Is the Supreme and Constitutional Courts’ Rebellion Against EU Law a Threat for the Lack of Direct Effect of the New Generation EU Free Trade Agreements?

Abstract

This article presents the current perspective on the roles of Constitutional Courts of the EU Member States in the future implementation of the new generation Free Trade Agreements (FTAs)_, particularly concerning the application of the ‘counter-limits doctrine’. According to such doctrine, whenever national law amounts to a breach of EU law, the judge shall apply European Union law. However, if and when provisions of EU law would infringe on basic fundamental rights protected by the Constitution, then the Constitutional Court would declare the primacy of domestic law to protect the citizen’s fundamental rights. The present article discusses the current trend in the judicial rebellion pending in the EU against the Court of Justice of the European Union (CJEU) and argues that it should be tackled by the European Commission in a firm and strong manner, as the above situation adversely impacts also the everyday application of the new generation of FTAs by the EU.