Opinion pursuant to Article 218(11) TFEU.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2016:992
Celex Number62015CC0002(01)
Procedure TypeProcédure d'avis - accord incompatible
Docket Number2/15
Date21 December 2016
62015CC0002(01)

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 21 December 2016 ( 1 )

Opinion procedure 2/15

initiated following a request made by the European Commission

‛Request for an Opinion pursuant to Article 218(11) TFEU — Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore — Allocation of competences between the European Union and the Member States’

Table of contents

The EUSFTA

EU law

Treaty on European Union

Treaty on the Functioning of the European Union

The request for an Opinion of the Court

The issues raised by the Commission’s request for an Opinion

The allocation of competences between the European Union and the Member States and the legal basis for concluding the EUSFTA

Article 207(1), (5) and (6) TFEU

Article 3(2) TFEU

Objectives of and general definitions relevant to the EUSFTA (Chapter One of the EUSFTA )

Arguments

Analysis

Trade in goods (Chapters Two to Six of the EUSFTA and Protocol 1 to the EUSFTA )

Arguments

Analysis

Services, Establishment and Electronic Commerce (Chapter Eight of the EUSFTA )

Arguments

General arguments

Arguments regarding transport

Analysis

Introduction

Exclusive competence on the basis of Article 207(1) TFEU, read together with Article 3(1) TFEU

Matters excluded from the scope of the common commercial policy as a result of Article 207(5) TFEU

Exclusive competence on the basis of Article 3(2) TFEU

– The first ground under Article 3(2) TFEU

– The third ground under Article 3(2) TFEU

Investment (Chapter Nine, Section A, of the EUSFTA )

Arguments

Analysis

Introduction

Exclusive competence on the basis of Article 207(1) TFEU, read together with Article 3(1) TFEU

– The meaning of ‘foreign direct investment’ in Article 207(1) TFEU

– The regulation of ‘foreign direct investment’ as part of the common commercial policy

– Conclusion in relation to the European Union’s competence under Article 207(1) TFEU

The European Union’s competence on the basis of Article 63 TFEU, read together with Article 3(2) TFEU

The European Union’s shared competences with the Member States

Whether the EUSFTA may terminate bilateral agreements concluded between the Member States and Singapore

Government Procurement (Chapter Ten of the EUSFTA )

Arguments

Analysis

Intellectual Property (Chapter Eleven of the EUSFTA )

Arguments

Analysis

The meaning of ‘commercial aspects of intellectual property’ in Article 207(1) TFEU

The European Union’s competence over Chapter Eleven of the EUSFTA

Competition and Related Matters (Chapter Twelve of the EUSFTA )

Arguments

Analysis

Non-tariff barriers to trade and investment in renewable energy generation (Chapter Seven of the EUSFTA ) and trade and sustainable development (Chapter Thirteen of the EUSFTA )

Arguments

Non-tariff barriers to trade and investment in renewable energy generation

Trade and sustainable development

Analysis

Trade and non-trade related objectives: general principles

Non-tariff barriers to trade and investment in renewable energy generation

Trade and sustainable development

Transparency and administrative and judicial review of measures having general application (Chapter Fourteen of the EUSFTA and related provisions of other chapters )

Arguments

Analysis

Dispute settlement and mediation (Chapters Nine, Section B, and Chapters Thirteen, Fifteen and Sixteen of the EUSFTA )

Arguments

Analysis

Institutional, general and final provisions (Chapter Seventeen of the EUSFTA )

Arguments

Analysis

Assessment of the European Union’s external competence to conclude the EUSFTA

Conclusion

Annex — Summary description of the EUSFTA

1.

The European Commission seeks an Opinion from the Court under Article 218(11) TFEU on the allocation of competences between the European Union and the Member States as regards concluding the Free Trade Agreement envisaged between the European Union and the Republic of Singapore (‘the EUSFTA’). ( 2 ) The text of the EUSFTA as negotiated by the Commission provides that it is to be concluded as an agreement between the European Union and the Republic of Singapore (‘Singapore’), without participation of the Member States. The Commission seeks guidance from the Court on whether that approach is correct.

2.

The Commission argues that the European Union has exclusive competence to conclude the EUSFTA. It submits that most of that agreement comes within the European Union’s competence under Article 207 TFEU for the common commercial policy, which is an exclusive competence (Article 3(1)(e) TFEU), and that the European Union’s exclusive competence to conclude other parts of the agreement results from a legislative act giving it authority to do so (the first ground under Article 3(2) TFEU) or from the fact that conclusion of the EUSFTA may affect common rules or alter their scope (the third ground under Article 3(2) TFEU). The European Parliament generally agrees with the Commission. All the other parties having submitted observations contend that the European Union cannot conclude that agreement on its own, because certain parts of the EUSFTA fall within the shared competence of the European Union and the Member States and even the exclusive competence of the Member States. It follows that the Member States should also be a party to the EUSFTA.

3.

The EUSFTA forms part of a new generation of trade and investment agreements negotiated or in the course of negotiation by the European Union and trade partners in other regions of the world. The agreement is not a ‘homogeneous agreement’: it does not cover one particular area or subject matter nor does it pursue a single objective. It seeks to achieve, in particular, liberalisation of trade and investment and guarantees certain standards of protection in a manner that reconciles economic and non-economic objectives. Whilst building on existing rules found in the World Trade Organisation (‘WTO’) agreements, ( 3 ) the EUSFTA also extends those rules and covers matters that are not (yet) part of those agreements.

4.

In order to determine whether the European Union may conclude the EUSFTA without the Member States, it is first necessary to reach a clear understanding of the matters which that agreement covers and the objectives that it pursues. ( 4 ) That will then serve as a basis for applying the different Treaty rules on the allocation of competences to the European Union and the nature of those competences. In so doing, it is appropriate to apply the rules set out in Article 3(1) TFEU (on express exclusive competence) before applying those laid down in Article 3(2) TFEU (on implied exclusive competence ( 5 )) and, if necessary, in Article 4 TFEU (on shared competence).

The EUSFTA

5.

In December 2006, the Commission recommended that the Council of the European Union authorise it to negotiate a free trade agreement with countries of the Association of Southeast Asian Nations (‘ASEAN’) on behalf of the European Community and the Member States. In April 2007, the Council authorised the Commission to start negotiations. The negotiations relating to a region-to-region agreement proved to be difficult and were therefore suspended. The Commission then suggested pursuing bilateral free trade agreements with relevant ASEAN countries, starting with Singapore. In December 2009, the Council, relying on the negotiating directives it had issued for negotiations with ASEAN, authorised the Commission to negotiate a trade agreement with Singapore. Those negotiations commenced in March 2010. In September 2011, the Council modified the negotiating directives so as to add investment to the list of topics covered. In so doing, the Council stated that the objective was that the investment chapter of the agreement would cover areas of shared competence, such as portfolio investment, ( 6 ) dispute settlement and property and expropriation.

6.

On 20 September 2013, the European Union (acting through the Commission) and Singapore initialled the text of the EUSFTA (meaning that they accepted it as definitive), with the exception of the chapter on investment. That text was made publicly available on the same day.

7.

When it became clear that that text provided for signature and conclusion of the EUSFTA by the European Union without participation of the Member States, the Trade Policy Committee (a committee appointed by the Council under Article 207(3) TFEU) in February 2014 referred the matter to the Committee of Permanent Representatives (‘Coreper’). The Trade Policy Committee invited Coreper to confirm the procedure for signing and concluding the EUSFTA and asked it to invite the Commission, as negotiator on behalf of the European Union and the Member States, to adapt the text to the mixed character of that type of agreement. Coreper indicated that there was a clear sense of agreement among delegations that the EUSFTA should be signed and concluded as a mixed agreement, meaning that both the European Union and the Member States should be a party to it.

8.

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4 practice notes
  • Opinion of Advocate General Sharpston delivered on 5 July 2018.
    • European Union
    • Court of Justice (European Union)
    • 5 July 2018
    ...a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p. 1362. 31 See my Opinion in Avis 2/15 (EU-Singapore Free Trade Agreement), EU:C:2016:992, point 32 There is a difference here between customs duties and charges having an equivalent effect on goods that are exported to other Membe......
  • Opinion of Advocate General Pitruzzella delivered on 29 September 2020.
    • European Union
    • Court of Justice (European Union)
    • 29 September 2020
    ...Véanse, a este respecto, las conclusiones de la Abogada General Sharpston en el dictamen 2/15 [(Acuerdo de libre comercio con Singapur), EU:C:2016:992], en particular, los puntos 55 y 12 A estas competencias se añaden la competencia en materia de definición de las modalidades de coordinació......
  • Opinion of Advocate General Kokott delivered on 9 November 2021.
    • European Union
    • Court of Justice (European Union)
    • 9 November 2021
    ...2017 (EU:C:2017:376, point 218) et conclusions de l’avocat général Sharpston dans l’avis 2/15 [(Accord de libre-échange avec Singapour), EU:C:2016:992, point 14 Avis 1/15 (Accord PNR UE-Canada), du 26 juillet 2017 (EU:C:2017:592, points 76 à 78) et arrêt du 2 septembre 2021, Commission/Cons......
  • Riflessioni a distanza sulla pronuncia della Corte Costituzionale Federale in relazione al Trattato CETA
    • European Union
    • Studi Tributari Europei Nbr. 1/2017, January 2017
    • 1 January 2017
    ...26Si veda, Conclusioni dell’Avvocato Generale Eleanor Sharpston presentate il 21 dicembre 2016, Procedimento di parere 2/15, ECLI:EU:C:2016:992, punto 566. 27La Corte di Giustizia ha inoltre riconosciuto l’esclusività sopravvenuta della competenza esterna dell’Unione nell’ambito della polit......
3 cases
  • Opinion of Advocate General Sharpston delivered on 5 July 2018.
    • European Union
    • Court of Justice (European Union)
    • 5 July 2018
    ...a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p. 1362. 31 See my Opinion in Avis 2/15 (EU-Singapore Free Trade Agreement), EU:C:2016:992, point 32 There is a difference here between customs duties and charges having an equivalent effect on goods that are exported to other Membe......
  • Opinion of Advocate General Pitruzzella delivered on 29 September 2020.
    • European Union
    • Court of Justice (European Union)
    • 29 September 2020
    ...Véanse, a este respecto, las conclusiones de la Abogada General Sharpston en el dictamen 2/15 [(Acuerdo de libre comercio con Singapur), EU:C:2016:992], en particular, los puntos 55 y 12 A estas competencias se añaden la competencia en materia de definición de las modalidades de coordinació......
  • Opinion of Advocate General Kokott delivered on 9 November 2021.
    • European Union
    • Court of Justice (European Union)
    • 9 November 2021
    ...2017 (EU:C:2017:376, point 218) et conclusions de l’avocat général Sharpston dans l’avis 2/15 [(Accord de libre-échange avec Singapour), EU:C:2016:992, point 14 Avis 1/15 (Accord PNR UE-Canada), du 26 juillet 2017 (EU:C:2017:592, points 76 à 78) et arrêt du 2 septembre 2021, Commission/Cons......
1 books & journal articles

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