Why do the eu and its court of justice fail to protect “strict observance of international law” (article 3(5) TEU) in the world trading system and in other areas of multilevel governance of international public goods?

Abstract

I met Horst G. Krenzler the first time during my work as research fellow at the Max-Planck Institute for International and Comparative Public Law in the late 1970s at Heidelberg, where Krenzler campaigned for the Liberal Democratic Party in the first direct elections to the European Parliament. During our later meetings in EC institutions at Brussels where I represented Germany as legal advisor to the German Ministry of Economic Affairs, our discussions focused less on academic than on diplomatic conceptions of international trade law and policies. This contribution in honour of Krenzler begins with a short discussion of why economic and political theories of trade agreements fail to convincingly explain the reality of international trade law. It then discusses the five major legal narratives of conceptualising, designing and interpreting international trade agreements. The Lisbon Treaty differs from all other international trade agreements by its “constitutional approach” to the regulation of the EU’s customs union and by its “cosmopolitan guiding principles” (in Article 21 TEU) for the EU’s external policies. While the Kadi jurisprudence of the Court of Justice of the European Union (CJEU) and the Solange jurisprudence of the German Constitutional Court are successful examples of European leadership for promoting rule of law in the collective supply of international public goods (PGs) demanded by citizens, this contribution criticises the frequent disregard by political and judicial EU institutions for their legal WTO obligations to provide “security and predictability to the multilateral trading system”, including individual access to justice and judicial remedies in domestic courts. The treatment of EU citizens as mere objects rather than legal subjects of WTO trade rules illustrates a systemic failure to protect international rule of law for the benefit of EU citizens in mutually beneficial international trade, including “strict observance of international law” (Article 3(5) TEU) in conformity with the cosmopolitan legal principles prescribed by EU law (Articles 3 and 21 TEU) for the EU’s external actions.