The Domestic Law Effect of the WTO in the EU – A Dialogue with Jacques Bourgeois
TRADE AND COMPETITION LAW IN THE EU AND BEYOND, pp. 240-256, Govaere et al. eds., Edward Elgar, 2011
19 Pages Posted: 3 Mar 2012 Last revised: 22 Apr 2013
Date Written: March 1, 2012
In several previous papers I have analyzed the possibilities for private parties to appeal to WTO law and other international treaties before the EU Courts when seeking to invalidate domestic legislation and administrative measures. In this book chapter, published in September 2011, I update and expand on previous research. In particular, I inquire whether EU Courts are justified in denying private parties this right to review on the grounds that the EU's treaty partner(s) fail to grant reciprocal treatment to EU citizens. In this analysis I engage with the noted scholar and practitioner Jacques Bourgeois who published a comprehensive study on the same subject in 2000.
Among other things I argue that (i) whether and to what extent courts in other countries grant domestic law effect to international treaties should be irrelevant to the EU Courts' decision to do so, as this is a matter of constitutional choice -- the EU has chosen a mostly monist approach to international law, but cannot expect all other countries to follow the same model (ii) courts are ill-equipped to decide whether substantively other countries grant reciprocal concessions to the EU (iii) courts should be careful when to follow the executive's assessment of reciprocal treatment of EU nationals by the treaty partner so as not to lose their judicial independence, which is fundamental to a fair trial. I propose that the EU Courts adopt a less far-reaching form of direct effect for international agreements than for the EU Treaty -- allowing the EU legislature, if need be, to correct judicial interpretations of international agreements.
Keywords: direct effect of international treaties, WTO rulings, reciprocity in international relations, monist and dualist traditions in incorporating international law in dometic law
JEL Classification: F13, K33, K41
Suggested Citation: Suggested Citation