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

Because of its limited competences, the EU often concludes trade and investment agreements in the “mixed” form, which implies long and uncertain ratification procedures. This paper suggests that the Union may bypass some of the problems created by “mixed” procedures by giving provisional application to trade and investment agreements. The analysis demonstrates that a provisionally applied agreement produces legal effects, and may therefore ensure a certain degree of legal certainty. Secondly, it is submitted that the provisional application of EU trade and investment agreements covers a large part of their substantive scope. Finally, it is contended that provisional application ensures a rather stable legal framework, because only the Union (and not its Member States) can decide to terminate it. Provisional application thus appears as a pragmatic instrument, that enables the Union to swiftly bring trade and investment agreements into application, and consequently enhances the effectiveness of the EU’s external policy.