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

• Date: 01 November 2014
• DOI: http://doi.org/10.1111/eulj.12103
• Published date: 01 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