Provisional Application of EU Trade and Investment Agreements: A Pragmatic Solution to Mixity Issues

AutorMauro Gatti
Provisional Application of EU Trade
and Investment Agreements: A
Pragmatic Solution to Mixity Issues
EU trade and investment agreements are frequently concluded
in the «mixed» form because they contain aspects covered by EU exclu-
sive competences (such as foreign direct investment) and matters alleg-
edly falling within the scope of Member States’ competences (e.g. portfolio
investments).1 Mixity complicates the application of international agree-
ments, because a mixed agreement enters into force when both the Union
and all its Member States have ratied it. National ratication procedures
may take years, and might even be temporarily blocked by political inci-
dents. e delays and uncertainty created by the ratication of mixed agree-
ments may evidently question the credibility and eectiveness of the EU’s
trade and investment policy.
1 Opinion 2/15, whose procedure is pending at the moment of writing, will presum-
ably clarify this issue, cf. Opinion of Advocate General (AG) Sharpston in Opinion
procedure 2/15, EU:C:2016:992, paras 307-370.
Mauro GATTI*
* Research Associate, University of Luxembourg. e websites cited in this paper
were last accessed on 30 April 2017.
To address this problem, the European Union employs a well-estab-
lished international law tool: provisional application. International subjects
frequently decide to give «provisional» application to international agree-
ments before they enter into force,2 to act more swiftly in case of crises3 or
to bypass lengthy domestic approval procedures.4 e use of provisional ap-
plication raises several legal issues. One may wonder, in particular, wheth-
er provisionally applied agreements are binding, which parts of the agree-
ments the EU may decide to provisionally apply, and if EU Member States
may terminate the provisional application decided by the Union.
Provisional application recently attracted considerable interest, given
the possibility that some important trade agreements might be applied on
a provisional basis.5 A political party brought action against the provisional
application of the Comprehensive Canada-EU Economic and Trade Agree-
ment (CETA) before the German Constitutional Court.6 Several Members
of the European Parliament asked questions about provisional application
to the Commission.7 Despite the political saliency of this topic, and the im-
2 ‘Provisional application’ is sometimes referred to as ‘provisional entry into force’. e lat-
ter denition seems theoretically inaccurate and, in any event, it is not used in EU law;
hence, it is not discussed in the present analysis. See D. Mathy, ‘Article 25 of Vienna
Convention 1969’, in O. Corten and P. Klein (eds), e Vienna Conventions on the Law
of Treaties: A Commentary, Volume 1 (Oxford University Press, Oxford, 2011) 639, at
647-649; Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, para. 209.
3 On the functions of provisional application, see R. E. Dalton, ‘Provisional Applica-
tion of Treaties’, in D. B. Hollis (ed), e Oxford Guide to Treaties (Oxford Univer-
sity Press, Oxford, 2012) 220, at 234-238; Mathy, supra note 2, at 643.
4 H. Krieger, ‘Article 25. Provisional application’, in O. Dörr and K. Schmalenbach
(eds), Vienna Convention on the Law of Treaties: A Commentary (Springer, Heidel-
berg, 2012) 407, at 417.
5 See, in particular, Council Decision 2017/38 of 28 October 2016 on the provisional
application of the Comprehensive Economic and Trade Agreement (CETA) bet-
ween Canada, of the one part, and the European Union and its Member States, of
the other part, OJ 2017 L 11/1080.
6 2 BvR 1368/16, 2 BvR 1444/16, 2 BvR 1823/16, 2 BvR 1482/16, 2 BvE 3/16.
7 See e.g. Question for written answer to the Commission, Nikolaos Chountis, 24
June 2016, E-005124-16; Question for written answer to the Commission Rule

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