AfCFTA, a deviation from the Abuja Treaty

As it is known, the Abuja Treaty (art. 6) does not mention any continental Free Trade Area (FTA) to be established in Africa, as the integration model designed in this document for the continent just indicates the establishment of FTAs in each Regional Economic Community (REC), followed by their further transformation in Customs Unions, with their final consolidation into a continental Customs Union. This stage, if it will be ever achieved, should lead to a broad rethinking of the future role of such Communities in Africa, as it will make no sense to have a continental Customs Union with separate FTAs and Customs unions still active in some regions of Africa whose members are exactly the same. There are no precedents of autonomous customs unions between countries within a larger customs union, except if they involve (at least) one third country.

It must be reminded that the Decision to establish the African Continental Fee Trade Area (AfCFTA) was taken at the 18th ordinary Session of Assembly of Heads of State and Government, held in Addis Ababa, Ethiopia in January 2012 [Doc. EX.CL/700(XX)]. This Decision urged the establishment of an FTA at continental level within the indicative date of 2017, indicating this FTA as key for promoting the economic development, employment generation and effective integration of Africa into the global economy. In 1993, Agenda 2063 included the AfCFTA among the flagship projects deemed necessary to accelerate Africa’s economic development and boost its trading position in the global marketplace.

However, whatever will be the future integration path of Africa, a pre-condition for evolving the African integration agenda is the reinforcement of the executive powers of the AU Commission. There is no way to have an effective supranational body responsible for the execution of the policies and Decisions of the African Union (namely, those of the Assembly of Heads of States and Government), if no enforcement mechanisms are available. The model of the European Union Commission could serve as an example. Among its functions, the EU Commission is endowed of effective powers of taking legal action for enforcement of the EU laws. In the EU, if a member country fails to implement a Directive, or commits a violation of the EU law, the Commission has the power to launch an infringement procedure that opens a dispute between the EU institutions and the member State. There is nothing similar in the African Union system.

The infringement procedure is an administrative proceeding which starts with the EU Commission sending a letter of notice requesting further information to the country concerned. This sets in motion a pre-litigation phase where the member State must reply within a specified period, usually 2 months. If the Commission concludes that it is failing to fulfil its obligations under EU law, a reasoned opinion is sent to the member State, which is basically a formal warning to comply with EU law within a determined period, with an invite to inform the Commission of the measures taken to remedy to the violation. If the country still doesn't comply, the Commission refers the matter to the EU Court of Justice, that if will find that it has breached EU law, will impose financial penalties. A key role in ensuring that EU States comply with their obligations under the European law and implement decisions of the EU Court of Justice is played by national courts.