Working Paper No 2009/18

APRIL 2009

International Trade Law: The Impact of Justiciability and Separation of Powers in EC Law

Thomas Cottier*


The paper discusses the issue of giving direct effect in EU law to international agreements, in particular those of the
WTO, taking into account current jurisprudence and prevailing as well as controversial theories on the subject. It
addresses the problem on the basis of its implications for separation of powers and checks and balances in order to
define justiciability of norms of international agreements, rather than based on current standard criteria of sufficient
precision and reciprocity. In doing so, it seeks to offer a more sophisticated approach and practical guidance in
assessing the legal status of international agreements in the legal order of the European Union, reversing the current
trend towards a dual concept in EU external economic relations.

* Professor of European and International Economic Law, Managing Director, World Trade Institute,
and Department of Economic Law, University of Bern, Switzerland. The article is based on a
discussion paper submitted at the conference “The Relationship between European and International
Law: Old Questions, New Answers?’ held in Fribourg, 18 April 2008. The author is indebted to
Samuele Scarpelli, research fellow at the Department of Economic Law, University of Bern, for most
valuable support, and to the anonymous reviewers for assessing a former draft.