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This article examines how the Common Commercial Policy in the post‐Lisbon era impacts citizens' rights both within the EU and in the partner countries. The EU's aspiration to pursue a normative agenda through trade has further been reinforced by the Lisbon Treaty, both with regard to the objectives of external action and the reformed trade policy‐making processes. Concurrently, however, the EU has refocused its trade strategy on growth and competitiveness, and strongly advocated the conclusion of ‘new generation’ free trade agreements. These agreements combine an ambitious ‘WTO‐plus’ agenda with normative issues such as provisions on human rights, a social dimension and sustainable development. The result of this dual approach is a mixed ‘constitutional balance’: whereas constitutional rights and competitiveness have the potential to reinforce each other with positive synergy effects, they may also result in tensions and policy incoherencies.

This contribution revisits the phenomenon of ‘reverse discrimination in the light of the latest Treaty amendments, recent developments in the CJEU's case law and evolutions in the law of selected Member States. It follows that ‘reverse discrimination’ caused by national measures applying to internal situations in non-harmonized policy fields remains acceptable under EU law as a matter of principle. The Union's non-unitary constitutional structure compels the CJEU to exercise judicial restraint when reviewing such rules against the fundamental freedoms of the Treaties as long as the Union legislator does not address the issue. Although the CJEU's traditional and increasingly incoherent case-law on ‘purely internal situations’ is not a necessary corollary of this reasoning, alternative judicial approaches risk unduly undermining Member States' competences and constitutional identities. Whilst much of the academic debate on reverse discrimination focuses on possible remedies under EU law, this paper also looks at solutions available under national law. Member States are well equipped to address reverse discrimination and to progressively live up to their responsibility in this respect. Evidence from different Member States suggests that national law (subject to an external control of the ECtHR) can provide a valuable and effective tool to assess whether or not restrictions of individual freedoms can be justified by overriding constitutionally recognized principles.

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On 25 July 2002, the Court rejected the proposals of AG Jacobs and the CFI to reconsider its traditional case law on private applicants’ standing to challenge generally applicable EC acts according to Article 230 para. 4 EC. This rejection hardly came as a surprise. However, the Court's motivation for the ‘restauration’ of its traditional approach is interesting. In substance, the Court held that the Member States are responsible for both the existence and the elimination of lacunae in the EC system of judicial remedies.