Abstract
This chapter provides a detailed analysis of the main changes introduced by the 2009 Treaty of Lisbon (TL) to the Common Commercial Policy (CCP), which are particularly significant for the conclusion of European Union (EU) international trade agreements. The key provisions concerning the CCP in the Treaty on the Functioning of the European Union (TFEU) are Articles 206 and 207 TFEU. Together Articles 206 and 207 TFEU form Title II on the “Common Commercial Policy” of Part V of the TFEU, which is entitled “External Action by the Union”.
I am indebted to Roberto Bendini for reading an earlier draft of this chapter and for his invaluable comments. Any errors or omissions are my own. Parts of section 5.5. were presented at the ICON-S Annual Conference 2018 on Identity, Security, Democracy: Challenges for Public Law, Hong Kong, June 25–27, 2018.
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Notes
- 1.
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Communities, Dec. 13, 2007, 2007 OJ (C 306) 1.
- 2.
Articles 206 and 207 TFEU amend and modify former Articles 131(1) and 133 Treaty of the European Community (TEC).
- 3.
Dimopoulos (2008), 102.
- 4.
The term “Brexit” derives from the amalgamation of the words “British” or “Britain” and the word “exit”, see further Sect. 5.5 in this chapter.
- 5.
Article 113(1) EEC provided 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 the event of dumping or subsidies.’
- 6.
Article 207(1) TFEU provides that: ‘The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.’ It is noteworthy that Article 207 TFEU is identical to Article III-315 of the defunct Constitutional Treaty.
- 7.
The TL transferred these two areas from Article 133(5) Treaty Establishing the European Community (TEC) to Article 207(1) TFEU.
- 8.
See Article 207(1) TFEU.
- 9.
Eeckhout (2011), p. 59.
- 10.
General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter GATT 1994].
- 11.
General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organisation, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) [hereinafter GATS].
- 12.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter ‘TRIPS Agreement’].
- 13.
- 14.
Article 207(2) TFEU provides that: ‘The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.’
- 15.
Villalta Puig and Al-Haddab above no. 13, 289; Krajewski (2012), pp. 292–311; A. Dimopoulos, above no. 13, at 153.
- 16.
Article 3(1)(e) TFEU.
- 17.
- 18.
Devuyst (2011), pp. 639–661, at 641–42.
- 19.
Koutrakos (2015), p. 17; for an historical account, see P. Koutrakos, ibid., Ch. 2; P. Eeckhout, above no. 9, Ch. 2.
- 20.
Bungenberg (2010), 123, 126.
- 21.
Villalta Puig and Al-Haddab above no. 13, 289.
- 22.
Orbie et al. (2008), pp. 148–65.
- 23.
Joined Cases 3, 4 and 6/76, Cornelis Kramer and Others [1976] ECR 1279 and Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741. Article 21(3) TEU provides that the Union’s general external policy objectives should be respected and pursued also in “the development and implementation of the external aspects of its other policies” and Article 207 (3)-(2) TFEU provides that the EU’s CCP agreements shall be compatible with internal Union policies and rules; Article 207(6)(a) TFEU establishes explicit parallelism between internal and external EU competences. External powers cannot be used to override the limits of internal Union competence with regard to the same subject matter.
- 24.
A. Dimopoulos, above no. 3, at 118.
- 25.
Ibid.
- 26.
Former Article 133 EC.
- 27.
Dimopoulos, above no. 3.
- 28.
H. H. Voogsgeerd, ‘The Nature of the Asymmetry between Trade and Labour Rights in Trade Agreements of the EU’, paper presented at the European Union in International Affairs (EUIA) Biennial Conference, Brussels, Belgium, 11–13 May 2016. This interpretative approach of the CJEU can be seen in the Daiichi Sankyo case where an act of the EU concerning intellectual property issues was in dispute; Case C-414/11 Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland GmbH v DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon ECLI:EU:C:2013:520.
- 29.
Case C-414/11 above no. 3.
- 30.
The case concerned the related issue of whether the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement fell within the exclusive competence of the EU.
- 31.
Case C-414/11, para. 51. In para. 52. of the judgment the CJEU thus stated that ‘[i]t follows that, of the rules adopted by the European Union in the field of intellectual property, only those with a specific link to international trade are capable of falling within the concept of ‘commercial aspects of intellectual property’ in Article 207(1) TFEU and hence the field of the common commercial policy.’
- 32.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter ‘TRIPS Agreement’].
- 33.
E.g. Case C-137/12, European Commission v Council of the European Union (European Convention on the Legal Protection of Services Based on, Or Consisting of, Conditional Access), EU:C:2013:675.
- 34.
Articles 207(1) TFEU; 3(5) TEU.
- 35.
Melo Araujo (2016).
- 36.
For a discussion on the complexity of twenty-first century regionalism and trade and for an argument in favour of a new theoretical and analytical framework departing from conventional thinking, see R. Baldwin, ‘Filling the gap between twenty-first century trade and twentieth century trade rules’, World Trade Organisation, Economic Research and Statistics Division, Staff Working Paper ERSD-2011-08, 23 May 2011, available at: https://www.wto.org/english/res_e/reser_e/ersd201108_e.pdf, accessed on 14 June 2020.
- 37.
COM(2010)612.
- 38.
Available at http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf, accessed on 14 June 2020.
- 39.
European Commission, Reflection Paper on Harnessing Globalisation, COM(2017) 240 final.
- 40.
Melo Araujo, above no. 35, p. 31.
- 41.
For further analysis, see Abdelal and Meunier (2010), pp. 350–367.
- 42.
Burgoon (2009), pp. 643–661.
- 43.
See e.g. CJEU, Opinion 1/75 Local Costs ECLI:EU:C:1975:145; Opinion 1/78 Natural Rubber Agreement ECLI:EU:C:1979:224; Opinion 1/94 WTO ECLI:EU:C:1994:384; more recently see Opinion 2/15 on the EU-Singapore Free Trade Agreement ECLI:EU:C:2016:880; Opinion 3/15 on the Marrakesh Treaty ECLI:EU:C:2017:114.
- 44.
Article 206 TFEU provides that: ‘By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.’
- 45.
Villalta Puig and Al-Haddab above n 13, 291.
- 46.
Articles 208-211 TFEU.
- 47.
Articles 212-213 TFEU.
- 48.
Article 214 TFEU.
- 49.
Article 215 TFEU.
- 50.
Articles 216-219 TFEU.
- 51.
Articles 220 and 221 TFEU.
- 52.
Article 222 TFEU.
- 53.
The main provisions of the CFSP are to be found in Title V of the TEU, Articles 21-46. The CFSP competence has a specific nature and it is unclear whether the CFSP acts enjoy primacy and direct effect in the EU legal order; on this see further Wouters and Ramopoulos (2014), pp. 222–223.
- 54.
The Treaty of Lisbon abolished the 3-Pillar structure (namely, the ‘supranational pillar’ of the European Communities (1), the ‘intergovernmental pillar’ of the Common Foreign and Security Policy (2) and the ‘intergovernmental pillar’ of the Justice and Home Affairs (JHA) later renamed Police and Judicial Cooperation in Criminal Matters (PJCCM)), which made up the legal framework of the European Union set up by the 1992 Treaty of Maastricht. See Editorial (2005), pp. 325–329, Van Elsuwege (2010), pp. 987–1019.
- 55.
Schütze (2002), p. 42.
- 56.
On the distinction between “low” and “high” politics, see Allen (2012), p. 644.
- 57.
Former Article 47 TEU; Article 40 TEU provides that: ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’
- 58.
Schütze, above no. 55, p. 42.
- 59.
P. Van Elsuwege, above no. 54.
- 60.
Now Article 40 TEU.
- 61.
Based on former Article 131(1) TEC, which provided that: ‘By establishing a customs union between themselves Member States aim to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and the lowering of customs barriers.’
- 62.
Krajewski above no. 15, p. 294.
- 63.
Articles 21-22 TEU.
- 64.
Article 205 TFEU provides that: ‘The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.’
- 65.
Krajewski above no. 15, p. 294.
- 66.
This is examined further in Chap. 4.
- 67.
These principles and objectives also extend to the CCP via Article 207(1) TFEU where it provides that: ‘the Common Commercial Policy shall be conducted in the context of the principles and objectives of the Union’s external action.’
- 68.
Bartels (2014), pp. 1071–1091; cfr. Cannizzaro (2014), pp. 1093–1099.
- 69.
Case C-366/10 Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECR I-13755, at paras. 101 and 123.
- 70.
The only exception being the 2008 UN Convention on the Rights of Persons with Disabilities (CRPD), which the EU ratified in 2010.
- 71.
For further discussion, see Velluti (2016), p. 182.
- 72.
Article 207(1) TFEU; the four modes of supplying services are as follows: cross-border trade, consumption abroad, commercial presence and presence of natural persons, see Article I:2 GATS. The pre-Lisbon Opinion 1/08 already established that trade in services was fully part of the CCP (except for transport services), Opinion 1/08, GATS, EU:C:2009:739.
- 73.
Article 207(5) TFEU refers to Title VI, Part III (and Article 218 TFEU), which establishes a lex specialis vis-à-vis trade in services. In particular, Article 91 TFEU—the main legal basis for the EU’s Common Transport Policy- falls within shared competence. Here two scenarios can be envisaged. First, if the EU has covered a given field of transport services through internal legislation, this could create an exclusive competence under Article 3(2) TFEU; in the second case, if specific transport provisions in a trade agreement that is being negotiated do not mirror the EU’s internal acquis then it will be left to the Council whether to exercise shared transport competence through the conclusion of said trade agreement or whether to opt for a mixed agreement, on this point see Hoffmeister (2017), pp. 307–336, at p. 311.
- 74.
Devuyst, above no. 18, at 654.
- 75.
Krajewski (2008), pp. 188–195.
- 76.
Shared competence was envisaged in Article 133(6) subparagraph 2 TEC. Following the TL reform, the CJEU has endorsed an expansive approach to the scope of the CCP as exemplified by Case C-137/12 European Commission v Council of the European Union (EU:C:2013:675), a case relating to the Council of Europe Convention on audio-visual services, European Convention on the Legal Protection of Services based on, or consisting of, Conditional Access (24 January 2001) CETS No 178. In this case it held that the main objective of the Convention was to extend the EU acquis on audio-visual services to states that were members of the Council of Europe and it fell therefore within the scope of the CCP and, in particular, that the Convention should be based on Article 207(4) TFEU (para. 81). Hence, the Court made it clear that as long as the subject-matter concerned services under Article 207(4) TFEU ‘it is less relevant whether a trade provision prohibits, authorizes or even requires civil, administrative or even criminal action from the parties to the agreement,’ see Hoffmeister, above no. 73, p. 311.
- 77.
Krajewski argues that it only covers the conclusion and not the negotiation of agreements, which would therefore not be influenced by the unanimity rule of subparagraph 3, Krajewski, above no. 15, pp. 306–307.
- 78.
WTO, Services Sectoral Classification List, 10 July 1991, MTN.GNS/W/120, reproduced as part of the Guidelines for the Scheduling of Specific Commitments under the GATS of 23 March 2001, WTO-Document S/L/92.
- 79.
Article 3(3) TEU subparagraph 4, which provides that the Union ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.’
- 80.
For further information on the WIPO, visit: http://www.wipo.int/portal/en/index.html.
- 81.
Former Article 133(7) TEC provided that: ‘Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1–4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5.’
- 82.
Former Article 133(5) TEC provided that: ‘Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.
By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.
The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.
This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.’
- 83.
Villalta Puig and Al-Haddab, above no. 13, at 293.
- 84.
Case C-414/11, EU:C:2013:520.
- 85.
Devuyst, above no. 18, at 654.
- 86.
Eeckhout, above no. 9, at pp. 59–60.
- 87.
Weiss and Steiner (2013), pp. 355–374, Ortino and Eeckhout (2012), pp. 312–330; see also contributions in Bungenberg et al. (2011), Lavranos (2010), pp. 409–441, Karl (2005), pp. 413, Dimopoulos (2011), Herrmann (2010), p. 29, de Mestral (2009–2010), pp. 365–395, Moskvan (2016), pp. 241–262, Ziegler (2013), pp. 235–243; S. Woolcock, ‘The EU Approach to International Investment Policy after the Lisbon Treaty’, European Parliament, Directorate-General for External Policies of the Union, Directorate B, Policy Department, Brussels, October 2010, available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/433854/EXPO-INTA_ET(2010)433854_EN.pdf, accessed on 14 June 2020; Eilmansberger (2009), pp. 383–429, Ceyssens (2005), pp. 259–291, Delgado Casteleiro (2016a).
- 88.
European Commission, ‘Towards a comprehensive European investment policy’ 7 July 2010, COM(2010) 343 final; European Commission, Proposal for a Regulation establishing transitional arrangements for bilateral investment treaties between EU Member States and third countries, 7 July 2010, COM(2010) 344 final; European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is party, 21 June 2012, COM(2012) 335 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Trade for All—Towards a more responsible trade and investment policy, 14 October 2015, COM(2015) 497 final.
- 89.
Villalta Puig and Al-Haddab, above no. 13, at 294.
- 90.
Ibid.
- 91.
For an analysis of the different positions of the EU Institutions, see F. Weiss and S. Steiner, above no. 87, pp. 361–367.
- 92.
Woolkock, above no. 87.
- 93.
Free Trade Agreement between the European Union and Singapore, (Authentic text as of May 2015) http://trade.ec.europa.eu/doclib/press/index.cfm?id=961, accessed on 14 June 2020.
- 94.
“New generation” of FTA refers to a trade agreement which contains, in addition to the classical provisions on the reduction of customs duties and non-tariff barriers in the field of trade in goods and services, provisions on various matters related to trade, such as intellectual property protection, investment, public procurement, competition and sustainable development. This type of FTA also included investor-state arbitration.
- 95.
This was the position of the European Commission and the EP.
- 96.
The CJEU had to examine whether the Union could have exclusive competence also on the basis of the doctrine of implied powers (developed through its case-law), in other words whether its exclusive external powers may derive from its internal powers. Article 3(2) TFEU provides that the Union shall also have exclusive competence to conclude an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope. Opinion 2/15 concerned what Peers defines as the “legislative authorisation” ground and the “affect common rules” ground, see S. Peers, ‘The EU’s future trade policy starts to take shape: the Opinion on the EU/Singapore FTA’, EU Law Analysis, 21 December 2016, available at: http://eulawanalysis.blogspot.co.uk/2016/12/the-eus-future-trade-policy-starts-to.html, accessed on 14 June 2020.
- 97.
The terminology used by the Court of “competence shared” (from the French language: “compétence partagée”) is an alternative use of the notion of “shared competence” to indicate so-called “mandatory mixity” as opposed to “voluntary mixity”, explained further below in the main text; see also no. 100. However, this semantic understanding of “shared competence” by the CJEU while not novel contradicts the constitutional meaning provided in Article 2(2) TFEU as introduced by the TL; on this point and further critical analysis, see D. Thym, ‘Mixity after Opinion 2/15: Judicial Confusion over Shared Competences’, Verfassungsblog, 31 May 2017, available at: http://verfassungsblog.de/mixity-after-opinion-215-judicial-confusion-over-shared-competences/, accessed on 14 June 2020.
- 98.
Portfolio investments are discussed further below in this section.
- 99.
Opinion 2/15, ECLI:EU:C:2016:880, paras. 226-243 and 244 concerning Section A of Chapter 9 and paras. 285-293 of Section B of Chapter 9 of the EUSFTA.
- 100.
Mixed agreements are agreements to which both the EU and its member states are a party and they require the joint ratification of the EU and each of the member states. Overall, this can be a cumbersome process which can take years and it is for this reason that the European Commission has often argued for a broad interpretation of the CCP in order to avoid the legal problems caused by the negotiation and conclusion of mixed agreements. Mixed agreements can be either bilateral agreements, namely agreements between EU/member states and a third party, or multilateral agreements, namely agreements between the EU, its Member States and other third parties; for detailed analysis see, Heliskoski (2001) and the contributions in Hillion and Koutrakos (2010), Van Der Loo and Wessel (2017), pp. 736–741.
- 101.
In contrast mixity is “optional” or “facultative” if it concerns exclusive as well as non-exclusive competence of the Union thus falling within an area of shared competence. In such cases there is a political choice as to who exercises said competence, either the Union or the member states; Rosas (2000), pp. 203–204 and Klamert (2013), Ch. 10.
- 102.
For further commentary and analysis, see among others, Kleimann (2017), Ankersmit (2017), available at: http://blogs.ucl.ac.uk/europe-and-the-world-journal/tag/opinion-215, accessed on 10 January 2019; Lenk (2017), pp. 357–382. On the effects of the Opinion on the withdrawal of the UK from the EU, i.e. “Brexit”, see Sarmiento (2017).
- 103.
Larik (2015), pp. 779–800, at 797.
- 104.
D. Kleimann, above no. 102, p. 5
- 105.
Author’s addition.
- 106.
D. Kleimann, above no. 102, p. 5. Compare this judgment with Opinion 3/15 of 14 February 2017 on whether the European Union has exclusive competence to conclude the 2013 WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled’, ECLI:EU:C:2017:114. Here the CJEU ruled in favour of the EU’s exclusive competence following the Commission in its argument that the Treaty is covered by the ERTA doctrine of implied powers. In particular the EU will have exclusive (implied) competence under Article 3(2) TFEU ‘when the conclusion of an international agreement may affect common rules or alter their scope’ (paras. 102-130 and specifically paras. 129–130). In this case the Court clarified the scope of Article 207(1) TFEU and, in particular, of the commercial aspects of intellectual property rights embracing a narrow interpretation, which explains why it relied instead on implied powers as per the last limb of Article 3(2) TFEU. According to the Court the mere cross-border exchange of goods or services is not enough to equate a measure with international trade for commercial purposes. A link with trade implies that the transaction or activity aims at fulfilling a commercial objective. Hence, using trade as a means to fulfil non-commercial objectives is not enough to bring a measure within the remit of the CCP.
- 107.
Case C-600/14 Federal Republic of Germany v Council of the European Union ECLI:EU:C:2017:935.
- 108.
Ibid., para. 68.
- 109.
Koutrakos, above no. 19, p. 46.
- 110.
Council Directive of 24 June 1988 for the implementation of Article 67 of the Treaty OJ L 178, 8.7.1988, pp. 5–18, at p. 11.
- 111.
Case C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, The Commissioners for Her Majesty’s Revenue & Customs, ECLI:EU:C:2012:707, at para. 102. The CJEU provided this definition in the context of the free movement of capital; see Articles 63 and 64(1) and (2) TEU; see also Case C-81/09 Idrima Tipou, ECLI:EU:C:2010:622, at para. 48 and Case C-182/08 Glaxo Wellcome GmbH & Co KG v Finanzamt München II, ECLI:EU:C:2009:559, at para. 40.
- 112.
OECD (2008).
- 113.
International Monetary Fund (IMF) (2009).
- 114.
‘Foreign portfolio investment’ consists of cross-border transactions and positions involving equity or debt securities, other than those included in direct investment or reserve assets, see IMF (2000), Appendix III, Glossary of Terms; Wolf (2008), pp. 71–105.
- 115.
Joined Cases C-282/4 and C-283/04 Commission v Netherlands, ECLI:EU:C:2006:608, para. 19.
- 116.
Opinion 2/15, ECLI:EU:C:2016:880, at para. 227.
- 117.
Woolcock, above no. 87, at p. 12.
- 118.
In this sense, see Hoffmeister, above no. 73, pp. 314–315.
- 119.
On the doctrine of implied powers, see above, infra no. 96; for detailed academic analysis including its relationship with the doctrine of parallelism, see Schütze (2014), Ch. 7.
- 120.
Articles 63-66 TFEU; European Commission, ‘Towards a comprehensive European investment policy’ above note no. 88, 8; A. Dimopoulos, above no. 3, pp. 104–05; De Luca (2012), pp. 182–195. The CJEU has held that such investments constitute movements of capital for the purposes of Article 63 TFEU, see, inter alia, Joined Cases C-282/04 and C-283/04, Commission v Netherlands, EU:C:2006:208, para. 19; C-81/09, Idryma Typou, EU:C:2010:622, para. 48; C-212/09, Commission v Portugal, EU:C:2011:717, para. 47.
- 121.
A. Delgado Casteleiro, ‘Opinion 2/15 on the scope of EU external trade policy: some background information before next week’s hearing’, EU Analysis, 6 September 2016, available at: http://eulawanalysis.blogspot.co.uk/2016/09/opinion-215-on-scope-of-eu-external.html, accessed on 14 June 2020.
- 122.
Ibid.
- 123.
Krajewski, above no. 15, p. 302.
- 124.
Koutrakos, above no. 19, p. 47.
- 125.
Eeckhout, above no. 9, pp. 64–65.
- 126.
- 127.
Performance standards include non-discrimination, fair and equitable treatment and full protection and security.
- 128.
Article 345 TFEU provides that: ‘The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.’
- 129.
For further discussion, Moskvan (2016), pp. 242–262, at 254–256.
- 130.
Krajewski, above no. 15, p. 303.
- 131.
Ibid.
- 132.
Villalta Puig and Al-Haddab, above no. 13, at 294.
- 133.
Ibid; see analysis above.
- 134.
Van der Loo and Wessel, above no. 100, at 740.
- 135.
Tridimas and Eeckhout (1994), pp. 143–177, at 172.
- 136.
Opinion 2/15, ECLI:EU:C:2016:880.
- 137.
Since 1959 member states have concluded more than 1400 BITs with third countries, available at: http://ec.europa.eu/trade/policy/accessing-markets/investment/index_en.htm. There are also BITs concluded between EU member states, so-called “intra-EU” BITs, which have a different legal regime. The distinction of treatments between extra-EU and intra-EU BITs may lead to forum shopping particularly with regard to investment protection through corporate nationality planning. The EU’s efforts to form a comprehensive investment policy (both intra-EU and extra-EU) has been affected by on-going horizontal and institutional incoherence, see Lenk (2015), pp. 6–20; for an analysis of the validity and applicability of intra-EU BITs, see F. Weiss and S. Steiner, above no. 87, pp. 367–373; see also the Achmea case, where the CJEU found that the CJEU found that the arbitration clause in the BIT between Slovakia and the Netherlands had an adverse effect on the autonomy of EU law because not only could disputes falling within the jurisdiction of the arbitral tribunal relate to the interpretation both of that agreement and of EU law but also because the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by member states. As such, it called into question the principle of mutual trust between Member States and the preservation of the particular nature of EU law and was thus incompatible with the principle of sincere cooperation established in Article 4(3) TEU, Case C-284/16 Slowakische Republik v Achmea BV, ECLI:EU:C:2018:158, paras. 58–59.
- 138.
Koutrakos, above no. 19, at p. 48.
- 139.
Article 30(4) VCLT provides that: ‘When the parties to the later treaty do not include all the parties to the earlier one: (a) As between States parties to both treaties the same rule applies as in paragraph 3; (b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.’
- 140.
Article 46(1) VCLT provides that: ‘A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.’
- 141.
E.g., C-459/03, Commission v. Ireland (Mox Plant) ECLI:EU:C:2006:345.
- 142.
Article 351(1) TFEU provides that: ‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.’
- 143.
Case C-205/06, Commission v Austria ECLI:EU:C:2009:118 and Case 249/06, Commission v Sweden, ECLI:EU:C:2009:119.
- 144.
Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between member states and third countries, OJ L351/40 of 20 December 2012.
- 145.
Article 1 of Regulation No. 1219/2012.
- 146.
Articles 9-11 of Regulation No. 1219/2012.
- 147.
Article 9 of Regulation No. 1219/2012.
- 148.
Ibid.
- 149.
Articles 64, 66 and 75 TFEU. E.g. see the Protocol of 26 August 2009 to the French-Turkish BIT of 15 June 2006: “The provisions of [Article 5 on the free transfer of capital] do not hinder the exercise in good faith by one Contracting Party of its international obligations as well as its right and obligations resulting from its participation or association in a free trade zone, a customs union, a common market, an economic and monetary union or any other form of regional co-operation or integration.’ This example is taken from S. Woolcock, above n. 66, fn. 89, p. 57.
- 150.
Case C-205/06 Commission v Austria ECLI:EU:C:2009:118 and Case C-249/06 Commission v Sweden ECLI:EU:C:2009:119 and Case C-118/07, Commission v. Finland ECLI:EU:C:2009:715.
- 151.
For further analysis see A. Dimopoulos, above no. 87, pp. 310–318.
- 152.
Discussed above in Sect. 4.1.2.1.
- 153.
E.g. Article 7(a) of the UK-Argentina BIT of 11 December 1990; Article 4(2) of the Germany-India BIT of 10 July 1995; Article 3(4) France-Turkey BIT of 26 August 2009. These clauses are often referred to as Regional Economic Integration Organisation (REIO) clauses. These examples are taken from Woolcock, above no. 87, fn. 89, p. 57.
- 154.
Woolcock, above no. 87, p. 57.
- 155.
Ibid.
- 156.
In practice, member states may have to pay large damages awarded by arbitrators who owe no allegiance other than the BIT itself. E.g. CME Czech Republic BV (The Netherlands) v Czech Republic (Damages) (14 March 2003) 15(4) World Trade and Arbitration Material 83, where the Czech Republic was condemned to pay US$ 353 million for issuing regulatory advice (not involving EU law) that lead CME, a Dutch investment vehicle of Ronald Steven Lauder, a U.S. cosmetics billionaire, to divest itself of a popular TV station, despite the fact that another tribunal under the Czech-U.S. BIT had six months earlier found that the conduct of the Czech broadcast authority constituted no violation of any investment protection standards. This example is taken from Woolcock, above no. 87, fn. 91, p. 57.
- 157.
E.g. Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, OJ L352/1, 30/12/2002, (2002 EU-Chile FTA); the Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part [2008] OJ L289/3 (the 2008 EU-CARIFORUM EPA); 2013 EUSFTA.
- 158.
E.g. 2002 EU-Chile FTA. Article 195 EU-Chile FTA provides the contracting parties in case of ‘serious balance of payments and external financial difficulties’ to adopt ‘restrictive measures with regard to trade in goods and in services and with regard to payment and capital movement, including those related to direct investments.’ However, the national BITs concluded with Chile provide unqualified guarantees of free transfer of capital. Hence, if investors could challenge restrictions allowed by the FTA by invoking the BIT provision, this would undermine the overall balance of the FTA and could also raise questions of equal treatment between investors.
- 159.
Krajewski, above no. 15, p. 298.
- 160.
Article 5(1)-(2) TEU and Article 7 TFEU.
- 161.
Article 207(3) TFEU refers to the negotiation and conclusion of international agreements and Article 207(2) TFEU refers to the implementation of the CCP.
- 162.
The Opinion 1/75 in the Low Cost Standard case denied Member States the power to enter into international agreements or to legislate matters related to commercial policy, even if the Community had not yet acted; see Case 1/75, Low Cost Standard, 1975 E.C.R. 1355; Case 41/76, Suzanne Criel, nee Donckerwolcke and Henru Schou v. Procureur de la Republique, 1976 E.C.R. 1921.
- 163.
See above, no. 96, 106 and 119.
- 164.
Article 207(3) TFEU provides that: ‘Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.’
- 165.
Article 17(1) TEU.
- 166.
In this provision the meaning of directive is to be distinguished from that found in Article 288(3) TFEU as a legislative instrument addressed to EU Member States.
- 167.
Adriaensen and Neuhold (2017).
- 168.
Adriaensen (2016), p. 47.
- 169.
Article 207(3) subpara. 2 TFEU.
- 170.
Article 207(3) subpara. 3 TFEU; Article 218(4) and (10) TFEU, respectively. The CJEU held that the Council can require the Commission to regularly report on the progress in the negotiations to a Committee or even the Council itself, see Case C-245/13 Commission v Council EU:C:483, paras. 60–73.
- 171.
Under para. 24 of the Framework Agreement on relations between the European Parliament and the European Commission, [2010] OJ L304/47, the European Commission informs either the responsible Committee of the EU Parliament or the plenary about the negotiations of an international agreement.
- 172.
Adriaensen and Coleman (2017), pp. 77–95.
- 173.
Ibid.
- 174.
Melo Araujo, above no. 35.
- 175.
J. Adriaensen and E. Coleman, above no. 172.
- 176.
Hoffmeister, above no. 73, p. 323; see also Hoffmeister (2014), pp. 145–146.
- 177.
Hoffmeister, above no. 73, p. 324.
- 178.
E.g. the so-called “Banana Agreement”, Council Decision of 10 May 2010 on the signing and provisional application of the Geneva Agreement on Trade in Bananas between the European Union and Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Venezuela and of the Agreement on Trade in Bananas between the European Union and the United States of America, OJ L 141, 9.6.2010, pp. 1–2.
- 179.
E.g. 2011 EU-Korea FTA, Free Trade Agreement between the European Union and its Member States of the one part, and the Republic of Korea of the other part (EU-Korea FTA) [2011] OJ L127/6, 14 May 2011, p. 6. In the decision on this agreement the entry into force of a safeguard regulation was set as a precondition for provisional application of the agreement. The safeguard regulation was voted in the EU Parliament at the same time as the agreement itself. In practice, the Council effectively made the date of provisional application dependent on a positive vote of the EU Parliament on the agreement even if such condition is not provided for in Article 218(5) TFEU. This practice has been subsequently used for other EU international agreements, see Hoffmeister, above no. 73, pp. 324–326.
- 180.
Article 218(6) TFEU.
- 181.
This principle of EU external relations has been developed further by the CJEU into two slightly distinct conceptualisations, that of complementarity and parallelism. With regard to the former, see the Kramer case (Cases 3, 4 & 6/76, Kramer ECLI:EU:C:1976:114). The principle of complementarity establishes that external competence is a necessary complement to the Union’s internal competence. With regard to the principle of parallelism, see Opinion 1/76, Opinion given pursuant to Article 228 (1) of the EEC Treaty—‘Draft Agreement establishing a European laying-up fund for inland waterway vessels’ ECLI:EU:C:1977:63, paras. 3–4. According to the Court, the EU has competence to enter into an international agreement provided that: (a) the Treaty confers internal competence on the EU in a given area for the purpose of attaining a specific objective, and (b) participation of the EU in the agreement in question is necessary for the attainment of that objective. Most significantly, it is not necessary for the Union to have exercised its internal competence in that field as the very existence of such internal competence is sufficient; for academic analysis, see Dashwood and Heliskoski (2000), pp. 12–13; see also Cremona (1999), pp. 137–176 at p. 139.
- 182.
Article 207(4) subpara. 3 TFEU.
- 183.
This term was coined by Pascal Lamy, former Trade Commissioner of the EU Commission.
- 184.
A detailed analysis of the withdrawal of the UK from the EU (or “Brexit”) and the process(es) and procedures of disengagement from the EU is outside the scope of this chapter; for up-to-date information visit: https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership_en, accessed on 20 March 2020; https://www.parliament.uk/brexit, accessed on 20 March 2020; https://ukandeu.ac.uk/, accessed on 20 March 2020; for academic discussion: Brexit Supplement 17 German Law Journal (2016), available at: http://www.germanlawjournal.com/brexit-supplement/; Craig (2016), pp. 447–468, Ahmed and Fahey (2019), Dougan (2017a), Eeckhout and Frantziou (2017), 695–734, Gee et al. (2016), pp. 51–56, Gormley (2017), pp. 1175–1210, Kostakopoulou (2017), pp. 339–352, Lazowski and Wessel (2016), pp. 623–638, Sif Tynes and Lian Haugsdal (2016), pp. 753–765, Wessel (2016), pp. 197–209, van der Wel and Wessel (2017)
- 185.
Dougan (2017b), pp. 1–12, at p. 1.
- 186.
Odermatt (2017), pp. 1052–1073, at 1055.
- 187.
Case 181/73 R & V Haegeman Spri v Belgium, ECLI:EU:C:1974:41.
- 188.
EU treaty database, available at: http://ec.europa.eu/world/agreements/SimpleSearch.do, accessed on 10 March 2019.
- 189.
Full text of the Withdrawl Agreement can be found at: https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/eu-uk-withdrawal-agreement_en, accessed on 29 August 2020.
- 190.
As per Article 3 TFEU; e.g. the Agreement on Scientific and Technological Cooperation between the European Community and South Africa [1997] OJ L313/25.
- 191.
As per Article 216(2) TFEU, which provides that: ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’
- 192.
Koutrakos (2016a), pp. 1–2; for a discussion as to whether the UK after leaving the EU would continue to be bound by the obligations under EU-only agreements by way of succession, see Odermatt, above no. 186, at 1057–1059.
- 193.
On the basis of a joint reading of Article 216(2) TFEU and Article 56 VCLT. Article 56 VCLT provides that:
‘1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1.’
See in this sense, Van der Loo and Blockmans (2016), pp. 1–5.
- 194.
Ibid.
- 195.
Van der Loo and Blockmans, above no. 192, p. 2.
- 196.
Ibid., pp. 2–3.
- 197.
Article 39 VCLT provides that: ‘A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.’ [Emphasis added].
- 198.
Koutrakos (2016b), pp. 475–478, at 475; e.g. Association Agreement between the European Union and its Member States, of the one part, and Ukraine of the other part [2014] OJ L161/3 (EU-Ukraine AA).
- 199.
Case C-316/91 Re European Development Fund, ECLI:EU:C:1994:76; see Koutrakos, above no. 191, at 2.
- 200.
E.g. Article 131, Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part [2015] OJ L164/2.
- 201.
Koutrakos, above no. 197, at 476.
- 202.
Ibid; Article 62 VCLT provides that: ‘
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) The existence of those circumstances constituted an essential basis of the con sent of the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
(a) If the treaty establishes a boundary; or
(b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
- 203.
Van der Loo and Blockmans, above no. 192, p. 2.
- 204.
This can be deducted a contrario from section 1(3) of the European Communities Act (ECA) 1972.
- 205.
Koutrakos, ‘Brexit and International Trade Treaties: a complex, long, and expensive process’, available at: http://lawyers-inforbritain.uk/briefings/brexit-and-international-trade-treaties-a-complex-long-and-expensive-process/, accessed on 20 March 2020.
- 206.
Van Der Loo and Wessel, above no. 100, at 748.
- 207.
Ibid., at 749; see also Lazowski and Wessel (2016), pp. 623–638.
- 208.
Cremona (2017), pp. 247–265, at p. 252.
- 209.
Free Trade Agreement between the European Union and its Member States of the one part, and the Republic of Korea of the other part (EU-Korea FTA) OJ [2011] L127/6, 14 May 2011, p. 6; see also Koutrakos, ‘Global Britain: trade agreements with the rest of the world’, paper presented at the UKLegalFuture, ‘Brexit: The Future of International Trade’, House of Commons, 9 February 2017.
- 210.
Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union and its Member States of the Other Part, Consolidate Text published 26 September 2014, available at http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf, accessed on 14 June 2020.
- 211.
Cremona, above, no. 207, at p. 252.
- 212.
Ibid., pp. 252–253.
- 213.
Ibid.
- 214.
Cremona, above no. 207, at p. 253.
- 215.
The principle of sincere cooperation is discussed further below, sect. 3.5.6.1.
- 216.
For a discussion of the doctrine of supremacy of EU Law, see Capik (2016), pp. 379–420. The UK’s Supreme Court confirmed the UK’s obligation of being bound by the primacy of EU law until its exit from the Union in the Miller case, see R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. In particular, it held that ‘Following the coming into force of the 1972 Act [ECA], the normal rule is that any domestic legislation must be consistent with EU law. In such cases, EU law has primacy as a matter of domestic law, and legislation which is inconsistent with EU law from time to time is to that extent ineffective in law’ (para. 67).
- 217.
Cremona, above no. 207, at p. 253.
- 218.
An analysis of the possible future legal framework between the Union and the UK is beyond the scope of this chapter. On alternatives to EU membership, see among others, HM Government, ‘The Future Relationship with the EU. The UK’s Approach to Negotiations’, February 2020, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868874/The_Future_Relationship_with_the_EU.pdf, accessed on 20 March 2020; HM Government, ‘Report on Alternatives to Membership: Possible Models for the United Kingdom Outside the European Union’, March 2016, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf, accessed on 20 March 2020; Lazowski (2012), pp. 523–540; Tobler (2016), pp. 275–294; van der Wel and Wessel, above no. 184.
- 219.
For a detailed analysis, see I. Willemyns and M. Koekkoek, ‘The legal consequences of Brexit from an international economic law perspective’, Leuven Centre for Global Governance Studies, Working Paper No. 188, June 2017, pp. 5–21.
- 220.
P. Koutrakos, ‘What does Brexit mean for the UK in WTO?’, 12 July 2016, available at: www.monckton.com/brexit-mean-uk-wto/, accessed on 20 March 2020.
- 221.
P. Ungphakorn, ‘Nothing simple about UK regaining WTO status post-Brexit,’ 27 June 2016, http://www.ictsd.org/opinion/nothing-simple-about-uk-regaining-wto-status-post-brexit, accessed on 20 March 2020; C. Gammage, ‘UK Trade after Brexit: Is the WTO a suitable alternative?’, http://legalresearch.blogs.bris.ac.uk/2016/06/uk-trade-after-brexit-is-the-wto-a-suitable-alternative/, accessed on 20 March 2020.
- 222.
L. Bartels, ‘The UK’s status in the WTO after Brexit’, University of Cambridge, Faculty of Law, Working Paper September 2016, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841747, accessed on 20 March 2020.
- 223.
General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT].
- 224.
WTO negotiations produce general rules that apply to all members, and specific commitments made by individual member governments. The specific commitments are listed in documents called “schedules of concessions”, which reflect specific tariff concessions and other commitments that they have given in the context of trade negotiations, such as the Uruguay Round.
- 225.
This assumption is reflected in Article II of the GATT and Articles XVI of the GATS.
- 226.
T. Sebastian, ‘The WTO Option’, paper presented at the UK Legal Future Event: Brexit: The Future of International Trade, House of Commons, 8 February 2017.
- 227.
WTO, ‘United Kingdom submits draft schedule to the WTO outlining post-Brexit goods commitments’, 24 July 2018, available at: https://www.wto.org/english/news_e/news18_e/mark_24jul18_e.htm, accessed on 20 March 2020.
- 228.
Collins (2019), pp. 238–252, at p. 243.
- 229.
WTO, Council for Trade in Services, Communication from the United Kingdom of Great Britain and Northern Ireland. Certification of Schedule of Specific Commitments, S/C/W/380, 3 December 2018, available at: https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=259448,258652,255028,250414,250178,250169,249967,248583,248467,243365&CurrentCatalogueIdIndex=4&FullTextHash=&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True, accessed on 20 March 2020; see also WTO, Council for Trade in Services, Communication from the United Kingdom of Great Britain and Northern Ireland. Certification of Schedule of Specific Commitments, Corrigendum, S/C/W/380, 13 December 2018, available at: https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=259448,258652,255028,250414,250178,250169,249967,248583,248467,243365&CurrentCatalogueIdIndex=3&FullTextHash=&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True, accessed on 20 March 2020. In January 2019, Russia, Taiwan and Costa Rica opposed the UK’s draft schedule for GATS schedule.
- 230.
Collins, above no. 226, at p. 243.
- 231.
The 1994 Agreement on Government Procurement (GPA) is available at: https://www.wto.org/english/docs_e/legal_e/gpr-94_01_e.htm, accessed on 20 March 2020; the 2012 revised GPA, is available at: https://www.wto.org/english/docs_e/legal_e/gpr-94_01_e.htm, accessed on 20 March 2020.
- 232.
For further discussion, see G. Messenger, ‘Membership of the World Trade Organisation’ in Dougan (2017b), pp. 225–245, at pp. 228–230. However, the situation is different with regard to the division of tariff-rate quotas and agricultural goods, see further pp. 230–231.
- 233.
Ibid, p. 244.
- 234.
On the powers of the EU Parliament in the external relations of the EU post-Lisbon, see C. Eckes, ‘How the European Parliament’s Participation in International Relations Affects the Deep Tissue of the EU’s Power Structures’, Jean Monnet Working Paper 12/14; K. Raube and J. Wouters, ‘The Many Facets of Parliamentary Involvement and Interaction in EU External Relations’, Leuven Centre for Global Governance Studies, Working Paper No. 174—April 2016.
- 235.
Article 218(10) TFEU which provides that: ‘The European Parliament shall be immediately and fully informed at all stages of the procedure’ and, specifically for international trade agreements, Article 207(3) subpara. 3 TFEU; the last limb provides that: ‘The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations’; see also the Framework Agreement on Relations between the European Parliament and the Commission, OJ [2010] L304/47, 20.11.2010, Annex 11, which goes beyond the strict wording of the Treaty on the Functioning of the EU thereby strengthening the European Parliament’s role in the negotiations and conclusion of international agreements. It could be argued that this agreement is an expression of the duty of sincere cooperation under Article 4(3) TEU and the principle of inter-institutional balance as per Article 13(2) TEU; see also Case C-658/11 European Parliament v Council ECLI: EU:C:2014:2025 (the Mauritius case).
- 236.
See Framework Agreement on Relations between the European Parliament and the Commission, above no. 234.
- 237.
Article 218(6) subpara. 2(b) TFEU, which provides that: ‘After consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.’
- 238.
Article 218(6)(a) (i)-(v) TFEU which provides that: ‘The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.’; compare with former Article 300(3) subpara. 2 TEC which provides that: ‘By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.’
- 239.
Article 218(6) subpara. 2(a) TFEU.
- 240.
Ripoll Servent (2014), pp. 568–586.
- 241.
Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, OJ [2010] L8/11, 13.1.2010.
- 242.
European Parliament, P7 TA(2010)0029 Legislative Resolution of 11 February 2010 on the proposal for a Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (05305/1/2010 REV 1—C7-0004/2010–2009/0190(NLE)).
- 243.
Council Decision on the Conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America, 12195/11, 2011.
- 244.
European Parliament, P7_TA-PROV(2012)0287. Legislative Resolution of 4 July 2012 on the draft Council decision on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America, 12195/11, 2011-C7-0027/2012-2011/0167(NLE)).
- 245.
European Parliament, P7_TA(2011)0569, Legislative Resolution of 14 December 2011 on the draft Council decision on the conclusion of a Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial compensation provided for in the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (11226/2011-C7-0201/2011-2011/0139(NLE)).
- 246.
Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, United Nations Security Council, S/2002/161, 12 February 2022, available at: http://www.arso.org/UNlegaladv.htm, accessed on 20 March 2020.
- 247.
European Parliament Resolution of 15 December 2011 on the draft Council decision on the conclusion of a Protocol to the Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Uzbekistan, of the other part, amending the Agreement in order to extend the provisions of the Agreement to bilateral trade in textiles, taking account of the expiry of the bilateral textiles Agreement (16384/2010—C7-0097/2011–2010/0323(NLE)), P7_TA(2011)0586.
- 248.
Adriaensen and Neuhold, above no. 167.
- 249.
Parlement Wallon, ‘Résolution sur l’Accord économique et commercial global (AECG)’, Session 2015–2016, 25 Avril 2016, available at: http://nautilus.parlement-wallon.be/Archives/2015_2016/RES/212_4.pdf, accessed on 20 March 2020.
- 250.
Further information is available at: http://ec.europa.eu/trade/policy/in-focus/ttip/, accessed on 20 March 2020; for EU negotiating texts in TTIP, visit: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1230, accessed on 20 March 2020; for further commentary and analysis, see D. Webb, ‘The Transatlantic Trade and Investment Partnership’, Briefing Paper, No. 06688, 4 December 2015, available at: https://commonslibrary.parliament.uk/research-briefings/sn06688/, accessed on 20 March 2020; Special Issue of Baetens et al. (2016), pp. 323–436, Fahey and Curtin (2014), Part II; de Ville and Siles–Brügge (2016), De Biève and Poletti (2017), pp. 1506–1521, Jančić (2017), pp. 202–221.
- 251.
In German Deutschsprachigen Gemeinschaft Belgiens (DG); in French Communauté germanophone de Belgique.
- 252.
Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States, OJ 2017, L 11/3. It should be noted that this document does not change the text of the agreement but is mainly an interpretative tool. It does however provide ‘in the sense of Article 31 VCLT, a clear and unambiguous statement of what Canada and the EU and its Member States agreed in a number of CETA provisions.’
- 253.
G. Van der Loo, ‘CETA’s signature: 38 statements, a joint interpretative instrument and an uncertain future’, CEPS Commentary, 31 October 2016, available at: https://www.ceps.eu/ceps-publications/cetas-signature-38-statements-joint-interpretative-instrument-and-uncertain-future/, accessed on 20 March 2020.
- 254.
The Namur Declaration of 5 December 2016 is available at: http://declarationdenamur.eu/en/index.php/namur-declaration/. The Namur Declaration contains key propositions for any EU negotiation of trade and economic agreements (particularly those forthcoming with the United States), stating that the EU should ensure that there is mandatory:
(1) respect for democratic procedures;
(2) compliance with socio-economic, sanitary, and environmental legislation; and
(3) guaranteed public interests in any dispute resolution mechanism.
This declaration has been signed also by many distinguished scholars, see further: https://www.ejiltalk.org/namur-declaration-of-5-december-2016-an-eu-values-driven-path-to-negotiating-and-concluding-economic-and-trade-agreements/.
- 255.
The Walloon compromise resulted in Belgium requesting the CJEU to decide on the compatibility of CETA’s investor-state dispute settlement provisions (Chapter Eight, Section F) with EU Law, see Opinion 1/17, pending.
- 256.
Van der Loo and Wessel, above no. 100, at p. 737; in this respect Maresceau maintains that ‘if there is political consensus among the Member States that an agreement ought to be mixed, they will almost certainly manage to impose the mixed procedure, particularly by adding provisions which stand on their own and need Member State involvement.’ See Maresceau (2010), pp. 11–29, at p. 16.
- 257.
European Commission Press release, European Commission proposes signature and conclusion of EU-Canada trade deal, Strasbourg, 5 July 2016, available at: http://europa.eu/rapid/press-release_IP-16-2371_en.htm, accessed on 20 March 2020.
- 258.
It should be noted that a member state’s refusal to ratify an international agreement can also block the Union’s ratification process if the mixed agreement requires a unanimous vote in the Council. Unanimity is required under one of the exceptions envisaged in Article 218(8) TFEU and in Article 207(4) TFEU. Article 218(8) TFEU provides that: ‘The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States, which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.’ Article 207(4) TFEU provides that: ‘For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audio-visual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.’
- 259.
This EU law principle can be considered to be a manifestation of the Public International Law obligation found in Article 18 VCLT “to refrain from acts which would defeat the object and purpose of a treaty.” Article 18 VCLT entitled ‘Obligation not to defeat the object and purpose of a Treaty prior to its entry into force’ provides that: ‘A State is obliged to refrain from acts which would defeat the object and pur pose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
- 260.
Van der Loo and Wessel, above no. 100, at p. 745.
- 261.
Ibid.
- 262.
Ibid.
- 263.
E.g. C-45/07 Commission v Greece (IMO) ECLI:EU:C:2009:81, where the CJEU considered the reciprocal nature of the duty of sincere cooperation meaning that also the Union has to cooperate loyally with its Member States (see para. 25).
- 264.
Meunier and Nicolaïdis (2011), at p. 277.
- 265.
Villalta Puig and Al-Haddab, above no. 13, at p. 3.
- 266.
Van der Loo and Wessel, above no. 100, at p. 740.
- 267.
Larik, above no. 103, at 798.
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Table of cases
Cases of the Court of Justice of the European Union
Case 181/73 R & V Haegeman Spri v Belgium, ECLI:EU:C:1974:41
Case 1/75, Low Cost Standard, 1975 E.C.R. 1355
Case 41/76, Suzanne Criel, nee Donckerwolcke and Henru Schou v. Procureur de la Republique, 1976 E.C.R. 1921
Joined Cases 3, 4 and 6/76, Cornelius Kramer and Others ECR 1279
Joined Cases 3, 4 and 6/76, Kramer ECLI:EU:C:1976:114
Case C-316/91, Re European Development Fund, ECLI:EU:C:1994:76
Case C-459/03, Commission v Ireland, ECLI:EU:C:2006:345
Joined Cases C-282/04 and C-283/04, Commission v Netherlands, ECLI:EU:C:2006:608
Case C-205/06, Commission v Austria ECLI:EU:C:2009:118
Case 249/06, Commission v Sweden, ECLI:EU:C:2009:119
Case C-118/07, Commission v. Finland ECLI:EU:C:2009:715
Case C-45/07, Commission v Greece (IMO) ECLI:EU:C:2009:81
Case C-182/08, Glaxo Wellcome GmbH & Co KG v Finanzamt München II, ECLI:EU:C:2009:559
Case C-81/09, Idryma Typou, EU:C:2010:622
Case C-212/09, Commission v Portugal, EU:C:2011:717
Case C-366/10, Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECR I-13755
Case C-35/11, Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, The Commissioners for Her Majesty’s Revenue & Customs, ECLI:EU:C:2012:707
Case C-414/11, Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland GmbH v DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon ECLI:EU:C:2013:520
Case C-658/11, European Parliament v Council ECLI: EU:C:2014:2025 (the Mauritius case)
Case C-137/12, European Commission v Council of the European Union (European Convention on the Legal Protection of Services Based on, Or Consisting of, Conditional Access), EU:C:2013:675
Case C-137/12, European Commission v Council of the European Union (EU:C:2013:675)
Case C-600/14, Federal Republic of Germany v Council of the European Union ECLI:EU:C:2017:935
Opinions of the Court
Opinion 1/75 Local Costs ECLI:EU:C:1975:145
Opinion 1/76, ‘Draft Agreement establishing a European laying-up fund for inland waterway vessels’ ECLI:EU:C:1977:63
Opinion 1/78 Natural Rubber Agreement ECLI:EU:C:1979:224
Opinion 1/94 WTO ECLI:EU:C:1994:384
Opinion 2/15 on the EU-Singapore Free Trade Agreement ECLI:EU:C:2016:880
Opinion 3/15 on the Marrakesh Treaty ECLI:EU:C:2017:114
Official Documents of the United Kingdom
HM Government, ‘The Future Relationship with the EU. The UK’s Approach to Negotiations’, Feb 2020. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868874/The_Future_Relationship_with_the_EU.pdf. Accessed 20 Mar 2020
HM Government, ‘Report on Alternatives to Membership: Possible Models for the United Kingdom Outside the European Union’, March 2016. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf. Accessed 20 March 2020
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Velluti, S. (2020). The Legal Framework of the Common Commercial Policy After the Entry into Force of the Treaty of Lisbon. In: The Role of the EU in the Promotion of Human Rights and International Labour Standards in Its External Trade Relations. Springer, Cham. https://doi.org/10.1007/978-3-030-56748-4_3
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