EUROPEAN COMMUNITY: EFFECTS OF INTERNATIONAL AGREEMENTS IN EUROPEAN COMMUNITY LAW: ARE THE DICE CAST? +

1250 INTRODUCTION One of Eric Stein's outstanding qualities, both as a scholar and as a teacher, is his skillful use of the comparative method, for which he can rely on an extensive knowledge of, and insight into, different legal systems. Quite a few years ago I had the privilege of participating, as a visiting professor, in the conduct ofhis course on European Community Law at the University of Michigan Law School. One of the sessions dealt with van Gend & Loos 1 and Costa v. ENEL. 2 In those two leading cases, the Court of Justice of the European Communities expounded its doctrine concerning the "direct effect" of certain provisions of the EEC Treaty -- i.e., that where provisions impose upon the Member States clear and unconditional obligations and the implementation or effectiveness of the provisions is not dependent on any further act of any State, such provisions create individual rights enforceable in the courts of the Member States. To stimulate the discussion and test his students' understanding, Eric Stein submitted to them the question whether these cases could be seen as an elaboration of Justice Marshall's opinion in Foster and Elam v. Neilson, 3 generally considered the source of the theory of self-executing treaties. Prompted by Professor Stein's incisive queries, the discussion revealed that the similarity between "self-executing treaties" a la Marshall and the "direct effect" of the EEC Treaty was only apparent. The Court of Justice's underlying theory of the ...