direct effect and the equality and non-discrimination principles. From this perspective, the Court’s affirmative finding of a direct effect may be conceived—to some extent—as one of the tools available at the EU level to strengthen a proper implementation of those principles. On the second approach, by contrast, the lack of direct effect of some international agreements entered into by the Union is justified with the need to prevent those principles from being jeopardized and, more generally, to protect EU law. The chapter also looks at the most recent practice of EU political institutions on the signing and conclusion of international agreements. By leading to the express denial of the direct effect of those agreements, that practice marks a significant shift away from the previous trend, a trend that, as mentioned, has so far been characterised by self-restraint of those EU institutions on the agreements’ internal legal effects. This trend is illustrated in light of the two aforementioned judicial approaches, and its possible consequences on the effective implementation of the equality and non-discrimination principles are weighed.