Free Trade Agreements after the Treaty of Lisbon in the Light of the Case Law of the Court of Justice of the European Union

AuthorPeter Pecho,Arnaud Van Waeyenberge
Date01 November 2014
DOIhttp://doi.org/10.1111/eulj.12103
Published date01 November 2014
Free Trade Agreements after the
Treaty of Lisbon in the Light of the Case
Law of the Court of Justice of the
European Union
Arnaud Van Waeyenberge and Peter Pecho*
Abstract: Free Trade Agreements (FTAs) are increasingly employed by the European
Union (EU) as a tool of its internal market and external relations policy. This article
addresses the evolution of FTAs through the jurisprudential lens of the Court of Justice
of the EU. To this end, and after clarifying key constitutional issues (competence,
substance and hierarchy), it discusses the Court’s case-law on the direct effect of certain
measures, and addresses a selection of cross-functional questions regarding the interpre-
tation of material law founded in the Court’s case-law. As a matter of general tendency,
the jurisprudence takes a rather liberal stance in recognising direct effects of FTAs
concerning analogical interpretation of economic freedom. By contrast, a more restric-
tive approach appears to have been applied to the interpretation of provisions having an
impact on the possibility of third states’ citizens to reside in the EU.
I Introduction
The Treaty of Lisbon introduced a number of signif‌icant changes in the law governing
the external relations of the EU.1The grounds for these changes lay however in the
Treaty establishing a European Constitution.2As M. Krajewski argues, ‘in particular,
the Lisbon Treaty preserved the provisions of the Constitutional Treaty regarding the
common commercial policy, rendering respective analyses of these provisions by and
large valid’.3As other contributions in this issue have noted, administrative evolution
* Arnaud Van Waeyenberge is Assistant Professor at Ecole des Hautes Etudes Commerciales (HEC) in
Paris. Peter Pecho is Referendaire (Legal Clerk) at the General Court of the European Union, and
Scientif‌ic Collaborator and Lecturer at Université Libre de Bruxelles, Lecturer at Université de Lorraine.
1As most of the legal issues considered in this contribution were similar under the European Economic
Community (EEC), European Community (EC) or EU Treaties, we have chosen to use only the present
denomination—EU—even for situations occurring under previous Treaties. EEC or EC will be
employed only when a difference needs to be stressed.
2See M. Cremona, ‘The Draft Constitution: External Relations and External Action’, (2003) 40 Common
Market Law Review 1347 and C. Smits ‘La politique commerciale commune’, in M. Dony and E.
Bribosia (eds), Commentaires de la Constitution de l’Union européenne (Editions de l’Université de
Bruxelles, 2005), at 389.
3M. Krajewski, ‘The Reform of the Common Commercial Policy’, in A. Biondi and P. Eeckhout, (eds),
European Union Law after the Treaty of Lisbon, (OUP, 2012), at 292.
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European Law Journal, Vol. 20, No. 6, November 2014, pp. 749–762.
© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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