Abstract
This chapter examines the competence divide between the EU and the Member States in the field of the common commercial policy, and its relation to the internal division of competence relating to the common market. It considers that in light of the novelties introduced by the Treaty of Lisbon and the developments that have occurred in recent case law and practice, there seems to be an emerging trend pointing to a conceptual and practical separation of EU external and internal powers—which would mark a departure from the so-called principle of parallel powers. As is well known, the latter requires that EU internal competences be mirrored by corresponding parallel external competences. However, it is argued that it does not impose a parallel in the other direction, bringing the authors to the conclusion that the EU has the power to conclude an agreement even in areas where the corresponding internal powers belong to the Member States. The competence of the latter would not be infringed or encroached upon by the conclusion of such an agreement to the extent that the Member States retain the power to implement the agreement at the internal level. This chapter demonstrates that this trend has clearly emerged in the framework of the common commercial policy but it may in principle also apply to other EU external powers.
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- 1.
- 2.
- 3.
These sectors are cultural and audiovisual services, along with social, education and health services. See Article 207(4), subparagraph 3(a) and (b).
- 4.
Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property, ECLI:EU:C:1994:384.
- 5.
Hahn and Danieli 2013, p. 62.
- 6.
Maresceau 2010, p. 16.
- 7.
This is clearly demonstrated by the position taken by some Member States (and to a certain extent by the Council) in two post-Lisbon judgments that will be thoroughly analysed below, namely Daiichi Sankyo and Conditional Access Services. As delightfully noted by a prominent scholar, the Member States went so far as arguing that “Article 207 did not say what it evidently said”. See Kuijper 2016a, p. 3. Along the same lines but in the context of the debate concerning the TTIP, see Kuijper 2016b, pp. 99–101 and footnotes.
- 8.
Minutes of Meeting held on 12 and 13 February 1970, GATT doc. C/M/61, available at http://www.wto.org/gatt_docs/c.htm, pp. 6 et seq.
- 9.
Ibid.
- 10.
Joined Cases 21/72–24/72, International Fruit Company, ECLI:EU:C:1972:115, para 18, where the Court held that ‘in so far as under the EEC Treaty the Community has assumed the powers previously exercised by Member States in the area governed by the General Agreement, the provisions of that agreement have the effect of binding the Community’.
- 11.
In particular, the EEC participated ‘like a GATT contracting party sui generis in all GATT bodies except the Budget Committee’. See Petersmann 1986, pp. 36–37, emphasis in the original.
- 12.
Ibid.
- 13.
However, the Commission was assisted by a committee of representatives of Member State governments, who were meaningfully nicknamed ‘the mothers-in-law’. See Burgeois 1995, p. 763.
- 14.
The Commission filed its request on 6 April 1994, while the Final Act was signed on 15 April 1994.
- 15.
The Opinion was delivered on 15 November 1994, while the ratifications were deposited jointly on 30 December 1994, that is only 2 days before the coming into force of the WTO Agreements.
- 16.
For a comprehensive overview of the implied powers doctrine, see Eeckhout 2011, pp. 70 et seq.
- 17.
Opinion 1/94, cit., paras 43 et seq.
- 18.
Ibid., paras 48–50. Transport issues will be further analysed below.
- 19.
See below.
- 20.
Ibid., paras 54 et seq.
- 21.
The provision in question stated that ‘the common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade such as those to be taken in case in case of dumping and subsidies’.
- 22.
- 23.
Pescatore 1999, p. 393, emphasis in the original.
- 24.
Hilf 1995, pp. 245–249.
- 25.
Ibid., at 257 et seq.
- 26.
Holdgaard 2008, pp. 1244 et seq.
- 27.
See Case C-300/98 & C-392/98, Dior and Others, ECLI:EU:C:2000:688, para 49. Also Case C-53/96, Hermès International, ECLI:EU:C:1998:292, paras 24 et seq.
- 28.
Pescatore 1999, p. 399.
- 29.
Gaja and Adinolfi 2012, pp. 223 et seq.
- 30.
See Opinion 1/08, General Agreement on Trade in Services (GATS), ECLI:EU:C:2009:739, paras 119 et seq.
- 31.
Case C-431/05, Merck Genéricos, ECLI:EU:C:2007:496, para 34.
- 32.
- 33.
Case C-414/11, Daiichi Sankyo, ECLI:EU:C:2013:520.
- 34.
Ibid., para 32 n. 1.
- 35.
The following parties took part in the proceedings: the Commission, Greece, Germany, France, Italy, the Netherlands, Portugal, Finland, Sweden, and the United Kingdom.
- 36.
Opinion of A.G. Cruz Villalón in Case C-414/11, Daiichi Sankyo, ECLI:EU:C:2013:49, para 59. True, the protection of intellectual property rights in Member States is still, by and large, national. For an overview concerning the establishment of a common European legal framework in this field, see Geiger 2013.
- 37.
Ibid., paras 60–62.
- 38.
Ibid., paras 64–79.
- 39.
Daiichi Sankyo, para 60. Emphasis added.
- 40.
Ankersmit 2014, p. 207.
- 41.
Bungenberg 2010, p. 131.
- 42.
Cremona 2010, p. 684.
- 43.
The views expressed by the parties are summarised in the judgment. Case C-137/12, Commission v Council, ECLI:EU:C:2013:675, paras 35–50.
- 44.
Ibid., para 53.
- 45.
Ibid., paras 40–48.
- 46.
This also seems to be the opinion of Ankersmit 2014, pp. 202–203.
- 47.
Commission v. Council, paras 70–71.
- 48.
Ibid., para 72.
- 49.
As a result of the judgment the Convention in question has indeed been adopted by the Union based exclusively on Article 207 TFEU. See Council Decision (EU) 2015/1293 of 20 July 2015 on the conclusion, on behalf of the European Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access. Particularly meaningful is the declaration annexed to the decision where it is stated that the Union “expresses its concern regarding the application of Article 9 and Article 10(3) of the Convention, following the accession of the Union thereto, on the basis of its exclusive competence”. The provisions mentioned in the declaration are those relating to the voting rights within the Convention and to the amendment procedure. The question is truly a matter of concern in light of the fact that some Member States of the EU have ratified the Convention before the Union. Among these Member States, some (but not all) have denounced the Convention a few months after the judgment was handed down. The status of signatures and ratifications can be consulted on the website of the Council of Europe at the following address: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/178.
- 50.
Opinion of A.G. Kokott in Case C-137/12, Commission v. Council, ECLI:EU:C:2013:441, para 67.
- 51.
- 52.
Opinion, cit., supra, note 34, para 58.
- 53.
Ibid., para 45.
- 54.
Emphasis added. It should be noted that the reference to the Council is a drafting mistake, since the agreements in question are indeed concluded by the Council, but clearly on behalf of the Union. It was the latter that could not conclude agreements in such situations.
- 55.
Hermann 2002, p. 22.
- 56.
The Commission’s decision to withdraw the case was probably justified by the fact that the Treaty of Lisbon had come into force in the meantime. However, the Court’s understanding of former Article 133(6) would not have been completely devoid of significance, since it could have served as guidance for the interpretation of the similar, yet not identical provision introduced by the Treaty of Lisbon (i.e. Article 207(6)).
- 57.
That is to say Germany, Spain, France, Finland, the United Kingdom, Greece and the Czech Republic.
- 58.
See the position maintained by the Council and the intervening Member States governments as summarised by the Opinion of A.G. Kokott in Case C-13/07, Commission v. Council, ECLI:EU:C:2009:190, paras 152 et seq.
- 59.
It seems worth noting that the post-Lisbon practice concerning the ratification of third countries accession to the WTO has changed. The relevant decisions are now based on Article 207(4) TFEU rather than Article 207(6) TFEU, however in conjunction with Articles 91 and 100 TFEU relating to transport. See, among others, Proposal for a Council Decision establishing the position to be taken by the European Union within the General Council of the World Trade Organization on the accession of the Republic of Seychelles to the WTO, COM/2014/0664 final.
- 60.
Emphasis added.
- 61.
Eeckhout 2011, p. 61.
- 62.
Dimopoulos 2008, pp. 118–119.
- 63.
Weiß 2013, p. 39.
- 64.
See contra Villalta Puig 2011, p. 297.
- 65.
Opinion, paras 63–69.
- 66.
Gaja and Adinolfi 2012, p. 219. The passage was translated from Italian into English by one of the authors.
- 67.
Krajewski 2012, pp. 306–307.
- 68.
This case concerned Karl-Heinz and Walter Bernhard LaGrand, two German citizens convicted of murder and sentenced to death in the United States. In violation of the Vienna Convention on Consular Relations, the LaGrands were not granted the right to consular assistance from their State of nationality by Arizona State courts. The LaGrands were executed by Arizona authorities despite Germany having initiated proceedings before the International Court of Justice and obtained a provisional order requiring the United States to delay the execution pending resolution of the dispute. See LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.
- 69.
- 70.
We are referring here to the well-known ECJ case law relating to the exceptions to the functioning of the common market, such as the prohibition of quantitative restrictions between Member States in accordance with Article 36 TFEU. It is impossible to provide a detailed analysis of this topic. The case law is exemplified by the landmark Case 120/78, Rewe-Zentral (Cassis de Dijon), ECLI:EU:C:1979:42, paras 8 et seq.; Case 286/86, Deserbais, ECLI:EU:C:1988:434. A thoughtful examination can be found in de Búrca and Craig 2008, p. 677.
- 71.
Gutierrez-Fons 2014, p. 92.
- 72.
See Larik 2015, p. 795.
- 73.
The Commission’s argument is summarised in the judgment. Case C-377/12, Commission v Council, ECLI:EU:C:2014:1903, paras 16–23.
- 74.
Intervening Member States were the Czech Republic, Germany, Ireland, Greece, Austria and the United Kingdom.
- 75.
Ibid., paras 24–33.
- 76.
Ibid., para 48.
- 77.
Ibid., para 45.
- 78.
Ibid., para 58.
- 79.
For example, many international organisations, whose field of activity falls within areas of EU—sometimes exclusive—competence, only allow membership of States, and not of other international organisations. To mention only the most important one, this is the case of the United Nations and its myriad specialised agencies, such as ICAO.
- 80.
Case 22/70, Commission v. Council (ERTA), ECLI:EU:C:1971:32.
- 81.
- 82.
Erdmenger 1983, p. 89.
- 83.
Stevens 2004, p. 221.
- 84.
See Regulation (EEC) No. 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport.
- 85.
ERTA, cit., paras 81–91.
- 86.
Opinion 1/76, Draft Agreement establishing a European laying-up fund for inland waterway vessels, ECLI:EU:C:1977:63.
- 87.
Eeckhout 2011, p. 78.
- 88.
See, in particular, Opinion 1/75, Understanding on a Local Cost Standard, ECLI:EU:C:1975:145; Opinion 1/78, International Agreement on Natural Rubber, ECLI:EU:C:1979:224.
- 89.
Stevens 2004, p. 229.
- 90.
Ibid.
- 91.
Those cases concerned the conclusion of bilateral air transport agreements between several EU Member States and the USA aimed at modifying already existing agreements on the same subject matter, with a view to further liberalizing civil aviation between the Parties. The Commission successfully challenged the conclusion of those agreements in several identical infringement procedures, in which the Court expressly acknowledged that the competence to enter into those agreements lay with the Community. Member States competence, as the Court argued, had in fact been pre-empted by the approval of Community measures establishing the internal market in air transport. The factual and legal background to the cases is summarized in the judgments. See, ex plurimis, Case C-467/98, Commission v. Denmark, ECLI:EU:C:2002:625, paras 3–29. For a critical comment see Franklin 2005, pp. 96 et seq.
- 92.
Opinion, cit., paras 48–50.
- 93.
Hermann 2002, p. 22.
- 94.
Opinion 1/08, General Agreement on Trade in Services (GATS), ECLI:EU:C:2009:739.
- 95.
Ibid., para 155.
- 96.
Ibid., para 158 (emphasis added).
- 97.
Ibid., para 159.
- 98.
See in particular the critical considerations of Jacques H. J. Bourgeois, op. cit., 776 et seq.
- 99.
Govaere 2011, pp. 149–150.
- 100.
Avis 2/15, Opinion on the Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore, Opinion of Advocate General Sharpston delivered on 21 December 2016, ECLI:EU:C:2016:992.
- 101.
See ibid., paras 346–361.
References
Andenas M (2016) The European Union as a Global Model for Trade and Investment. Social Science Research Network. ISSN 1556-5068
Ankersmit L (2014) The Scope of the Common Commercial Policy after Lisbon: The Daiichi Sankyo and Conditional Access Services Grand Chamber Judgments. Legal Issues of Economic Integration 41:193–210
Bischoff JA (2011) Just a Little Bit of Mixity? The EU’s Role in the Field of International Investment Protection Law. Common Market Law Review 8:1527–1569
Bungenberg M (2010) Going Global? The EU Common Commercial Policy after Lisbon. In: Herrmann C, Terhechte JP (eds) European Yearbook of International Economic Law. Springer, Berlin/Heidelberg, pp 123–152
Bungenberg M, Griebel J, Hindelang S (eds) (2011) International Investment Law and EU Law. Springer, Berlin/Heidelberg
Bungenberg M, Herrmann C (eds) (2013) European Yearbook of International Economic Law – Common Commercial Policy after Lisbon, Special Issue. Springer, Berlin/Heidelberg
Bungenberg M, Reinisch A, Tietje C (eds) (2013) EU and Investment Agreements: Open Questions and Remaining Challenges. Hart Publishing, Oxford
Burgeois J (1995) The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession. Common Market Law Review 32:763–787
Cremona M (2006) A Constitutional Basis for Effective External Action? An Assessment of the Provisions on EU External Action in the Constitutional Treaty. EUI Working Paper Law
Cremona M (2010) Balancing Union and Member States Interests: Opinion 1/2008, Choice of Legal Base and the Common Commercial Policy under The Treaty of Lisbon. European Law Review 35:678–694
de Búrca G, Craig P (2008) EU Law: Text, Cases and Materials. Oxford University Press, Oxford
Dimopoulos A (2008) The Common Commercial Policy after Lisbon: Establishing Parallelism between Internal and External Economic Relations? Croatian Yearbook of European Law and Policy 4:101–129
Dimopoulos A (2010) The effects of the Lisbon Treaty on the principles and objectives of the Common Commercial Policy. European Foreign Affairs Review 15:153–170
Dimopoulos A (2011) EU Foreign Investment Law. Oxford University Press, Oxford
Eeckhout P (2011) EU External Relations Law. Oxford University Press, Oxford
Erdmenger J (1983) The European Community Transport Policy: Towards a Common Transport Policy. Gower, Aldershot
Franklin C (2005) Flexibility vs. Legal Certainty: Article 307 EC and Other Issues in the Aftermath of the Open Skies Cases. European Foreign Affairs Review 10:79–115
Gaja G, Adinolfi A (2012) Introduzione al diritto dell’Unione europea. Laterza, Bari
Geiger C (2013) Constructing European intellectual property: Achievements and new perspectives. Edward Elgar, Cheltenham
Govaere I (2011) EU Common Commercial Policy throwing off the Shackles of “Mixity”’. In: Govaere I, Quick R, Bronckers M, Burgeois J (eds) Trade and competition law in the EU and beyond. Edward Elgar, Cheltenham, pp 144–158
Greaves R (1999/2000) EC Transport Law and Policy: A Status Report. Cambridge Yearbook of European Legal Studies 2:261–284
Gutierrez-Fons J (2014) Transatlantic Adjudication Techniques: The Commerce Clause and the EU’s Internal Market Harmonisation Clause in Perspective. In: Fahey E, Curtin D (eds) A Transatlantic Community of Law. Cambridge University Press, Cambridge, pp 69–101
Hahn M, Danieli L (2013) You’ll Never Walk Alone: The European Union and Its Member States in the WTO. In: Bungenberg M, Herrmann C (eds) European Yearbook of International Economic Law – Common Commercial Policy after Lisbon, Special Issue. Springer, Berlin/Heidelberg, pp 49–63
Hermann CW (2002) Common Commercial Policy after Nice: Sisyphus Would Have Done a Better Job. Common Market Law Review 39:7–29
Hilf M (1995) The ECJ’s Opinion 1/94 on the WTO – No surprise, but wise? European Journal International Law 6:245–259
Hillion C (2010) Mixity and Coherence in EU External Relations: The Significance of the Duty of Cooperation. In: Hillion C, Koutrakos P (eds) Mixed Agreements Revisited. Hart Publishing, Oxford, pp 87–115
Holdgaard R (2008) Case C-431/05, Merck Genéricos – Produtos Farmacêuticos Lda v. Merck & Co. Inc. (M & Co.) and Merck Sharp & Dohme Lda (MSL), Judgment of the Court of Justice (Grand Chamber) of 11 September 2007, [2007] ECR I-7001. Common Market Law Review 45:1233–1250
Koopmans T (1986) The Role of Law in the Next Stage of European Integration. International Comparative Law Quarterly 35:925–931
Krajewski M (2005) External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy? CMLR 42:91–127
Krajewski M (2012), The Reform of the Common Commercial Policy. In: Biondi A, Eeckhout P, Ripley S (eds) EU Law after Lisbon, Oxford University Press, Oxford, pp 292–311
Kuijper PJ (2016a) Litigation on External Relations Powers after Lisbon: The Member States Reject Their Own Treaty. Legal Issues of Economic Integration 43:1–13
Kuijper PJ (2016b) Some Final Questions and Conclusions. In: Pantaleo L, Douma W, Takacs T (eds) Tiptoeing to TTIP: What Kind of Agreement for What Kind of Partnership? CLEER Papers, pp 93–101
Larik J (2015) No Mixed Feelings: The Post-Lisbon Common Commercial Policy in Daiichi Sankyo and Commission v. Council (Conditional Access Convention). Common Market Law Review 52:779–799
Maresceau M (2010) A Typology of Mixed Bilateral Agreements. In: Hillion C, Koutrakos P (eds) Mixed Agreements Revisited. Hart Publishing, Oxford, pp 11–29
Maunu A (1995) The implied external competence of the European Community after the ECJ Opinion 1/94, towards coherence or diversity? Legal Issues of Economic Integration 22:115–128
Müller-Graff PC (2008) The Common Commercial Policy Enhanced by the Reform Treaty of Lisbon? In: Dashwood A, Maresceau M (eds) Law and Practice of EU External Relations: Salient Features of a Changing Landscape. Cambridge University Press, Cambridge, pp 188–201
Natov N (2013) The EU and Foreign Investment: Some Questions after the new Regulation. Czech Yearbook of International Law 4:69–89
Pescatore P (1999) Opinion 1/94 on ‘Conclusion’ of the WTO Agreement: Is There an Escape from a Programmed Disaster? Common Market Law Review 36:387–405
Petersmann EU (1986) The EEC as a GATT Member – Legal Conflicts between GATT law and European Community Law. In: Hilf M, Jacobs F, Petersmann EU (eds) The European Community and GATT. Kluwer, Deventer, pp 23–89
Stevens H (2004) Transport Policy in the European Union. Palgrave Macmillan, Basingstoke
Villalta Puig G (2011) The Common Commercial Policy after Lisbon: An Analysis of the Reforms. European Law Review 36:289–301
Villalta Puig G (2012) Trade and Investment Relations between the European Union and Australia: for a Bilateral Economic Integration Agreement. European Foreign Affairs Review 17:213–239
Weiß W (2013) Common Commercial Policy in the European Constitutional Area: EU External Trade Competence and the Lisbon Decision of the German Federal Constitutional Court. In: Bungenberg M, Herrmann C (eds) European Yearbook of International Economic Law. Common Commercial Policy, Special Issue. Springer, Berlin/Heidelberg
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Andenas, M., Pantaleo, L. (2017). Beyond Parallel Powers. EU Treaty-Making Power Post-Lisbon. In: Andenas, M., Bekkedal, T., Pantaleo, L. (eds) The Reach of Free Movement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-195-1_15
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