Abstract
Of all the external policies located in the Union’s ‘middle layers’, the Common Commercial Policy (CCP) stands out with flying colours. Here, we encounter one of the oldest fields of external competence, already present in the original EEC Treaty, and also one of the broadest. Moreover, the CCP has given rise to a colourful and highly dynamic jurisprudence, which spurred the development of principles that have become of relevance for other fields of external competence as well. In this chapter, we will first touch upon some general aspects, among which the rationale, general objectives and institutional embedding of the CCP (para. 4.2). Next, we engage in a study of the policy’s exact scope and purview (para. 4.3). Hereafter, we look at the interplay between the CCP and international trade rules (para. 4.4). Finally, we discuss some of the trade policies enacted under the CCP, with particular emphasis on EU anti-dumping rules (para. 4.5).
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Notes
- 1.
Of course, the actual pursuit of trade opportunities remains their own individual responsibility; but the competence for enacting legal agreements is largely transferred to, and closely circumscribed, by European (EU) and international (GATT/WTO) trade rules.
- 2.
See Chap. 1, para. 1.6.
- 3.
See Arts. 206 and 207 (1) TFEU. The inclusion of foreign direct investment denotes a completely new feature introduced by the Lisbon Treaty, although the EC already possessed some legislative powers as regards the freedom of establishment and free movement of capital. The consequence is that, unlike before, the Member States can no longer conclude bilateral investment treaties without the Union’s consent. At the same time, the new competence does not cover all types of investment, meaning that the EU occasionally still has to resort to its earlier powers in the fields of establishment and capital.
- 4.
Detailed in Arts. 289 and 294 TFEU.
- 5.
Article 218 TFEU. Cf. Chap. 1, para. 1.5.
- 6.
Regulation 3286/94 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization, OJ [1994] L 349/71.
- 7.
To mention but one example, the Agreement between the European Community and Australia on trade in wine, OJ [2009] L 28/3.
- 8.
Specific Economic and Partnership Agreements are currently being concluded with groups of ACP states in order to replace the relevant Cotonou provisions with WTO-compatible rules on reciprocal trade liberalisation.
- 9.
As regards the adoption of implementing measures, trade has newly been brought under the umbrella of the new comitology procedure, whereby the Commission’s autonomous powers have increased considerably. As before, for the adoption of certain implementing acts, it will need a positive opinion from the relevant comitology committee, made up of national experts, but it has become relatively more difficult for the latter to block proposals.
- 10.
When convened to discuss CCP issues, the Council will be chaired by the representative of the country holding the six-monthly rotating Presidency of the Council, pursuant to Art. 2 (5) of Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure, OJ [2009] L 325/35.
- 11.
Article 218 TFEU. Cf. Chap. 1, para. 1.5.
- 12.
Cf. Art. 263 TFEU.
- 13.
Opinion 1/75, Draft Understanding on a Local Cost Standard.
- 14.
See e.g. Opinion 1/78, International Agreement on Natural Rubber, and Case 45/86, Commission v Council (Generalised Tariff Preferences).
- 15.
Thus, for example, Member States were permitted to deviate from uniform import rules, as long as they had obtained specific authorisation from the EC: see Case 41/76, Criel, née Donckerwolcke and Schou v Procureur de la République au tribunal de grande instance de Lille and Director General of Customs.
- 16.
Another popular explanation takes its cue from the stagnation resulting from the ‘Luxembourg compromise’ (1966), which averted a surge in qualified majority voting in the Council. Exclusivity in the CCP could then at least guarantee that the Commission would have a prominent role to play there.
- 17.
Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property.
- 18.
Transport services also rested outside the scope of the CCP, with the external competences in this field being subject to the operation of the ERTA (implied powers) mechanism. Thus, for the time being, competence was also shared to conclude these (parts of the) agreements. This is presently still the case, pursuant to Art. 207 (5) and Art. 4 (2) (g) TFEU.
- 19.
As confirmed in Opinion 1/08, Conclusion of agreements pursuant to Article XXI GATS. The EU could never operate as a wholly exclusive actor within the WTO anyway, since trade agreements on transport services would have to be agreed upon by both the Union and the Member States (see the previous footnote).
- 20.
Trade in social, education and health services however only in those situations where the envisaged agreements risk prejudicing the Union’s cultural and linguistic diversity, and trade in social, education and health services only where these agreements risk to seriously disturb the national organisation of such services and prejudice the responsibility of Member States to deliver them.
- 21.
For the time being, however, both the EU and the Member States participate individually in the WTO, if only because a shared competence persists as regards transport services (see supra, footnote 18). Yet, as one author has observed, in the daily practice of the WTO, the mixed membership is hardly visible: at least where the dispute settlement procedures are concerned, the EU operates as a single actor, with the Commission firmly in the hot seat. See Neframi (2010), p. 358.
- 22.
See Chap. 9.
- 23.
See e.g. Case C-286/90, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp; Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl; Case C-162/96, A. Racke GmbH & Co. v Hauptzollamt Mainz.
- 24.
See e.g. Joined Cases C-402/05 P & C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission; Case C-308/06, The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
- 25.
Joined Cases 41-44/70, NV International Fruit Company and Others v Commission.
- 26.
See e.g. Case 181/73, Haegeman v Belgium; Case 270/80, Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and Simons Records Limited.
- 27.
Case 70/87, Fédération de l’industrie de l’huilerie de la CEE (FEDIOL) v Commission.
- 28.
Case C-69/89, Nakajima All Precision Co. v Council.
- 29.
At stake in Nakajima was the legality of provisions contained in the Community’s Anti-Dumping Regulation, adopted in accordance with Article VI GATT 1947 and the GATT Anti-Dumping Code.
- 30.
In Fediol, this was established on a broad reading of a provision from the Trade Barriers Regulation, in conjunction with two recitals from its preamble.
- 31.
See e.g. Case C-280/93, Germany v Council.
- 32.
Case C-149/96, Portugal v Council.
- 33.
In absolute terms, half of the WTO members recognise the direct effect of the WTO agreements. Measured in trade volumes however, the group denying direct effect is much larger than the other, roughly representing 70% of the world trade in goods and 80% of that in services. Unsurprisingly, in its decision concluding the WTO agreements, the Council expressed the view that the accords were incapable by nature of being directly invoked in EU or Member State courts (see Council Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994), OJ [1994] L 336/1, final recital of the preamble).
- 34.
On top of this, the adoption of WTO panel reports can only be blocked by the DSB with a unanimous decision, which makes it nearly impossible for the DSB to overturn decisions of the WTO panels or the WTO Appellate Body – which thus function as genuine and competent adjudicators.
- 35.
- 36.
- 37.
See, respectively, Case C-337/95, Parfums Christian Dior SA v Evora BV; Joined Cases C-27/00 & C-122/00, The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte Omega Air Ltd and Omega Air Ltd, Aero Engines Ireland Ltd and Omega Aviation Services Ltd v Irish Aviation Authority; Case C-93/02 P, Biret International SA v Council.
- 38.
Case T-18/99, Cordis Obst und Gemüse Groβhandel v Commission.
- 39.
Case T-18/99, Cordis Obst und Gemüse Großhandel GmbH v Commission; Case C-377/02, Léon van Parys NV v Belgisch Interventie- en Restitutiebureau.
- 40.
Joined Cases C-120/06 P & C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Others v Council and Commission.
- 41.
Case T-2/99, T. Port GmbH & Co. KG v Council.
- 42.
Case T-383/00, Beamglow Ltd v European Parliament and Others.
- 43.
Case C-53/96, Hermès International v FHT Marketing Choice BV.
- 44.
Case 14/83, Von Colson and Kamann v Land Nordrhein-Westfalen.
- 45.
See Case C-337/95, Parfumes Christian Dior SA v Evora BV.
- 46.
See e.g. Case C-105/03, Criminal proceedings against Maria Pupino.
- 47.
It should be noted that this holds too for any national rules adopted pursuant to EU measures, which thus also become unassailable. However, national rules that lie outside the scope of EU competence can freely be attributed effects in the domestic legal order in accordance with the particular national (monist or dualist) tradition: see Case C-431/05, Merck Genéricos – Produtos Farmacêuticos Lda v Merck & Co. Inc. and Merck Sharp & Dohme Lda.
- 48.
See Bronckers (2008).
- 49.
Prohibiting discrimination between third countries who are members of the WTO: any favours extended to one member country should automatically be extended to all other member countries.
- 50.
Prohibiting discrimination against imported products originating from third countries that are WTO members: if no reservations have been made, these should principally be treated as being similar to domestic products.
- 51.
See supra, footnote 6.
- 52.
This option could seem especially attractive if third countries have set up trade barriers in response to illegal conduct from the side of the EU; but instead of an instant solution, an endless game of shifting the blame might ensue.
- 53.
The EU can decide on its possible follow-up to adverse rulings of the DSB on the basis of Regulation 1515/2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters, OJ [2001] L 201/10.
- 54.
- 55.
Regulation 2913/92/EEC establishing the Community Customs Code, OJ [1992] L 302/1.
- 56.
Regulation 450/2008/EC laying down the Community Customs Code, OJ [2008] L 145/1. In light of the evaporation of the Community, pursuant to the entry into force of the Lisbon Treaty, the Regulation is likely to be renamed shortly.
- 57.
See e.g. Case C-395/93, Neckermann Versand AG v Hauptzollamt Frankfurt/Main-Ost; Case T-243/01, Sony Computer Entertainment Europe Ltd v Commission; Case C-56/08, Pärlitigu OÜ v Maksu- ja Tolliameti Põhja maksu- ja tollikeskus.
- 58.
Regulation 732/2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011, OJ [2008] L 211/1.
- 59.
Excluding weaponry and military equipment (the ‘Everything But Arms’ arrangement).
- 60.
Regulation 3285/94 on the common rules for imports, OJ [1994] L 349/53.
- 61.
For example, Regulation 570/2010/EU making imports of wireless wide area networking (WWAN) modems originating in the People’s Republic of China subject to registration, OJ [2010] L 163/34.
- 62.
Regulation 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, OJ [2009] L 134/1.
- 63.
Currently, Regulation 1225/2009/EC on protection against dumped imports from countries not members of the European Community, OJ [2009] L 343/51. The EU may impose countervailing duties to neutralise the benefit of subsidies granted by third countries on the basis of Regulation 597/2009/EC on protection against subsidised imports from countries not members of the European Community, OJ [2009] L 188/93.
- 64.
Some commentators maintain that if certain products are sold at an extremely low price, this is still the outcome of the interplay between ordinary market processes; the fact that the receiving market attributes more economic value to the goods concerned ought not ipso facto to lead to any extra duties being slapped onto them. For a more in-depth discussion, see Koutrakos (2006), pp. 331–338.
- 65.
With Article VI GATT 1994 defining dumping as “the practice by which products of one country are introduced into the commerce of another country at less than the normal value of the products”.
- 66.
Officially, this power lies with the Council, but the measures are actually adopted through comitology by the Commission, once they have been approved by the relevant committee.
- 67.
See e.g. Case 264/82, Timex Corporation v Council and Commission; Case C-358/89, Extramet Industrie SA v Council; Case C-239/99, Nachi Europe GmbH v Hauptzollamt Krefeld; Case T-1/07, Apache Footwear Ltd and Apache II Footwear Ltd v Council; Case T-122/09, Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd v Council.
- 68.
Save for possible reliance on the Fediol or Nakajima doctrines.
- 69.
Which may shortly turn out to be no longer necessary, depending on how the EU Courts proceed to define the term ‘regulatory act’ in Art. 263 TFEU.
- 70.
For further illustrations and criticism, see Koutrakos (2006), pp. 344–350.
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de Waele, H. (2011). The Common Commercial Policy. In: Layered Global Player. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20751-8_4
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DOI: https://doi.org/10.1007/978-3-642-20751-8_4
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