The Preclusion Of Direct Effect In The Recently Concluded Eu Free Trade Agreements

Admittedly, as regards one category of international agreements, namely bilateral trade agreements, the Court has in the past shown a certain willingness to deal with private complaints. One might therefore think that with regard to TTIP and other bilateral agreements, challenges before the Court of Justice of the European Communities could become an alternative to ISDS. What is remarkable is that the EU legislator intervened to try to block the Court of Justice. In decisions on the signing of recent bilateral trade agreements, such as those concluded with Korea, Colombia and Peru, the Council added provisions according to which `the agreement shall not be interpreted in such a way as to confer rights or impose obligations which may be invoked directly before the courts of the Union or the Member States`. Their characterisation of the investment part of the agreement could indeed be an argument for distinguishing that part from the rest of a trade and investment agreement concluded by the EU. Although trade agreements of course also contain obligations imposed on governments, which must benefit traders and private interest groups in the broad sense. It will be up to the ECJ to decide whether TTIP is a mixed agreement; and, if so, which part of TTIP falls within the competence of the EU and which part of TTIP could fall within the competence of the Member States. Last week, the European Commission asked the ECJ to rule on this question of competence with regard to the free trade agreement negotiated by the EU with Singapore. This notice will also provide information on TTIP.