Trade Briefs

The Development of REC Community Law: The EAC Court of Justice makes an important Contribution

The Development of REC Community Law: The EAC Court of Justice makes an important Contribution

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12 Jul 2019

Author(s): Gerhard Erasmus

When the internal legal order of a particular regional integration arrangement is described as being based on “Community Law”, it typically means an advanced level of integration, bolstered by effective legal instruments and institutional structures, has been achieved. A unique system of shared governance has been brought about. This has implications (and benefits) for the domestic implementation of the obligations accepted by the member states and for all their trade related governance.

The far-reaching consequences now faced by the United Kingdom, should it decide to leave the EU without a Brexit deal, serve as a reminder of the vast array of tasks that Brussels performs on behalf of the EU member states. The UK will have to re-invent its own national trade governance to be able to fly solo again.

Community Law is not the same as an arrangement founded on a set of standard international agreements concluded between sovereign states to liberalize trade amongst them. Unlike traditional public international law undertakings (which contain rights and obligations for the State Parties), Community Law goes further. It has domestic impact and applies to individuals and firms engaged in commerce within the “Community”. Community law obligations fundamentally alter domestic governance.

The founding instruments of some African Regional Economic Communities (RECs) proclaim that they are based on their own systems of Community Law. The recent judgment of the Court of Justice of the East African Community (EAC) in British American Tobacco (U) Ltd (Applicant) versus The Attorney General of Uganda (Respondent) of 26 March 2019 provides a useful context for discussing the EAC as a specific example. This judgment reveals how important independent judicial review is for enforcing Community Law, but also sheds light on the other elements (policy oversight and institutional support) required for effective and rules-based regional integration.

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