Judicialisation of Trade Policy and the Impact on National Constitutional Rights of EU Free Trade Agreements with Partner Countries in Europe

• DOI: http://doi.org/10.1111/eulj.12104
• Published date: 01 November 2014
• Date: 01 November 2014

Judicialisation of Trade Policy and the

Impact on National Constitutional Rights

of EU Free Trade Agreements with

Partner Countries in Europe

Allan F. Tatham*

Abstract: This article looks at the way in which the model of the European Court of

Justice (ECJ) as a trade policy actor, both internally and externally, has been emulated

by courts of European states with a free trade agreement with the Union. It examines in

particular how, through application or rejection of—deference or defence to—EU law as

interpreted by the ECJ, those courts have sought to balance the benefits of open inter-

national trade with the protection of domestic fundamental constitutional values. The

article concludes by emphasising how the ‘de-politicisation’ of trade policy through its

concomitant judicialisation has allowed such courts to seise upon a role in trade policy

determination, enabling them to become actors in the process of determining the rate and

extent to which the Europeanisation of trade law occurs in their national systems.

I Introduction

The EU lies at the heart of a network of free trade agreements, negotiated with

partner countries in Europe and beyond. Within the purely European context, this

article aims to discuss the extent to which the judicialisation of trade policy1in the

Union has impacted on national constitutional rights in those states which have a free

trade agreement (FTA) with it. For present purposes, the notion of ‘free trade agree-

ment’ is understood broadly as covering a range of treaties concluded between the

Union and third countries or entities, even where the FTA component forms only the

core of such a treaty.

Although these FTAs have differing objectives, they have nevertheless extended

much of the Union’s liberal trade regime across the continent2and include: the

* Lecturer, Facultad de Derecho, Universidad CEU San Pablo, Madrid. The author would like to thank

the participants of the Jean Monnet seminar on ‘Free Trade Agreements and Constitutional Rights’, 2

May 2012, Royal Flemish Academy of Arts and Sciences, Brussels for their prescient comments and

observations. The usual disclaimer applies.

1P. Ehrenhaft, ‘The “Judicialization” of Trade Law’, (1980–1981) 56 Notre Dame Law Review 595.

2For the purposes of selection of the FTAs, one of the important criteria used was the accessibility to

national superior court decisions in English, French or German. Thus, regrettably, no reference has

been had either to the practice of national courts under the 1963 Association Agreement with Turkey

(OJ 1973 C113/2, English version) or under the 1995 EC-Turkey Customs Union (Association Council

Decision 1/95, OJ 1996 L35/1). In respect of countries in the Eastern Partnership, see R. Petrov and P.

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bilateral FTAs signed in the 1970s by the European Economic Community (EEC)

with states of the European Free Trade Association (EFTA);3the European Eco-

nomic Area (EEA) Agreement;4the Agreement on Free Movement of Persons

(FMPA)5which is one of the bilateral agreements with Switzerland;6the former

Europe Agreements (EAs)7with the Central and Eastern European countries

(CEECs); and the Stabilisation and Association Agreements (SAAs)8with the

Western Balkan states. These agreements will be referred to collectively in this article

as ‘EU-FTAs.’

Section II of this article briefly considers the model of the European Court of

Justice (ECJ) as an actor in EU trade policy. While not forming a systematic or

exhaustive study, Sections III–V take this model and spread the net wider in order

to address the issue why—by means of the extensive European-based network of

EU-FTAs—non-EU courts (whether national or supranational) have variously used

or refused to use EU law and specifically ECJ rulings in developing their own roles in

trade policy. Section VI concludes the article.

II The ECJ: ‘The Very Model of a Modern Trade Policy Actor’

While consideration of actor capacity has tended to focus9on the triumvirate of major

Union institutions charged with trade policy and decision-making functions, de Búrca

has observed10 that the ECJ ‘in certain circumstances plays a policy role comparable

to that played by other EU institutions, and . . . it is important to consider whether

the Court should be constrained by the norms and principles that guide those others’.

Moreover, as a strategic actor,11 the ECJ12 in its decision-making capacity is regularly

confronted with interpretative choices that have considerable policy implications.

Thus, while the role of the ECJ cannot be equated with those of the three political

institutions of the Union, it is an EU actor with a considerable degree of normative

influence and autonomy.13

Kalinichenko, ‘The Europeanization of Third Country Judiciaries through the Application of the EU

Acquis: The Cases of Russia and Ukraine’ (2011) 60 International and Comparative Law Quarterly 325.

3See generally N. Wahls, The Free Trade Agreements between the EC and EFTA countries: Their

Implementation and Interpretation: a Case Study (Stockholm University Institute for Intellectual Pro-

perty and Market Law, 1988).

4Agreement on the European Economic Area: OJ 1994 L1/3.

5Agreement between the European Community and its Member States and the Swiss Confederation on

the free movement of persons: OJ 2002 L114/6.

6A. F. Tatham, Enlargement of the European Union (Kluwer Law International, 2009).

7EAs were concluded between 1991 and 1999 with Bulgaria, Czech Republic, Estonia, Hungary, Latvia,

Lithuania, Poland, Romania, Slovakia and Slovenia: ibid, 76–84.

8SAAs have been concluded with the Western Balkan states: ibid, 167–170.

9J. H. J. Bourgeois, ‘Trade Policy-Making Institutions and Procedures in the European Community,’ in

M. Hilf and E.-U. Petersmann (eds), National Constitutions and International Economic Law (Kluwer,

1993), at 175, 190.

10 G. de Búrca, ‘The Principle of Subsidiarity and the Court of Justice as an Institutional Actor’, (1998)

36 Journal of Common Market Studies 217, 218.

11 R. Dehousse, The European Court of Justice: The Politics of Judicial Integration (Macmillan, 1998),

at 178.

12 De Búrca n 10 supra, 218, 229.

13 P. Eeckhout, EU External Relations Law (2nd ed., Oxford University Press, 2012), at 458.

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