178
Piet Eeckhout
Troisième séance de travail — Les perspectives
individuals and national authorities, or even directly between individuals (
22
).
To that effect, they may expressly provide for individual rights, but are more
likely – like the original EEC Treaty – to impose obligations on the contract-
ing States (and on the EU as a contracting party). There is little reason not to
accept, like in
Van Gend en Loos
, that individual rights are the reflection of
such obligations.
The reciprocity argument, by contrast, sits most uneasily with a progres-
sive conception of the EU as an international actor, and with an autonomous
EU conception of the relationship between EU and international law. The dir
ect effect of
Van Gend en Loos
is in the nature of an EU stem cell. Requiring
reciprocity constitutes a return to a conception of international cooperation
which conceives of international law as a mere instrument of international
politics. It sends out the message that the EU insists on being unique, and
does not attempt to extend its model of strong rule-of-law-based international
cooperation to its relations with others.
The Lisbon Treaty emphasises respect for international law, and rightly so.
The EU is working towards becoming an even more significant global actor,
which is one of the main goals of the institutional changes made by Lisbon. It
effectively exports many of its norms to non-member countries, for example
through association and free-trade agreements. The EU’s internal approach is
one in which EU law is integrated in national law. International agreements
concluded by the EU are an integral part of EU law. Their direct effect ought
to be recognised in much the same way as the direct effect of the founding
Treaties and of EU legislative instruments. That does not mean that the Court
should all too easily conclude that the EU is violating its international obliga-
tions, and strike down EU legislation on that basis. Judicial review of legis-
lation is constitutional-type review, and it would be right for the Court to
limit intervention to clear-cut, manifest cases of breach. There is room for the
constitutional argument according to which the EU’s political institutions are
primarily responsible, not merely for determining the terms and content of
the EU’s consensual international obligations, but also for their proper imple-
mentation. Also, where the international agreement operates its own system
of dispute settlement, the Court of Justice should not seek to substitute itself
for the agreement’s adjudicators.
(
22
) The TRIPs agreement is an example of an agreement substantively regulating also relations
between private parties, as it concerns intellectual property rights.
