The preclusion of direct effect in the recently concluded EU free trade agreements

Publishers Abstract:

The EU's FTA network is steadily expanding. All recently concluded FTAs adopt a WTO-like dispute settlement mechanism, and incorporate to varying degrees WTO provisions. Even more remarkably, EU FTAs explicitly restrain the direct effect of their provisions. This comes in contrast to the case law of the ECJ so far, which invariably granted direct effect to provisions of EU's bilateral agreements.

The article aims to analyse this shift, which is observed across the spectrum of EU's trade agreements, from development instruments and neighbourhood agreements to pure Global Europe FTAs. It employs their two common features, namely the WTO-like dispute settlement mechanism and WTO incorporation, in order to determine which of the two led decisively to the restriction of their domestic effects. It contends that it is the inextricable FTA/WTO intertwinement that hardly leaves any margin for the EU FTAs to have more far-reaching legal effects than those already accepted for the WTO agreements in the ECJ case law.

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