Abstract
The European Union’s common commercial policy has a dual purpose. On the one hand, it operates in the sphere of public international law, and serves to define the EU’s position towards other countries or international organizations. In particular, in applying its common commercial policy, the Union acts to conclude, amend, or rescind international agreements and to adopt unilateral measures vis-à-vis its international counterparts. On the other hand the EU adopts internal rules and regulations for the internal implementation of its common commercial policy. Both the scope of the external powers and the manner in which the external powers are implemented were changed as the result of the entry into force of the Lisbon treaty. On the other hand the EU adopts internal rules and regulations for the internal implementation of its common commercial policy. Both the scope of the external powers and the manner in which the external powers are implemented were changed as the result of the entry into force of the Lisbon treaty.
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Notes
- 1.
ECJ, Case C-431/05, Merck Génericos – Productos Farmaceuticos v. Merck & Co. Inc., [2007] E.C.R., I-7001, para. 31; ECJ, Case C-549/07, F. Wallenthin – Hermann v. Alitalia, [2008] E.C.R., I-11061, para. 28; CFI, Case T-367/03, Yedas v. Council et all., [2006] E.C.R., II-873, para. 38.
- 2.
ECJ, Case 12/86, Demirel, [1987] E.C.R., 3747, para. 14; ECJ, Case C-432/92, Anastasiou, [1994] E.C.R., I-3116, para. 23; ECJ, Case C-265/03, Simutenkov, [2005] E.C.R., I-2579, para. 21.
- 3.
Agreement establishing the World Trade Organisation (WTO), O.J. 1994 L 336/3, including related agreements, the conclusion of some of the WTO agreements fell, however, within the scope of competences of the Member States.
- 4.
For example, Agreement of June 27, 1980, establishing the Common Fund for Commodities (in Germany, the parliament approved by a law of June 4, 1985), cf. the report of the Federal Government of June 23, 2000, BT-Drs. 14/3647; one of these Commodity Agreements, for instance, is the International Natural Rubber Agreement which has since been terminated. See Opinion 1/1978, [1979] E.C.R., 2871. For information generally on UNCTAD’s activities in this area see http://www.unctad.org/templates/WebFlyer.asp?intItemID=5391&lang=1; UNCTAD Special Unit on Commodities, http://www.unctad.info/en/Special-Unit-on-Commodities/.
- 5.
Partnership agreement between the European Union and the African, Caribbean and Pacific Group of States (“ACP countries”), signed in Cotonou on June 23, 2000, O.J. 2000 L 317/3.
- 6.
Agreement on the European Economic Area, O.J. 1994 L 1/3.
- 7.
Agreement between the European Economic Community and the Swiss Confederation, O.J. 1972 L 300/189.
- 8.
Agreement between the European Economic Community and the Republic of Austria, O.J. 1972 L 300/2.
- 9.
Council Decision of 14 November 2005 concerning the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the United States of America on matters related to the wine trade; O.J. 2005 L301/14; Council Decision of July 13, 1992, on the conclusion of an Agreement between the European Economic Community and the Government of the United States of America concerning the Application of the GATT Agreement on Trade in Civil Aircraft, O.J. 1992 L301/31. In all, the United States and Europe are connected through over 126 bilateral or multilateral agreements (Treaties Office Database of the Commission, April, 2012).
- 10.
See Council Decision of 20 December 1995 on the conclusion of the agreements in the form of exchange of letters between the European Community, on the one hand, and the Republic of Iceland, the Kingdom of Norway and the Swiss Confederation, on the other hand, pertaining to certain products of agriculture, O.J. 1995 L327/17.
- 11.
See the former Europe Agreements concluded with Romania, O.J. 1994 L 357/2, and with Bulgaria, O.J. 1994 L 358/3 (they lapsed with the accession of the concerned countries to the EU).
- 12.
For instance, see the Stabilization and Association Agreement between the European Communities and its Member States on the one hand, and the Republic of Montenegro on the other hand, O.J. 2010 L 108/3; Stabilization and Association Agreement between the European Communities and its Member States on the one hand, and the Republic of Albania on the other hand, O.J. 2009 L 107/166.
- 13.
O.J. 1972 L 300/94.
- 14.
O.J. 2007 L 348/1.
- 15.
O.J. 2008 L 169/1.
- 16.
ECJ, Case C-207/91, Eurem Pharm v. BGA, [1993] E.C.R., I 3723, paras. 23 et seq.; and CFI, Case T-367/03, Yedas Tarim v. Council et all., [2006] E.C.R., II 873, para. 38. Concerning the justiciability of statutory violations, the ECJ consistently holds that WTO infringements usually don’t render EU legal acts unlawful.
- 17.
ECJ, C-69/89, Nakajima v. Council, [1991] E.C.R., I-2069, para. 29 et seq.; ECJ, Case 113/77, NTN Toyo Bearing v. Council, [1979] E.C.R., 1185, para. 21; ECJ, C-93/02 P, Biret v. Council, [2003] E.C.R., I-10497 paras. 32 et seq.
- 18.
Council Regulation (EC) No 260/2009 of February 26, 2009, on the common rules for imports, O.J. 2009 L 84/1.
- 19.
Council Regulation (EC) No 1061/2009 of October 19, 2009, establishing common rules for exports, O.J. 2009 L 291/1.
- 20.
Council Regulation (EC) No 1225/2009 of November 30, 2009, on protection against dumped imports from countries not members of the European Community, O.J. 2009 L 343/51.
- 21.
Council Regulation (EC) No 597/2009 of June 11, 2009, on protection against subsidized imports from countries not members of the European Community, O.J. 2009 L 188/93.
- 22.
Council Regulation (EC) No 3286/94 of 22 December 1994 establishing 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, O.J. 1994 L 349/71, with later amendments.
- 23.
Recital 12 of Council Decision (1999/468/EC) of June 28, 1999, establishing procedures for use of the implementing powers conferred on the Commission, O.J. 1999 L 184/23, in the version of Council Decision of July 17, 2006, amending Decision 1999/468/EC, establishing procedures for the use of the implementing powers conferred on the Commission (2006/512/EC), O.J. 2006 L 200/11: “the specific committee procedures created for the implementation of the common commercial policy and the competition rules laid down by the Treaties that are not currently based upon Decision 87/373/EEC are not in any way affected by this Decision.”
- 24.
ECJ, Case 113/77, NTN Toyo Bearing Co. v. Council, [1979] E.C.R., 1185.
- 25.
9 U.S.C.A. § 1675c. (Repealed on February 1, 2010).
- 26.
WTO Panel, WT/DS217/R, WT/DS234/R, United States — Continued Dumping and Subsidy Offset Act of 2000 and WTO Appellate Body, WT/DS217/AB/R, WT/DS234/AB/R, United States — Continued Dumping and Subsidy Offset Act of 2000.
- 27.
United States — Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/ARB/EEC of 24 and 26 November 2004, see minutes of Meeting of the DSB, WT/DSB/M/178 of January 17, 2005, paras. 80, 83.
- 28.
Council Regulation (EC) No 673/2005 of April 25, 2005, establishing additional customs duties on imports of certain products originating in the United States of America, O.J. 2005 L 110/1.
- 29.
ECJ, Case 113/77, NTN Toyo Bearing Co. v. Council (Kugellager), [1979] E.C.R., 1185.
- 30.
Council Regulation (EC) No. 3697/93 of December 20, 1993, withdrawing tariff concessions in accordance with Article 23 (2) and Article 27 (3) (a) of the Free Trade Agreement between the Community and Austria (General Motors Austria), O.J. 1993 L 343/1.
- 31.
CFI, Case T-115/94, Opel Austria v. Council, [1997] E.C.R., II-39.
- 32.
O.J. 1972 L 300/94.
- 33.
In fact, the judgement’s reasoning is slightly more complicated. In order to explain the unlawfulness of the regulation at the time of its issuance on December 20, 1993, the ECFI referred to the effects of the EEA’s ratification (at the beginning of December 1993) prior to its entry into force (January 1, 1994).
- 34.
EJC, Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property, [1994] E.C.R., I-5267.
- 35.
See Müller-Ibold, preliminary remarks, Art. 206-207, in: Lenz/Borchardt (eds.), EU Treaties, Commentary, (6th ed, 2012), para. 11 et seq. (with further references), see also Cremona, The Draft Constitutional Treaty: External Relations and External Action, CMLR 40 (2003) 6, page 1347 (1350).
- 36.
Art. 207 (4) only addresses the nature of the majority required for votes by the Council.
- 37.
The basic regulations must be expected to be adapted soon to the terms of the Comitology Regulation by the two “omnibus” regulations discussed below.
- 38.
Usually, the individual measures will be implementing acts within the meaning of Art. 291. A typical case is the adoption of anti-dumping regulations. That measure does not change existing legal obligations or commitments, and therefore it cannot be classified as a delegated legislation within the meaning of Art. 290. This could be different, for example, concerning a regulation to withdraw tariff concessions after having prevailed in a WTO dispute settlement procedure. In such a case, delegated legislation within the meaning of Art. 290 TFEU could be applied (because existing legal obligations or commitments under customs law would be modified. Ultimately, the question may depend on the technical method of execution: if the “withdrawal of tariff concessions” is technically achieved through the introduction of a new, additional duty, the measure may be classified (assuming that a corresponding framework regulation exists) as the adoption of an implementing act.
- 39.
Council Decision (1999/468/EC) of June 28, 1999, laying down the procedures for the exercise of implementing powers conferred on the Commission, O.J. 1999 L 184/23, in the version of Council Decision (2006/512/EC) of July 17, 2006, amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, O.J. 2006 L 200/11.
- 40.
Regulation (EU) No. 182/2011 of the European Parliament and of the Council of February 16, 2011, laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ 2011 L 55/13, with further details on the legislative history are the EP website: http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2010/0051.
- 41.
European Commission, “Proposal for a Regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers,” COM/2010/83 final - COD 2010/51.
- 42.
Art. 8 (5) of the Comitology Regulation.
- 43.
Regulation (EU) No. 182/2011 of the European Parliament and of the Council of February 16, 2011, laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ 2011 L 55/13.
- 44.
Omnibus I: Proposal for a Regulation of the European Parliament and of the Council amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures – COM (2011) 82 final, March 7, 2011, 2011/0039 (COD).
- 45.
Omnibus II: Proposal for a Regulation of the European Parliament and of the Council amending certain regulations relating to the common commercial policy as regards the granting of delegated powers for the adoption of certain measures – COM (2011) 349 final, June 15, 2011, 2011/0153 (COD).
- 46.
For more information on the principle of limited conferred powers, particularly in the context of delimiting powers in the commercial policy space, see Advocate General Kokott’s Opinion delivered on March 26, 2009, Case C-13/07, Commission v. Council, para. 113. The principle of limited conferred powers is less important concerning the question of which Community institution is competent to adopt certain measures (horizontal demarcation of competence), but rather it is relevant to question whether or not the Community is competent at all: “However, this consideration relates to legal measures in respect of which the Community’s competence as such is beyond doubt and where it is necessary only to clarify which of several existing areas of Community competence is to be used (horizontal demarcation of competence). If, on the other hand, the Community is competent only in respect of certain components of a proposed act, while other components come within the competence of the Member States, (vertical demarcation of competence) the Community cannot simply declare that it is competent for the entire act by way of a main-purpose test. Otherwise it would undermine the principle of limited conferred powers (first paragraph of Article 5 EC; see also the second subparagraph of Article 7(1) EC).”
- 47.
In the same sense: Hahn, AEUV Art. 207, in: Callies/Ruffert (eds.), Kommentar EUV/AEUV, 2011, 4th ed., paras. 90 et seq.; similar: Weiß, Art. 207, in : Grabnitz/Hilf/Nettesheim (eds.), Das Recht der Europäischen Union, paras. 115, 116; of the contrary view: Herrmann, Die gemeinsame Handelspolitik der Europäischen Union im Lissabon-Urteil, in: Hatje/Terhechte (eds.), Grundgesetz und europäische Integration, EuR Beiheft 1, 2010, 193 (196).
- 48.
ECJ, Case 8/55, FédéCouncilion Charbonnière de Belgique v. High Authority, [1956] E.C.R., 297 (311).
- 49.
ECJ, Case 281/85, Germany v. Commission, [1987] E.C.R., 3203.
- 50.
ECJ, Opinion 2/94, Accession of the Community to the European Convention for the protection of Human Rights and Fundamental Freedoms, [1996] E.C.R., I-1759.
- 51.
As far as can be seen, the European Commission accepts this, or a similar, approach (according to my interpretation; I am not aware of any official position).
Acknowledgments
This article reflects only the personal opinions of the author. The author is grateful for the support of his colleagues Ms Claudia Winkler, and Mr Sungjin Kang in preparing the original lecture and Patrick Bock in preparing the English version of this article. Responsibility for any errors or omissions rests with the author alone. The text is based on a lecture which was given on 28 September 2010 in Berlin in the course of the conference “Die gemeinsame Handelspolitik der Europäischen Union ‘nach Lissabon.’” The lecture style was maintained in part.
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Müller-Ibold, T. (2013). Common Commercial Policy After Lisbon: The European Union’s Dependence on Secondary Legislation. In: Bungenberg, M., Herrmann, C. (eds) Common Commercial Policy after Lisbon. European Yearbook of International Economic Law(). Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-34255-4_9
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