175
Third working session — The future prospects
EEC Treaty which led the Court to recognise direct effect: no deep economic
integration, no direct participation of citizens, no preliminary-rulings pro-
cedure establishing a direct link between domestic courts and international
courts and tribunals. An analysis based purely in international law is unlikely
to lead to many clear-cut findings of direct effect, if one should be looking for
the kind of characteristics which persuaded the Court in
Van Gend en Loos
.
There would in fact in all likelihood be very few cases in which direct effect
would be established.
What then is the nature of the Court’s direct-effect analysis, as regards
international agreements? As set out in
Kupferberg
, the Court first examines
whether the agreement itself provides for direct effect in municipal law. But
as pointed out above, there are very few instances in which an international
agreement does this in express terms (
19
). Let us not forget that even the EEC
Treaty did not provide for direct applicability or direct effect, which was obvi-
ously not a matter of mere oversight in light of the observations of the Member
States in the
Van Gend en Loos
litigation. There is great resistance by States
to provide for direct effect, as it removes scope for political manoeuvre – to
use the Court’s own terms in
Portugal v Council
(
20
). Moreover, in States with
strong dualist traditions, direct effect would upset long-standing constitu-
tional practices. In fact it would seem that the reality of States’ constitutional
attitudes towards international law is much more dualist than classic, text-
book distinctions between monist and dualist systems suggest. To mention
just the US example: the more distant observer would not suspect that the US
Constitution provides that treaties are the law of the land.
As international agreements almost never provide for direct effect in ex-
press terms, the question is really what elements of an agreement could point
in the direction of direct municipal application. There is in this respect an
ambivalence in the Court’s case-law. Much relevant case-law has appeared to
be based on a presumption in favour of direct effect, expressed by using a
negative turn of phrase: it is only where the nature and structure of the agree-
ment preclude direct effect that the Court will not apply the agreement (
21
).
That presumption is not always present however, and it is in particular un-
(
19
) D. McGoldrick,
International Relations Law of the European Union
(Longman, 1997) 127.
For such an instance see Case C-1/96
R
v
MAFF
, ex parte Compassion in World Farming
[1998] ECR I-1251, paragraph 35.
(
20
) Case C-149/96
Portugal
v
Council
[1999] ECR I-8395.
(
21
) See e.g. Case C-235/99
Kondova
[2001] ECR I-6427.
