Legal and Political Challenges for the Treatment of Workers Provision in the EU-Ukraine Association Agreement: Towards a New Trend of Opt-Outs and the Preclusion of Direct Effect?

This paper will analyse two remarkable legal developments related to the provision on the treatment of workers in the recent EU-Ukraine Association Agreement (AA). Whereas the Court of Justice of the EU (CJEU) has attributed direct effect to provisions on the treatment of workers in other (Association) Agreements, granting individuals the possibility to rely on this provision before a national court as a basis for requesting that court to disapply discriminatory treatment, direct effect of the corresponding provision in the EU-Ukraine AA is being complicated. On the one hand, direct effect of the treatment of workers provision in the EU-Ukraine AA is being challenged by the Council’s Decision concluding this agreement which states that “[this] Agreement shall not be construed as conferring rights or imposing obligations which can be directly invoked before Member State courts”. On the other hand, the United Kingdom insisted on a separate concluding Council Decision for the treatment of workers provision in order to obtain an AFSJ opt-out for the application of this specific clause. A critical analysis of these two peculiar legal features is required as this will not only be relevant for the EU-Ukraine AA, but for all other future EU international agreements including a treatment of workers provision. This paper will explore the treatment of workers provision of the EU-Ukraine AA by comparing it with the corresponding provision in other international agreements concluded by the EU and by analysing the relevant case-law of the CJEU.