유럽공동체가 체결한 조약의 유럽공동체 역내적 효력

Abstract

This paper reviews the internal legal effects of the treaties concluded by the European Community. The focus of the paper is whether the provisions of a Community treaty do have the direct effect which the ECJ has developed through its case-law. In considering the effect of the treaties in the EC, the ECJ uses two tests. One is the literal test(an objective test). The other is the object and nature test(a subjective test). In the first test which is more important than the second, the ECJ is using the same criteria, i.e. the precise and clear term, unconditionality and no necessity of further acts tests, when it considers the effect of internal legislations. And when the ECJ considers the literal test, it gives special reference to the object and nature of the treaty concerned. According to the established jurisprudence of the ECJ, some of the provisions contained in the treaties which grant a privileged status to the other party, for example, Yaounde´ Convention and Lome´ Convention do have the direct effect. In particular, the provisions which was accepted to have direct effect at first were those governing the trades in goods. After then, some of provisions concerning movement of workers were accepted to have direct effect, where those provisions are contained in the agreements which were concluded with countries haying special relations with the EC. After then, some of provisions contained in the free trade agreements were considered to be directly effective, even though those agreements were concluded on the reciprocal basis. Although the ECJ accepted the provisions of treaties which were concluded on the equal footing may have direct effect, it consistently objects to give direct effect to the provisions of GATT/WTO Agreements.