174
Piet Eeckhout
Troisième séance de travail — Les perspectives
To be fair, the Court has recently turned to more of a focus on whether an
agreement confers rights or freedoms, rather than the abstract and institu-
tional analysis of the nature and structure of an agreement: see the
Intertanko
judgment. But, unfortunately, it was in that judgment very restrictive in its
analysis, and reached the wrong conclusion. The reasoning according to
which the Convention does not confer rights or freedoms on individuals who
own ships, because those rights or freedoms are mediated through the flag
State (
16
), is hardly persuasive. It is true that municipal law determines the
nationality of ships, but that is equally true for the nationality of individuals
who benefit from the direct effect of bilateral agreements, such as the Ankara
association agreement with Turkey. That agreement determines the rights of
Turkish workers in the EU, and the Court has never hesitated to confirm that
those rights can be invoked and therefore have direct effect (
17
). Moreover, the
Intertanko
reasoning offers a clear contrast with that of
Van Gend en Loos
. In
the latter judgment, the Court was not held back by the fact that the original
EEC Treaty did not expressly provide for many individual ‘rights’, as such.
Those rights ‘arise not only where they are expressly granted by the Treaty,
but also by reason of obligations which the Treaty imposes in a clearly defined
way upon individuals as well as upon the Member States and upon the institu-
tions of the Community’ (
18
). UNCLOS imposes obligations on States, and on
the EU, obligations which, conversely create rights for ships and their owners.
It is commonly called the ‘constitution’ of the law of the sea, and does much
more than regulating relations between States. It is an international legislative
instrument which ought to have direct effect in municipal law if ever the two
universes of international and municipal law are to be re-united.
The nature of the direct-effect analysis
It is important to reflect further on the nature of the direct-effect analy-
sis, as regards international law and in particular international agreements. Is
this an analysis purely based in international law, or is there scope for a more
autonomous EU law approach?
Van Gend en Loos
was a judgment in which
the assessment of the ‘spirit’ (‘l’esprit’) of the EEC Treaty was determinative.
Following that lead, it might be thought that the same methodology should be
used for international agreements which the EU has concluded. Yet it is obvi-
ous that most international agreements do not share the characteristics of the
(
16
)
Intertanko
, cited above, paragraph 61.
(
17
) See e.g. Case C-192/89
Sevince
[1990] ECR I-3461.
(
18
)
Van Gend en Loos
, cited above, at [1963] ECR 12.
