Abstract
The European Union (EU) acts in the area of international trade through the community’s commercial policy regulated by the European Community (EC) Treaty. The position of the Union in external trade relations is dependant on the unique legal character of this entity. By developing a legal order which is supreme to the law of its Member States, and creating a complex system of institutions and modes of decision-making, the Community has ceased to be a mere representative of the countries it comprises. The increasing transfer of competences from the Member States onto the community allowed it to aim at the realization of common objectives as opposed to merely collective ones. As a result, tensions between the EC and dissatisfied Member States occur and the delineation of competences may turn out to be crucial when interests of an individual Member State are involved. Therefore, the paper which considers the situation of the “new” European Union in the area of international trade, in light of the Treaty Establishing a Constitution for Europe (Constitutional Treaty), should necessarily investigate how the position of the EU will be strengthened vis-à-vis its Member States.
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References
Case 1/75, Low Cost Standard, 1975 E.C.R. 1355; Case 41/76, Suzanne Criel, née Donckerwolcke and Henru Scbou v. Procureur de la République, 1976 E.C.R. 1921.
Case 1/78, Natural Rubber, 1979 E.C.R. 2871. Stating that the CCP covered general economic policy measures, like the international agreement on natural rubber.
Case 1/75, Low Cost Standard, 1975 E.C.R. 1355, 1362. The Court ruled that the CCP covered systems of aid for exports and credits for financing local costs linked to export operations.
Case 1/94, WTO, 1994 E.C.R I-5267.
Case 1/94, WTO, 1994 E.C.R. I-5267, para. 47. Consumption abroad, commercial presence and the presence of natural persons as modes of supply of services covered by GATT Agreement were not recognized to fall under the scope of the CCP. The Court pointed out that regarding the movement of natural persons, it was clear from Article 3 EC Treaty, which distinguished between a common commercial policy and measures concerning the entry and movement of persons, that the treatment of nationals of non-member countries on crossing the external frontiers of Member States could not be regarded as falling within the common commercial policy.
According to Article I-13(2) of the Constitutional Treaty, the exclusive competence would also include the conclusion of an international agreement “when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.” This provision is an attempt to codify the case law of the ECJ on implied external powers, in particular in the ERTA judgment and Cases 1/76, Inland Waterways and 1/94, WTO.
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Markus Krajewski, External Trade Law and The Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy?, 42 Common Market Law Review 91, 111 (2005).
Art. III-315(4) of the Treaty Establishing a Constitution for Europe, Dec. 16, 2004, 2004 O.J. (C310) [hereinafter CT].
Krajewski, supra note 9.
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See, Case C-62/88, Greece v. Council, 1990 E.C.R. I-1527 (Chernobyl I Case) and Case C-281/01, Commission v. Council, 2002 E.C.R. I-12049 where the Court adopted the approach that trade measures are trade measures what? ever the objective pursued, when a Member State tried to limit the Community’s exclusive competence by arguing that the measure fell within environmental protection rather, which is an area of shared competence (Article 174 EC Treaty and also 1–14 of the Constitution). The situation is even clearer when an instrument had direct and immediate impact on trade and only possible positive environmental effect.
Case C-124/92, The Queen, ex parte Centro-Com v. HM Treasury and Bank of England, 1997 E.C.R. I-81.
Case 1/78, Natural Rubber, 1979 E.C.R. 2871.
Case C-281/01, Commission v. Council, 2002 E.C.R. I-12049.
The system of voting may primarily depend on the legal basis. It is obvious that the Commission will look for the legal basis allowing qualified majority as opposed to unanimity. In the case on the correct legal basis for the adoption of generalized tariff preferences (GSP) (Case 45/86, Commission v. Council, 1987 E.C.R. 1493) the Commission advanced an argument that Article 133 requiring qualified majority should be used and the Council was of the opinion that GSP regulations were in fact based on Article 133 EC Treaty and Article 308 EC Treaty, the latter requiring unanimity. The Court noted that the contested regulations not only had commercial-policy aims, but also major-development policy aims. In the context of the organization of the powers of the Community, the choice of legal basis for a measure could not depend simply on an institution’s conviction as to the objective pursued, but had to be based on objective factors which were amenable to judicial review (paras. 10–11). Moreover, it concluded that Article 133 EC Treaty is the proper legal basis and, therefore, there is no need to justify the Community’s competence on the basis of Article 308 EC Treaty if it is only used where no other Treaty provision conferred the competence (paras. 14–21).
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© 2006 Max-Planck-Gessellschaft zur Förderung der Wissenschaften e.V.
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Leczykiewicz, D. (2006). Common Commercial Policy: The Expanding Competence of the European Union in the Area of International Trade. In: Dann, P., Rynkowski, M. (eds) The Unity of the European Constitution. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 186. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-37721-4_20
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DOI: https://doi.org/10.1007/978-3-540-37721-4_20
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