Trade and Competition Law in the EU and Beyond
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Trade and Competition Law in the EU and Beyond

Edited by Inge Govaere, Reinhard Quick and Marco Bronckers

This well-documented book comprises a stellar cast of European and American authors delivering an overview of cutting edge issues in the areas of trade and competition law, arising in the EU and beyond.
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Chapter 13: Can the EU’s Disregard for ‘Strict Observance of International Law’ (Article 3 TEU) be Constitutionally Justified?

Ernst-Ulrich Petersmann


JOBNAME: Trade and Competitio PAGE: 1 SESS: 16 OUTPUT: Mon Jun 20 16:16:16 2011 13. Can the EU’s disregard for ‘strict observance of international law’ (Article 3 TEU) be constitutionally justified? Ernst-Ulrich Petersmann During his many years as legal advisor in the EU Commission, Jacques Bourgeois contributed to the revolutionary transformation of EU law from an international treaty among states into ‘a Community based on the rule of law, inasmuch as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’.1 Yet, like other advocates of the EU and EU diplomats representing the EU in the GATT and World Trade Organization (WTO), Jacques welcomed the now established jurisprudence of the ECJ exempting the EU institutions from legal and judicial accountability vis-à-vis EU citizens for the frequent violations of the EU’s GATT/WTO obligations, as formally established in more than 40 GATT and WTO dispute settlement rulings. From my perspective as a former legal advisor in GATT and the WTO and representative of Germany in European and international institutions, I have argued long since2 that the unnecessary, frequent disregard in EU trade policy-making for the EU’s constitutional obligation of ‘strict observance of international law’ (Article 3 TEU) lacks a constitutional justification ECJ, Case 294/83, Les Verts [1986] ECR 1339, para. 23. Cf. Petersmann, E.U., ‘Application of GATT by the Court of Justice of the European Communities’, in...

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