An Analysis of Direct Effect and Judicial Review Pre- and Post-Lisbon

Abstract

The aim of this dissertation is to investigate the institutional and legal effects of international agreements. It is structured in three chapters. The first chapter will be concerned with the Court's case law on direct effect of international agreements (GATT/WTO, free trade associations with EFTA and with non-EFTA countries, accession associations, development associations and EEA).
The second chapter will be concerned with the general issues and practice on international agreements in the CFSP and FSJ, and will integrate sections on direct and indirect effect. The chapter will be thus organised as follows: Section 1 will deal with the international legal personality of the Union; Section 2 will deal with the practice on EU agreements; Sections 3 and 4 will deal
respectively with direct effects and indirect effects and will address a vertical dimension (vis-à-vis national legislation). The third chapter will give an overview of the jurisdiction of the Court on EU international agreements. The chapter will be thus organised as follows: Section 1 will look at the jurisdiction of the Court on EC agreements (by now EU) before and after the Lisbon Treaty reforms; Section 2 will look at the jurisdiction of the Court on agreements concluded in the fields of CFSP and PJC (by now FSJ) before and after the Lisbon Treaty reforms; Section 3 will consider the standard of review in general.

The findings of this study are that the notion of direct effect as applied by the Court in cases involving international law cannot be transposed to international agreements in the CFSP and FSJ; arguments in favour of direct effect seem less thorough and less elaborated on. Article 40 TEU, as one of the heads of the jurisdiction that the Court had and now has on a reformed basis, could be
relevant for giving the Court ex post jurisdiction on an international agreement, at least as far as the competence question is concerned. Article 218 (11) TFEU is a potential inroad into the CFSP exemption. Article 275 (2) TFEU is again one of the potential inroads into the CFSP for the Court.

Overall, the interests and rights of private parties would be better served by a more extensive role of the CJEU.