New Developments in the context of the European Citizens’ Initiative: General Court rules on ‘Stop TTIP’

Anastasia Karatzia, Assistant Professor in EU Law, Erasmus University Rotterdam and currently Visiting Research Fellow at the School of Law and Social Justice, University of Liverpool

Introduction

A few months ago, we saw the first annulment by the EU’s General Court of a Commission Decision refusing registration of a proposed European Citizens’ Initiative (ECI), in the case of Minority SafePack. Last week, there was an even bigger development in the case law of the General Court regarding the interpretation of the ECI’s legal admissibility test: in the Stop TTIP case[1] the Court annulled another Commission’s Decision, this time not on a procedural ground such as the one in Minority SafePack, but on the substantive ground that the Commission breached Article 11(4) TEU (which sets out the power to adopt the ECI law), and Articles 2(1) and 4(2)(b) of the ECI Regulation, which sets out one of the criteria for the legal admissibility test.

In Stop TTIP, the General Court clarified a matter of contention between ECI organisers / stakeholders and the Commission viz. the scope of an ECI and, more specifically, the way in which the Commission had limited the acceptable subject-matters for the purposes of registering an ECI. These limitations were stipulated in the Commission’s letter of response regarding the refusal of registration for the proposed ‘Stop TTIP’ Initiative, which was submitted for registration in July 2014. The Initiative proposed to cease the negotiations for the Transatlantic Trade and Investment Partnership agreement (TTIP) between the EU and US, and to prevent the conclusion of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada.

In more detail, ‘Stop TTIP’ had invited the Commission to ask the Council to repeal its decision to authorise the opening of the TTIP negotiations under Article 218(2) TFEU (which is the legal rule on the process of the EU negotiating treaties). It also asked the Commission to submit a proposal for a Council decision not to conclude CETA. In September 2014, the Commission replied to the organisers that both their proposals had been rejected on the basis of Article 4(2)(b) in conjunction with Article 2(1) of the ECI Regulation, because they fell outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

The Commission’s reply revealed two limitations on the scope of the ECI.[2] First, the Commission stipulated that an ECI cannot invite the Commission to adopt preparatory acts. The Commission argued in its reply that its proposals to the Council under Article 218 TFEU to authorise the opening of negotiations for international agreements were not proposals for legal acts. The Council Decisions authorising the opening of negotiations for an international agreement are preparatory acts that produce legal effects only between the EU and its Member States and between the EU institutions. Therefore, the Commission’s relevant proposals to the Council lacked legal effect against third parties. Accordingly, the position of the Commission was that ‘Stop TTIP’ was not proposing any legal acts for the purpose of implementing the Treaties and could not be registered. Second, the Commission declared that an ECI cannot invite the Commission to propose a decision not to adopt a legal act such as a proposal not to conclude CETA, or to refrain from proposing a legal act. Such a proposal ‘would not deploy any autonomous legal effect beyond the fact of the legal act at issue not being adopted.’ The negative nature of the ‘Stop TTIP’ proposals, together with the fact that it arguably did not propose ‘legal acts’ as required by Article 11(4) and Article 2(1) ECI Regulation, led to the refusal by the Commission to register it. Notably, the limitations imposed by the Commission are not clearly indicated in the ECI Regulation. Instead, they resulted from the Commission’s own interpretation of the ECI’s legal framework.

After the Commission’s rejection, the ‘Stop TTIP’ organisers followed a twofold course of action: they brought a case before the EU General Court, which is the first instance part of the Court of Justice of the European Union (CJEU), contesting the Commission’s decision to refuse registration of their Initiative, and they started what they named ‘a self-organised ECI’, which was a campaign to collect signatures outside the contours of the ECI’s legal framework. The campaign went on to collect more than 3 million signatures, which the organisers handed over to the Commission in October 2015.

It becomes apparent from the above overview that the significance of the General Court’s judgment in the Stop TTIP case does not derive only from the question of whether the specific Initiative was wrongly refused registration, but also from the question of whether the ECI’s scope to propose EU action was rightly limited by the Commission beyond what is explicitly written in the ECI Regulation. In this sense, the General Court’s judgment is a milestone both for the ECI organisers themselves and for the functioning of the ECI as a mechanism for citizens’ participation. This short commentary will touch upon the key aspects of the judgment.

The arguments of the parties

The applicants in the case made two main arguments. They claimed that the Commission (i) breached Article 11(4) TEU and Article 4(2)(b) of the ECI Regulation, and (ii) breached the principle of equal treatment (Article 20 of the EU Charter of Fundamental Rights) because it had registered in the past the ‘Swissout’ Initiative which had very similar objectives with ‘Stop TTIP’. The judgment focused on the first ground of review and did not deal at all with the second.

In support of their claim, the applicants brought forward three main arguments. Firstly, they argued that the Council’s Decisions authorising the conclusion of an international agreement under Article Article 218(5) TFEU is not a preparatory act. With regard to the Initiative proposals concerning the CETA negotiations, which were already taking place at the time of the request for registration, a Decision by the Council to the Commission not to conclude CETA would not be a preparatory act but an act with legally binding effects. Regarding the Initiative proposals concerning a proposal by the Commission to the Council to repeal the Decision authorising the negotiations for TTIP, such a Decision would result to the termination of the negotiations, and would have been final and legally binding. In any case, the scope of an ECI should not be limited to proposing legal acts with definitive, legally binding effects vis-à-vis third parties. Neither the background to the ECI Regulation, nor the ECI’s overall regulatory framework call for such a restrictive reading of the term ‘legal acts’ (para 12).

Secondly, the applicants argued against the Commission’s position that an ECI cannot concern acts that deploy legal effects only between the institutions concerned. For the purposes of the ECI, the term ‘legal act’ should be defined broadly in light of Articles 288 – 292 TFEU, and should include Commission’s Decisions that are outside the ordinary legislative process (para 13).

Thirdly, the applicants referred to the potentially ‘destructive effect’ of the proposed Initiative on the negotiations for TTIP and CETA. This alleged ‘destructive effect’ cannot be put forward as a ground for refusal under the rationale that the Initiative’s proposals did not have the purpose of implementing the Treaties. In the view of the applicants, ‘the right of citizens to participate in the democratic life of the Union includes the possibility of citizens acting with the purpose of modifying, reforming, ratifying, or asking for a partial or total annulment of EU law’ (para 14).

The Commission’s main counter-arguments supported the position expressed in its 2014 letter of response to the organisers. The Commission reiterated its position that the Council Decision to approve the opening of negotiations for an international agreement is only preparatory because it only produces legal effects between the two EU institutions. Based on a ‘systematic and teleological interpretation’ of Articles 2(1) and 4(2)(b) of the ECI Regulation, it can be concluded that an act of preparatory character falls outside the definition of a ‘legal act’ for the purposes of registering an ECI (para 19). This argument was further supported by the assertion that the notion of democratic participation in the EU refers to the participation of citizens only in matters which (potentially) fall under their legal sphere. Instead, the Council and the Commission enjoy sufficient democratic legitimacy to be the ones to adopt acts that affect the relationship between the EU institutions (para 20).

In addition, the Commission repeated its argument that an ECI cannot ask it not to propose a particular legal act or to propose a decision for the non-adoption of a legal act. Interestingly, it referred to Article 10(1)(c) of the ECI Regulation which deals with the final stage of the ECI process, whereby the Commission is obliged to issue a Communication setting out ‘the action it intends to take, if any’. From this, the Commission concluded that only ECIs that aim to the adoption of a legal act or to the repeal of an existing legal act can be registered. Otherwise, a declaration by the Commission that, as a response to an ECI, it does not aim to propose the adoption of a legal act would have excessively limited the Commission’s monopoly of legislative initiative. According to this argument, an ECI asking for the Council to repeal a Decision opening the negotiations or asking it not to conclude an agreement, would have been an ‘unacceptable interference’ in an on-going legislative procedure (para 21).

The judgment of the General Court

The General Court began with a reference to the ECI’s legal framework. It mentioned Article 11(4) TEU, and the ECI Regulation, specifically Article 2(1) (definition of the ECI), Article 4(2)(b) (the legal admissibility test), and Article 10(1)(c) (the obligation of the Commission to respond to a successfully submitted ECI) (paras 23-27). It then explained that the ECI organisers had not asked the Commission not to submit a proposal to the Council for the signing and conclusion of TTIP and CETA. Instead, the organisers asked the Commission to submit to the Council two proposals: (a) a proposal to recall the authorisation for the opening of negotiations for TTIP; and (b) a proposal not to authorise the signing of TTIP and CETA and thus not to conclude these agreements (para 28). As such, the Court also clarified that the current case did not contest the competence of the Commission to negotiate TTIP and CETA. Instead, it was a challenge to the reasons given by the Commission for the refusal of the proposal (para 29).

Subsequently, the Court specified that the Commission has the competence to act in the way asked by the applicants, i.e. to submit to the Council the two proposals (paras 30-32), and went on to deal with the question of whether these actions can be excluded from an ECI either because they are preparatory acts, or because they are not necessary for the implementation of the Treaty, as the Commission had argued (para 33).

On the definition of a ‘legal act’ for the purposes of an ECI, the Court sided with the applicants: the notion of ‘legal act’ in Article 11(4) TEU, and Articles 2(1) and 4(2)(b) of the ECI Regulation cannot be interpreted to include only final EU acts with legally binding effects vis-à-vis third parties. The Commission’s position is not justified by the letter of the law or by the overall purpose of these provisions. This was all the more so since the actions in question, which concerned the conclusion of an international agreement, fit squarely into the definition of a ‘Decision’ in accordance with Article 288(4) TFEU, as clarified in Case 114/12 Commission v Council. Besides, a broad interpretation of ‘legal act’ is mandated by the democratic principle on which the EU is founded (Article 2 TEU) (paras 35-37).

In addition, the Court rejected the Commission’s argument that the Initiative could not have been registered because the suggested actions did not aim to the implementation of the Treaties and thus were destructive to the law-making process. According to the Court, there is nothing in Article 11(4) TEU or Article 2(1) ECI Regulation indicating that citizens cannot act through an ECI in order to prevent the adoption of a legal act. Furthermore, the conclusion of TTIP and CETA would have modified the EU legal order. As such, by advocating to stop the two agreements, the ‘Stop TTIP’ organisers were actually acting for the implementation of the current Treaties (para 41). In any case, Initiatives that propose the non-signature and non-conclusion of an international agreement produce legal effects since they may prohibit the modification of EU law intended by the said agreement (para 43).

Lastly, even though the Court did not explicitly address the applicants’ second claim on the unequal treatment of their Initiative in comparison with the Swissout Initiative, it did address the paradoxical situation that resulted from the treatment of the two Initiatives. This paradox resulted from the fact that, according to the Commission’s interpretation, an ECI could propose the termination of an existing international agreement but not the termination of the negotiations towards such agreement. The Court took a citizen-friendly approach in saying that citizens should not be obliged to wait until an agreement is concluded before they can contest the conclusion of the agreement through an ECI (para 44). In this sense, the Court has put proposals asking for the termination of negotiations on a par with those asking for the opening of negotiations, and has interpreted the scope of the ECI as being capable of encompassing both type of proposals.

Commentary

I had commented on an earlier publication that the ‘Stop TTIP’ case was a good opportunity for the CJEU to step in and point out the correct interpretation of Article 4(2)(b) of the ECI Regulation regarding proposals concerning the conclusion of international agreements. It would seem that the General Court has seized that opportunity. The judgment widens the scope of the ECI by completely overruling the Commission’s interpretation of legal admissibility in the particular context. In this sense, the judgment is a positive and constructive development not only for the ECI organisers, who had been waiting for it for almost three years, but also for those interested in starting an ECI campaign on a topic related to an international agreement, as well as for ECI stakeholders who have been calling for a more flexible legal admissibility test.

What makes the case especially interesting is the extensive reliance of the Court on the nature of the ECI as a democratic participation mechanism that intends to foster democratic dialogue and give citizens the opportunity to address the Commission in order to request action. For instance, the Court implicitly rejected the Commission’s first argument that a potential breach of Article 11(4) TEU was irrelevant and that the only relevant legal text should be the ECI Regulation which is based on Article 24 TFEU and stipulates the details of the legal admissibility test. Both the Court’s interpretation of ‘legal acts’ for the purposes of registering an ECI (paras 35-36) and that of ‘implementing the Treaties’ (para 41) relies on a joint reading of Article 11(4) TEU and the relevant provisions of the ECI Regulation. The Court even considered the ECI in light of the fundamental principle of democracy as included in the Preamble of the Treaty and the EU Charter of Fundamental Rights in order to broaden the scope of the right to bring an ECI beyond the Commission’s delineation (para 37).

In addition, the Court has held a more restrictive view than the Commission on what is an ‘unacceptable interference with the adoption of a legal act’ when it comes to an ECI. According to the Court, the very notion of citizens’ participation in the democratic life of the EU - of which the ECI is part - includes the possibility to ask for the modification, as well as the partial or total repeal of legal acts. A true form of citizens’ participation in the democratic life of the EU should give the opportunity to citizens to obstruct, or interfere with, the adoption of a legal act. Since it is entirely up to the Commission to decide the follow-up of a successfully submitted ECI after the public hearing of that ECI (Article 10 ECI Regulation), it could not be said that the registration of ‘Stop TTIP’ would have been an unacceptable interference with the legislative process or that it would have breached the principle of institutional balance (paras 45-46). It would seem, therefore, that the Court has taken into consideration the overall discretion of the Commission at the end of the ECI process when interpreting the legal admissibility test, which takes place at the beginning.

Given that this is only the second time that the General Court annuls a Commission’s decision to reject a proposed ECI, the answer to the question ‘what happens now?’ is not entirely clear. After the Minority SafePack case, the Commission registered the part of the ECI that it considered admissible. As a response to the judgment, the Commission also issued a Decision elaborating on its reasons for only registering part of the ECI. The situation this time around is more complicated. As mentioned above, the ‘Stop TTIP’ organisers went ahead with collecting signatures despite the refusal of their ECI. Impressively, within one year (October 2014 – October 2015) the campaign collected around 3.3 million signatures, more than any of the formally registered ECIs. Subsequently, the organisers stated in their website: ‘we demand that the European Commission treat us like a regular ECI which means we expect an official response from the European Commission and a public hearing in the European Parliament.’ The Commission is now faced with interesting dilemmas: Will it register the ECI or pursue the case further by appealing before the European Court of Justice? If it does register the ECI, will it accept the collected signatures or will it oblige the organisers to start over? In its plans to propose revisions to the ECI in the near future, will the Commission try to overturn the new judgment – or accept and fully incorporate it?

The factor of time also makes the upcoming Commission’s response to this case particularly noteworthy. Between 2014 and 2017 we have seen major developments with regard to TTIP and CETA, including 15 negotiating rounds on TTIP up to October 2016 and a proposal in July 2016 by the Commission to the Council for the signature and conclusion of CETA. More recently, the European Parliament voted in favour of CETA after Wallonia nearly blocked the agreement. All of these developments are in fact the exact opposite of what the ‘Stop TTIP’ organisers were requesting in their proposal, which indicates the importance of momentum to an ECI’s overall success.

On a final note, I wonder what the implications of the General Court’s judgment are with regard to future ECIs relating to Brexit. It would seem that the judgment has opened the door to ECI proposals objecting to a possible future agreement on the UK-EU relationship, assuming that such an agreement will be eventually negotiated on the basis of Article 207 and 218 TFEU. Of course we have a long way to go before this issue even becomes relevant – if it ever becomes relevant at all. However, such a scenario would certainly open a new dimension to citizens’ participation and voice in the Brexit process. Meanwhile, let’s see how the Commission will respond to Stop TTIP and how the organisers will continue their campaign.

Photo credit: Stop TTIP

Barnard & Peers: chapter 24

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[1] The judgment is not available in English yet. This commentary is based on my own translation from the Greek version and any translation errors are mine.

[2] I had elaborated on the Commission’s Decision in an older publication: A.Karatzia “The European Citizens’ Initiative in practice: Legal admissibility concerns” (2015) 40 EL Rev. 509, pp. 516-518

The EU's future trade policy starts to take shape: the Opinion on the EU/Singapore FTA

Professor Steve Peers

What is the scope of the EU’s powers over trade agreements? The issue has been disputed for decades in the case law of the ECJ, for it has a significant impact on the allocation of powers between the EU and its Member States as regards external economic policies. A number of Treaty amendments over the years – in particular the Treaty of Lisbon – have amended the rules.

The issue has gained added salience given the controversies surrounding some EU trade negotiations (in particular with Canada and the USA), and the trade talks between the UK and EU in light of Brexit. Today’s opinion of an ECJ Advocate-General is not binding, but is very thorough and will likely have a significant impact on the Court’s final judgment, expected in the spring.

This post will summarise the lengthy opinion succinctly and suggest its likely implications for the FTAs with Canada, the USA and the UK in particular. For further reading, see the earlier posts on this blog on the background to the Opinion and on the hearing before the ECJ.  

Background

The Court has been asked to rule on whether the various provisions of the EU’s draft trade deal with Singapore fall within the scope of the EU’s exclusive powers, or whether powers are shared with the Member States, or whether only Member States can conclude them. If the EU only can conclude them, there can be no national ratification and also probably (depending on the exact content of the agreement) the EU will approve the deal by qualified majority, ie Member States will not have a veto.

If both the EU and its Member States can conclude the provisions, the agreement is ‘mixed’, but the EU has a choice to conclude the agreement without the Member States, if a qualified majority (assuming, again, that no veto applies due to the subject matter) agree to this.

If an issue is within exclusive Member State competence, then Member States must be parties to the treaty in order to conclude it. National ratification, and a de facto national veto for each Member State, therefore applies.

When is a power exclusive to the EU? Article 3(1) of the Treaty on the Functioning of the European Union (TFEU) lists a number of powers that are inherently exclusive, including the common commercial (ie trade) policy (CCP) and fisheries conservation. The CCP is further defined in Article 207 TFEU: it particularly applies to ‘goods and services’, the commercial aspects of intellectual property’ and ‘foreign direct investment.’ The EU/Singapore case concerns the interpretation of each of these aspects.

Besides Article 3(1), Article 3(2) TFEU goes on to provide that exclusive EU powers over an international treaty can also derive from the exercise of EU internal powers, in three cases: (a) ‘its conclusion is provided for in a legislative act of the Union’ or (b) it ‘is necessary to enable the Union to exercise its internal competence’, or (c) ‘in so far as its conclusion may affect common rules or alter their scope.’ The EU/Singapore case concerns the interpretation of both (a) and (c), which I will refer to as the ‘legislative authorisation’ ground and the ‘affect common rules’ ground.  (Note that ground (b) is rarely applied, as the ECJ case law interprets it very narrowly).

Summary of the opinion

The Commission argues that the EU has exclusive competence to conclude the deal. It’s supported by the European Parliament, which will have the power to consent to the deal as long as part of it relates to the CCP, or indeed to most other EU powers. Member States argue for mixed competence of much of the agreement, and exclusive national competence for some parts of it.

In general, the Advocate-General argues that much of the agreement is solely within the EU’s exclusive powers, mostly (but not entirely) as part of the CCP. A significant part falls within the EU’s mixed competence, while a small part is purely national competence.

First of all, she makes some general points about the scope of the CCP. She restates prior ECJ case law: the CCP applies to a measure which regulates and has direct effect on trade; mere implications for trade are not sufficient. She also interprets the exceptions in Article 207(6) TFEU, which states that the CCP ‘shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.’ In her view, this clause must be narrowly interpreted and has limited effect: for instance, it does not restrict the EU from agreeing measures on trade in culture and health services, as long as it does not harmonise the laws on those issues within the EU.

The opinion does not address the potentially important exceptions in Article 207(4) TFEU, which call for unanimous voting where ‘unanimity is required for the adoption of internal rules’ or ‘(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity’, or ‘(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.’

On the other hand, the opinion does discuss the exception in Article 207(5) TFEU, which states that the CCP does not apply to agreements concerning transport. As a general rule, the Advocate-General argues that this exception applies whenever a treaty has rules ‘specifically concerning transport’. The further implications of this are discussed below.  

The Opinion then examines the specific provisions of the EU/Singapore deal. First of all, the opening provisions of the FTA, referring to the creation of a free trade area, fall within the scope of the CCP. Next, following pre-Lisbon case law, the Opinion concludes that the FTA provisions on trade in goods are also within the scope of the CCP (Paras 144-155).

Thirdly, the Opinion examines the FTA provisions on services, establishment and e-commerce (paras 195-269). In general, other than transport issues, these fall within the scope of the CCP powers over services. In particular, immigration of service providers falls within the scope of the services powers, and therefore not under the immigration powers of the EU, where the UK and some other Member States have an opt-out (para 203). Financial services are covered by the CCP (para 204), since its scope is not dependent on prior harmonisation of the relevant law by the EU (unlike Article 3(2) TFEU). Professional qualifications are also covered (para 205).

As for the transport exception from the CCP, it applies not just to the services themselves, but those indissolubly linked to those services – ie cargo handling, transport repair, and computer reservation – but not to customs clearance, since that applies also to trade in goods.  But does the EU have exclusive power over the transport issues, by applying Article 3(2) TFEU instead? As regards aircraft repair, the ‘legislative authorisation’ ground doesn’t apply, since the EU legislation creating an aircraft safety agency doesn’t address this issue in detail. As for the ‘affect common rules’ ground, there is insufficient internal harmonisation as maritime transport, air transport (other than computer reservation systems), and inland waterways – but sufficient internal harmonisation as regards road and rail transport for the powers to become exclusive as regards the EU/Singapore FTA. Other aspects of transport remain a shared competence.

Fourthly, on the issue of investment (paras 305-398), the opinion again examines both the CCP and Article 3(2) TFEU. The opinion offers a definition of the EU’s CCP powers over foreign direct investment: investments ‘which serve to establish or maintain lasting and direct links, in the form of effective participation in the company’s management and control, between the person providing the investment and the company to which that investment is made available in order to carry out an economic activity. In applying that definition, I consider that the fact that the direct investor owns at least 10% of the voting power of the direct investment enterprise may offer evidentiary guidance but is certainly not determinative’. Crucially, the opinion argues (paras 324-342) that the CCP power covers the issue of investor protection.

As for other forms of investment – referred to as ‘portfolio investment’, it was agreed that the CCP didn’t apply. Could Article 3(2) TFEU apply, though? Here, there was no legislation on the issue, but there are EU Treaty provisions on capital movements to non-EU countries, which the Commission believes fall within the scope of the ‘affect common rules’ ground. However, the Opinion argues in principle that this ground for exclusive competence can only apply where the prior EU harmonisation results from legislation, not the Treaty. But the EU and its Member States still shared competence on most investment issues, except for the termination of bilateral investment treaties.

Fifth, on the issue of government procurement, previous prior case law said that the CCP only applied to procurement relating to goods and limited aspects of services. The Opinion concludes that in light of the Lisbon Treaty provisions made to the scope of the CCP, that EU power now fully applies to government procurement issues – other than those within the scope of the transport exception (paras 401-408).

Sixth, the Opinion examines the scope of the CCP power relating to intellectual property (paras 424-456). Although prior case law had concluded that the CCP fully applied to the ‘TRIPS’ (ie the intellectual property deal forming part of the World Trade Organisation system), the Opinion argues that this ruling did not necessarily apply by analogy to intellectual property rules in the EU’s FTAs (IP rules found in FTAs are often called ‘TRIPS+’ clauses).

To determine if a TRIPS+ clause falls within the scope of the CCP, the test (para 435) is not based on the remedy which applies, but rather whether: the substantive obligation governs trade rather than harmonises IP law; there is a direct and immediate effect on trade; and if the measure aims to avoid distortions to trade caused by monopolies. Again, application of the CCP does not depend on whether the EU has harmonised an IP issue internally. The Opinion also argues that rules on court procedures do not necessarily fall outside the scope of the CCP.

Appling this test to the facts: enforcement and plant variety rights are part of the CCP, but some parts of the draft EU/Singapore are not: namely moral rights, which also are not covered by Article 3(2) because the EU has not harmonised them internally. But the EU does have shared competence over this issue, since it could harmonise them on the basis of its internal market powers.

Seventh, the Opinion looks at competition law (paras 459-466). The FTA rules on this issue fall within the scope of the CCP, since they extend EU rules to Singapore and there is a a strong link with trade in goods and services.

Eighth, the Opinion looks at the FTA provisions on environment and sustainable development (from para 478). Here the rules on renewable energy fall within the scope of the CCP, since there is a strong link to trade and investment. However, the rules on labour and environmental standards are not closely linked with trade, so the EU shares competence with its Member States (no one had made an argument that Article 3(2) applied). The rules on fish stocks fell within the scope of another EU exclusive competence: fisheries conservation.

Finally, the rules on transparency and judicial review were ancillary to the substantive provisions of the FTA (paras 508-13). So were the rules on dispute settlement and mediation (paras 523-44); here the Opinion points out that the controversial rules on investor-state dispute settlement were not at issue in this case (para 536). (Note that Belgium has promised to ask the Court about the relevant provisions in the EU/Canada FTA). And the final provisions are either accessory or minor, so change none of the legal assessment (paras 548-553).

Comments

The Advocate-General’s analysis as regards goods, services and intellectual property is unsurprising in light of prior case law. However, the analysis as regards the fresh issue of investment is more disputable. Her case that investor protection falls within the scope of the CCP is convincing, on the grounds that people might not invest in the first place without adequate protection (ie, there is a link back to market access). On the other hand, the analysis relating to portfolio investment puts form over substance: why should it matter that ‘common rules’ derive from the Treaties, rather than EU legislation? Also, the termination of bilateral investment treaties should more logically be seen as the corollary of the exercise of the EU’s other (exclusive or shared) competence, rather than a purely national competence. And it is unfortunate that the Commission missed this opportunity to ask the Court to rule already on the controversial investor-state dispute settlement rules.

What are the implications for other FTAs, and for Brexit? That depends in part on the exact commitments in those other treaties, since this Opinion analyses the commitments that would be made under the EU/Singapore FTA, and commitments under other treaties might differ. In particular, it’s conceivable that other FTAs might arguably require unanimity on the basis of Article 207(4) TFEU, discussed above, which was not at issue in this case.

In general, for other FTAs it seems likely that a mixed agreement may be necessary, in light of the interpretation here relating to the transport exception, portfolio investment, and labour and environmental standards. Apart from the question of termination of investment treaties, then, it will be a purely political question whether Member States are content to agree those trade treaties on behalf of the EU alone, or will continue to insist (as they traditionally have done) on Member States being parties as well.

As for a post-Brexit FTA in particular, different issues may arise. The UK and the EU might not have any interest in negotiating measures relating to investment or intellectual property, at least in the form that EU FTAs now address them. So if the UK and EU want to focus on goods and services only, then the EU’s exclusive CCP competence would apply except as regards transport – and the EU often signs separate transport agreements with non-Member States.  It could be argued that a deal might need unanimity on the basis of Article 207(4) TFEU, but the counter-argument is that a post-Brexit trade deal would simply be preserving (some of?) the existing UK market access into the EU, so could not threaten health or audiovisual services.

Even on transport issues, or as regards labour and environmental standards, case law suggests that exclusive competence on the basis of Article 3(2) applies where the EU seeks to extend its own laws to non-EU states. If the UK is willing to sign up to a treaty that preserves market access in return for compliance with EU rules, it would follow that today’s opinion – if followed by the ECJ – has possibly drawn a road map for the negotiation of an agreement based on free trade in goods and services and compliance with selected EU legislation which could avoid national ratification and (depending on the subject matter) national vetoes.

Barnard & Peers: chapter 24, chapter 27

Photo credit: Singapore Hotels and Guide

National Courts and EU Trade Policy Powers: the EU/Canada trade deal and the German Constitutional Court

Douwe Korff, Emeritus Professor of International Law, London Metropolitan University; Associate, Oxford Martin School, University of Oxford

One of the big issues on the EU’s agenda at present is whether to sign and provisionally apply the Canada/EU free trade agreement, known as ‘CETA’. The division of power between the EU and its Member States determines whether Member States can veto some or all of this deal, potentially complicating this process – frustrating supporters of the deal, but emboldening its critics.

Moreover, the dispute over CETA has broader implications, most notably for the controversial EU/US trade deal under negotiation (‘TTIP’) and any trade deal between the EU and UK after Brexit. While the EU’s Court of Justice will soon rule on the division of powers between the EU and its Member States as regards the EU/Singapore free trade agreement (for the background to that case, see here; for the CJEU hearing, see here), the immediate question is signing and provisionally applying CETA.

For the moment, the parliament in the Belgian region of Wallonia has held up the EU/Canada deal, but my focus here is the legal angle. While we await the CJEU’s ruling on the similar EU/Singapore deal, national courts have got involved in this issue. Last week, the German Constitutional Court refused to issue an interim order prohibiting the German Government from signing the CETA Agreement (BVerfGE of 13 October 2016; English summary here). The judgment sets a precedent for the legal issues that might arise with TTIP and Brexit, and so is worth further examination.

The decision

The decision was not about the issue of whether CETA (as initialled by Canada and the EU) was compatible with the German Constitution, but about whether the German Constitutional Court (“the Court”) should issue an interim order or injunction (einstweilige Anordnung) prohibiting the German Government (“the Government”) from even signing the Agreement. The Court emphasised that it was the Court’s standing practice to only issue such an injunction in relation to a proposed treaty if it was obvious that the treaty would irreversibly violate the Constitution (or constitutionally-protected rights of individuals) and if it was imperative that this be stopped immediately. On the other hand, possible but as-yet-not-materialised or reversible risks to such rights should be balanced against the importance of the matters to be covered by the treaty; and the Government in principle had a very wide margin of discretion in such matters. (Paras. 34 – 36)

The Court refused to issue the injunction for the following reasons in particular (my selection):

- The signing of CETA by Canada, the EU and the Member States would only result in the provisional application of the Agreement; it would only come into full force upon ratification by the parties – and crucially, the German Government (like any other Member State Government) could, until and unless the Agreement was ratified by all parties, terminate the application of the Agreement at any time, by means of a simple declaration to that effect to the other parties. The signing of CETA by the Government therefore did not irreparably risk any violation of constitutional rights. (Para. 38; cf. the last bullet-point under the last indent, below)

- The Court clearly has serious doubts as to whether the EU has competence in relation to investor protection in various areas, in particular also as concerns workers’ health and safety regulations. (Para. 54 – 57)

- The Court clearly also has serious doubts as to whether the EU can lawfully transfer “sovereign rights [Hoheitsrechte] in relation to judicial and quasi-judicial dispute resolution systems [Gerichts- und … Ausschusssystem]” to other systems (i.e., to the proposed investor-state dispute settlement (ISDS) “court” mechanism). (Para. 58) It was “not completely inconceivable” that the proposed (revised) ISDS mechanism could be held to violate the principle of democratic legitimacy (das Demokratieprinzip). (idem; see also para. 65)

- However, according to the Court, the above risks can be prevented in practice by various means (which, the Court implies, the German Government therefore must employ), i.e.:

· According to the Court, some of the risks can be prevented by means of the declarations already issued by the European Council, which (the Court tentatively accepts) ensure that with the signing of the Agreement only parts of that agreement will enter into (even provisional) force. The Court held that in many respects “reservations” (Vorbehalte) are already in place as concerns the application of certain parts of the Agreement. (Para. 69: see there for a list of these areas).

· The Court “assumes” (read: effectively demands) that the German Government will ensure, by these same means, that certain parts of CETA “in particular” “will not be included in the provisional application [of CETA, upon signature by the parties]”. In these not-to-be-applied matters, the Court expressly includes “the rules on investment protection, including the [investment dispute resolution] court system.” (Para. 70)

· The Court suggests that, at least while CETA would be only provisionally in force, Germany can demand that any decisions by the investment dispute resolution “court” will have to have the unanimous agreement of the EU Council – i.e., that Germany is given a right of veto over any such decisions. (Para. 71)

· If those measures were to not suffice, Germany can “as a last resort” use its right to terminate the Agreement (see the first indent, above). However, the Court feels that the interpretation of the Agreement to the effect that a State Party has this right (to terminate it in respect of that state while it is still only provisionally in force) “is not binding”, even though the Government has made a convincing case for it.

The Court therefore demands of the Government that it (the Government) “must clarify this interpretation of the Agreement in an international-legally appropriate way” and “inform its Treaty Partners of this [interpretation].” (Para. 73)

Comments

It would seem to me that the signing of CETA subject to the conditions imposed by the German Constitutional Court, would address many of the issues raised by activists:

- The contentious investment dispute resolution “court” would not become operational;

- If it ever were to become operational, Germany (and if other Member States were to adopt the same approach, those other Member States too) would have a veto over any decisions of that (quasi-) “court” that would impinge on rights and interests protected by its (their) constitution(s); and

– If in spite of these safeguards, those constitutionally-protected rights and interests were to still be unduly affected by the dispute resolution system (or any other aspect of the Agreement), Germany (and any such other Member State) could still exit the Agreement (even if that meant it would altogether have to end functioning).

Perhaps current opponents of CETA could live with it operating forever on such a “provisional” and conditional basis?

Barnard & Peers: chapter 24

Photo credit: misttoronto.com

The Future of EU External Trade Policy - Opinion 2/15: Report from the Hearing

David Kleimann and Gesa Kübek*

On September 13 and 14, the Court of Justice of the European Union (CJEU) held its hearings for Opinion 2/15, which concerns the EU’s competence to conclude the recently negotiated EU-Singapore Free Trade Agreement (EUSFTA). The CJEU convened in a rare sitting of the Full Court of CJEU judges. It was presided by Judge Lenaerts and Vice-President Tizzano, with Judge Ilešič fulfilling the function of the Court’s Rapporteur. Mrs. Sharpston serves as Advocate General.

This note offers a first-hand report on the hearing and summarizes the exchange of arguments between the Commission, on the one side, and the Council and the member states, on the other side. The first section sets the stage by providing relevant contextual information to the proceeding and highlights the systemic importance of the coming judgment. Section II first outlines the main and general lines of reasoning that the parties presented during the hearing. Secondly, we highlight a selection of policy specific, novel, or even ‘curious’ legal arguments that were advanced by the representatives of the Council and the Commission on the one, and the members of the Court, on the other hand. Section III concludes this note with one of many still unanswered, yet systemically highly significant legal questions that surfaced in the course of the oral phase of the proceedings. There's some further background to the case in an earlier post on this blog.

I.                   The Crux of Opinion 2/15

“Does the European Union have the ‘requisite competence’ to conclude the EU – Singapore Free Trade Agreement [EUSFTA] alone?” More specifically, the Commission, in October 2014, had asked the Court to clarify whether and which areas of the EUSFTA fall under EU-exclusive, shared, or member states’ exclusive competences respectively.

The crux of the matter brought before the Court lies exactly in this precise delineation of EU external competences: If the content of the EUSFTA falls under EU exclusive powers in its entirety, its conclusion as ‘EU-only’ would be mandatory. If certain treaty provisions are regarded as exclusive national competences, the agreement ought to be concluded as a ‘mixed’ agreement, including all EU member states as independent contracting parties. If only EU exclusive as well as shared competences were touched upon by the FTA, the decision to propose the conclusion (on behalf of the Commission) and to conclude the agreement (on behalf of the Council) as either ‘EU only’ or ‘mixed’ is legally optional and referred to the political discretion of the EU institutions involved in the applicable procedures set out in Article 218 TFEU (the general rules on EU negotiation and conclusion of treaties) in conjunction with Article 207 TFEU (the provision on the EU’s Common Commercial Policy).

The importance of the Court’s judgment for the governance of EU commercial relations with third countries – in particular the controversial EU/US trade deal (‘TTIP’) and EU/UK trade relations after Brexit – can hardly be underestimated. Given the broad and deep material coverage of the EUSFTA, the judgment will serve as a precedent for the conclusion of the vast majority of future EU trade and investment agreements. As such, the Court judgment in Opinion 2/15 could possibly mark the beginning of the era of ‘EU-only’ trade and investment agreements and, conversely, the end of the EU member states lengthy parallel ratification procedures required by ‘mixity’. As mirrored by the inter-institutional political debate on the legal status of the EU Canada Comprehensive Economic Trade Agreement (CETA), the eventual outcome of Opinion 2/15 has important implications on both the efficiency, reliability and credibility of EU trade and investment policy formulation, on the one hand, and the de jure legitimacy of multi-level economic governance in the European Union, on the other.

II.                Commission vs. Council and the Member States: The Arguments

Throughout the course of the hearing, the arguments of the parties focused on four contentious policy areas covered by the EUSFTA, notably disciplines on transport, investment, intellectual property rights, as well as sustainable development (labor rights & environmental protection). In the following, we will first outline a number of general legal arguments advanced by the parties that recurred during the hearing in application to all or most issue areas and discernably built on established CJEU case law. Subsequently, we highlight a selection of specific legal constructions that the parties put forward in respect of EUSFTA transport and investment rules.

1.     General Arguments of the Parties

a.      The Commission

As a first and predominant line of defense, the Commission representatives articulated a number of general arguments that aim at fitting the content of the EUSFTA, in its entirety, within the scope of the EU’s exclusive Common Commercial Policy (CCP) competence – Article 207 TFEU – as well as within the ambit other exclusive EU competences that can be implied in accordance with Article 3 (2) TFEU.

As such, the Commission proposed the broadest possible conceptual interpretation of the ordinary terms of Article 207, seeking to attribute maximum meaning to the expansion of CCP powers by the Lisbon reform of 2009, which saw the addition of services, foreign direct investment, and trade related intellectual property rights to the scope of CCP exclusive external powers.

Secondly, the Commission relied on a broad application of the ‘centre of gravity’ theory, which the Court had developed in its case law. The theory’s ‘predominance-test’ requires the use of a single legal basis where one of the aims and components of a measure “is identifiable as the main [one], whereas the other is merely incidental” (COM representative in reference to Case C-377/12, concerning the legal base of the EU partnership agreement with the Philippines). In this way, the Commission defended EUSFTA rules as measures falling under Article 207 where they “specifically [relate] to international trade in that [they are] essentially intended to promote, facilitate or govern trade and [have] direct and immediate effects on trade” (COM representative in reference to Case C-414/11 - Daiichi Sankyo).

Third, the Commission representatives made frequent use of the provisions of Article 3 (2) to advocate for implied exclusivity of otherwise shared competences. In codification of settled ERTA case law, Article 3 (2) TFEU prescribes EU exclusivity in case “the scope of EU rules may be affected or altered by international [member state] commitments where such commitments are concerned with an area which is already covered to a large extent by such rules” (Opinion 1/13, on the Hague Convention on child abduction, in reference to Article 3 (2) TFEU, 3^rd situation). Otherwise, EU exclusive competence may be implied where the “attainment of the Community objective [is] inextricably linked to the conclusion of the international agreement” (Opinion 1/03 on the Lugano Convention on civil jurisdiction, codified in Article 3 (2) TFEU, 2^nd situation).

Building on these three main lines of argumentation, the Commission developed a number of specific arguments in support of EU exclusivity in regard of foreign direct investment (FDI) protection and intellectual property rights (first, second, and third argument), sustainable development disciplines (second argument), and areas otherwise covered by EU rules to a large extent, such as maritime transport (second and third argument).

Yet, the Commission found it necessary to draw a second line of defense: in the alternative to full EU exclusivity, it held that the EUSFTA concerned EU exclusive and shared competences only. As such, the conclusion of the EUSFTA as ‘EU-only’ or ‘mixed’ would remain optional – or facultative - in accordance with the procedural rules of Article 218 TFEU in conjunction with Article 207 TFEU.

b.     The Council and the Member States

Living up to observers’ expectations, the Council and the member states’ representatives attacked the Commission presumption of EU exclusivity on various general and issue specific grounds, with an ubiquitous reference to the principle of conferral, which is set out in Article 5 (2) TEU. The EUSFTA concerned, in addition to the EU exclusive competence under Article 207 TFEU, both shared as well as exclusive member states’ competences. In consequence, “mixity is a must” for both the Council and the member states.

In particular, the Council and the member states demanded a narrow text based interpretation of Article 207 TFEU. Secondly, both Council and member states advocated for a restrictive employment of the ‘center of gravity’ theory that, in its application, needed to rest upon “objective factors amenable to judicial review” (member states representatives in reference to Case C—411/06, Shipments of Waste). More than once, the representatives of various parties referred to Opinion 2/00, on the Cartagena Protocol, in which the Court decided that “[w]hatever their scale, the practical difficulties associated with the implementation of mixed agreements (..) cannot be accepted as relevant when selecting the legal basis for a [Union] measure”. Instead, the Council and the member states advocated on several occasions that the choice of the legal basis should take account of the Court’s reasoning in Case C-411/06, where it was held that “[e]xceptionally, if (…) it is established that the act simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will have to be founded on the various corresponding legal bases”.

Third, the parties argued in favor of restrictive reading of implied exclusive competences under Article 3 (2), 3^rd situation, in that respective conclusions required a “comprehensive and detailed analysis of the relationship between the envisaged international agreement and the EU law in force” (Council and member states representatives in reference to Opinion 1/13).

Following these more restrictive of the possible realm of interpretative approaches, the Council and the member states concluded that member states remained exclusively competent for maritime transport, FDI protection, portfolio liberalization and protection and (alleged) non-commercial aspects of intellectual property rights protection. Moreover, the parties held that the EUSFTA’s disciplines on labor rights and environmental protection established various independent and non-incidental aims and objectives that required reference to multiple legal bases in the TFEU.

2.     Policy-specific Arguments of the Parties

Up to until this point, arguably, the Commission, on the one side, and the Council and the member states, on the other, walked on trodden paths of EU primary law interpretation and established case law, in application to an economic treaty of unprecedented scope and depth and a constantly evolving EU internal legislative status quo. In the following few paragraphs, we highlight a selection of rather unconventional and even curious policy-specific arguments in the areas of transport and investment that may yet move the needle on the evolution of EU external exclusive competences.

a.      Transport

In the area of transport, the Commission notably questioned the scope of the carve-out Article 207(5), which exempts “the negotiation and conclusion of international agreements in the field of transport” from the TFEU provisions of the CCP. In a remarkable construction, the Commission argued that the addition of foreign direct investment to the terms of Article 207(1) via the Lisbon Treaty reform of 2009 had moved mode 3 of transport services provision as defined by WTO law, i.e. establishment and FDI, back into the scope of the CCP. Mode 1, 2, and 4 (movement of the service itself, movement of service recipients and providers) remained outside of the CCP’s legal basis as regards transport. The EU, however, was now exclusively competent for the negotiation and conclusion of agreements liberalizing and protecting foreign direct investment in all sectors, including transport. The Council and member states cried foul in reference to Opinion 1/08, in which the CJEU ruled that transport was fully exempted from the CCP, and which remained “good law” even after the Lisbon reforms and protected the full integrity of the 207(5) transport carve-out from the CCP. The Commission, in view of the parties, was victim of its own faulty logic reasoning. Any exemptions from Article 207 (5) would deprive the provision of its effectiveness.

In the area of maritime transport services, the Commission advocated for implied ERTA exclusivity (Article 3 (2), 3^rd situation TFEU) based on Regulation 4055/86. The Regulation prescribes broad mode 1 liberalization between EU member state nationals established in EU member states and third countries but does evidently not afford any liberalization commitment to nationals of third countries. The Council and member states hence pointed at the missing pieces for a comprehensive EU internal legal framework for transport services that could otherwise confer implied Union exclusivity. The parties further argued that the wide-ranging EUSFTA disciplines and objectives in this field were not incidental or subordinate to the commercial treaty objectives. Maritime transport services, in the view of the parties, remained a shared competence in accordance with Article 4 (2) (g) TFEU. Moreover, member states remained exclusively competent in regard of the regulation of third country vessels operators.

Inspired by this exchange of arguments, Advocate General Sharpston addressed the Council with a question of systemic relevance: What is, at the end, the decisive criterion or the threshold for the conclusion of an EU agreement in a field that is internally only partly covered by common rules, such as maritime transport? How many “hoops”, Sharpston asked, does the Commission have to “jump through” to prove EU exclusivity to the Council? Mrs. Sharpston further questioned whether internal exclusivity was a necessary condition for external exclusivity of competences. The Council, in response, denied that internal exclusivity was a conditio sine qua non but insisted on “strict conditions” for the conferral of implied exclusivity that were set out in Article 3 (2) TFEU. Moreover, the Council advocated for an application of the gravity theory that advanced “clear dividing lines”.

b.     Portfolio Investment

In a genuinely novel line of reasoning, the Commission advanced a treaty interpretation that would justify the implied exclusivity of Union competence over portfolio investment (ie, the purchase of non-controlling shares in companies), which is not included in the ordinary meaning of the term ‘foreign direct investment’ in Article 207 (1) TFEU. In doing so, the Commission departed from the otherwise currently uncontested notion that existing secondary EU legislation is the only contingency that can trigger an ‘ERTA effect’. The ‘ERTA effect’ confers exclusive competence in areas where member states exercise of external competence would otherwise affect already existing or even prospective ‘common rules’ (Art. 3 (2) 3^rd situation TFEU). Such ‘common rules’, according to the Commission, however, could also take the shape of EU primary law. With reference to Article 63 (1) TFEU, the Commission representatives voiced the opinion that the treaty-prescribed freedom of capital movement between member states (as well as member states and third countries) sufficed to constitute ‘common rules’ within the meaning of Article 3 (2) TFEU. The possibility of member states concluding international agreements that affected the prohibition of restrictions on capital movements as codified in Article 63 (1) implied EU exclusive external powers in this area. The Union was therefore exclusively competent for the negotiation and conclusion of agreements covering rules on portfolio investment liberalization and the protection of such investments.

In the alternative, according to the Commission, portfolio investment liberalization falls under the Union’s shared competences.

The Council and the member states took pains to counter the Commission’s line of reasoning with a larger number of sometimes diverging arguments. First and foremost, the parties noted the fact that that Article 63 (1), by itself, only codifies a prohibition of restrictions, but falls short of conferring legislative powers upon the Union. Using Article 63 (1) TFEU as a legal basis for external action was merely a “legal fix” that constituted an instance of “legal imagination” on behalf of the Commission. To the Council, it appeared inconceivable that a provision, which did not suffice as a basis for internal legislation could imply an (exclusive) external competence. Only the exercise of an internal competence may  pre-empt external member state action. Belgium and Germany, secondly, took the stance that such a wide interpretation of Article 3 (2) 3^rd situation TFEU facilitated an undue circumvention of the deliberate choice of the treaty makers to exclude portfolio investment from the scope of Article 207 TFEU and Article 64 TFEU. The two parties insisted on exclusive member state competence for portfolio investment. The representatives of Finland and Slovenia, on the other hand, appeared to suggest that the member states may share external powers with the Union in this area.

Countering the Council’s attack, the Commission, in response to an oral question asked by the Court, held that there was a “simple but very good reason” for the fact that the treaties did not codify a legal basis for the internal liberalization of portfolio investment: Article 63 (1) TFEU itself prescribed a comprehensive prohibition of restrictions to that end.

In another unprecedented interpretation of the treaties, the Commission cited Article 216 (1) in conjunction with Article 63 (1) TFEU as the correct legal bases for external Union acts that covered portfolio investment liberalization. The Council and several member states, in contrast, insisted that Article 216 (1) TFEU only conferred general treaty-making powers upon the Union and was unsuitable to serve as a legal basis for the conclusion of international agreements by the EU.

Upon inquiry of Judge Rapporteur Ilešič, the Commission and Council representatives found themselves in a rare moment of agreement to the extent that Article 64 TFEU could not serve as a legal basis for the internal liberalization of portfolio investment. According to the Commission, the harmonization of EU internal rules on portfolio investment could, however,  “maybe” be based on Article 114 or 352 TFEU – a statement that inspired the Court’s President Lenaerts to remind the Commission of the fact that the choice of the correct legal basis for a Union act was not “à la carte”.

In light of the circumstance that the Commission partly relied on a legal basis for an external competence, which allegedly did not require its internal exercise ex ante, Advocate General Sharpston questioned the Commission on the precise difference between the third situation governed by Article 3 (2) TFEU (as referred to by the Commission) and the second situation provided for by the same rule. Mrs. Sharpston’s enquiry, however, remained unanswered.

Secondly, the Advocate General questioned the Commission’s perception of the risk that member state agreements could ‘alter the scope of common rules’, whereas the common rules that the Commission referred to were in fact EU treaty provisions. The only way to alter the scope of primary law, Sharpston stated, was a treaty reform via the applicable constitutional provisions. In response, the Commission, in reference to the terms of Article 3 (2) TFEU, clarified that its argument did not extend to the alteration of the scope of treaty rules, but to the probability that the primary legal norm of Article 63 (1) could be affected by independent international member state agreements.

c.      Termination of Member States’ Bilateral Investment Treaties

Another point of legal debate that prominently featured in the hearing concerned the supersession, suspension, and termination of existing member states’ bilateral investment treaties with Singapore once the investment protection provisions of the EUSFTA will be provisionally applied or enter into force when the treaty is concluded. Article 9.10 EUSFTA provides that member states bilateral investment treaties “shall cease to have effect and shall be replaced and superseded by this Agreement”. A footnote to this provision stipulates that “the agreements between Member States of the Union and Singapore […] shall be considered as terminated by this Agreement, within the meaning of subparagraph 1(a) of Article 59 of the Vienna Convention on the Law of Treaties.” Yet, article 59 (1) VCLT prescribes that “a treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and: (a) It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty”.

While the Commission argued that past EU practice entailed an array of precedents for the supersession of member state treaties by EU external agreements, Judge Rapporteur Ilešič and Advocate General Sharpston questioned the appropriateness of the chosen legal modality as well as the EU competence for the termination of member states’ bilateral investment treaties (BITs) with Singapore via Article 9.10 of the EUSFTA. Both the Judge Rapporteur and the Advocate General, advanced a, however, unanswered request for a clarification as to whether the Commission wanted to argue in favour of the termination of the BITs via the duty of sincere cooperation enshrined in Article 4 (3) of the TEU. Otherwise, how would the Commission argue that it can include a provision in an ‘EU-only’ agreement that effectuated not only the succession but also the termination of member state bilateral agreements with Singapore under international law, given that the EU is not a contracting party to these agreements?

III.             Concluding Remarks

Opinion 2/15 raises a vast amount of general as well as policy area specific legal issues that are – in aggregate and in some instances individually - of tremendous importance for the delineation of EU competences vis-à-vis the Union’s member states. The significance of the Court’s judgment very much transcends the question of whether the EUSFTA is characterized as an ‘EU-only’ or a ‘mixed’ agreement in its entirety. Rather, the Court’s much awaited clarifications will have both systemic horizontal as well as policy area specific vertical implications for the operation of the EU’s legal system and its external relations.  Moreover, the judgment will likely clarify and may redefine the role and reach of the member states’ presence in the Union’s external economic relations in adaptation to the primary law reforms of the Lisbon Treaty, constantly evolving EU internal secondary legislation, and the expanding scope and depth of 21^st century trade and investment agreements.

We conclude this note with a question posed by the British Advocate General Mrs. Sharpston, at the very end of the hearing, to all parties. The question, however, remained unanswered.

If the Court, in Opinion 2/15, held that the EU-Singapore FTA is a mixed agreement, what would be the consequence for the conclusion of the treaty? Given the extensive scope of EU exclusive powers under the CCP, could a single member state veto the entire agreement?

David Kleimann and Gesa Kübek

Passau, October 4^th, 2016

Barnard & Peers: chapter 24

Photo credit: www.cnaint.com

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* David Kleimann is a Researcher at the Law Department of the European University Institute (EUI) in Florence (david.kleimann@eui.eu). Gesa Kübek is a Research Assistant at the Law Faculty of the University of Passau (gesa.kuebek@uni-passau.de). This report is based on hand-written notes that the authors prepared during the hearing. All potential errors are attributable to the authors alone.