Judicialisation of Trade Policy and the Impact on National Constitutional Rights of EU Free Trade Agreements with Partner Countries in Europe

This article forms part of a Special Issue: EU Free Trade Agreements and Fundamental Rights Protecting Commercial Interests or Exerting Normative Power?Abstract
This article looks at the way in which the model of the European Court of Justice (ECJ) as a trade policy actor, both internally and externally, has been emulated by courts of European states with a free trade agreement with the Union. It examines in particular how, through application or rejection of—deference or defence to—EU law as interpreted by the ECJ, those courts have sought to balance the benefits of open international trade with the protection of domestic fundamental constitutional values. The article concludes by emphasising how the ‘de-politicisation’ of trade policy through its concomitant judicialisation has allowed such courts to seise upon a role in trade policy determination, enabling them to become actors in the process of determining the rate and extent to which the Europeanisation of trade law occurs in their national systems.

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