EU Member State Enforcement of ‘Mixed’ Agreements and Access to Justice: Rethinking Direct Effect

Abstract

Article 344 TFEU forbids Member States to pursue any other means of dispute settlement, when issues regarding the application and interpretation of the Treaties are concerned. The Court of Justice extended this principle to include disputes arising under international agreements, where the subject matter falls under EU competence. At the same time the number of international agreements to which direct effect is not granted is slowly rising. Consequently, the question arises whether Member States still have proper access to justice under these international regimes vis-à-vis other Member States or the European Union, given that: firstly, they cannot pursue litigation under the agreements’ dispute resolution system if the foreign body risks interpreting the agreement, which also forms part of EU law; secondly, they cannot rely on these agreements before the Court. This article argues that a rethinking of the direct effect doctrine of international agreements is necessary. Member States should not be equated with individuals, when invoking international agreements before the Court to challenge the validity of EU acts.