유럽공동체에 있어서 조약의 직접효력과 직접취소소송

The European Community is an international legal person which has competence to conduct international relations with other international legal entities albeit limited to the competence conferred upon by the Treaty establishing the European Community. In this capacity, the European Community may exercise power to conclude treaties with other international entities including States. This paper aims at reviewing some legal issues concerning the effects of treaties so concluded by the European Community. According to the jurisprudence of the European Court of Justice(ECJ), the Community law, including the founding Treaties of the European Community, secondary legislations and treaties concluded by the European Community, if fulfilling certain requirements, may have the direct effect in a sense that the provisions of the Community law may be invoked before the national courts by individuals. Although the ECJ, in conferring the direct effect to the provisions of the Community law, applies only the literal test requirements to the founding Treaties and secondary legislations, it requires that the provisions of treaties concluded by the European Community to be directly effective should meet the literal requirement and also the nature-object test cumulatively. Thus, it is more difficult for individuals to invoke the provisions of treaties before the national courts, despite the treaties are the integral parts of the Community law as is the same with the founding Treaties and secondary legislation. The disadvantage of the provisions of treaties to be employed as a basis of judicial remedy also appears in the judicial system of the European Community itself. Article 230 of the Treaty establishing European Community provides that Member States, certain institutions of the European Community and certain individuals may ask the ECJ to annul the acts of the European Community if, for instance, they violate the Community law. However, taking a different position from the provisions of the founding Treaties and secondary legislations in a direct annulment action before the ECJ, the ECJ, in deciding whether the acts of the European Community violate the Community law, requires the provisions of the treaties to be directly effective or to be referred to in the legislations of the European Community. It is arguable that this jurisprudence of the ECJ is adopted based on misunderstanding of the concept of the direct effect in the European Community. Arguably, the ECJ's jurisprudence concerning the invocability of the provisions of treaties in the direct annulment action before the ECJ may limit the possibility of judicial remedies in the European Community.