Direct Applicability and Direct Effect of International Law in the EU Legal Order

Abstract

Direct applicability and direct effect are two different, albeit intertwined, concepts that explain the way in which international law operates in the EU legal order. In Air Transport Association of America (ATAA) and Others, the European Court of Justice (ECJ) was called upon to examine the compatibility of Directive 2008/101 with three principles of customary international law, namely the principle that each State has complete and exclusive sovereignty over its airspace, the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and the principle which guarantees freedom to fly over the high seas. It follows from ATAA and Others that the conditions under which a principle of customary international law may be invoked as a standard providing grounds for judicial review differ from those that govern the direct applicability and direct effect of international agreements. Keywords: Air Transport Association of America (ATAA); EU legal order; European Court of Justice (ECJ); international law