107
Second working session — The impact
of the ECJ in
Van Gend en Loos
and
Costa
v
ENEL
. Nevertheless, in the learn-
ing process the cooperation between national courts and the ECJ may well
have been vital (
12
).
2.
The impact of
Van Gend en Loos
beyond EU law:
the domestic effect of international treaties
A second remarkable instance of impact of the
Van Gend en Loos
and
Costa
v
ENEL
approach to the domestic application and enforcement of inter-
national law, is the Belgian approach to international treaties (
13
). Before the
1960s, Belgium hesitated between the monist and dualist approached to the
domestic effect of international treaties, and between primacy of Treaty law
or of Belgian statutes. Treaties were considered to be ‘équipollent à la loi’, but
the exact meaning of this construction was uncertain. In the famous
Franco-
suisse le Ski
case, the Belgian
Cour de cassation
finally sanctioned the direct
effect and primacy of international treaties. In its reasoning, it did not make
reference explicitly to
Van Gend en Loos
and
Costa
v
ENEL
, but the wording
is unmistakenly inspired by that of the ECJ. There is one important differ-
ence: while the ECJ used the specificity of the European Communities to dis-
tinguish it from ordinary international treaties, so as to allow for the courts
in dualist countries to accept the direct effect of EC law without completely
changing their approach to other treaties, the
Cour de cassation
turned this
argument into an
a fortiori
argument. The direct effect of certain internation-
al treaty provisions and their primacy applied to the whole of international
treaty law, and
a fortiori
also for European law. But the reasoning based on the
nature of treaty obligation and the fact, essentially, that ‘nier sa supériorité,
c’est nier son existence’, was extended to all treaties. From then on, Belgium
would squarely come within the group of monist countries. Several other
member states, such as Spain, Luxembourg or Slovenia, equally do not follow
(
12
) A similar development is now apparently taking place in Central and Eastern Europe, where
the experience with EU law seems to have a positive effect on the implementation of other
international law and especially human rights treaties by national courts, see F. Emmert,
‘The Implementation of the European Convention on Human Rights and Fundamental
Freedoms in New Member States of the Council of Europe – Conclusions Drawn and
Lessons Learned’, in L. Hammer and F. Emmert,
The European Convention on Human
Rights and Fundamental Freedoms in Central and Eastern Europe
(Eleven International
Publishing, 2012), 610.
(
13
) For recent analyses, see L. Hammer and F. Emmert,
The European Convention on Human
Rights and Fundamental Freedoms in Central and Eastern Europe
(Eleven International
Publishing, 2012).
