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A Policy of Bits and Pieces? The Common Commercial Policy After Nice
Published online by Cambridge University Press: 27 October 2017
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It is of course by no means certain that the Treaty of Nice will be ratified and that we will face the most radical revision to the EC Treaty provisions on the Common Commercial Policy (CCP) since its inception in 1957. Unlike most other proposed changes, however, this revision was foreshadowed in substance if not in detail by the Treaty of Amsterdam, which by adding a new paragraph 5 to the existing Article 133, allowed for the possibility of the extension of the CCP by Council decision. This aspect of the Treaty of Nice is particularly worth discussing, even in the absence of certainty as to its coming into force, both because some alterations to the CCP would be possible even under the existing regime, and because the issues raised by the Nice amendment are extremely pertinent to any such development. Discussion of the implications of the choices made at Nice are instructive when considering not only the post-Nice CCP but alternative options in the event of other Treaty amendments. The complexity of the Nice amendment is a reminder of just how difficult it is to achieve consensus in this area, and also of how important in practice that consensus is.
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References
1 See further Cremona, M. ‘EC External Commercial Policy after Amsterdam: Authority and Interpretation within Interconnected Legal Orders’ in Weiler, J. (ed.) The EU, the WTO and the NAFTA: Towards a Common Law of International Trade, Collected Courses of the Academy of European Law 1999 (Oxford, OUP, 2000)Google Scholar.
2 Readers will be aware that I have taken my title from Deirdre Curtin’s critique of the Treaty of Maastricht, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CMLRev 17.
3 Opinion 1/75 OECD Understanding on a local cost standard [1975] ECR 1355; Case 41/76 Donckerwolcke and Schou [1976] ECR 1921.
4 See further Cremona, M. ‘The External Dimension of the Single Market: Building (on) the Foundations’ in Barnard, C and Scott, J. (eds) The Legal Foundations of the Single Market: Unpacking the Premises (Oxford, Hart Publishing, 2002)Google Scholar.
5 Art. 23 EC Treaty.
6 Opinion 1/78 Natural rubber agreement [1979] ECR 2871.
7 Timmermans, C. ‘Common Commercial Policy (Article 113 EEC) and International Trade in Services’ in Capotorti, F. et al. (eds) Du droit international au droit de l’integration, Liber Amicorum Pierre Pescatore (Baden-Baden, Nomos, 1987)Google Scholar; Mengozzi, , ‘Trade in Services and Commercial Policy’ in Maresceau, M. (ed.) The European Community’s Commercial Policy after 1992: The Legal Dimension (Dordrecht, Martinus Nijhoff 1993)Google Scholar.
8 Opinion 1/94 WTO Agreement [1994] ECR I–5267.
9 Maresceau, M. ‘The Concept “Common Commercial Policy” and the Difficult Road to Maastricht’ in Maresceau, above n 7.
10 Opinion 1/94 at para 41. This is not the place for an analysis of Opinion 1/94; see rather Arnull, A. ‘The Scope of the Common Commercial Policy: A Coda on Opinion 1/94’ in Emiliou, N. and O’Keeffe, D. (eds) The European Union and World Trade Law after the GATT Uruguay Round (Chichester, Wiley, 1996)Google Scholar; Bourgeois, J. ‘The EC in the WTO and Opinion 1/94: An Echternach procession’ (1995) 32 CMLRev 763 Google Scholar; Hilf, M. ‘The ECJ’s Opinion 1/94 on the WTO: No surprise but not wise?’ (1995) 6 EJIL 245 CrossRefGoogle Scholar; Tridimas, T and Eeckhout, P. ‘The External Competence of the Community and the Case Law of the Court of Justice - Principle versus Pragmatism’ (1994) 14 YEL 143 Google Scholar; Pescatore, P. ‘Opinion 1/94 on “Conclusion” of the WTO Agreement: is there an escape from a programmed disaster?’ (1999) 36 CMLRev 387 Google Scholar; Tridimas, T. ‘The WTO and OECD Opinions’ in Dashwood, A. and Hillion, C. (eds) The General Law of EC External Relations (London, Sweet & Maxwell, 2000)Google Scholar. For comment on the EC’s participation in the GATS, see Kennett, W. ‘The EC and the General Agreement on Trade in Services’ in Emiliou and O’Keeffe, above; Eeckhout, P. ‘The General Agreement on Trade in Services and Community Law’ in Konstadinidis, S. (ed) The Legal Regulation of the European Community’s External Relations after the Completion of the Internal Market (Aldershot, Dartmouth 1996)Google Scholar.
11 EC Commission, ‘EU Common Commercial Policy and the Intergovernmental Conference’, MEMO/00/86, Brussels, 22 November 2000.
12 Hilf, M. ‘Unwritten EC Authority in Foreign Trade Law’ (1997) 2 EFA Rev 437 Google Scholar; Neuwahl, N. ‘The WTO Opinion and implied external powers of the Community: a hidden agenda?’ in Dashwood and Hillion, above n 10.
13 EC Commission, above n 11.
14 Legal Adviser to the IGC, Note for the Member State Government Representatives Group on External Economic Relations, 10 May 2000, SN 2705/00.
15 A Code of Conduct was proposed in July 1994, during the dispute over the conclusion of the WTO agreements. Following Opinion 1/94, the Commission put forward a proposal for a Code of Conduct in May 1995, with the view to the conduct of negotiations on financial services: European Report no. 2042, 17 May 1995. The Code appears to have been discussed in Council (GAC) meetings in June and July 1995 and within the Article 133 Committee on the basis of both Commission and Presidency texts, but not to have been formally adopted within Council.
16 Opinion 1/94 at para 108.
17 Commission Opinion on the IGC, 26 January 2000, COM(2000) 34, 29 (esp. 53 for a draft revised text of Article 133).
18 See note from the Representatives of the European Parliament to the IGC on the subject of commercial policy and international agreements, 11 July 2000, CONFER 4759/00.
19 Brussels 14 June 2000, CONFER 4750/00, Annex 3.5.
20 Presidency Progress Report on the IGC, Brussels, 3 November 2000, CONFER 4790/00.
21 Opinion 1/94 at para 48. Note that in earlier versions of the draft, this provision was included in the Protocol and referred only to sea transport.
22 See Cases C–466/98—C–469/98, C–471/98, C–472/98, C–475/98, C–476/98 Commission v. United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, Germany, Opinion of Advocate General Tizzano, 31 January 2002.
23 Commission DG Trade FAQ ‘The reform of Article 133 by the Nice Treaty: The logic of parallelism’ December 2000; http://europa.eu.int/comm/trade/faqs/rev133_en.htm#133
24 Art. 50 EC.
25 See the discussion of the distinction in cases 205/84 Commission v. Germany (insurance services) [1986] ECR 3753; C–221/89 Factortame No2 [1991] ECR I–3905; C–55/94 Gebhard [1995] ECR I–4165.
26 Eeckhout, P. ‘Constitutional Concepts for Free Trade in Services’ in de Búrca, G. and Scott, J. (eds) The EU and the WTO: Legal and Constitutional Issues (Oxford, Hart Publishing, 2001)Google Scholar.
27 See the draft Protocol on Art. 133(4) in the Presidency Progress Report on the IGC, above n 20.
28 Opinion 1/94 at para 55; see Reg. 3295/94/EC laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods; OJ 1994 L 341/8, as amended by Reg. 241/99/EC OJ 1999 L 27/1.
29 The TRIPS Agreement contains provisions relating to copyright and related rights, trademarks, geographical indications, industrial designs, patents, topographies of integrated circuits, and the protection of undisclosed information.
30 Heliskoski argues, contra, that the ‘commercial aspects of intellectual property’ in Article 133(5) is narrower than that of TRIPS as it does not cover the content of such rights; Heliskoski, J. ‘The Nice Reform of Article 133 EC on the Common Commercial Policy’ (2002) 1 Journal of International Commercial Law 1, 6 Google Scholar and 13.
31 The earlier options for the amendment of Art. 133, in addition to the draft Protocol with its reference to TRIPS as it stood at the time of the signature of the Protocol, make provision in the draft Article 133 for amendment of the Protocol by unanimous Council Decision, thereby resolving the question raised here.
32 Krenzler, H. and Pitschas, C. ‘Progress or Stagnation? The Common Commercial Policy after Nice’ (2001) 6 EFA Rev. 291 Google Scholar, 302, relying on the dynamic nature of the CCP as explored by the Court of Justice in Opinion 1/78.
33 Herrmann, C. ‘Common Commercial Policy after Nice: Sisyphus would have done a better job’ (2002) 39 CMLRev 7, 18–19 Google Scholar; a revised and extended version of an article published as ‘Vom misslungenen Versuch der Neufassung der gemeinsamen Handelspolitik durch den Vertrag von Nizza’ in Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 2001, 269.
34 Commission Opinion on the IGC, above n 17 at 27.
35 See note from the Representatives of the European Parliament to the IGC on the subject of commercial policy and international agreements, above n 18.
36 See Krenzler and Pitschas, above n 33 at 294.
37 Presidency note on extension to qualified majority voting, CONFER 4770/00, ADD 1, 14 September 2000, 19–21; see also CONFER 4776/00, 28 September 2000.
38 Commission DG Trade FAQ, above n 23.
39 See Sect. VA below.
40 See discussion of relation between Arts. 113 and 43 in Opinion 1/94 at para 29, ‘The fact that the commitments entered into under that Agreement [on Agriculture] require internal measures to be adopted on the basis of Article 43 [new 37] of the Treaty does not prevent the international commitments themselves from being entered pursuant to Article 113 alone.’
41 Case C–268/94 Portuguese Republic v. Council [1996] ECR I–6177 at para. 47.
42 It is suggested by Heliskoski that Article 133(5) might be taken to include the adoption of autonomous measures which are a necessary implementation of an international agreement falling within that provision; see Heliskoski, above n 30 at 7.
43 The impact of this provision on the exclusivity of the CCP is discussed below, Sect. VI.B.
44 See Opinion 1/94.
45 See Art. 149(3) EC on education; Art. 150(3) EC on vocational training; Art. 151(3) EC on culture; Art. 152(3) EC on public health. As Dashwood points out, however, it ‘must surely be intended’ that such cooperation may be pursued within the framework of international agreements; Dashwood, A ‘The attribution of external relations competence’ in Dashwood and Hillion, above n 10 at 115, 138. Note that these Treaty provisions are also those for which harmonization of Member States’ laws is excluded: see below n 55.
46 See, inter alia, Case 52/79 Debauve [1980] ECR 33; Case C-23/93 TV10 v. Commissariat voor de Media [1994] ECR I–4795.
47 Earlier English versions read ‘in this connection’; the French version reads ‘À cet égard’.
48 Krenzler and Pitschas, above n 32 at 309.
49 Ibid. As Herrmann points out, ‘Council’ should read ‘Community’ here: Herrmann, above n 33 at 21.
50 Commission: DG Trade FAQs, above n 23.
51 See discussion of this provision by Krenzler and Pitschas, above n 32 at 299 and Herrmann, above n 33 at 26–27.
52 See the rather defensive Commission Memo about Art. 133 revision: MEMO/00/86, Brussels, 22 November 2000.
53 Opinion 1/94 at paras 59–60.
54 Case 12/86 Meryem Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719 at para 9.
55 See Arts. 149(4) and 150(4) EC (education and vocational training), Arts. 151(5) EC (culture) and 152(4)(c) EC (public health).
56 Opinion 2/94 on the accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, at paras 23-24.
57 See Art. 3 TEU and Art. 5 EC.
58 Cf. the approach of the Court of Justice to the scope of association agreements, above n 54.
59 See for example, Title IV, Dir. 2000/12/EC relating to the taking up and pursuit of the busi ness of credit institutions (Consolidated Banking Directive) OJ 2000 L 126/1.
60 See for example Tridimas, above n 10 at 48, 54.
61 See for example Dashwood, above n 45 at 129-130.
62 Opinion 1/94 at paras 99-105. This passage of the Opinion is more clearly focused on the (non-)exclusive nature of Community competence to conclude the TRIPS; the Court expressly denies that measures relating to the effective protection of intellectual property rights are ‘within some sort of domain reserved to the Member States’. However insofar as the Community has not yet legislated and there are thus no internal legislative acts which could be affected within the meaning of the AETR judgement, the Community and Member States are jointly competent to conclude the TRIPS Agreement.
63 Joined Cases C-300/98 Parfums Christian Dior SA v. Tuk Consultancy BV and C–392/98 Assco Gerüste GmbH, Rob van Dijk v. Wilhelm Layher GmbH & Co. KG, Layer BV [2000] ECR I–11307.
64 Ibid. at paras 47–48.
65 Case 104/81 Hauptzollampt Mainz v. Kupferberg [1982] ECR 3641 at para 14; the Court was here dealing with an agreement within exclusive Community competence.
66 One may take issue with a number of aspects of this part of the Christian Dior judgement: it is not clear to what extent it applies only to Art. 50(6) of TRIPS, a procedural rather than a substantive provision. In addition, the passage cited above does not sit easily with the Court’s own extensive view, in the same case at paras 33–39, of its interpretive jurisdiction, confirming its earlier judgment in case C–53/96 Hermes v. FHT [1998] ECR I–3603. See inter alia, Koutrakos, P. ‘Mixed Agreements and the Preliminary Reference Procedure’ (2002) 7 EFA Rev 25 Google Scholar; Heliskoski, J. casenote on Joined Cases C–300/98 Parfums Christian Dior SA v. Tuk Consultancy BV and C–392/98 Assco Gerüste GmbH, Rob van Dijk v. Wilhelm Layher GmbH & Co. KG, Layer BV (2002) [3] 9 CMLRev 159.
67 See above Sect. V.A.
68 Indeed in theory it is stronger as a unanimous Council decision may be adopted despite abstention by a Member State.
69 Commission Opinion on the IGC, above n 17 at 26 and 30.
70 Commission: DG Trade FAQs, above n 23.
71 Under Art. 300(3) EC, consultation of the Parliament is required before the Council concludes an agreement. That Article excludes ‘agreements referred to in Article 133(3),’ but as we have already seen Article 133(6) second subparagraph may be read as taking this range of agreements outside paras 1-4 and thus outside the scope of this exception to Art. 300(3). Whether it does have this effect depends on exactly what the initial phrase in the subparagraph (‘by way of derogation from the first subparagraph of paragraph 5’) means: it may be intended to be limited to the issue of exclusivity.
72 For a more detailed analysis of exclusivity in the Community’s external economic policy, on which this section is based, see Cremona, above n 4.
73 Opinion 1/94 at para 55.
74 Art. 181 EC.
75 Herrmann, above n 33 at 22.
76 Compare the position under the GATT following the transfer of CCP competence to the Community: Cases 22–24/72 International Fruit Company [1972] ECR 1219.
77 See for example Art. 23 and 24 of Dir. 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions; OJ 2000 L 126/1.
78 Opinion 1/94 at paras 96–98; see also paras 102–103 for similar reasoning in relation to TRIPS.
79 Case 22/70 Commissionv. Council (AETR) [1971] ECR 263. In addition, the new express legal bases for external action added to the EC Treaty by the TEU, with respect to exchange rate policy, environmental policy and development cooperation, were accompanied by a Declaration that these provisions ‘do not affect the principles resulting from the judgement handed down by the Court of Justice in the AETR case’; see Declaration 10 attached to the TEU. No equivalent Declaration is attached to the Treaty of Nice in relation to the ‘new CCP’.
80 Opinion 2/91 Convention No 170 of the ILO concerning safety in the use of chemicals at work [1993] ECR I–1061.
81 The term ‘comply with Community law’ appeared as ‘respect Community law’ in earlier texts of the Nice Treaty
82 Joined Cases 3, 4 and 6–76 Cornelis Kramer and others [1976] ECR 1279, at paras 42–43.
83 Opinion 1/94 at para 108.
84 See further Cremona, above n 4.
85 Case C–150/94 UK v. Council (import quotas for toys from China) [1998] ECR I–7235, at para 67 (emphasis added).
86 See further Cremona, above n 1.
87 See above n 23.
88 Krenzler and Pitschas, above n 32 at 295.
89 Herrmann, above n 33 at 28.
90 Pescatore, P. ‘Guest Editorial: Nice—Aftermath’ (2001) 38 CMLRev 265 Google Scholar.
91 Legal Adviser to the IGC, above n 14.
92 Pascal Lamy, EC Trade Commissioner, ‘Europe’s Role in Global Governance: The Way Ahead’, speech at Humboldt University, Berlin, 6 May 2002; available on http://europa.eu.int/comm/trade/index_en.htm
93 See Opinion 2/2000 (on the Cartagena Protocol on biosafety) 6 December 2001 on the trade and environment interface. It has already been seen that transport services have, and will retain a separate legal base, as does the external aspect of competition policy.
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