December 01
2020

The Conclusion and Implementation of EU Free Trade Agreements: Constitutional Challenges

Isabelle Bosse-Platière and Cécile Rapoport (Eds.)

review by

Johanna Jacobsson

The EU is only as trustworthy as any one of its members. That may be the conclusion reached by some of the EU’s trading partners during the past years as the final ratification of EU’s trade agreements has been left hanging upon the resistance of a single Member State. The EU’s credibility and efficiency in its external commercial relations arguably relies upon its capacity to conclude treaties in the name of the entire Union. However, the EU’s internal constitutional structure does not yet facilitate perfect alignment with the practices of modern trade and investment agreements. This is the key issue that the volume edited by Isabelle Bosse-Platière and Cécile Rapoport sets out to examine.

The volume is an impressive collection of well-researched chapters focusing, first, on the conclusion of FTAs by the EU and secondly, on the implementation of these agreements. The division is sensible as both areas come with their own legal and practical peculiarities. The first part starts by tackling the legal issues raised by the recent case law of the Court of Justice on the external competences of the EU. First of all, Opinion 2/15 on the EU-Singapore FTA clarified the scope of the Common Commercial Policy (again a step further than previous case law). As usual, it left certain issues unresolved and as noted by Fernando Castillo de la Torre, contained some opaque passages on the nature of ‘shared competence’. Further clarification was given in the COTIF and the Lisbon Agreement cases. While the Court in those cases made it clear that the Union may alone conclude agreements also under areas of shared competence, there still remains some confusion over the issue. While the Lisbon Treaty did aim to simplify the legal rules applicable to EU’s external action, the book shows that the applicable legal, institutional and procedural frameworks remain complex and capable of creating a great deal of uncertainty.

The book, however, goes far beyond the issue of facultative v. compulsory mixity of EU’s FTAs. Among the most interesting chapters in the first part are those discussing the level of transparency of the EU’s commercial policy and the democratic scrutiny that has greatly increased over the EU’s new generation FTAs (those concluded with highly competitive industrialised or emerging economies) as well as those looking into the role that the European and national parliaments have in the negotiation of EU’s FTAs. The second part of the book has a more technical approach as it focuses on the implementation of the EU’s FTAs. It starts by explaining the method of provisional application of the EU’s mixed trade and investment agreements and then explains the possible impact of the little-known joint committees established by such agreements on both EU law and on democratic control. The book ends with an analysis of the principle of effective legal protection and autonomy of EU law in relation to the actual and possible dispute settlement mechanisms that are part of modern FTAs.

As pointed out by the editors, the EU needs to invent appropriate answers to the constitutional challenges that it still faces in its external trade relations to preserve its credibility on the international scene. This book gives a comprehensive overview of those challenges and some of the solutions that can be adopted (such as the division of the EU’s trade and investment agreements into two along the lines of competences). As the chapters all relate to a relatively narrow theme, there is some overlap between them. However, this is not a problem as this light repetition allows the reader to pick separate chapters to read without having to go through all the preceding ones.

 

Johanna Jacobsson is Assistant Professor at IE University in Madrid, Spain. She holds a PhD from the European University Institute (Florence, Italy) and LL.B., LL.M. and BA degrees from the University of Helsinki (Finland). Her book ‘Preferential Services Liberalization: The Case of the European Union and Federal States’ was published in December 2019 by Cambridge University Press.

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