The Legal Effects of EU Agreements

Front matter

Maximalist Treaty Enforcement and Judicial Avoidance Techniques

Mario Mendez

Oxford Studies in European Law

Preface

Mario Mendez has written an engaging and informative account of the legal effect accorded by the European Court of Justice to international agreements concluded by the EU.

Certain aspects of this subject have attracted a great deal of attention from both scholars and practitioners over the years, such as the legal effects of the GATT and WTO agreements in EU law. Mendez’s book however tackles the broader subject of the legal effects accorded by the Court to all manner of EU-concluded agreements, and places the GATT/WTO case law in this wider context.

The book begins, after reflecting on the importance of treaties as a source of law today, with a context-setting discussion of the ways in which domestic courts have generally treated the legal effect of international agreements. Eschewing the familiar but often confusing terminology of monism and dualism, Mendez identifies two broad judicial approaches to international treaties which he terms automatic incorporation, and non-automatic incorporation. He then looks at the foundational cases in which the Court of Justice articulated its approach to the legal effect of international agreements.

He moves on in the core three chapters of the book to identify the approach which the Court has taken to international agreements in three broad fields: those of (a) association, cooperation, partnership, and trade agreements (b) the GATT/WTO agreements, and (c) other non-trade agreements. What emerges is a picture of a variegated set of strategies on the part of the Court: using an automatic incorporation (and ‘maximal enforcement’) approach in some circumstances, and techniques for judicial avoidance in others. The crucial distinction, it emerges, between the cases in which the Court adopts a maximalist enforcement approach, and those in which it uses techniques of judicial avoidance, is whether or not the case involves a challenge to Member State action as compared with EU action.

Mendez has written a valuable book, based on a substantial data set of European Court case law, which includes thorough discussion and appraisal of the case law of the Court of Justice in this important field. In additional to marshalling and analyzing this useful empirical body of case law, the

This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com viii Preface book provides a deft and authoritative evaluation and critique of the Court’s approach to international treaties over the years.

This book should be of interest to students, scholars, and practitioners of EU law alike, and to all of those interested in this aspect of the European Court’s contribution to the EU’s emergence as a global actor.

Paul Craig Gráinne de Búrca

This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com

ACKNOWLEDGEMENTS

This book is a revised version of a PhD thesis defended at the European University Institute in 2009. I am immensely grateful to my doctoral supervisor, Grainne de Búrca, for her considerable input into this project and her support over the years. I am also grateful, for offering valuable insights in relation to aspects of this work, to the following: Kenneth Armstrong, Marise Cremona, Bruno de Witte, Piet Eeckhout, Robert Howse, Christian Joerges, Pieter-Jan Kuijper, Marc Maresceau, Valsamis Mitsilegas, Ernst-Ulrich Petersmann, and the late Eric Stein (I will long remember being driven through snowy Ann Arbor by a man already into his tenth decade when going for a farewell drink as I finished a period as a visiting researcher at the Law School of the University of Michigan). In addition, a number of current and former officials of the various EU institutions gave generously of their time some years ago to discuss various aspects of this work. I am also grateful for the constructive feedback from the OUP reviewers and to OUP more generally for their professionalism as well as their patience—Natasha Flemming in particular—as changes to the manuscript took longer to implement than I had anticipated.

I am very grateful to my friends and colleagues at Queen Mary, University of London. The School of Law has been an excellent place to work and accorded me the space to complete the PhD and research leave to convert it into this book. My biggest debt of gratitude is owed to Virginie Barral who, as well as having read and commented on every chapter, has discussed issues pertaining to this book with me over more years than she or I would care to remember. Both she and our young son have also lived with this project for some time and will perhaps be nearly as pleased as I am that it has finally been completed.

This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com

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This is an open access version of the publication distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/3.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact academic.permissions@oup.com

Contents

List of Abbreviations xiii Introduction xV

I. The Legal Effects of Treaties in Domestic Legal Orders and the Role of Domestic Courts 1 1. Introduction 1 2. The Dictates of International Law 2 3. Domestic Legal Orders and the Legal Effects of Treaties 16 4. Revisiting the Theory and the Role of Domestic Courts 37 5. Conclusions 58

II. The Constitutional Status of EU Agreements: Revisiting the Foundational Questions 61 1. Introduction 61