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

International agreements normally become binding when they enter into force, after they have been formally approved by the parties. Such approval may take years, given the rigidities of parliamentary procedures. To ensure a more timely action, especially in the case of crises, international subjects developed, over the decades, a practice whereby they put international agreements into ‘provisional application’ before they enter into force. Provisional application is especially important in the practice of the European Union, particularly in the field of trade and investments. The principle of conferred competences implies that neither the Union nor its Member States can exercise complete external sovereignty. Hence, they must jointly enter into the agreements that fall partly within the competences of the former and partly within those of the latter. These instruments, usually termed as ‘mixed agreements’, must be approved by both the Union and its Member State, each pursuant to its domestic procedures. Hence, there is the risk that approval procedures may take several years, or that they may be derailed by extemporaneous initiatives of a single national parliament. To overcome the problems raised by mixity, the Union routinely gives ‘provisional’ application to mixed agreements, or to parts thereof, before they are approved by its Member States. The present paper seeks to ascertain whether provisional application of trade and investment agreements is a useful practice, or if it should be abandoned.