170
Piet Eeckhout
Troisième séance de travail — Les perspectives
concluded by the EU are an ‘integral’ part of EU law (
3
). But the term inte-
gral has something of a special meaning here. The GATT was considered not
to confer rights on individuals, in other words not to have direct effect, in
contrast with the EEC Treaty. This was so notwithstanding the substantive
parenthood of many GATT provisions: see for example Article III:2 on fis-
cal discrimination and the corresponding Article 110 TFEU; or the General
Exceptions in Article XX GATT and in Article 36 TFEU. The ‘spirit’ of the
GATT, as it was then termed –
l’esprit
– was too flexible. The GATT was char-
acterised, in the eyes of the Court, by its scope for derogations and waivers,
recourse to safeguard measures and flexibility of the system of dispute settle-
ment.
A series of other – often important – international agreements have suf-
fered the same fate of not being recognised to have direct effect. The WTO
agreements, though clearly much less flexible than the GATT of 1947 (
4
), were
also ruled not to have direct effect. In fact in the more recent case-law there is
a strong emphasis on the eternal scope for negotiations in the WTO, creating
the impression that the Court of Justice has barely registered the Copernican
revolution, particularly in dispute settlement, resulting from the establish-
ment of the WTO (
5
).
Next to GATT and the WTO, two further multilateral agreements were
denied direct effect: the UN Convention on the Law of the Sea and the Kyoto
Protocol (
6
). One should further note that there are many significant multilat-
eral agreements which the EU has never concluded (often for reasons beyond
its control), but which are binding on all of its Member States. The Chicago
Convention, referred to in the
ATA
case, is but one example. Such agreements
are also precluded from having direct effect. On the other hand, there are also
many (particularly bilateral) agreements which have indeed been recognised
as conferring rights on private parties – most often in cases involving chal-
lenges to Member States’ laws and decisions rather than EU acts (
7
). It is clear
(
3
) Case 181/73
Haegemann
[1974] ECR 449.
(
4
) See the comprehensive analysis by Advocate General Tesauro in Case C-53/96
Hermès
[1998] ECR I-3603.
(
5
) See for example Case C-377/02
Van Parys
[2005] ECR I-1465.
(
6
) Respectively Case C-308/06
Intertanko
[2008] ECR I-4057; Case C-366/10
Air Transport
Association of America (ATA)
[2011] ECR I-13833.
(
7
) See further M. Maresceau,
Bilateral Agreements Concluded by the European Community
,
(2004)
Recueil des cours,
246-297.
