Abstract
This paper deals with the relationship between economic partnership agreements (EPAs) and the trade policy of the European Union (EU). It addresses three issues which, in legal terms, affect that relationship. These issues are: (i) the objectives of EU trade policy, (ii) the EU competences in the area of trade policy; and (iii) the implementation of EPAs within the internal legal order of the EU.
As regards the first issue, the paper takes a look at the EU trade policy objectives, not only as defined by the EU Treaties, but also as further refined by the trade policy communications of the European Commission, in terms of both the overall goals for EU trade policy and the link between EU trade policy and development. It becomes clear that EPAs are intended by the EU to be tools for improving the trade capacity of the African, Caribbean, and Pacific (ACP) countries concerned. This implies that the latter are supposed to undertake far-reaching rules commitments.
With respect to the second issue, the paper examines in particular whether the Member States retain any residual competences in the areas of trade in services, foreign direct investment, and trade-related intellectual property rights. It concludes that Member States retain a residual competence in the areas of trade in services, due to the “carve-out” for transport services, and foreign direct investment, because of the exclusion of “portfolio investment”. Further, the paper analyzes whether there are any limits to the exercise of the Union’s competences in the area of trade policy. It finds that such limits exist in certain service sectors (in particular cultural, education, health, and tourism services).
In regard to the third issue, this paper deals with the specific objectives of the EU in negotiating EPAs and the implementation of commitments undertaken in trade agreements in the EU legal order in general. On this basis, the paper considers specifically the EC-CARIFORUM EPA, since it is the only all-encompassing EPA to date, even if it has not yet entered into force but is being applied on a provisional basis. Here, the paper looks at both market access and rules commitments and finds that some of these commitments go beyond those undertaken by the Caribbean countries (and even the EU) in the World Trade Organization’s legal framework (“WTO-plus” commitments).
Dr. Pitschas, LL.M., is an attorney-at-law based in Geneva who specializes in international trade/WTO law.
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Notes
- 1.
Article 37(1) of the Cotonou Agreement.
- 2.
- 3.
WT/MIN(01)/15, 14 November 2001, Decision of 14 November 2001 (see para 1 of the decision).
- 4.
See the comments made by then EC Trade Commissioner Peter Mandelson on 5 November 2007 to the Development Committee of the European Parliament (“we are asking ACP countries to liberalise some of their trade with us over very lengthy periods. That is the price of protecting the highly preferential terms of our trading relationship from legal challenge by non-ACP developing countries who resent the privileged treatment we give to the ACP.”), accessible at: http://trade.ec.europa.eu/doclib/docs/2007/november/tradoc_136678.pdf.
- 5.
Id. (“There are no alternatives that are defensible under WTO rules, or fair to other developing countries outside the ACP. I recognise that this puts pressure on the negotiations. But the pressure is external. It comes from the reasonable expectation of other developing countries that the EU and the ACP will get our house in order as we promised to do seven years ago in 2000.”). See also The Economist (2008), p. 62.
- 6.
Economic Partnership Agreement between the CARIFORUM States, on the one part, and the European Community and its Member States, of the other part (OJ 2008 L 289, 3).
- 7.
See the Overview of EPA.
- 8.
Id. See also the speech delivered by EU Trade Commissioner Karel De Gucht to the EU-ACP Parliamentary Assembly on 29 May 2012, “EU-ACP: Completing a Partnership”, accessible at: http://ec.europa.eu/commission_2010-2014/degucht/headlines/speeches/.
- 9.
Council Regulation (EC) No. 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements (OJ 2007 L 348, 1).
- 10.
Proposal for a Regulation of the European Parliament and of the Council amending Annex I to Council Regulation (EC) No 1528/2007 as regards the exclusion of a number of countries from the list of regions or states which have concluded negotiations, COM(2011) 598 final, 30.9.2011. This proposal was adopted by Regulation (EU) No 527/2013 of the European Parliament and of the Council of 21 May 2013, which will apply as from 1 October 2014 (OJ 2013 L 165, 59).
- 11.
See Herrmann (2010), section III.
- 12.
On the link between the external action and trade policy of the EU see Bungenberg (2009), pp. 212 et seq.
- 13.
Article 21(2)(d) TEU.
- 14.
Article 21(2)(e) TEU.
- 15.
See 2010 Communication, p. 4, and the related 2010 Commission Staff Working Document, p. 58. In its 2012 communication on trade, growth, and development (p. 5), the Commission points out that “openness to trade has been a key element of successful growth and development strategies”.
- 16.
2006 Communication, p. 7.
- 17.
Id., p. 3. The 2006 Commission Staff Working Document notes at p. 4: “Vertical integration of production – where components of a single product may be sourced in a range of countries – is replacing traditional trade in finished goods.” For more information on the rise of regional and global supply chains see the Commission’s Progress Report of 18 July 2012, pp. 6–8. For an analysis of the consequences for trade rules see Baldwin (2011).
- 18.
2006 Communication, p. 5. The related Commission Staff Working Document states at p. 7: “We must take a robust approach to ensuring that markets are genuinely open and that international rules are applied openly and transparently.” The Commission underscored this message in its 2007 Communication.
- 19.
2006 Communication, p. 9.
- 20.
Id.
- 21.
Id. See generally on the issue of deep integration through international trade agreements Chauffour and Maur (2010).
- 22.
2006 Communication, p. 5. See also 2006 Commission Staff Working Document, p. 8.
- 23.
2006 Communication, pp. 6 et seq. See also 2006 Commission Staff Working Document, pp. 8 et seq.
- 24.
2006 Communication, p. 8. In his speech to the EP’s International Trade Committee on 23 November 2011 regarding the EU trade agenda for 2012, EU Trade Commissioner Karel De Gucht highlighted that “the multilateral trading system underpinned by the WTO is the only instrument to ensure that everyone plays fair in global trade now and in the future. This is why any regional or plurilateral initiatives can only complement, but never replace multilateral liberalization and rule-making.”; p. 5 (accessible at: http://ec.europa.eu/commission_2010-2014/degucht/headlines/speeches/).
- 25.
2006 Communication, pp. 8 et seq.
- 26.
2010 Communication.
- 27.
Id., p. 2.
- 28.
Id., p. 10. In its 2012 Progress Report, the Commission notes on p. 3 that “the key question for the EU remains whether we will be able to conclude these agreements within a realistic timetable, at an acceptable level of ambition and with a balanced outcome of gives and takes.” That report provides an overview of the state of play of the ongoing negotiations regarding trade agreements between the EU and the specifically targeted third countries, p. 9 et seq., p. 13 et seq.
- 29.
2010 Communication, p. 11. The 2012 Progress Report (p. 2) adds that “two-thirds of the economic gains would come from potentially transformative agreements with the US and Japan, so reviewing the future of our relationships with these partners is crucial”.
- 30.
The 2010 Communication states to the point (p. 4): “What will make a bigger difference is market access for services and investment, opening public procurement, better agreements on and enforcement of protection of IPR, unrestricted supply of raw materials and energy, and, not in the least, overcoming regulatory barriers including via the promotion of international standards.” See also the overview on the current state of barriers affecting EU trade set out in the 2010 Commission Staff Working Document, pp. 28 et seq.
- 31.
2010 Communication, p. 4.
- 32.
Id., p. 5.
- 33.
Id., p. 8.
- 34.
The 2010 Commission Staff Working Document emphasizes (p. 58) that trade openness has to be “combined with sound domestic policies”.
- 35.
2012 Communication.
- 36.
2012 Council Conclusions.
- 37.
2012 Communication, p. 2.
- 38.
Id., p. 9.
- 39.
Id. The communication underlines on p. 16 that domestic reforms and good governance are key to trade-led growth. The Council Conclusions, at par. 2, stress that openness to international trade has to be “accompanied by adequate domestic policies and institutional reforms”.
- 40.
2012 Communication, p. 13.
- 41.
Id., p. 13.
- 42.
Id.
- 43.
In his speech to the EU ACP Parliamentary Assembly, EU Trade Commissioner Karel De Gucht opined that “it is not right to give the same treatment to countries that don’t implement EPAs and to those that do go through deep, if ultimately beneficial, reforms.”, at p. 5.
- 44.
Regulation of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalized tariff preferences, and repealing Council Regulation (EC) No 732/2008, (OJ 2012 L 303, 1); see Press release, Access to EU Markets for exporters from African, Caribbean and Pacific countries (accessible at: http://trade.ec.europa.eu/doclib/docs/2011/september/tradoc_148215.pdf).
- 45.
See opinion 1/94 of 15 November 1994, ECR 1994, I-5267.
- 46.
- 47.
See Mylly (2013) in this volume for a discussion of EU competencies from a constitutional perspective.
- 48.
As explained by AG Kokott in her opinion of 26 March 2009 in case C-13/07 (Commission v. Council), “it is a characteristic of exclusive competence that only the Community is entitled to take action” (par. 57; emphasis in the original).
- 49.
The Court of Justice summarized its jurisprudence on this issue in opinion 1/03 (7 February 2006, ECR 2006, I-1145), pars 114 et seq.
- 50.
AG Kokott used the notion of “vertical demarcation of competence” to describe the situation where “the Community is competent only in respect of certain components of a proposed act, while other components come within the competence of the Member States” (par. 113 of her opinion in case C-13/07).
- 51.
In her opinion in case C-13/07, AG Kokott took the view that “Article 207(1) TFEU henceforward expressly places the ‘new’ fields of commercial policy on the same footing as the conventional fields, and the common commercial policy as a whole is expressly assigned to the exclusive competence of the Union (Article 3(1)(e) TFEU)” (par. 63).
- 52.
In opinion 1/08 (30 November 2009, ECR 2009, I-11129), the ECJ ruled that “the second subparagraph of Article 133(6) EC reflects a concern to prevent trade in such services being regulated by means of international agreements concluded by the Community alone under its external competence in commercial matters. Without in any way excluding a Community competence in that regard, the second subparagraph of Article 133(6) EC requires, however, that that competence which the Community in this instance shares with its Member States be exercised jointly by those States and the Community” (par. 135).
- 53.
On these conditions see Pitschas (2010), pp. 40 et seq.
- 54.
In opinion 1/08, the ECJ pointed out that “the expression ‘international agreements in the field of transport’ covers, inter alia, the field of trade concerning transport services” (par. 158).
- 55.
The Court of Justice stated that “the interpretation proposed by the Commission, by virtue of which only agreements exclusively or predominantly relating to trade in transport services are covered by the third subparagraph of Article 133(6) EC, would to a large extent deprive that provision of its effectiveness” (par. 163).
- 56.
The Court of Justice emphasized in opinion 1/08 that “the third subparagraph of Article 133(6) EC seeks to maintain, with regard to international trade in transport services, a fundamental parallelism between internal competence, whereby Community rules are unilaterally adopted, and external competence, which operates through the conclusion of international agreements, each competence remaining – as previously – anchored in the title of the Treaty specifically relating to the common transport policy” (par. 164). The opinion of AG Kokott in case C-13/07 lends support to the conclusion expressed here: “even the Treaty of Lisbon will not provide the Community with a uniform and comprehensive external trade competence for horizontal agreements because, for the field of transport, Article 207(5) TFEU still requires recourse to the provisions of the common transport policy” (par. 136).
- 57.
For an overview of this jurisprudence see opinion 1/03 of the ECJ, supra note 49, pars 114 et seq. and Pitschas (2001), pp. 151 et seq.
- 58.
In opinion 1/03, the Court of Justice emphasized that “a comprehensive and detailed analysis must be carried out to determine whether the Community has the competence to conclude an international agreement and whether that competence is exclusive. In doing so, account must be taken not only of the area covered by the Community rules and by the provisions of the agreement envisaged, … but also of the nature and content of those rules and those provisions, to ensure that the agreement is not capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system which they establish” (par. 133).
- 59.
According to the second subparagraph of Article 118 TFEU, the Council is to act unanimously when establishing “language arrangements for the European intellectual property rights”. Yet this highly specific requirement has no impact on the negotiation and conclusion of trade agreements in the area of the commercial aspects of intellectual property.
- 60.
In her opinion in case C-13/07, AG Kokott stated in footnote 98: “When the Treaty of Lisbon enters into force the Union will acquire, under the conditions laid down in Article 83(2) TFEU, the power to establish minimum conditions for determining offences and penalties”. Article 83(2) TFEU provides that directives may establish minimum rules with regard to the definition of criminal offences and sanctions where this “proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures”. The adoption of such directives has to follow the same legislative procedure as that for adopting the harmonization measures in question. Since Article 118, first subparagraph, TFEU does not require unanimity, the adoption of a directive defining criminal sanctions and offenses so as to provide for uniform protection of intellectual property rights within the EU also does not require a unanimous vote by the Council.
- 61.
On the scope of the EU competence in this field see Mylly (2013) in this volume.
- 62.
See Tietje (2009), p. 15.
- 63.
See the definition of direct investment (code 500) in Annex II to Regulation (EC) 184/2005 on Community statistics concerning balance of payments, international trade in services and foreign direct investment, OJ 2005 L 35/23, as last amended by Commission Regulation 707/2009, OJ 2009 L 204/3.
- 64.
See the definition of portfolio investment in Regulation 184/2005, id.
- 65.
- 66.
See references in Pitschas (2010), pp. 37, 39.
- 67.
- 68.
Tietje (2009), p. 17, argues that Article 207(6) TFEU limits the exercise of the Union’s trade policy competence in this respect; see also Krajewski (2005), pp. 113-114, who contends that foreign direct investment according to Article 207 TFEU should be understood as meaning only those investment aspects which have a direct link to international trade agreements. On the limitations imposed by Article 207(6) TFEU on the exercise of the Union’s trade policy competence, see Sect. 2.2.3, below.
- 69.
- 70.
Case C-503/99, 4 June 2002, par. 44 (with further references); joined Cases T-228/99 and T-233/99, 6 March 2003, par. 192 (with further references).
- 71.
Case C-376/98, 4 June 2002, par. 49.
- 72.
Hindelang (2011), p. 163.
- 73.
See Behrens (2007), pp. 160 et seq.
- 74.
See Pitschas (2010), p. 42. In her opinion in case C-13/07, AG Kokott stressed that the principle of limited conferred powers “applies to both internal Community action and action of the Community under international law” (par. 45) and emphasized that “individual aspects of an agreement for which the Community has no competence internally ‘infect’ the agreement as a whole and make it dependent on the common accord of the Member States” (par. 121).
- 75.
This has been highlighted by AG Kokott in her opinion in case C-13/07: “The meaning and purpose of the first subparagraph of Article 133(6) EC Treaty [which is very similar to Article 207(6) TFEU] is, very generally, to put the Community’s internal and external powers on a parallel footing and to prevent the Community from entering into external commitments to which it would be unable to give effect internally for want of sufficient powers” (par. 142).
- 76.
See also Bungenberg (2009), p. 204.
- 77.
In opinion 1/08, the ECJ referred to its settled case law, according to which “its opinion may in particular be obtained on questions concerning the division, between the Community and the Member States, of competence to conclude a given agreement with non-member countries” (par. 109). The Commission had referred ACTA—the Anti-counterfeiting Trade Agreement—to the Court in accordance with Article 218(11) but the Union no longer pursues the ratification of this treaty, because the EP voted against it on 4 July 2012.
- 78.
Weiβ (2011), p. 41. In opinion 1/03, the ECJ made the following statement: “If an international agreement contains provisions which presume a harmonization of legislative or regulatory measures of the Member States in an area for which the Treaty excludes such harmonization, the Community does not have the necessary competence to conclude that agreement” (par. 132).
- 79.
Weiβ (2011), p. 40.
- 80.
- 81.
Article 34(2) of the Cotonou Agreement.
- 82.
Id., Article 34(3).
- 83.
Id., Article 35(3).
- 84.
Id., Article 35(2).
- 85.
Id., Article 36(1).
- 86.
2007 Communication, p. 1.
- 87.
Id.
- 88.
Id., p. 5.
- 89.
Id.
- 90.
Speech of 5 November 2007, supra note 4.
- 91.
See supra Sect. 2.1.2.
- 92.
2012 Communication, p. 5. The communication also notes that a “comprehensive, regional EPA has been signed and provisionally applied with the CARIFORUM group of states in the Caribbean”; p. 7.
- 93.
2012 Communication, p. 8.
- 94.
In his speech to the EU-ACP Parliamentary Assembly, supra note 8, EU Trade Commissioner Karel De Gucht remarked that “regional integration … allows countries to take advantage of economies of scale. Companies that have a larger domestic market have much better chances to compete internationally. They also have the possibility to create regional level value chains”.
- 95.
See Overview of EPA.
- 96.
- 97.
In his speech to the EU-ACP Parliamentary Assembly, supra note 8, EU Trade Commissioner Karel De Gucht commented with respect to the amendment of the MA Regulation: “the amendment allows plenty of time before the measure enters into force: sufficient time to ratify and apply existing interim EPAs as well as to conclude ongoing negotiations and put those EPAs into application”.
- 98.
See Mylly (2013) in this volume on the implementation of international commitments undertaken by the EU.
- 99.
Müller-Ibold (2011), pp. 75, 85.
- 100.
Article 288, second subparagraph, TFEU.
- 101.
By requiring a “joint” adoption by the European Parliament and the Council, the ordinary legislative procedure confers on the European Parliament a “veto power” since it cannot be overruled by the Council; see Articles 289(1) and 294 TFEU; see also Krajewski (2011), pp. 55, 58.
- 102.
See Müller-Ibold (2011), p. 86.
- 103.
See Koeb and Dalleau (2010), p. 3.
- 104.
The conditions pertaining to the adoption of delegated acts have to be laid down explicitly in the legislative act in question, according to Article 290(2) TFEU. A “Common Understanding” sets out the practical arrangements and agreed clarifications and preferences for the inter-institutional cooperation between the Commission, the EP and the Council regarding the adoption of delegated acts.
- 105.
A so-called Omnibus II (2011) proposal was put forward by the Commission, covering a number of trade-related regulations, including the MA Regulation, with the aim of modifying existing decision-making procedures in these regulations (which are based on the 1999 comitology decision) so as to allow the adoption of delegated acts by the Commission, as set forth by Article 290 TFEU. According to this proposal, the MA Regulation would be amended so as to empower the Commission to adopt delegated acts as regards technical amendments to Annex II to the MA Regulation (concerning rules of origin) as well as technical amendments to the MA Regulation that may be required as a result of differences between the MA Regulation and EPAs signed with provisional application or concluded with ACP countries or regions listed in Annex I to the MA Regulation (see pp. 25–26 of the proposal).
- 106.
Pursuant to Article 291(3) TFEU, the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers are to be laid down in advance. This was done by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011, OJ 2011 L 55, 13.
- 107.
The Commission put forward a so-called Omnibus I (2011) proposal covering a number of trade-related regulations, including the MA Regulation, with the goal of modifying existing decision-making procedures in these regulations (which are not based on the 1999 comitology decision) so as to allow the conferral of implementing powers on, or the adoption of delegated acts by, the Commission. This proposal also suggests amending the MA Regulation, in particular as regards the provisions on safeguard measures and new provisions on the exercise and revocation of delegation to the Commission and objections to delegated acts adopted by the Commission (see pp. 34 et seq. of the proposal).
- 108.
See supra Sect. 2.2.1.
- 109.
See Müller-Ibold (2011), pp. 86 et seq.
- 110.
On the implementation of commitments contained in EPAs see also Drexl (2013) in this volume.
- 111.
For a quick overview of the joint institutions created under the EC-CARIFORUM EPA (i.e. the Joint Council, Trade and Development Committee, Parliamentary Committee, Consultative Committee and Special Committee on Customs Cooperation and Trade Facilitation) and their respective tasks see The EPA Factsheet (2012), p. 7. These joint institutions are set up in accordance with Part V of the EC-CARIFORUM EPA (entitled “Institutional Provisions”) and Article 36 of that Agreement (which provides for the establishment of a Special Committee on Customs Cooperation and Trade Facilitation).
- 112.
Article 5 of the EC-CARIFORUM EPA states, in part: “The parties undertake to monitor continuously the operation of the Agreement through their respective participative processes and institutions, as well as those set up under this Agreement, in order to ensure that … the Agreement is properly implemented”.
- 113.
Article 14(1) of the EC-CARIFORUM EPA.
- 114.
Id., Article 14(2).
- 115.
Id., Article 15.
- 116.
Id., Article 16(2)–(4).
- 117.
Id., Article 16(1)–(2).
- 118.
In order to qualify as government procurement, two criteria have to be fulfilled: the procurement must be for “governmental purposes” and “not with a view to commercial resale or with a view to use in the production of goods or the supply of services for commercial sale”; Article 166(1) of the EC-CARIFORUM EPA.
- 119.
Article 167(1) of the EC-CARIFORUM EPA.
- 120.
See the list of GPA parties and observers, accessible at: http://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm.
- 121.
Note that measures by EPA parties relating to expropriation and investor-to-state dispute settlement such as those covered in bilateral investment treaties are not deemed to affect commercial presence, according to footnote 2 to Article 66 of the EC-CARIFORUM EPA.
- 122.
See Article 67 of the EC-CARIFORUM EPA.
- 123.
Id., Article 76.
- 124.
Id., Articles 81–83.
- 125.
Id., Article 167(1).
- 126.
Id., Articles 26 et seq.
- 127.
Id., Articles 29 et seq.
- 128.
Id., Articles 44 et seq.
- 129.
Id., Articles 52 et seq.
- 130.
Id., Articles 131 et seq.
- 131.
Id., Articles 85 et seq.
- 132.
Id., Article 88.
- 133.
Id., Articles 89 et seq.
- 134.
Id., Articles 94 et seq.
- 135.
Id., Articles 103 et seq.
- 136.
Id., Article 109.
- 137.
Id., Articles 110 et seq.
- 138.
For a critical discussion of these rules commitments see Schloemann and Pitschas (2009).
- 139.
See explanatory memorandum of the proposal (supra note 10) and the press release relating thereto (supra note 44).
- 140.
Article 85(5) of the EC-CARIFORUM EPA envisages the conclusion of mutual recognition agreements regarding requirements, qualifications, licenses, and other regulations.
- 141.
See the Commission’s EPA Factsheet, p. 6, for an overview of the financial support to be provided to the Caribbean countries in the period 2012–2015.
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Pitschas, C. (2014). Economic Partnership Agreements and EU Trade Policy: Objectives, Competences, and Implementation. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_11
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