Opinion procedure 2/15

1.The first and second recitals of the EUSFTA refer to the Partnership and Cooperation Agreement between the European Union and Singapore. The second and fifth recitals state that the same Parties desire to strengthen further their relationship and to raise living standards, promote economic growth and stability, create new employment opportunities and improve the general welfare, and to this end, reaffirm their commitment to promoting trade and investment liberalisation. The fourth recital records that the Parties are also determined to strengthen their economic, trade and investment relations in accordance with the objective of sustainable development and to promote trade and investment in a manner that takes account of high levels of environmental and labour protection and relevant internationally recognised standards and agreements to which they are parties. The Parties further recognise, in the eighth recital, the importance of transparency in international trade for the benefit of all stakeholders. The ninth recital states that the Parties seek to establish clear and mutually advantageous rules governing their trade and investment and to reduce or eliminate the barriers to mutual trade and investment. The 10^th recital explains that the Parties are resolved to contribute to the harmonious development and expansion of international trade by removing obstacles to trade through the EUSFTA and to avoid creating new barriers to trade or investment between the Parties that could reduce the benefits of the EUSFTA. In the 11^th recital, the Parties state that they are building on their respective rights and obligations under the WTO Agreement and other multilateral, regional and bilateral agreements and arrangements to which they are parties.

2.Chapter One (‘Objectives and General Definitions’) provides that, through the EUSFTA, the Parties are establishing a free trade area consistent with Article XXIV of the GATT 1994 and Article V of the GATS (Article 1.1). Article 1.2 defines the objectives of the EUSFTA as being to liberalise and facilitate trade and investment between the Parties.

3.Chapter Two (‘National Treatment and Market Access for Goods’) applies to trade in goods between the Parties (Article 2.2). The objective laid down in Article 2.1 is progressively and reciprocally to liberalise trade in goods over a transitional period starting from the entry into force of the agreement in accordance with its terms and in conformity with Article XXIV of the GATT 1994. Article 2.3 lays down the obligation to accord national treatment to the goods of the other party in accordance with Article III of the GATT 1994 (which is thereby incorporated into the EUFSTA). Chapter Two also covers the classification of goods (Article 2.5); requires the reduction or elimination of customs duties on imports (Article 2.6); and prohibits maintaining or instituting customs duties and taxes on exports (Article 2.7). It goes on to set out obligations regarding non-tariff measures, in particular import and export restrictions (Article 2.9); fees and formalities connected with importation and exportation (Article 2.10); import and export licensing procedures (Article 2.11); State trading enterprises (Article 2.12); and the elimination of the sectoral non-tariff measures set out in Annex 2-B and Annex 2-C (Article 2.13). Article 2.14 provides for a general exceptions clause and refers, in particular, to Article XX of the GATT 1994 (which is the general exceptions clause in that agreement). Article 2.15 establishes a Committee on Trade in Goods whose principal responsibilities are to monitor implementation, promote trade in goods between the Parties regarding matters covered by the chapter and its annexes and address tariff and non-tariff measures applied to trade in goods between the Parties.

4.Annex 2-A addresses the elimination of customs duties. It comprises two appendices: Appendix 2-A-1 (the customs duties elimination schedule for Singapore) and Appendix 2-A-2 (the customs duties elimination schedule for the European Union). Annex 2-B, applicable to all forms of motor vehicles and parts thereof, contains a number of obligations covering, inter alia, the use of international standards, regulatory convergence, products with new technologies or new features, import licensing and other measures restricting trade. Annex 2-C, relating to pharmaceutical products and medical devices, addresses international standards, transparency and regulatory cooperation.

5.Chapter Three is entitled ‘Trade Remedies’.

6.As regards anti-dumping and countervailing measures, Article 3.1 states that the Parties confirm their rights and obligations under Article VI of the GATT 1994 (which deals with anti-dumping and countervailing duties), the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures. The chapter lays down procedural rules for handling applications for anti-dumping and countervailing duties (Article 3.2); sets out the lesser duty rule as regards each type of duty (Article 3.3); records the need to take into account the public interest (Article 3.4); and excludes the provisions in the section on anti-dumping and countervailing measures from the scope of Chapters Fifteen (‘Dispute Settlement’) and Sixteen (‘Mediation Mechanism’) (Article 3.5).

7.Chapter Three also contains specific rules on safeguard measures. In particular, the Parties confirm their rights and obligations under Article XIX of the GATT 1994 (which deals with emergency action on imports of particular products), the Agreement on Safeguards and Article 5 of the Agreement on Agriculture (Article 3.6). It further provides for procedural and transparency rules (Article 3.7) and excludes the provisions in the section on global safeguards measures from the scope of Chapters Fifteen (‘Dispute Settlement’) and Sixteen (‘Mediation Mechanism’) (Article 3.8). Articles 3.9 to 3.13 provide for the application (if necessary on a provisional basis) of specific bilateral safeguard measures and appropriate compensation if such a measure is imposed.

8.Chapter Four (‘Technical Barriers to Trade’) aims essentially to facilitate and increase trade in goods between the Parties by providing a framework to prevent, identify and eliminate unnecessary barriers to trade falling within the scope of the Agreement on Technical Barriers to Trade (Article 4.1), which is incorporated into and made part of the EUSFTA (Article 4.3). Chapter Four applies to the preparation, adoption and application of all standards, technical regulations and conformity assessment procedures, as defined in Annex 1 of the Agreement on Technical Barriers to Trade, which may affect trade in goods between the Parties, regardless of the origin of those goods (Article 4.2.1). Chapter Four also contains provisions on, inter alia, different forms of joint cooperation (Article 4.4), the nature of standardising bodies and the Parties’ involvement in them (Article 4.5), the basis for technical regulations (Article 4.6), means to facilitate the acceptance of conformity assessment results (Article 4.7), transparency (Article 4.8) and (mandatory) marking or labelling requirements (Article 4.10). Other provisions relate to the exchange of information (such as Article 4.9) or to the making information available for defined purposes (through, for example, contact points designated in accordance with Article 14.4) (Article 4.11).

9.Chapter Five (‘Sanitary and Phytosanitary Measures’) aims (a) to protect human, animal or plant life or health in the respective territories of the Parties while facilitating trade between the Parties in the area of sanitary and phytosanitary measures (‘SPS measures’); (b) to collaborate on the further implementation of the Agreement on the Application of Sanitary and Phytosanitary Measures; and (c) to improve communication, cooperation and resolution of issues related to the implementation of SPS measures affecting trade between the Parties (Article 5.1). The Parties reaffirm their rights and obligations under the SPS Agreement (Article 5.4; see also Article 5.6(a)).

10.Article 5.6 (‘General Principles’) concerns the means to achieve harmonisation of SPS measures and limitations on the use of SPS measures so as to prevent unjustified barriers to trade and to avoid unnecessary restrictions and arbitrary or unjustifiable discrimination and delay in access to the Parties’ markets. Other substantive obligations relate to import requirements (Article 5.7); verifications (Article 5.8); the procedure to apply in the case of on-the-spot verification to authorise imports of a certain category or categories of products of animal origin from the exporting Party (Article 5.9, see also Annex 5-B); the determination and recognition of pest- or disease-free areas (Article 5.10); emergency measures in case of serious human, animal or plant life or health risks (Article 5.13) and (the procedure for) recognition of equivalence of an individual measure or groups of measures (Article 5.14). General obligations regarding transparency and the exchange of information are found in Article 5.11.

11.Chapter Six (‘Customs and Trade Facilitation’) aims to recognise the importance of customs and trade facilitation matters in the evolving global trading environment and to reinforce cooperation in that area with a view to ensuring that the relevant legislation and procedures, as well as the administrative capacity of the relevant administrations, fulfil the objectives of promoting trade facilitation while ensuring effective customs control (Article 6.1.1). Article 6.2 sets out the principles upon which the customs provisions and procedures of the Parties are to be based (Article 6.2.1). The Parties must also simplify requirements and formalities wherever possible to promote the rapid release and clearance of goods and work towards the further simplification and standardisation of data and documentation required by customs and other agencies (Article 6.2.2). Articles 6.3 to 6.14 lay down specific obligations regarding customs cooperation; transit and transshipment; advance rulings; simplified customs procedures; the release of goods; fees and charges; customs brokers; pre-shipment inspections; customs valuation; risk management; a single-window system (facilitating a single, electronic submission of all required information); and making available effective, prompt, non-discriminatory and easily accessible appeal procedures. Article 6.16 addresses the Parties’ relationship with the business community.

12.Article 6.15 lays down a general obligation to publish or otherwise make available legislation, regulations, and administrative procedures and other requirements relating to customs and trade facilitation (Article 6.15.1), and to designate or maintain one or more inquiry or information points (Article 6.15.2). Throughout Chapter Six, various provisions concern the need to exchange information and make information available (for example, Articles 6.3.2, 6.8.2 and 6.16(b)).

13.Chapter Seven (‘Non-Tariff Barriers to Trade and Investment in Renewable Energy Generation’) seeks to promote, develop and increase the generation of energy from renewable and sustainable non-fossil sources, particularly through facilitating trade and investment. The Parties therefore undertake to cooperate towards removing or reducing tariffs and non-tariff barriers and fostering regulatory convergence with or towards regional and international standards (Article 7.1).

14.Chapter Seven applies to measures which may affect trade and investment between the Parties related to generating energy from renewable and sustainable non-fossil sources, but not to the products from which energy is generated (Article 7.3.1).

15.Article 7.4 requires the Parties to (a) refrain from adopting measures providing for local content requirements or any other offset (any condition that encourages local development) affecting the other Party’s products, service suppliers, investors or investments; (b) refrain from adopting measures requiring partnerships to be formed with local companies (subject to an exception relating to technical reasons); (c) ensure that any rules applied concerning authorisation, certification and licensing are objective, transparent and non-arbitrary and do not discriminate against applicants from the other Party; (d) ensure that the administrative charges imposed on or in connection with importation and use of goods originating in the other Party, or affecting the provisions of goods by the other Party’s suppliers, are subject to Article 2.10 and that the administrative charges imposed on or in connection with the provision of services by the other Party’s suppliers are subject to Articles 8.18 to 8.20; and (e) ensure that the terms, conditions and procedures for connecting and accessing electricity transmission grids are transparent and do not discriminate against suppliers of the other Party.

16.Article 7.5 concerns the use of international or regional standards with respect to products for generating energy from renewable and sustainable non-fossil sources, the need to specify technical regulations based on product requirements and the acceptance of declarations of conformity from the other Party.

17.Article 7.6.1 states that the provisions of Chapter Seven are subject to the general exception clauses in Articles 2.14 and 8.62, the clause on security and general exceptions in Article 10.3 and the relevant provisions of Chapter Seventeen. According to Article 7.6.2, nothing in Chapter Seven is to be construed so as to prevent the adoption or enforcement by either Party of measures necessary for operating the energy networks concerned safely or for the safety of energy supply.

18.Article 7.7 sets out the role of the Trade Committee as regards cooperation and implementing Chapter Seven and specifies what that cooperation may involve.

19.Chapter Eight (‘Services, Establishment and Electronic Commerce’) is divided into seven sections.

20.In Section A, the Parties reaffirm their respective commitments under the WTO Agreement and agree that the chapter lays down the necessary arrangements for progressive reciprocal liberalisation of trade in services, establishment and electronic commerce (Article 8.1.1).

21.Article 8.1.2 states that, except as otherwise provided, Chapter Eight is not to (a) apply to subsidies granted or grants provided by a Party; (b) apply to services supplied in the exercise of governmental authority within the respective territories of the Parties; (c) require the privatisation of public undertakings; or (d) apply to laws, regulations or requirements governing procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale. Article 8.1.4 adds that Chapter Eight does not apply to measures affecting natural persons seeking access to the employment market of a Party, or to measures regarding citizenship, residence or employment on a permanent basis.

22.Article 8.1.3 safeguards each Party’s right to regulate and introduce new regulations to meet legitimate policy objectives in a manner consistent with Chapter Eight.

23.Article 8.2(d) states that the EUSFTA covers shipping companies established outside the Union and controlled by nationals of a Member State, if their vessels are registered in accordance with legislation of that Member State and fly the flag of a Member State.

24.Article 8.2(m) defines ‘trade in services’ as meaning the supply of a service: (i) from the territory of a Party into the territory of the other Party (‘cross-border’); (ii) in the territory of a Party to a service consumer of the other Party (‘consumption abroad’); (iii) by a service supplier of a Party, through commercial presence, in the territory of the other Party (‘commercial presence’); and (iv) by a service supplier of a Party, through the presence of natural persons of that Party, in the territory of the other Party (‘presence of natural persons’).

25.Section B (‘Cross-border Supply of Services’) applies to measures of the Parties affecting the cross-border supply of all service sectors except (a) audio-visual services; (b) national maritime cabotage (covering transportation of passengers or goods between a port or point located in a Member State and another port or point located in the same Member State and traffic originating and terminating in the same port or point located in a Member State of the European Union); and (c) domestic and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of (air) traffic rights (Article 8.3). The following are however covered: (i) aircraft repair and maintenance services during which an aircraft is withdrawn from service; (ii) the selling and marketing of air transport services; and (iii) computer reservation system services (Article 8.3(c)). Article 8.4 defines, for the purposes of Section B, a ‘cross-border supply of services’ as the supply of a service: (a) from the territory of a Party into the territory of the other Party and (b) in the territory of a Party to a service consumer of the other Party.

26.Article 8.5 concerns market access. Each Party must accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments (Article 8.5.1). With respect to sectors where market access commitments are undertaken, Article 8.5.2 specifies the measures which a Party may not adopt or maintain either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule of Specific Commitments.

27.Article 8.6 lays down the national treatment obligation. In the sectors inscribed in its Schedule of Specific Commitments and subject to any conditions and qualifications set out therein, each Party is to accord to services and service suppliers of the other Party, in respect of all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like services and service suppliers (Article 8.6.1).

28.Article 8.7.1 provides that the sectors liberalised by a Party pursuant to Section B and the market access and national treatment limitations applicable to services and service suppliers of the other Party in those sectors are set out in its Schedule of Specific Commitments.

29.Section C concerns ‘Establishment’, defined in Article 8.8(d) as ‘(i) the constitution, acquisition or maintenance of a juridical person; or (ii) the creation or maintenance of a branch or representative office within the territory of a Party for the purpose of performing an economic activity including, but not limited to, supplying a service’. The constitution and acquisition of a juridical person is to be understood as including capital participation in a juridical person with a view to establishing or maintaining lasting economic links (footnote 8 to Article 8.8(d)(424)). Section C applies to measures adopted or maintained by the Parties affecting establishment in all economic activities with the exception of (a) mining, manufacturing and processing of nuclear materials; (b) production of, or trade in, arms, munitions and war material; (c) audio-visual services; (d) national maritime cabotage; and (e) domestic and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of (air) traffic rights (Article 8.9). However, Section C does not apply to measures affecting establishment in the economic activities of (i) aircraft repair and maintenance services during which an aircraft is withdrawn from service; (ii) the selling and marketing of air transport services; and (iii) computer reservation system services (Article 8.9(e)).

30.Articles 8.10, 8.11 and 8.12 relating to, respectively, market access, national treatment and schedules of specific commitments mirror to a large extent Articles 8.5, 8.6 and 8.7 in respect of establishment (the provisions concerning, respectively, market access, national treatment and schedules of specific commitments regarding the cross-border supply of services (Section B)).

31.Section D (‘Temporary Presence of Natural Persons for Business Purposes’) applies to measures of the Parties concerning the entry into, and temporary stay in, their respective territories of key personnel, graduate trainees and business service sellers in accordance with Article 8.1.4 (Article 8.13.1). ‘Key personnel’ means natural persons employed within a juridical person of one Party other than a non-profit organisation and who are responsible for the setting up or the proper control, administration and operation of an establishment (Article 8.13.2(a)). That category comprises ‘business visitors for establishment purposes’ and ‘intra-corporate transferees’. ‘Business visitors for establishment purposes’ are natural persons working in a senior position who are responsible for setting up an establishment and who neither engage in direct transactions with the general public nor receive remuneration from a source located within the host Party (Article 8.13.2(a)(i)). ‘Intra-corporate transferees’ are natural persons who have been employed by a juridical person of one Party or, in the case of professionals providing business services, have been partners in it for at least one year and who are temporarily transferred to an establishment in the territory of the other Party. They may be executives, managers or specialists (Article 8.13.2(a)(ii)).

32.As regards key personnel and graduate trainees, Article 8.14 provides that, for every sector liberalised in accordance with Section C and subject to the reservations listed in the Schedule thereto, each Party must allow entrepreneurs (sic) of the other Party temporarily to employ in their establishment natural persons of that other Party provided that such employees are key personnel or graduate trainees as defined in Article 8.13. That provision also sets out different maximum periods of the temporary entry and stay for intra-corporate transferees, business visitors for establishment purposes and graduate trainees. Measures that involve limitations on the total number of natural persons that an entrepreneur (sic) may transfer as key personnel or graduate trainees in a specific sector (in the form of numerical quotas or a requirement to satisfy an economic needs test) or discriminatory limitations are prohibited (Article 8.14.2).

33.Pursuant to Article 8.15, each Party must in principle allow the temporary entry and stay of business service sellers for a period of up to 90 days in any 12-month period (Article 8.15).

34.Section E (‘Regulatory Framework’) is divided into sub-sections containing provisions of general application; domestic regulation; computer services; postal services; telecommunications services; financial services; and international maritime transport services.

35.Sub-section 1 contains provisions of general application. It sets out obligations with respect to the mutual recognition of professional qualifications (Article 8.16) and transparency (Article 8.17). Nothing in Article 8.16 is to prevent a Party from requiring natural persons to possess the necessary qualifications or professional experience specified in the territory where the service is supplied for the sector of activity concerned (Article 8.16.1). Each Party is to respond promptly to requests by the other Party for specific information on any of its measures of general application or international agreements pertaining to or affecting Chapter Eight. Each Party must, pursuant to Article 14.4, also establish one or more enquiry points (Article 8.17).

36.Sub-section 2 concerns domestic regulation. It applies to measures relating to licensing and qualification requirements and procedures that affect the cross-border supply of services; establishment in the Parties’ territory of juridical and natural persons; and the temporary stay of natural persons in the Parties’ territory (Article 8.18.1), subject to the specific commitments made by the Parties (Article 8.18.2).

37.Articles 8.19 and 8.20 set out obligations relating to licensing and qualification requirements and procedures, the process for obtaining a licence and for ensuring prompt review and, where justified, appropriate remedies for administrative decisions affecting establishment, the cross-border supply of services or the temporary stay of natural persons for business purposes.

38.Sub-section 3 deals with computer services. Article 8.21.1 provides that the Parties subscribe to the understanding set out in the other paragraphs of Article 8.21 in respect of computer services liberalised in accordance with Sections B to D. That understanding pertains mostly to the meaning of computer and related services.

39.Sub-section 4 concerns postal services. In accordance with Article 8.22, each Party is to introduce or maintain appropriate measures to prevent suppliers of postal services who, alone or together, are a major supplier in the relevant market for postal services from engaging in or continuing anticompetitive practices. Pursuant to Article 8.23, regulatory bodies must be separate from, and not accountable to, any supplier of postal services. Their decisions and procedures must be impartial with respect to all market participants.

40.Sub-section 5 applies to measures affecting trade in telecommunications services. It sets out the principles of the regulatory framework for telecommunications services, liberalised pursuant to Sections B to D (that is, the cross-border supply of services, establishment and the temporary presence of natural persons for business purposes) (Article 8.24.1). Articles 8.26 to 8.38 contain substantive obligations concerning, inter alia, access to and use of public telecommunications networks and services, interconnection, facility sharing and number portability. Articles 8.41 and 8.42 lay down obligations regarding, on the one hand, procedures for obtaining an authorisation to provide telecommunications services and, on the other hand, procedures for allocating and using scarce resources.

41.A general transparency obligation is laid down in Article 8.45. Specific obligations regarding making information available are set out in, for example, Articles 8.29.3 and 8.41.2.

42.Sub-section 6 sets out the principles governing the regulatory framework for all financial services liberalised pursuant to Sections B to D (Article 8.49.1). Article 8.50.1 and 8.50.2 authorises each Party to adopt or maintain measures for prudential reasons and sets out the conditions under which that may be done. In accordance with Article 8.50.4, each Party is to use its best endeavours to ensure implementation and application in its territory of a series of listed standards regarding banking supervision, insurance supervision, securities regulation, transparency and the exchange of information for tax purposes. Pursuant to Article 8.50.5, each Party may require, subject to certain conditions, the registration or authorisation of cross-border financial service suppliers of the other Party and of financial instruments.

43.Article 8.52 requires each Party to grant to financial service suppliers of the other Party, subject to conditions, access to payment and clearance systems operated by public entities and to official funding and refinancing facilities available in the normal course of ordinary business.

44.Article 8.53 relates to new financial services. It obliges each Party to permit a financial service supplier of the other Party to supply any new financial service that the first Party would permit its own financial service suppliers to supply without additional legislative action being required by the first Party.

45.Article 8.54 concerns in particular the transfer of information in electronic or other form into and out of the territory of a Party for data processing, where such processing is required in the ordinary course of business of a financial service supplier.

46.Sub-section 7 sets out the principles regarding the liberalisation of international maritime transport services pursuant to Sections B to D. Article 8.56.3 sets out the Parties’ agreement to ensure the effective application of the principles of unrestricted access to cargoes on a commercial basis and the freedom to supply international maritime transport services, as well as national treatment in the context of the supply of those services. The Parties must apply the principle of unrestricted access to the international maritime transport markets and trade on a commercial and non-discriminatory basis (Article 8.56.3(a)). Each Party must grant to ships flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than that accorded to its own ships or those of any third country, whichever is the better, with regard to, inter alia, access to ports, the use of infrastructure and auxiliary maritime services of the ports, as well as related fees and charges, customs facilities and access to berths and facilities for loading and unloading. Article 8.56.5 provides that each Party must permit international maritime transport service suppliers of the other Party to have an establishment in its territory under conditions of establishment and operation in accordance with the conditions inscribed in its Schedule of Specific Commitments. In accordance with Article 8.56.6, the Parties are to make available to international maritime transport suppliers of the other Party on reasonable and non-discriminatory terms and conditions the use of the following services at the port: (a) pilotage; (b) towing and tug assistance; (c) provisioning; (d) fuelling and watering; (e) garbage collecting and ballast waste disposal; (f) port captain’s services; (g) navigation aids; and (h) shore-based operational services essential to ship operations.

47.In Section F (‘Electronic Commerce’), the Parties agree on the importance of facilitating the use and development of electronic commerce and the applicability of WTO rules to electronic commerce; and commit themselves to promoting the development of electronic commerce between them, in particular by cooperating on the issues raised by electronic commerce under the provisions of Chapter Eight (Article 8.57.1 and 8.57.2). They also agree that the development of electronic commerce must be fully compatible with international standards of data protection, in order to ensure the confidence of those who use it (Article 8.57.4).

48.Pursuant to Article 8.58, the Parties may not impose customs duties on electronic transmissions. In Article 8.59, the Parties confirm that measures related to the supply of a service using electronic means fall within the scope of the obligations contained in the relevant provisions of Chapter Eight, subject to any applicable exceptions.

49.Section G is entitled ‘Exceptions’. Article 8.62 sets out a general exceptions clause. In Article 8.63, the Parties commit to reviewing Chapter Eight and their respective Schedules of Specific Commitments no later than three years after the EUSFTA enters into force and at regular intervals thereafter.

50.The sole article of Annex 8-A provides that the European Union’s Schedule of Specific Commitments is set out in Appendices 8-A-1 to 8-A-3. These deal, respectively, with the European Union’s Schedule of Specific Commitments in relation to Article 8.7 (cross-border supply of services), Article 8.12 (establishment) and Articles 8.14 and 8.15 (key personnel and graduate trainees and business services sellers).

51.Annex 8-B provides that Singapore’s Schedule of Specific Commitments is set out in Appendices 8-B-1 (specific commitments) and 8-B-2 (financial services).

52.Chapter Nine (‘Investment’) consists of two parts. Section A contains the substantive provisions on protection of investors and their investments. Section B provides for an Investor-State Dispute Settlement (‘ISDS’) mechanism in order to enforce those provisions.

53.For the purposes of Chapter Nine, a ‘covered investment’ means an investment which is owned, directly or indirectly, or controlled, directly or indirectly, by a covered investor of one Party in the territory of the other Party (Article 9.1.1). A ‘covered investor’ is a natural person or a juridical person of one Party that has made an investment in the territory of the other Party (Article 9.2). An ‘investment’ is defined as every kind of asset which has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, the assumption of risk, or a certain duration (Article 9.1.1). Article 9.1.1(a) to (h) lists the various forms that an investment may take.

54.Chapter Nine applies irrespective of whether such investments were made before or after the EUSFTA enters into force (Article 9.2.1).

55.Article 9.3.1 sets out the requirement of national treatment: each Party must accord to covered investors of the other Party and to their covered investments treatment in its territory no less favourable than the treatment it accords, in like situations, to its own investors and their investments with respect to the operation, management, conduct, maintenance, use, enjoyment and sale or other disposal of their investments. Article 9.3.3 lays down certain exceptions and sets out the conditions under which each Party may adopt or enforce measures that accord less favourable treatment.

56.Article 9.4 requires each Party to accord to covered investments of the other Party in its territory fair and equitable treatment and full protection and security (Article 9.4.1)— the latter refers only to a Party’s obligation relating to physical security of covered investors and investments (Article 9.4.4). In order to comply with that obligation, Article 9.4.2 provides that neither Party shall adopt measures that constitute: (a) a denial of justice in criminal, civil and administrative proceedings; (b) a fundamental breach of due process; (c) manifestly arbitrary conduct; (d) harassment, coercion, abuse of power or similar bad faith conduct; or (e) a breach of the legitimate expectations of a covered investor arising from specific or unambiguous representations from a Party so as to induce the investment and which are reasonably relied upon by the covered investor.

57.Article 9.5.1 provides that covered investors of one Party suffering losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the other Party shall be accorded by that Party, as regards restitution, indemnification, compensation or other settlement, treatment no less favourable than that accorded by that Party to its own investors or to the investors of any third country, whichever is more favourable to the covered investor concerned. Article 9.5.2 requires a Party to grant restitution or compensation if a covered investment is requisitioned or destroyed.

58.By virtue of Article 9.6.1, neither Party is directly or indirectly to nationalise, expropriate or subject to measures having effect equivalent to nationalisation or expropriation the covered investments of covered investors of the other Party except: (a) for a public purpose; (b) in accordance with due process of law; (c) on a non-discriminatory basis; and (d) against payment of prompt, adequate and effective compensation in accordance with Article 9.6.2. Article 9.6.2 sets out how to determine the amount of compensation. Article 9.6 does not apply to the issue of compulsory licenses granted in relation to intellectual property rights consistently with the TRIPS Agreement (Article 9.6.3). Article 9.6.4 concerns review of any measure of expropriation or valuation by a judicial or other independent authority of the Party taking that measure.

59.Article 9.7 provides that each Party must permit transfers relating to a covered investment to be made in a freely convertible currency without restriction or delay (Article 9.7.1). However, nothing in Article 9.7 is to be construed as preventing a Party from applying in an equitable and non-discriminatory manner its laws relating to the matters included in items (a) to (g) of Article 9.7.2 (Article 9.7.2).

60.The remaining provisions of Section A relate to subrogation (Article 9.8), termination (Article 9.9) and the relationship of the EUSFTA to other agreements (Article 9.10). In particular, Article 9.9 provides that, should the EUSFTA be terminated pursuant to Article 17.13, Chapter Nine shall continue to be effective for a further period of 20 years from that date in respect of covered investments made before the date of termination of the EUSFTA. Article 9.10.1 states that, when the EUSFTA enters into force, the agreements between the Member States and Singapore listed in Annex 9-D (including the rights and obligations derived therefrom), are to cease to have effect and to be replaced and superseded by the EUSFTA. Footnote 19(425) adds that those agreements shall be considered to be terminated by the EUSFTA within the meaning of Article 59(1)(a) of the Vienna Convention on the Law of Treaties. The remaining paragraphs of Article 9.10 mostly deal with the effect of the provisional application of the EUSFTA on the application of the provisions of the agreements listed in Annex 9-D.

61.Section B of Chapter Nine applies to a dispute between a claimant of one Party and the other Party concerning treatment (including a failure to act) alleged to breach the provisions of Section A, where the breach in question allegedly causes loss or damage to the claimant or its locally established company (Article 9.11.1).

62.Article 9.12 states that the preferred form of dispute resolution is the amicable resolution of a dispute by way of negotiation. Article 9.14 provides that parties in dispute may agree at any time to have recourse to mediation or other forms of alternative dispute resolution. Where a dispute cannot be resolved by amicable means, a claimant of a Party is to submit a request for consultations to the other Party within a specified period (Article 9.13). Where the dispute cannot be settled within three months of submitting the request for consultations, the claimant may deliver a notice of intent to arbitrate (Article 9.15). Where that notice has been sent to the European Union, the European Union must determine who is going to act as the respondent (that is to say, the defendant) within a specified time frame and inform the claimant of its decision immediately (Article 9.15.2). If no such decision is made, Article 9.15.3 provides in essence that the respondent shall be determined in accordance with the notice of intent to arbitrate.

63.No earlier than three months from the date of the notice of intent, the claimant may submit, in accordance with the conditions set out in Article 9.17 and subject to other applicable jurisdictional requirements (Article 9.17.5), the claim to arbitrate to one of the dispute settlement mechanisms listed in Article 9.16.1. Those mechanisms comprise arbitration under the auspices of the International Centre for Settlement of Investment Disputes, by an arbitral tribunal established in accordance with the arbitration rules of the United Nations Commission on International Trade Law or any other arbitral institution or under any other arbitration rules if the disputing parties so agree.

64.Articles 9.18 to 9.21 concern, respectively, the constitution of the arbitral tribunal; applicable law and rules of interpretation; and claims that are manifestly without legal merit or unfounded as a matter of law.

65.Where there is a final award finding a breach of the provisions of Chapter Nine, the tribunal may award, separately or in combination, only (a) monetary damages (subject to the limits in Article 9.24.2) and any applicable interest and (b) restitution of property, provided that the respondent may pay monetary damages and any applicable interest in lieu of restitution (Article 9.24.1). Punitive damages may not be awarded (Article 9.24.2). Articles 9.25 and 9.26 concern, respectively, indemnification or other compensation and costs.

66.Article 9.27 concerns the binding effect of the award and compliance with it.

67.In accordance with Article 9.28.1, neither Party is to give diplomatic protection or bring an international claim, in respect of a dispute which one of its investors and the other Party have consented to submit or have submitted to arbitration under Section B, unless that other Party has failed to abide by and comply with the award rendered in such dispute. For the purposes of Article 9.28.1, diplomatic protection shall not include informal diplomatic exchanges for the sole purpose of facilitating settlement of the dispute. However, Article 9.28.1 does not exclude the possibility for a Party to have recourse to dispute settlement procedures under Chapter Fifteen with respect to a measure of general application, even if that measure is alleged to have breached the EUSFTA as regards a specific investment in respect of which a claim to arbitration has been submitted.

68.The annexes to Chapter Nine concern expropriation (Annexes 9-A to 9-C); a list of existing agreements between the Member States and Singapore (Annex 9-D); a mediation mechanism for investor-state disputes (Annex 9-E); the code of conduct for arbitrators and mediators (Annex 9-F); and rules on public access to documents, hearings and the possibility for third persons to make submissions (Annex 9-G).

69.Chapter Ten (‘Government Procurement’) and its nine annexes provide a framework for government procurement carried out by the Parties. For the purposes of Chapter Ten, a ‘covered procurement’ means procurement (i) for governmental purposes, of goods, services or a combination thereof, by any contractual means, for which the value as estimated equals or exceeds the thresholds specified in Annexes 10-A to 10-G; (ii) by a procuring entity that is (iii) not otherwise excluded (Article 10.2.2). Article 10.2.3 sets out the situations in which Chapter Ten does not apply (except where provided otherwise in Annexes 10-A to 10-G).

70.Article 10.3 lays down security and general exceptions.

71.Article 10.4 sets out the general principles governing government procurement. In particular, Article 10.4.1 and 10.4.2 lays down the obligations of national treatment and other forms of non-discrimination obligations. Pursuant to Article 10.4.7, those provisions shall not apply to measures that are not specific to procurement.

72.Article 10.5 sets out rules on information to be published by each Party on its procurement system.

73.For each covered procurement, a procuring entity is to publish a notice of intended procurement (Article 10.6.1) that must include the information listed in Article 10.6.2. In addition, a summary notice must be published for each intended procurement (Article 10.6.3). Article 10.7 sets out obligations regarding the type of condition that a procuring entity may (or may not) impose for participating in a procurement procedure; how to assess whether a supplier has satisfied those conditions; and the grounds on which a Party may exclude a supplier. Article 10.8 concerns suppliers’ qualifications. Article 10.9 sets out requirements regarding technical specifications and tender documentation. Article 10.10 concerns the need to provide sufficient time for suppliers to prepare and submit requests for participation and tenders. Article 10.11 applies to the conduct of negotiations. Article 10.12 sets out the conditions under which a procuring entity may use a limited tendering procedure and choose not to apply some of the guarantees set out in Chapter Ten. Article 10.14 contains rules for the treatment of tenders and the award of contracts. Article 10.15 lays down obligations regarding the information which a procuring entity must either provide to participating suppliers or publish.

74.Article 10.16.1 requires each Party, upon request by the other Party, to provide promptly any information necessary for determining whether a procurement was conducted fairly, impartially and in accordance with Chapter Fifteen. In defined circumstances, information is not to be disclosed (Article 10.16.2).

75.Article 10.17 sets out requirements regarding the type of administrative or judicial review for which each Party must provide, the conditions under which that review is to be conducted and the procedure that shall apply.

76.The annexes to Chapter Ten concern: central entities which procure in accordance with the provisions of the EUSFTA (Annex 10-A); sub-central entities which procure in accordance with the provisions of the EUSFTA (Annex 10-B); utilities and other entities which procure in accordance with the provisions of the EUSFTA (Annex 10-C); the covered goods (Annex 10-D); the covered services (Annex 10-E); the covered construction services and works concessions (Annex 10-F); general notes and derogations from the provisions of Article 10.4 (general principles) (Annex 10-G); means of publication (Annex 10-H); and public-private partnerships (Annex 10-I).

77.Chapter Eleven (‘Intellectual Property’) aims to facilitate the production and commercialisation of innovative and creative products and the provision of services between the Parties as well as to increase the benefits from trade and investment through effective protection of intellectual property rights and the provision of measures for effective enforcement of such rights (Article 11.1.1). The objectives and principles contained in Part I of the TRIPS Agreement (particularly Articles 7 and 8) apply to Chapter Eleven, mutatis mutandis (Article 11.1.2).

78.Section A addresses the scope of Chapter Eleven, relevant definitions and the exhaustion of intellectual property rights. Article 11.2.1 states that Chapter Eleven complements the rights and obligations of the Parties under the TRIPS Agreement and other international treaties on intellectual property to which they both are Parties. For the purposes of Chapter Eleven, ‘intellectual property rights’ means all categories of intellectual property that are the subject of Sections 1 to 7 of Part II of the TRIPS Agreement, namely: copyright and related rights; patents; trademarks; designs; layout-designs (topographies) of integrated circuits; geographical indications; and the protection of undisclosed information (Article 11.2.2(a)(i) to (vii), respectively), as well as plant variety rights (Article 11.2.2(b)). In accordance with Article 11.3, each Party is to be free to establish its own regime covering the exhaustion of intellectual property rights, subject to the relevant provisions of the TRIPS Agreement.

79.Each sub-section of Section B addresses a specific intellectual property right (or set of intellectual property rights).

80.Sub-section A is entitled ‘Copyright and Related Rights’. Pursuant to Article 11.4 (‘Protection Granted’), the Parties must comply with the rights and obligations set out in other international agreements, namely: the Berne Convention for the Protection of Literary and Artistic Works; the WIPO Copyright Treaty; the WIPO Performances and Phonograms Treaty; and the TRIPS Agreement. Article 11.5 defines the terms of protection for covered copyright and related rights.

81.The remainder of Sub-section A concerns the right to a single equitable remuneration of producers of phonograms (Article 11.6), practices and policies with regard to the resale rights of artists (Article 11.7), the availability of adequate legal protection and effective legal remedies against the circumvention of technological measures that are used in connection with rightholders’ exercise of their rights in, and that restrict acts in respect of, their works, performances and phonograms which are not authorised by the rightholders or permitted by domestic law (Article 11.9) and the protection of electronic rights management information (Article 11.10).

82.Sub-section B is entitled ‘Trademarks’. In accordance with Article 11.12, each Party must make all reasonable efforts to comply with the Trademark Law Treaty (done at Geneva on 27 October 1994) and the Singapore Treaty on the Law of Trademarks (adopted in Singapore on 27 March 2006). Each Party must provide for a system for registering trademarks in which the relevant trademark administration shall give reasons in writing for a refusal to register a trademark. An applicant must have the opportunity to appeal against a refusal before a judicial authority; third parties must be able to oppose trademark applications and each Party must provide a publicly available electronic database of trademark applications and registrations (Article 11.13). The Parties must protect well-known trademarks in accordance with the TRIPS Agreement (Article 11.14). Article 11.15 provides for exceptions to the rights conferred by a trademark.

83.Sub-section C (‘Geographical Indications’) applies to the recognition and protection of geographical indications for wines, spirits, agricultural products and foodstuffs which originate in the territories of the Parties (Article 11.16.1). Once the EUSFTA enters into force, the Parties must establish systems for registering and protecting geographical indications in their territories for such categories of goods as they deem appropriate (Article 11.17). Other provisions concern matters such as the scope of protection of geographical indications (Article 11.19) or the persons who may use a protected geographical indication (Article 11.20).

84.Sub-section D is entitled ‘Designs’. The Parties are to provide for the protection of independently created designs that are new or original. That protection must be provided through registration and confer exclusive rights upon the holder (Article 11.24.1). Article 11.25 sets out the scope of the rights conferred by registration on the owner of a protected design. The available term of protection must be at least 10 years from the date of application (Article 11.26). Article 11.27 concerns limited exceptions to the protection of designs. Article 11.28 addresses the relationship between protected designs and copyright.

85.Sub-section E is entitled ‘Patents’. By Article 11.29, the Parties reaffirm their obligations under the Patent Cooperation Treaty and, where appropriate, commit to make all reasonable efforts to comply with Articles 1 to 16 of the Patent Law Treaty in a manner consistent with their domestic law and procedures. The Parties also commit to respect the WTO General Council Decision of 30 August 2003 on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, together with the WTO General Council Decision of 6 December 2005 on the Amendment of the TRIPS Agreement. Article 11.31 lays down the circumstances in which the Parties must make available an extension of the duration of the rights conferred by patent protection.

86.Sub-section F (‘Protection of Test Data’) concerns the protection of test data submitted to obtain an administrative marketing approval to put, respectively, a pharmaceutical product or an agricultural chemical product on the market (Articles 11.33 and 11.34).

87.The single provision of Sub-section G (‘Plant Varieties’) states that the Parties reaffirm their obligations under the International Convention for the Protection of New Varieties of Plants, including their right to implement the optional exception to the breeder’s right as referred to in Article 15, paragraph 2, of that convention (Article 11.35).

88.Section C is entitled ‘Civil Enforcement of Intellectual Property Rights’. In Article 11.36, the Parties reaffirm their commitments under Articles 41 to 50 of the TRIPS Agreement. They agree to establish measures, procedures and remedies under their respective domestic law against infringements of intellectual property rights covered by Chapter Eleven, in compliance with such commitments (Article 11.36.1). Those measures, procedures and remedies must satisfy the requirements laid down in Article 11.36.2. Article 11.36.3 provides that nothing in Chapter Eleven affects the capacity of either Party to enforce its domestic law in general or creates any obligation on either Party to amend its existing laws as they relate to the enforcement of intellectual property rights. Furthermore, nothing in that chapter creates any obligation on either Party to put in place a distinct judicial system to enforce intellectual property rights or affecting the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general.

89.The remaining part of Section C addresses, in particular, the obligation to take appropriate measures to publish or make available to the public information on final judicial decisions in civil judicial proceedings concerning the infringement of an intellectual property right (Article 11.37); the obligation to make available the civil measures, procedures and remedies referred to in Section C for all categories of intellectual property that are the subject of Sections 1 to 6 of Part II of the TRIPS Agreement (Article 11.38); measures for preserving evidence (Article 11.39); injunctions (Article 11.42); alternative measures (Article 11.43); and damages (Article 11.44).

90.Section D is entitled ‘Border Measures’. Article 11.49 sets out the scope of such measures, specifically in relation to procedures with respect to goods under customs control. Article 11.50 requires the customs authorities to adopt a range of approaches to identify shipments containing counterfeit trademark goods, pirated copyright goods, pirated design goods, and counterfeit geographical indication goods. Article 11.51 identifies the areas in respect of which the Parties agree to cooperate.

91.The single provision in Section E (‘Cooperation’) records the Parties’ agreement to cooperate with a view to implementing the commitments and obligations undertaken under Chapter Eleven and identifies what activities are to be included in the areas of cooperation (Article 11.52).

92.Chapter Twelve (‘Competition and Related Matters’) addresses antitrust and mergers, public undertakings, undertakings entrusted with special or exclusive rights and State monopolies.

93.Section A concerns ‘Antitrust and Mergers’. In Article 12.1.1, the Parties recognise the importance of free and undistorted competition in their trade relations and acknowledge that anticompetitive business conduct or anti-competitive transactions may potentially distort the proper functioning of the Parties’ markets and undermine the benefits of trade liberalisation. Article 12.1.2 states that, in order to promote free and undistorted competition in all sectors of their economy, the Parties must each maintain comprehensive legislation which effectively addresses three issues which affect trade between them, namely: (a) horizontal and vertical agreements; (b) abuses of a dominant position; and (c) concentrations between undertakings which result in a substantial lessening of competition or which significantly impede effective competition.

94.Section B concerns ‘Public Undertakings, Undertakings Entrusted with Special or Exclusive Rights and State Monopolies’. Article 12.3.1 states that the provisions of Chapter Twelve are not to prevent either Party, in accordance with its law, from establishing or maintaining public undertakings and undertakings entrusted with special or exclusive rights. The remaining part of Article 12.3 lays down obligations as regards the conditions that apply to such undertakings. Article 12.4 states that the Parties may continue to designate or maintain State monopolies. However, they must adjust State monopolies of a commercial character in order to ensure that such monopolies do not discriminate when they procure and market goods and services.

95.Section C concerns ‘Subsidies’. Article 12.5.1 and 12.5.2 defines a subsidy for the purposes of the EUSFTA and states what types of subsidy are subject to Chapter Twelve. Article 12.5.3 provides that Articles 12.7 (‘Prohibited Subsidies’), 12.8 (‘Other Subsidies’) and 12.10 (‘Review Clause’) together with Annex 12-A do not apply to various fisheries and agriculture subsidies. The provisions of Section C are without prejudice to the Parties’ rights and obligations under the WTO Agreement (Article 12.6). Article 12.7 sets out what types of subsidies, related to goods and services, are prohibited and provides for exceptions. Article 12.8.2 concerns the exchange of information as regards such subsidies. Article 12.9 lays down transparency obligations. Article 12.10.1 requires the Parties to keep under constant review the matters to which Section C refers.

96.Section D (‘General Matters’) lays down obligations regarding cooperation and coordination in law enforcement (Article 12.11), confidentiality (Article 12.12) and consultation (Article 12.13). Article 12.14 excludes any matter arising under Chapter Twelve, save for Article 12.7 (‘Prohibited Subsidies’), from the scope of application of Chapters Fifteen (‘Dispute Settlement’) and Sixteen (‘Mediation Mechanism’).

97.Annex 12-A sets out principles applicable to other types of subsidy.

98.Chapter Thirteen is entitled ‘Trade and Sustainable Development’.

99.Section A contains ‘Introductory Provisions’. Article 13.1 refers to a number of international instruments and reaffirms the Parties’ commitment to developing and promoting international trade and their bilateral trade and economic relationship in such a way as to contribute to sustainable development (Article 13.1.1). The Parties recognise that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and emphasise the benefit of cooperation on trade-related social and environmental issues as part of a global approach to trade and sustainable development (Article 13.1.2). The Parties also recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protection afforded under domestic labour and environmental laws but stress that environmental and labour standards should not be used for protectionist trade purposes (Article 13.1.3). In addition, the Parties indicate that their aim is to strengthen trade relations and cooperation in ways that promote sustainable development in the context of Article 13.1.1 and 13.1.2 and state that it is not their intention to harmonise their labour or environmental standards (Article 13.1.4).

100.Each Party maintains the right to establish its own levels of labour and environmental protection, and to adopt or modify its relevant laws and policies accordingly, consistently with the principles of internationally recognised standards or agreements, referred to in Articles 13.3 and 13.6, to which it is a Party (Article 13.2.1). The Parties must continue to improve their laws and policies and strive towards providing and encouraging high levels of labour and environmental protection (Article 13.2.2).

101.Section B concerns ‘Trade and Sustainable Development— Labour Aspects’. The Parties recognise the value of international cooperation and agreements on employment and labour affairs as the international community’s response to economic, employment and social challenges and opportunities resulting from globalisation; and commit to consulting and cooperating as appropriate on trade-related labour and employment issues of mutual interest (Article 13.3.1). They also reaffirm their commitments to recognising full and productive employment and decent work for all as key elements of sustainable development for all countries and as a priority objective of international cooperation; and resolve to promote the development of international trade in a way that is conducive to full and productive employment and decent work for all (Article 13.3.2). In accordance with the ILO obligations assumed by the Parties and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, the Parties commit to respecting, promoting and effectively implementing the principles concerning fundamental rights at work, namely: (a) freedom of association and effective recognition of the right to collective bargaining; (b) elimination of all forms of forced or compulsory labour; (c) effective abolition of child labour; and (d) elimination of discrimination in respect of employment and occupation. The Parties also reaffirm their respective commitments to implementing effectively the ILO Conventions that Singapore and the Member States of the Union have ratified (Article 13.3). The Parties undertake to make continued and sustained efforts towards ratifying and effectively implementing the fundamental ILO conventions; to consider ratifying and implementing other ILO conventions, taking into account domestic circumstances; and to exchange relevant information (Article 13.3.4). Article 13.3.5 states that the Parties recognise that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage.

102.In Article 13.4, the Parties recognise the importance of working together on trade-related aspects of labour policies in order to achieve the EUSFTA’s objectives. That provision also contains a (non-exhaustive) list of areas in which the Parties may initiate cooperative activities of mutual benefit.

103.Article 13.5 states that each Party shall take account of relevant scientific and technical information and related international standards, guidelines or recommendations, including the precautionary principle, when preparing and implementing measures aimed at health and safety at work which may affect trade or investment between the Parties.

104.Section C concerns ‘Trade and Sustainable Development— Environmental Aspects’. The Parties recognise the value of international environmental governance and agreements; stress the need to enhance the mutual supportiveness (sic) between trade and environment policies, rules and measures; and state that they will consult and cooperate as appropriate with respect to negotiations on trade-related environmental issues of mutual interest (Article 13.6.1). Furthermore, the Parties undertake to implement effectively, through laws, regulations or other measures and practices in their respective territories, the multilateral environmental agreements to which they are a party (Article 13.6.2). The Parties reaffirm their commitment to reaching the ultimate objective of the UN Framework Convention on Climate Change (‘UNFCCC’) and of its Kyoto Protocol; and agree to work together to strengthen the multilateral, rules-based regime under the UNFCCC building on the UNFCCC’s agreed decisions and to support efforts to develop a post-2020 international climate change agreement under the UNFCCC applicable to all parties (Article 13.6.3). Nothing in the EUSFTA is to prevent either Party from adopting or maintaining measures to implement the multilateral environmental agreements to which it is a party, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade (Article 13.6.4).

105.Article 13.7 deals with trade in timber and timber products. The Parties recognise the importance of global conservation and sustainable management of forests. They undertake to: (a) exchange information on approaches to promote the trade in, and consumption of, timber and timber products from legally and sustainably managed forests and to promote the awareness of such approaches; (b) promote global forest law enforcement and governance and address trade in illegally harvested timber and timber products; (c) cooperate to promote the effectiveness of measures or policies aimed at addressing the trade in illegally harvested timber and timber products; and (d) promote the effective use of the Convention on International Trade in Endangered Species of Wild Fauna and Flora with regard to timber species that are at risk.

106.Article 13.8 concerns trade in fish products. The Parties recognise the importance of ensuring the sustainable conservation and management of fish stocks and undertake to: (a) comply with long-term conservation measures and sustainable exploitation of fish stocks as defined in the international instruments ratified by the respective Parties and uphold the principles of the Food and Agriculture Organisation (‘FAO’) and relevant UN instruments relating to these issues; (b) introduce and implement effective measures to combat illegal, unreported and unregulated (‘IUU’) fishing, facilitate keeping IUU products out of trade flows and exchange information on IUU activities; (c) adopt effective monitoring and control measures to ensure compliance with conservation measures; and (d) uphold the principles of the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas and respect the relevant provisions of the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate IUU Fishing.

107.Article 13.9 is drafted in nearly identical terms to those of Article 13.5, save for the fact that it refers and applies to ‘measures aimed at environmental protection’ rather than to health and safety at work.

108.In Article 13.10, the Parties recognise the importance of working together on trade-related aspects of environmental policies in order to achieve the EUSFTA’s objectives. That provision contains a (non-exhaustive) list of areas in which the Parties may initiate cooperative activities of mutual benefit.

109.Section D contains ‘General Provisions’. Article 13.11 records the Parties’ resolve to make continuing special efforts to facilitate and promote trade and investment in environmental goods and services (Article 13.11.1), the obligation to pay special attention to facilitating removing obstacles to trade or investment concerning climate-friendly goods and services (Article 13.11.2), the need to reduce greenhouse gas emissions and to limit distortions of trade as much as possible (Article 13.11.3) and to promote corporate social responsibility (Article 13.11.4).

110.Pursuant to Article 13.12, a Party may not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental and labour laws in a manner affecting trade or investment between the Parties (Article 13.12.1); or fail to enforce effectively its environmental and labour laws, through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties (Article 13.12.2).

111.Article 13.13 sets out transparency obligations as regards any measure of general application aimed at protecting the environment or labour conditions which may affect trade and investment between the Parties. Articles 13.14 and 13.15 deal with reviewing the impact of implementing the EUSFTA on sustainable development and institutional mechanisms for monitoring compliance with Chapter Thirteen.

112.If they disagree on any matter arising under Chapter Thirteen, the Parties are to have recourse only to the procedures provided for in Article 13.16 (‘Government Consultations’) and Article 13.17 (‘Panel of Experts’). Chapters Fifteen (‘Dispute Settlement’) and Sixteen (‘Mediation Mechanism’) do not apply to Chapter Thirteen (Article 13.16.1). Article 13.16.2 to 13.16.6 sets out the procedures for, and objectives of, government consultations. Article 13.17 sets out, inter alia, the mechanisms and procedures for establishing a panel of experts to consider any matter that has not been satisfactorily addressed by the Board provided for by Article 13.16.4.

113.Chapter Fourteen (‘Transparency’) aims to pursue a transparent and predictable regulatory environment for economic operators (Article 14.2.1), to reaffirm commitments under the WTO Agreement and lay down clarifications and improved arrangements for transparency, consultation and better administration of measures of general application (Article 14.2.2). A ‘measure of general application’ means a law, regulation, judicial decision, procedure or administrative ruling that may have an impact on any matter covered by the EUSFTA. It does not include a ruling that applies to a particular person (Article 14.1(a)).

114.Article 14.3 sets out the publication obligations for each Party in respect of both measures of general application (Article 14.3.1) and any proposal to adopt or to amend a measure of general application (Article 14.3.2). Article 14.4.1 requires each Party to designate a contact point to facilitate the effective implementation of the EUSFTA and communication between the Parties on any matter that it covers. Further details relating to that contact point, its functioning and the enquiries made to it are set out at Article 14.4.2 to 14.4.8.

115.Article 14.5 sets out obligations to be respected so as to administer all measures of general application in a consistent, impartial and reasonable manner. In particular, each Party must (a) endeavour to provide interested persons of the other Party who are directly affected by proceedings with reasonable notice, in accordance with its procedures, when such proceedings are initiated; (b) afford interested persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action; and (c) ensure that its procedures are based on and in accordance with its law.

116.Article 14.6.1 requires each Party to establish and maintain judicial, quasi-judicial or administrative tribunals or procedures to ensure prompt review and, where warranted, correction of administrative actions relating to matters covered by the EUSFTA. The tribunals must be impartial and independent of the office or authority entrusted with administrative enforcement and must not have any substantial interest in the outcome (Article 14.6.1). Each Party must also ensure that, in any tribunals or procedures referred to in Article 14.6.1, the parties to the proceedings are guaranteed the right to: (a) a reasonable opportunity to support or defend their positions; and (b) a decision based on the evidence and submissions of record or, where so required by law, the record compiled by the administrative authority (Article 14.6.2). Article 14.6.3 deals with implementing those decisions.

117.The Parties agree to cooperate in promoting regulatory quality and performance (Article 14.7.1) and promoting the principles of good administrative behaviour (Article 14.7.2).

118.Article 14.8 provides that, where there are specific and different rules in other chapters of the EUSFTA regarding matters covered by Chapter Fourteen, those rules are to prevail.

119.Chapter Fifteen (‘Dispute Settlement’) seeks to avoid or resolve any difference between the Parties concerning the interpretation and application of the EUSFTA with a view to arriving at, where possible, a mutually acceptable solution (Article 15.1). Chapter Fifteen applies to any difference concerning the interpretation and application of the EUSFTA, except as otherwise expressly provided (Article 15.2).

120.The procedures laid down in Articles 15.3 to 15.13 provide for the following steps in the dispute settlement mechanism: consultations in good faith with the aim of reaching a mutually agreed solution (Article 15.3.1 to 15.3.4); a request to establish an arbitration panel in accordance with Article 15.4 if consultations have been concluded and no mutually agreed solution has been reached (Article 15.3.5); arbitration (Articles 15.4 to 15.8); compliance proceedings (Articles 15.9 to 15.11); the application of remedies in case of non-compliance (Article 15.12); and review of any measure taken to comply after the suspension of obligations (Article 15.13).

121.Articles 15.14 to 15.19 contain various rules concerning arbitration procedures, which are supplemented by Annex 15-A. The general provisions in Section D deal with the list of arbitrators (Article 15.20); the relationship between the dispute settlement mechanism in Chapter Fifteen and the WTO dispute settlement mechanism (Article 15.21); time limits (Article 15.22); and the review and modification of Chapter Fifteen (Article 15.23).

122.Chapter Sixteen (‘Mediation Mechanism’) seeks to facilitate finding a mutually agreed solution through a comprehensive and expeditious mediation procedure (Article 16.1). Chapter Sixteen applies to any measure within the scope of the EUSFTA that adversely affects trade or investment between the Parties, except as otherwise provided (Article 16.2).

123.Before initiating the meditation procedure, a Party may at any time request in writing information regarding such a measure (Article 16.2). The procedure laid down in Articles 16.3 to 16.6 provides for the following steps in the mediation mechanism: the request to enter into mediation (Article 16.3); selection of the mediator (Article 16.4); the mediation itself (Article 16.5); and implementation of a mutually agreed solution (Article 16.6). Article 16.7 concerns the relationship between meditation and dispute settlement. Other provisions address time limits (Article 16.8), costs (Article 16.9), and review (Article 16.10).

124.Chapter Seventeen is entitled ‘Institutional, General and Final Provisions’. Articles 17.1 and 17.2 establish an institutional structure consisting of different committees in which the Parties are to meet to supervise and facilitate the implementation and application of the EUSFTA. Article 17.3 provides that, if any provision of the WTO Agreement that the Parties have incorporated into the EUSFTA is amended, the Parties are, as necessary, to consult each other with a view to finding a mutually satisfactory solution. Article 17.4 deals with decision-making in the different committees. Article 17.5 concerns amendments to the EUSFTA.

125.Article 17.6.1 states that the EUSFTA is to apply to taxation measures only in so far as that is necessary to give effect to the provisions of the EUSFTA. In accordance with Article 17.6.2, nothing in the EUSFTA is to affect the rights and obligations of either Singapore or the European Union or one of its Member States under any tax agreement between Singapore and any Member State or States of the European Union. Article 17.6.3 and 17.6.4 states that nothing in the EUSFTA is to prevent the adoption or retention of certain types of tax measures and measures aimed at preventing tax avoidance or tax evasion. Article 17.6.5 concerns Singapore’s right to adopt or maintain taxation measures which are needed to protect overriding public policy interests arising out of its specific space constraints.

126.The Parties are to authorise, in freely convertible currency and in accordance with the provisions of Article VIII of the Articles of Agreement of the International Monetary Fund, any payments and transfers on the current account of the balance-of-payments between them. In that context, the Parties are to consult each other (Article 17.7).

127.Each Party is to encourage its sovereign wealth funds to respect the Generally Accepted Principles and Practices— Santiago Principles (Article 17.8).

128.Article 17.9 concerns the conditions and procedures allowing a Party which is in serious balance-of-payments and external financial difficulties, or under threat thereof, to adopt or maintain restrictive measures with regard to trade in goods, services and establishment and payments and transfers related to investments.

129.Article 17.10 sets out a security exceptions clause, permitting the Parties to act in order to protect their essential security interests.

130.The remaining provisions of Chapter Seventeen concern the disclosure of information and protection of confidential information (Article 17.11); the entry into force of the EUSFTA (Article 17.12); its duration and termination (Article 17.13); the fulfilment of obligations under the EUSFTA (Article 17.14); the absence of direct effect (Article 17.15); annexes, appendices, joint declarations, protocols and understandings forming an integral part of the EUSFTA (Article 17.16); the relationship between the EUSFTA and the Partnership and Cooperation Agreement and the WTO Agreement (Article 17.17); future accessions to the European Union (Article 17.18); the territorial application of the EUSFTA (Article 17.19); and the authentic versions of the EUSFTA, that is to say the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish versions (Article 17.20).

131.Protocol 1 concerns the definition of the concept of ‘originating products’ and methods of administrative cooperation. Understandings 1 to 5 address, respectively, Article 17.6 (taxation); the remuneration of arbitrators; additional customs-related provisions; the mutual recognition of authorised economic operator programmes; and Singapore’s specific constraints of space and access to natural resources.

1– Original language: English.

2– The text of the EUSFTA is publicly available on the Commission’s website: http://trade.ec.europa.eu/doclib/press/index.cfm?id=961. For a very brief overview, see points 9 to 30 below and, for a more detailed summary, see the Annex to this Opinion. The summary in the Annex to this Opinion is based on the version of the English text of the EUSFTA which the Commission submitted to the Court (as an annex to its request). It subsequently provided the Court with translations of the EUSFTA into all the official languages of the European Union. It transpired during the process of drafting and translating this Opinion that there were certain differences between the version originally supplied by the Commission in English and (i) the publicly available version in English as also (ii) the other language versions provided by the Commission. For example, the publicly available version contains an additional recital in English: ‘Reaffirming each Party’s right to adopt and enforce measures necessary to pursue legitimate policy objectives such as social, environmental, security, public health and safety, promotion and protection of cultural diversity’. It also appears that the numbering of the footnotes differs as between the English-language version (both as supplied to the Court and as available on the internet) and the other language versions. Since the only publicly available version at the time of delivery of this Opinion is in English, I have used the footnote numbers appearing in that version but have indicated, when it has come to my attention, where a particular footnote may have a different number in other language versions. I can offer no concluded view as to whether other changes have been made of which I am unaware.

3– That is to say, the agreements listed in Appendix 1 to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

4– See, in that regard, Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 34, 53, 71, 98 and 105. In that Opinion, the Court examined the subject matter and objectives of different international agreements forming part of the Marrakesh Agreement Establishing the World Trade Organisation (‘the WTO Agreement’), in particular the General Agreement on Trade in Services (‘the GATS’) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’) and various agreements governing trade of goods which are included in Annex 1A (‘Multilateral Agreements on Trade in Goods’) to the WTO Agreement, such as the General Agreement on Tariffs and Trade 1994 (‘the GATT 1994’) and the Agreement on Technical Barriers to Trade (‘the TBT Agreement’).

5– By ‘implied’ exclusive external competence, I mean that exclusivity is not based on a Treaty provision expressly conferring exclusive competence as regards a particular area on the European Union.

6– That term is used by the Parties in their submissions. See further, in particular, points 307 and 346 below.

7– Article XXIV is entitled ‘Territorial Application— Frontier Traffic— Customs Unions and Free-trade Areas’.

8– Article V concerns ‘Economic Integration’.

9– In essence, ‘national treatment’ means that internal taxation and regulation should not be applied to imported or domestic products so as to afford protection to domestic production.

10–The text of the WTO Agreement and of all of the WTO agreements that form part of it are available at: https://www.wto.org/english/docs_e/legal_e/final_e.htm.

11– See also Article 4(1) TEU.

12–See also Declaration No18 in relation to the delimitation of competences in the declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon (OJ 2016 C202, p.335). That declaration confirms that ‘… competences not conferred upon the Union in the Treaties remain with the Member States’. It further states that ‘when the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence…’.

13– OJ 2012 C326, p.307.

14–Article 6 TFEU contains an exhaustive list of the areas in which the European Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States.

15– It is common ground that the European Union enjoys exclusive external competence, pursuant to Articles 3(1)(e) and 207(1) TFEU, as regards certain parts of the EUSFTA.

16– Article 5 EC stated: ‘The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.’

17– For a useful summary, see Lenaerts, K., and Van Nuffel, P., European Union Law, Sweet & Maxwell, 2011, paragraphs7.021 to 7.025.

18– I do not speculate on whether that reversibility also applies to exclusive external EU competence under Article 3(2) TFEU. It has been argued that, if the EU occupies the field internally and proceeds to conclude an international agreement on the basis of Article 3(2) TFEU, the fact that it later ceases to legislate internally does not affect the exclusive character of its now long-established external competence. However, academic opinion is divided on that point.

19– It has to be said that the drafting here is less than ideal. The pre-emption mechanism in Article 2(2) TFEU applies to all shared competences, unless an exception is expressly provided for (such as in Article 4(3) and (4) TFEU). On its wording, Article 4(1) TFEU logically defines Common Foreign and Security Policy (CFSP) competences also as ‘shared’ competences that are therefore open to pre-emption under Article 2(2): a result that might disconcert at least some Member States.

20– See, for example, as regards the principle of conferral: Opinion2/94 (Accession of the Community to the ECHR) of 28 March 1996, EU:C:1996:140, paragraph24, and Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph5.

21– Although Article 3(2) lays down four grounds, since the final alternative (‘affect common rules or alter their scope’) makes provision for two possibilities, I shall treat the last two of these together in what follows. References below to ‘the third ground’ under Article 3(2) should therefore be construed as including both possibilities.

22– Each of those grounds reflects the principle of conferral (see Opinion 1/13 of 14 October 2014, EU:C:2014:2303, paragraph 67 and the case-law cited). The first ground reflects (in part) Opinion 1/94 of 15 November 1994, EU:C:1994:384, paragraph 95; the second ground encapsulates Opinion1/76 of 26 April 1977, EU:C:1977:63, paragraph 3; the third and fourth grounds reflect the principle (though expressed in broader terms) established in judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraphs 17 and 18 (‘the judgment in ERTA’). For a more detailed discussion of the ERTA principle, see points 120 to 131 below.

23– A ‘legislative act’ is a legal act adopted by legislative procedure (Article 289(3) TFEU). On the distinction between legislative acts and regulatory acts, see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625. The EU Treaty prohibits legislative acts in the CFSP: see the second subparagraph of Article 24(1) TEU.

24– Here again the Treaty drafting post-Lisbon is a little curious. What I have set out in the main text would seem to be the natural reading of the third ground of Article 216(1) TFEU taken in conjunction with the first ground of Article 3(2) TFEU; and it indeed leads to the conclusion that the external competence that the European Union thereby acquires is exclusive in nature. But that conclusion is not easy to reconcile with the wording of Article 4(4) TFEU. Suppose (for example) that the European Union adopted a legislative act in the area of development cooperation that provided for the conclusion of an international agreement. Article 4(4) TFEU says that the European Union ‘shall have competence to carry out activities and conduct a common policy’ in the areas of development cooperation and humanitarian aid; but continues, ‘however, the exercise of that competence shall not result in Member States being prevented from exercising theirs’. Given that wording, can it really be said that the resulting EU competence is always exclusive? (Article 4(3) TFEU contains broadly similar wording in relation to competences in the areas of research, technological development and space and presents the same conundrum.)

25– See, in particular, Opinion1/76 (Agreement establishing a European laying-up Fund for Inland Waterway Vessels) of 26 April 1977, EU:C:1977:63, paragraphs 1 to 3. In that case, the agreement at issue sought to rationalise the economic situation of the inland waterway transport industry in a geographical region in which transport by inland waterway is of special importance within the whole network of international transport (paragraph 1). The Court found that it was ‘… impossible fully to attain the objective pursued by means of the establishment of common rules pursuant to Article 75 of the [EEC] Treaty, because of the traditional participation of vessels from a third State, Switzerland, in navigation by the principal waterways in question, which are subject to the system of freedom of navigation established by international agreements of long standing’ (paragraph 2). Although the Court did not state in terms in that Opinion that the ensuing EU competence was exclusive, the Court has clearly interpreted Opinion1/76 in that sense in subsequent case-law. See, for example, Opinion2/92 (Third Revised Decision of the OECD on National Treatment) of 24 March 1995, EU:C:1995:83, paragraph 32.

26– The pre-Lisbon ‘added value’ of the Court’s ruling in ERTA was twofold: first, it created external competence and second, it defined that competence as exclusive. If an area (appropriately defined) is occupied by common rules, this suffices to trigger the third ground under Article 3(2) TFEU in respect of that area. See further points 120 to 131 below.

27– The fourth ground of Article 216(1) TFEU reads ‘likely to affect common rules or alter their scope’, whilst the third ground of Article 3(2) TFEU reads ‘in so far as its conclusion may affect common rules or alter their scope’. I do not consider that anything material turns on the slight difference in wording between the two provisions.

28– See point 60 above.

29– I leave to one side the question whether, if a Member State were unilaterally to withdraw from an agreement concluded by both the Member States and the European Union without first engaging in dialogue with the EU institutions (in particular, with the Commission and the Council), that might be considered to contravene the duty of sincere cooperation under Article 4(3) TEU.

30– In her Opinion in Commission v Council, C‑13/07, EU:C:2009:190, point 121, Advocate General Kokott wrote: ‘Just as a little drop of pastis can turn a glass of water milky, individual provisions, however secondary, in an international agreement based on the first subparagraph of Article 133(5) EC can make it necessary to conclude a shared agreement’. See also judgment of 3 December 1996, Portugal v Council, C‑268/94, EU:C:1996:461, paragraph 39 and the case-law cited.

31– See, to that effect, Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 15.

32– See, inter alia, Opinion1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975, EU:C:1975:145, pp.1360 and 1361; Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraphs 6 and 17; and Opinion2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 145.

33– See, inter alia, Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraphs 6 and 17.

34– In accordance with Article 46(1) of the 1969 Vienna Convention on the Law of Treaties (1155 UNTS 331; the ‘1969 Vienna Convention’), ‘a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance’. A manifest violation is, according to Article 46(2), one that ‘would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’. Article 46 of the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (not yet entered into force) (25 ILM 543 (1986)) provides for similar rules.

35– In that connection, I note that the Court has now received a request for a preliminary ruling regarding the compatibility with Articles 18, first paragraph, 267 and 344 TFEU of an ISDS provision in a bilateral investment protection agreement between Member States of the European Union: see Case C‑284/16 Slovak Republic v Achmea BV (pending before the Court).

36– See Articles 4(1) and 5(2) TEU. See also Articles 2 to 6 TFEU and the discussion at points 55 to 64 above.

37– See, inter alia, Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 5, and judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 47.

38– See, most recently, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 43 and the case-law cited.

39–Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 111.

40–Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 112 and the case-law cited.

41– That appears from the structure of the Court’s reasoning in Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739.

42–See, for example, judgments of 12 December 2002, Commission v Council, C‑281/01, EU:C:2002:761, paragraph 43, and of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 76.

43– See Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 166.

44–See, for example, Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 68; judgments of 12 December 2002, Commission v Council, C‑281/01, EU:C:2002:761, paragraph 43; and of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 76; and Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraphs 37 and 44.

45–Judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 44 and the case-law cited; see also judgment of 10 January 2006, Commission v Council, C‑94/03, EU:C:2006:2, paragraph 51.

46–Opinion1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p. 1364. See also judgment of 15 December 1976, Donckerwolcke and Schou, 41/76, EU:C:1976:182, paragraph 32.

47–Article 30 TFEU.

48–Opinion of Advocate General Wahl in Opinion procedure 3/15 (Marrakesh Treaty on Access to Published Works), EU:C:2016:657, point 43.

49– Opinion 1/78 (International agreement on natural rubber) of 4 October 1979, EU:C:1979:224, paragraph 44, and judgment of 26 March 1987, Commission v Council, 45/86, EU:C:1987:163, paragraph 20.

50–See Opinion of Advocate General Wahl in Opinion procedure 3/15 (Marrakesh Treaty on Access to Published Works), EU:C:2016:657, point 43.

51– Opinion1/78 (International agreement on natural rubber) of 4 October 1979, EU:C:1979:224, paragraphs 41 to 46.

52–Judgments of 17 October 1995, Werner, C‑70/94, EU:C:1995:328, paragraph 10, and of 17 October 1995, Leifer and Others, C‑83/94, EU:C:1995:329, paragraph 11.

53–Judgment of 29 March 1990, Greece v Council, C‑62/88, EU:C:1990:153, paragraphs 17 to 20, and Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 40. See also, more recently, Opinion of Advocate General Wahl in Opinion procedure 3/15 (International agreement on natural rubber), EU:C:2016:657, point 69.

54– Judgments of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 50, and of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 56.

55– See, inter alia, judgments of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraphs 51 and 52 and the case-law cited, and of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraphs 57 and 58.

56–Judgment of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 67.

57– That approach finds support in Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 44 and 45 (concerning services) and 59 and 60 (concerning intellectual property rights).

58–That declaration states that ‘in accordance with the system of division of competences between the Union and the Member States as provided for in the [TEU] and the [TFEU], competences not conferred upon the Union in the Treaties remain with the Member States’.

59– See further points 424 to 430 below.

60–For that reason, I do not share the interpretation which Advocate General Kokott gave to the limitation that previously resulted from Article 133(6) EC. See Opinion of Advocate General Kokott in Commission v Council, C‑13/07, EU:C:2009:190, points 120 to 122 and 139 to 142. According to Advocate General Kokott, the meaning and purpose of the first subparagraph of that provision is ‘…very generally, to put the ?European Union’s? internal and external powers on a parallel footing and to prevent the ?European Union? from entering into external commitments to which it would be unable to give effect internally for want of sufficient powers’.

61– See Article 6 TFEU.

62–See Article 168 TFEU. Article 6 TFEU provides that the European Union has, as regards the protection and improvement of human health, competence to carry out actions to ‘support, coordinate or supplement the actions of the Member States’.

63–See, respectively, Articles 153(2)(a), 165(4), 168(5) and 167(5) TFEU.

64– See points 208 to 219 below.

65– Judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 16.

66– Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 49 and 50.

67– Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 48.

68–See the third subparagraph of Article 133(6) EC (‘The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300’). That provision reflected the intention of the draftsmen of the Treaty of Nice ‘that a form of status quo ante should be preserved in that field’ (see Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 159).

69–See Article 207(5) TFEU.

70– Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 164.

71– Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 163. The same conclusion could already be drawn (albeit by implication) from Opinion2/92 (Third Revised Decision of the OECD on National Treatment) of 24 March 1995, EU:C:1995:83, paragraph 27.

72– See points 208 to 219 below.

73–See points 221 to 224 below.

74–See, inter alia, judgment of 5 November 2002, Commission v Germany, C‑476/98, EU:C:2002:631, paragraph 109 and the case-law cited.

75–Judgment of 5 November 2002, Commission v Germany, C‑476/98, EU:C:2002:631, paragraph 108 and the case-law cited.

76–See, to that effect, Opinion1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraphs 45, 121 and 122.

77– See points 225 to 268 below.

78–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 66.

79–Judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 21. Those obligations are now enshrined in the second and third subparagraphs of Article 4(3) TEU.

80–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 75.

81–Thus, that approach could be applied to the Convention of the Council of Europe on the protection of the rights of broadcasting organisations (judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraphs 78 to 103) or the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled (see Opinion of Advocate General Wahl in Opinion procedure 3/15 (Marrakesh Treaty on Access to Published Works), EU:C:2016:657, points 137 to 154).

82–See points 350 to 359 below.

83–Judgments of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 69 and the case-law cited, and of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 30. That step in the analysis distinguishes the test under Article 3(2) TFEU from the identification of areas ‘pre-empted’ by EU action under shared competences.

84–Judgments of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 70 and the case-law cited, and of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 31.

85–See, for example, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 81.

86–See, for example, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 82.

87–See, for example, Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraph 172.

88–Opinion1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraph 74 and the case-law cited, and judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph 33.

89–See points 234 and 349 to 361 below.

90–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 68 and the case-law cited.

91–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 68 and the case-law cited.

92–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 71 and the case-law cited.

93–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 96.

94– I have already expressed this view in my Opinion in Commission v Council, C‑114/12, EU:C:2014:224, points 104 to 111.

95–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 73.

96–See point 2 of the Annex to my Opinion.

97–A separate issue is whether all matters covered by the EUSFTA chapter on services (Chapter Eight) effectively fall within the European Union’s exclusive competence. See points 195 to 268 below.

98–See points 3 to 12 of the Annex to my Opinion.

99–See point 131 of the Annex to my Opinion.

100– The text of that agreement is available at: https://www.wto.org/english/tratop_e/tradfa_e/tradfa_e.htm.

101–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 34.

102–The Court examined some of those agreements (the Agreement on Agriculture, the SPS Agreement and the TBT Agreement) in the light of the specific arguments raised by parties in relation to them. See Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 28 to 33.

103–The position was the same under the GATT 1947, in so far as the European Community had progressively assumed powers previously exercised by the Member States. See judgments of 12 December 1972, International Fruit Company and Others, 21/72 to 24/72, EU:C:1972:115, paragraph 18, and of 3 June 2008, The International Association of Independent Tanker Owners and Others, C‑308/06, EU:C:2008:312, paragraphs 48 and 49.

104–See also points 510 to 512 below.

105– See Article 12 of the Customs Valuation Agreement and Article X:1 of the GATT 1994.

106– See Articles 18(1) and 19 of the Customs Valuation Agreement.

107– See, for example, Article IX:6 of the GATT 1994 (cooperation with a view to preventing the use of trade names in certain manners); Article XV of the GATT 1994 (cooperation, consultation and exchange of information with the IMF regarding exchange arrangements); Article XXV of the GATT 1994 (joint action by the Contracting Parties); Article XXXVIII of the GATT 1994 (joint action to further the objectives set forth in Article XXXVI on trade and development); Article 4(2) of the SPS Agreement (consultation with the aim of achieving agreements on recognition of the equivalence of specified SPS measures); Article 7 and Annex B of the SPS Agreement (transparency and the exchange of information); Article 10 of the TBT Agreement (the exchange of information).

108–See Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 34.

109– See points 467 to 504 below.

110–See points 19 to 51 of the Annex to my Opinion.

111–For the arguments relating to transport, see points 168 to 194 below.

112– Directive of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive2002/92/EC and Directive 2011/61/EU (OJ 2014 L173, p.349).

113– Directive of the European Parliament and of the Council of 7 September 2005 (OJ 2005 L255, p.22), as amended.

114– Directive of 23 July 1996 on the harmonisation of the conditions for obtaining national boatmasters’ certificates for the carriage of goods and passengers by inland waterway in the Community (OJ 1996 L235, p.31) and Directive of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (OJ 2008 L323, p.33).

115– Regulation of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No1592/2002 and Directive 2004/36/EC (OJ 2008 L79, p.1), as amended.

116– Regulation of the European Parliament and of the Council of 14 January 2009 on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No2299/89 (OJ 2009 L35, p.47).

117– Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L343, p.32).

118– Regulation of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ 2009 L300, p.72).

119– Regulation of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No561/2006 (OJ 2009 L300, p.88).

120– Regulation of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive96/26/EC (OJ 2009 L300, p.51).

121– See point 177 below.

122– See Article 8.13 of the EUSFTA.

123– Directive of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L157, p.1).

124– See point 169 above.

125– Regulation of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L378, p.1).

126– Article 1(2) of Council Regulation No4055/86.

127– The Commission relies on Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 51, and Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 166.

128–Those examples include Directive2012/34; Directive2005/45/EC of the European Parliament and of the Council of 7 September 2005 on the mutual recognition of seafarers’ certificates issued by the Member States and amending Directive2001/25/EC (OJ 2005 L255, p.160); and Regulation No1071/2009.

129– The Parties have not focused, in their submissions, on the internal processes that led the European Union to reach agreement with Singapore on the terms of those reservations.

130– Regulation of 16 December 1991 laying down the conditions under which non-resident carriers may transport goods or passengers by inland waterway within a Member State (OJ 1991 L373, p.1).

131– Regulation of 8 July 1996 on common rules applicable to the transport of goods or passengers by inland waterway between Member States with a view to establishing freedom to provide such transport services (OJ 1996 L175, p.7).

132– Article 4(1)(a) and (b) of Directive2014/66.

133– Regulation of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L243, p.1).

134–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 44.

135–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 45 to 47. The Court confirmed that position in Opinion2/92 (Third Revised Decision of the OECD on National Treatment) of 24 March 1995, EU:C:1995:83, paragraphs 24 to 26.

136–See Article 133(5) EC. The Treaty of Amsterdam had introduced a legal basis in the EC Treaty for extending the scope of the common commercial policy. However, the option to do so was never exercised.

137–The second subparagraph of Article 133(6) EC provided that ‘by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, [fell] within the shared competence of the Community and its Member States’.

138–Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 119.

139–See points 208 to 219 below. Specific procedural rules still apply as regards certain areas or sectors of trade in services. See Article 207(4) TFEU.

140–Section B applies to measures affecting the cross-border supply of services. However, for the purposes of that section, the cross-border supply of services is defined as also covering consumption abroad (Article 8.4 of the EUSFTA).

141–See point 197 above.

142–See, to that effect, judgments of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraphs 73 and 74, and of 18December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 37.

143–See point 109 above.

144–See point 109 above.

145–See points 225 to 268 below.

146–See Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraphs 168 to 173.

147–See judgment of 4 April 1974, Commission v France, 167/73, EU:C:1974:35, paragraph 27.

148–See, for example, judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 47.

149–Judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb, C‑338/09, EU:C:2010:814, paragraphs 31 to 33.

150–See, by analogy, judgment of 15October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685.

151–Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 169.

152–Article 4(2)(g) TFEU.

153–Recitals 32, 33 and 34 of Regulation No216/2008.

154–Article 3(d) of Regulation No216/2008.

155–Article 1(1)(a) of Regulation No216/2008.

156–See point 123 above.

157–Appendix 8-A-1, Schedule of Specific Commitments in conformity with Article 8.7 (Cross-Border Supply of Services), Section 11.C.

158–See points 128 to 130 above.

159–Headings 16 and 17.

160–An overview of that legislation is available at: www.eur-lex.europa.eu/summary/chapter/transport.html?root_default=SUM_1_CODED%3D32,SUM_2_CODED%3D3205&locale=en (accessed 4 October 2016).

161–Each of those modes is mentioned in Article 100 TFEU.

162–The Commission has put forward nothing regarding the allocation of competences with respect to pipeline transport of goods other than fuel.

163–Article 1(4)(a) and (b) of Regulation No4055/86.

164–Judgment of 8 July 2014, Fonnship and Svenska Transportarbetareförbundet, C‑83/13, EU:C:2014:2053, paragraph 41 and the case-law cited.

165–Article 1(1) and (2) of Regulation No4055/86.

166–Whilst Article 7 of Regulation No4055/86 entitles the Council to ‘… extend the provisions of [that] Regulation to nationals of a third country who provide maritime transport services and are established in the [European Union]’, that provision has not so far been implemented.

167–Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81.

168–Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L12, p.1).

169–Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraph 172.

170–A nationality condition may be applied.

171–See, inter alia, judgments of 5October 1994, Commission v France, C‑381/93, EU:C:1994:370, paragraph 13, and of 11January 2007, Commission v Greece, C‑269/05, not published, EU:C:2007:17, paragraph 20.

172–See, inter alia, judgment of 14November 2002, Geha Naftiliaki and Others, C‑435/00, EU:C:2002:661, paragraph 20.

173–Article 3 of Regulation No4055/86.

174–See points 214 and 215 above.

175–See points 350 to 359 below.

176–As I have explained, it is for the party asserting the exclusive competence to demonstrate the exclusive nature of the European Union’s external competence on which it relies (point 122 above).

177–Article 2(1) of Directive2014/66.

178–See point 226 above. Nor is it relevant to the allocation of competences that the European Union’s Schedule of Commitments was negotiated on the basis of GATS schedules.

179–See point 243 above.

180–See points 221 to 224 above.

181–Regulation of 24 July 1989 on a code of conduct for computerised reservation systems (OJ 1989 L220, p.1).

182–See, for example, judgment of 5 November 2002, Commission v Denmark, C‑467/98, EU:C:2002:625, paragraph 103.

183–See points 243 and 246 above.

184–There is no mention of rail transport services in relation to mode 4 in the Schedule of Specific Commitments concerning key personnel and graduate trainees and business services sellers in Appendix 8-A-3, whose purpose is, in accordance with its first point, to enumerate ‘the economic activities liberalised pursuant to Articles 8.7 … and 8.12 … for which limitations on key personnel and graduate trainees in accordance with Articles 8.14 … and 8.15 applies’ and to specify those limitations.

185–The Commission relies on, in particular, Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 67, and judgment of 3 December 1996, Portugal v Council, C‑268/94, EU:C:1996:461, paragraph 75.

186–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 66 to 68.

187–Judgment of 3 December 1996, Portugal v Council, C‑268/94, EU:C:1996:461, paragraph 75.

188–Article 1(2) of Directive2012/34.

189–Recital 7 of Directive2012/34.

190–See Articles 1(1)(b), 10(1) and (2) and 17 of Directive2012/34.

191–Articles 18, 19, 20 and 21 of Directive2012/34.

192–Article 8.9 of the EUSFTA. The exceptions to that rule laid down in that provision are not relevant here.

193–Article 8.10.1 of the EUSFTA. See also point 252 above.

194–Article 8.11.1 of the EUSFTA.

195–Article 17(1) and (3) of Directive2012/34.

196–Appendix 8-A-2 to the EUSFTA. That limitation, which applies to rail transport services requiring the use of the public domain, enables economic activities considered as public utilities at a national or local level to be subject to public monopolies or to exclusive rights granted to private operators.

197–Article 10 of Directive2012/34.

198–Articles 38 to 54 of Directive2012/34.

199–See point 125 above.

200–See point 226 above.

201–Article 1(1) of Regulation No1071/2009.

202–Articles 3 and 5 to 9 of Regulation No1071/2009.

203–Article 10 of Regulation No1071/2009.

204–The regulation applies both to international road haulage, defined as international carriage of goods by road for hire or reward for journeys carried out within the territory of the Union, and the national carriage of goods by road undertaken on a temporary basis by a non-resident haulier (‘cabotage’) (Article 1(1) and (4) of Regulation No1072/2009).

205–That regulation applies to the international carriage of passengers by coach and bus within the territory of the European Union by carriers for hire or reward or by own-account carriers established in a Member State in accordance with its law, using vehicles which are registered in that Member State and are suitable or intended, by virtue of their construction and equipment, to carry more than nine persons, including the driver, and to the movement of such vehicles when empty in connection with such carriage (Article 1(1) of Regulation No1073/2009). It also applies to national road passenger services for hire or reward operated on a temporary basis by a non-resident carrier (‘cabotage’) (Article 1(4) of Regulation No1073/2009).

206–See Article 4 of Regulations Nos1072/2009 and 1073/2009.

207–See Articles 5 and 7 of Regulation No1072/2009. A ‘driver attestation’ is, in essence, a certificate delivered by a Member State to any haulier for the carriage of goods by road for hire or reward under a Community licence.

208–See points 257 and 258 above.

209–Article 8.9 of the EUSFTA. The exceptions to that rule laid down in that provision are not relevant here.

210–Article 8.10.1 of the EUSFTA. See also point 260 above.

211–Article 8.11.1 of the EUSFTA.

212–Articles 7 and 8 of Regulation No1071/2009.

213–See points 523 to 544 below.

214–See points 52 to 60 of the Annex to my Opinion.

215– Article I:2(c) of the GATS.

216– The Commission refers to judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 31, and Opinion1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraphs 122 and 133.

217– Judgment of 27 November 2012, C‑370/12, EU:C:2012:756.

218– Opinion 1/92 (Second Opinion on the EEA Agreement) of 10 April 1992, EU:C:1992:189.

219– Judgment of 27 November 2012, C‑370/12, EU:C:2012:756.

220– Opinion 1/92 (Second Opinion on the EEA Agreement) of 10 April 1992, EU:C:1992:189.

221– Regulation of the European Parliament and of the Council of 12 January 2005 on Community statistics concerning balance of payments, international trade in services and foreign direct investment (OJ 2005 L35, p.23).

222– Directive of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L178, p.5).

223– Regulation of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries (OJ 2012 L351, p.40).

224– See points 371 to 398 below.

225– Article 9.1.1 and 9.1.2 of the EUSFTA.

226–OJ 2004 C310, p.1.

227–Discussions on Article III-315(1) coincided with debates within the WTO on whether to negotiate WTO provisions on foreign direct investment. The WTO Ministerial Declaration adopted on 14 November 2001, launching the Doha Development Round, had recognised ‘… the case for a multilateral framework to secure transparent, stable and predictable conditions for long-term cross-border investment, particularly foreign direct investment, that will contribute to the expansion of trade …’ (emphasis added) (WTO Ministerial Declaration adopted on 14 November 2001, WT/MIN(01)/DEC/1 (20 November 2001), paragraph20; see also paragraph22). Just when foreign direct investment was becoming part of the common commercial policy, WTO Members (meeting within the WTO General Council) decided that no work towards negotiations on investments would take place within the WTO during the Doha Round (WTO, General Council, Decision Adopted by the General Council on 1 August 2004, WT/L/579 (2 August 2004), paragraph 1(g)).

228–See point 344 below.

229–See, for example, Articles 101(1)(b), 126(3), 199(3) and (4) and 309 TFEU; Protocol No5 on the Statute of the European Investment Bank; Protocol No10 on Permanent Structured Cooperation established by Article 42 TEU; and Declaration No30 on Article 126 of the Treaty on the Functioning of the European Union.

230–See judgments of 10 April 2014, Emerging Markets Series of DFA Investment Trust Company, C‑190/12, EU:C:2014:249, paragraph 39 and the case-law cited, and of 10 February 2011, Haribo, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 50 and the case-law cited.

231–Judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 39.

232–For definitions in other secondary legislation, see, for example, Regulation (EU) No549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union (OJ 2013 L174, p.1), item 4.65 in Annex A and Annex 7.1— Summary of each asset category; and Annex II to Regulation No184/2005. See also, for example, the Guideline of the European Central Bank of 9 December 2011 on the statistical reporting requirements of the European Central Bank in the field of external statistics (ECB/2011/23) (OJ 2012 L65, p.1), Annex III, item 6.1.

233–See judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 23 and the case-law cited; see also judgment of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraphs 179 and 180 and the case-law cited.

234–Judgment of 17 October 2013, Welte, C‑181/12, EU:C:2013:662, paragraph 32 and the case-law cited.

235–Judgment of 13 November 2012, Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraph 102 and the case-law cited.

236–Judgment of 10 February 2011, Haribo, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 137. That 10% threshold is also used in, for example, the definition of ‘foreign direct investment’ in Regulation No549/2013, Annex 7.1, and Guideline of the European Central Bank (ECB/2011/23), Annex III, item 6.1.

237–See, for example, OECD Benchmark Definition of Foreign Direct Investment, fourth edition, OECD, 2008, paragraph 11; see also paragraphs 29, 117 and 122 to 147.

238–See, for example, Balance of Payments Manual, sixth edition, IMF, 2009, paragraph 359.

239–Judgment of 21 October 2010, Idryma Typou, C‑81/09, EU:C:2010:622, paragraph 48 (emphasis added). See also judgment of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 47 and the case-law cited; and, for example, the definition of ‘portfolio investment’ in Guideline of the European Central Bank (ECB/2011/23), item 6.2.

240–See, for example, OECD Benchmark Definition of Foreign Direct Investment, fourth edition (‘… portfolio investment whereby investors do not generally expect to influence the management of the enterprise’), paragraph 11; see also paragraph 29.

241– See points 196 and 197 above.

242– See Articles I:2(c), X and XVI of the GATS. Some of those rules concern, in particular, the conditions under which investments can be made. In that regard, the GATS (at least) partly complements investment agreements that often focus largely on the subsequent treatment of an investment.

243–See Article XXVIII(d) of the GATS.

244– Opinion1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739.

245–Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 34. See also point 145 above. The TRIMs Agreement is an agreement included in Annex 1A to the WTO Agreement (‘Multilateral Agreements on Trade in Goods’).

246–Article 1 of the TRIMs Agreement.

247–Article 2(1) of the TRIMs Agreement. The Annex to that agreement, to which Article 2(2) refers, contains a non-exhaustive list of trade-related investment measures that are inconsistent with the obligation of national treatment under Article III:4 of the GATT 1994 (that is to say, national treatment in respect of all laws, regulations and requirements affecting the internal sale, offering sale, purchase, transportation, distribution or use of products).

248–See, for example, judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 51 and the case-law cited.

249–See Note from the Praesidium to the Convention, Draft Articles on external action in the Constitutional Treaty, CONV 685/03 (23 April 2003), pages 52 and 54. Or, as the European Union and the Member States put it in the context of the WTO discussions on the relationship between trade and investment, trade and foreign direct investment are inter-dependent and complement each other and foreign direct investment is an important generator of trade (WTO, Working Group on the Relationship between Trade and Investment, Communication from the European Community and its Member States, Concept Paper on the Definition of Investment, WT/WGTI/W/115 (16 April 2002), paragraph 2).

250–See also points 510 to 512 below.

251–See, in particular, points 145, 196 and 197 above.

252–Judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraphs 29 and 30 and the case-law cited.

253–Judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 36 and the case-law cited. See also, for example, judgment of 4 June 2002, Commission v Portugal, C‑367/98, EU:C:2002:326, paragraph 48.

254–See judgment of 13 July 1995, Spain v Council, C‑350/92, EU:C:1995:237, paragraph 22.

255–On Article 207(6) TFEU, see also points 106 to 110 above.

256–See point 326 above. In that regard, I also note that footnote 8 to Article 8.8(d) of the EUSFTA (definition of ‘establishment’) states that the terms ‘constitution’ and ‘acquisition’ of a juridical person is to be understood as including ‘capital participation in a juridical person with a view to establishing or maintaining lasting economic links’.

257–See Article 9.1.1 and 9.1.1(g) of the EUSFTA.

258–See point 326 above. In that context, I note that the GATS, which falls within the common commercial policy (subject to the exception for transport in Article 207(5) TFEU), could possibly also apply to certain types of investment other than foreign direct investment. For example, the first sentence of footnote 8 to Article XVI:1 of the GATS (‘Market Access’) states that ‘if a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2(a) of Article I and if the cross-border movement of capital is an essential part of the service itself, that Member is thereby committed to allow such movement of capital’.

259–For example, Article 91(1)(a) TFEU concerns ‘common rules’ applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States.

260–Judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 67.

261– Opinion 2/92 (Third Revised Decision of the OECD on National Treatment) of 24March 1995, EU:C:1995:83, paragraphs 33 (which refers to the need for ‘internal legislation’) and 36.

262– Opinion1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 77 (emphasis added).

263–For an illustration of the fact that international agreements to which the European Union is a party are subject to primary law, see judgment of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94.

264–The second sentence of Article 218(11) TFEU expressly envisages the possibility of amending the Treaties in order to overcome an ‘adverse’ opinion based on that provision.

265–Indeed, such a proposition might potentially raise an issue as to whether the EUSFTA is materially compatible with the Treaties. That is however clearly outwith the scope of the Commission’s request for an opinion. See point 85 above.

266–Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 77.

267–Judgment of 27 November 2012, C‑370/12, EU:C:2012:756, paragraphs 104 and 105.

268–Regulation of 11 May 2010 establishing a European financial stabilisation mechanism (OJ 2010 L118, p.1).

269–Judgment of 27 November 2012, C‑370/12, EU:C:2012:756, paragraph 101 (original emphasis). In her View in that case, Advocate General Kokott appeared to suggest that the question regarding Article 3(2) TFEU was ill-conceived: ‘It must in that regard be observed that Article 3(2) TFEU, as is clear when read with Article 216 TFEU, solely governs the exclusive competence of the Union for agreements with third countries and international organisations. Accordingly Member States are, under that provision, read together with Article 2(1) TFEU, prohibited only from concluding such agreements with third countries. The parties to the ESM Treaty are however exclusively Member States.’ See View of Advocate General Kokott in Pringle, C‑370/12, EU:C:2012:675, point 98.

270–Where a matter is covered by Treaty rules, that matter falls within the competence of the European Union. Thus, Article 4(2)(a) TFEU provides that the European Union has ‘shared competence’ in the principal area of the internal market.

271– See, for example, judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 40 and the case-law cited. See also points 317 and 318 above (as regards the definition of ‘Direct Investment’).

272– All of those agreements provide that they are concluded for a limited period of time but may be renewed provided that (subject to certain conditions) either Party does not express its intention to terminate the agreement. Investments made prior to the date when the expiry or termination of the agreement becomes effective, remain subject to the agreement during a defined period of time.

273–This may appear as footnote 51 in certain language versions.

274– See points 307 to 361 above.

275– Although there are other instances where the European Union has decided to terminate or denounce international agreements to which it was not a party. See, for example, Council Decision92/530/EEC of 12 November 1992 denouncing the Fisheries Agreement between the former German Democratic Republic and Sweden (OJ 1992 L334, p.33).

276– See, generally, judgment of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraph9.

277– See also, for example, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 71 (where the Court stated that since the powers previously exercised by the Member States in the field of application of an international agreement had not to date been assumed in their entirety by the European Union, the latter was not bound by that agreement).

278– Judgment of 12 December 1972, International Fruit Company and Others, 21/72 to 24/72, EU:C:1972:115, paragraph 18. As regards other international agreements, see also, for example, judgments of 19 November 1975, Douaneagent der Nederlandse Spoorwegen, 38/75, EU:C:1975:154, paragraphs 16 and 21, and of 14 July 1976, Kramer and Others, 3/76, 4/76 and 6/76, EU:C:1976:114, paragraphs 44 and 45.

279– See judgment of 4 July 2000, Commission v Portugal, C‑84/98, EU:C:2000:359, paragraph 53.

280– See Articles 27 and 46 of the 1969 and 1986 Vienna Conventions.

281– According to Article 26 of the 1969 and 1986 Vienna Conventions, ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’. The Court has previously held that that principle ‘constitutes a fundamental principle of any legal order and, in particular, the international legal order’: see judgment of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 49.

282– See, for example, judgments of 3 March 2009, Commission v Austria, C‑205/06, EU:C:2009:118, paragraph 33 and the case-law cited; of 19 November 2009, Commission v Finland, C‑118/07, EU:C:2009:715, paragraph 27 and the case-law cited; and of 3 March 2009, Commission v Sweden, C‑249/06, EU:C:2009:119, paragraph 34 and the case-law cited.

283– The other agreements listed in Annex 9-D were concluded between Singapore and the Belgo-Luxembourg Economic Union, France, Germany, the Netherlands and the United Kingdom and post-date either 1 January 1958 or (for the United Kingdom) the date of accession to the European Economic Community.

284– See point 379 above.

285– This may appear as footnote 51 in certain language versions.

286– See judgment of 2 August 1993, Levy, C‑158/91, EU:C:1993:332, paragraph 19. There appears to be support in judicial decisions and academic writing for the proposition that Article 59 of the 1969 Vienna Convention is now part of customary international law. For a discussion of the relevant sources, see, for example, Dubuisson, F., ‘Article 59— Termination or suspension of the operation of a treaty implied by conclusion of a later treaty’, in Corten, O., and Klein, P. (eds), The Vienna Conventions on the Law of Treaties – A Commentary – Volume II (Oxford University Press, 2011), p. 1325, at pp. 1329-1330.

287– See, in that regard, Article 54 of the 1969 Vienna Convention. The 1969 Vienna Convention lays down exceptions (under certain conditions): in case of a material breach (Article 60); supervening impossibility of performance (Article 61); a fundamental change of circumstances (Article 62); the severance of diplomatic or consular relations (Article 63); and the emergence of a new peremptory norm of general international law (Article 64).

288– This results clearly from Article 30 of the 1969 Vienna Convention on the application of successive treaties relating to the same subject matter.

289– Article 73 of the 1969 Vienna Convention. In any event, where both the 1969 and 1986 Vienna Conventions may apply (for example, in the context, of the relationship between a bilateral agreement between two States and an agreement between a State and an international organisation), the 1969 Vienna Convention prevails (see Article 7 of the 1986 Vienna Convention).

290– United NationsTreaty Series, vol. 1946, p.3.

291– See Article 2(1)(g) of the 1969 Vienna Convention.

292– Article 1(1) and recital 3 of Regulation No1219/2012.

293–See points 69 to 76 of the Annex to this Opinion.

294–Judgment of 7 March 1996, Parliament v Council, C‑360/93, EU:C:1996:84.

295– Judgment of 7 March 1996, Parliament v Council, C‑360/93, EU:C:1996:84.

296– Namely Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L297, p.1).

297–Judgment of 7 March 1996, Parliament v Council, C‑360/93, EU:C:1996:84, paragraph 30.

298–Singapore, the European Union and the 28 Member States are parties to the Agreement on Government Procurement. That agreement is included in Annex 4 to the WTO Agreement, which comprises a list of the plurilateral trade agreements. As a result, it forms part of the WTO Agreement only for those WTO Members that have accepted it (and is binding only on those Members) (Article II:3 of the WTO Agreement). Singapore, the European Union and the 28 Member States are also parties to the revised WTO Government Procurement Agreement that entered into force on 6 April 2014.

299–See also point 402 above.

300– See Article 10.4 of the EUSFTA.

301– OJ 2012 C326, p.309.

302– That objective is also reflected in Article 3(3) TEU.

303–See points 77 to 91 of the Annex to my Opinion.

304–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520 (‘Daiichi’).

305–The Commission refers to paragraph 52 of the judgment.

306–The Commission refers to paragraph 53 of the judgment.

307–Judgment of 12 May 2005, Regione autonoma Friuli-Venezia Giulia and ERSA, C‑347/03, EU:C:2005:285.

308–Article 61 of the TRIPS Agreement states: ‘Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale’.

309–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520.

310–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520.

311–Judgment of 12 May 2005, Regione autonoma Friuli-Venezia Giulia and ERSA, C‑347/03, EU:C:2005:285.

312–1161 UNTS 30.

313–36 ILM 65.

314–36 ILM 76.

315–828 UNTS 305.

316–9 ILM 978.

317–39 ILM 1047.

318–Regulation (EU) No1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJ 2012 L361, p.1), and Council Regulation (EU) No1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (OJ 2012 L361, p.89).

319–In that provision, the Parties reaffirm their obligations under the Patent Cooperation Treaty and agree to make all reasonable efforts to comply with Articles 1 to 16 of the Patent Law Treaty in a manner consistent with their domestic laws and procedures.

320–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520.

321–Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraphs 55 to 71. With the exception of specific measures aimed at avoiding the release into free circulation of counterfeit goods, the TRIPS Agreement fell outside the common commercial policy. The Court justified that position by the fact that intellectual property rights affect internal trade ‘as much as, if not more than, international trade’. However, at the time, the Treaty provision on the common commercial policy did not refer to the commercial aspects of intellectual property rights.

322–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 53.

323–See, to that effect, judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 54.

324–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 55.

325–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 58.

326–See, for example, Opinion of Advocate General Wahl in Opinion procedure 3/15 (Marrakesh Treaty on Access to Published Works), EU:C:2016:657, points 64 to 66; see also judgment of 12 May 2005, Regione autonoma Friuli-Venezia Giulia and ERSA, C‑347/03, EU:C:2005:285, paragraphs 81 to 83.

327–See also point 102 above.

328–Where the content of the obligation breached determines the content of the remedy (as with the retaliatory suspension of concessions or obligations), that might suggest a substantive connection between both types of obligation. However, the characteristic feature of cross-retaliation, to which the Court referred in Daiichi, appears to be that there is not necessarily such a connection. For the sake of completeness, I note that Article 15.12 of the EUSFTA provides for the possibility of a Party being entitled to suspend obligations arising from any provisions to which Chapter Fifteen (‘Dispute Settlement’) applies.

329–See judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 51.

330–Opinion of Advocate General Wahl in Opinion procedure 3/15 (Marrakesh Treaty on Access to Published Works), EU:C:2016:657, point 56.

331–The 1986 Punta del Este Declaration, launching the Uruguay Round of trade negotiations which resulted in the establishment of the WTO, set out that connection as follows: ‘In order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines.’

332–See judgments of 20 October 1993, Phil Collins and Others, C‑92/92 and C‑326/92, EU:C:1993:847, paragraph 20, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 107 and the case-law cited.

333–Article 6bis (1) of the Berne Convention for the Protection of Literary and Artistic Works, as revised and amended. That moral right is not incorporated into the TRIPS Agreement (see Article 9(1) of the TRIPS Agreement). See also judgment of 20 October 1993, Phil Collins and Others, C‑92/92 and C‑326/92, EU:C:1993:847, paragraph 20.

334–See point 93 above.

335–See judgment of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675.

336–See judgment of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 70; see also paragraph 72.

337–See, in particular, point 109 above.

338–See, for example, Article 2.1 of the TRIPS Agreement.

339–As the draftsmen of the EUSFTA did, for example, for a significant part of Chapter Ten on government procurement: see point 402 above.

340– Judgment of 28 July 2016, Council v Commission, C‑660/13, EU:C:2016:616, paragraph 40. See also points 102 and 111 (and the case-law cited there) of my Opinion in that case (EU:C:2015:787).

341–Judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520.

342–815 UNTS 89.

343–Article 14 of the International Convention for the Protection of New Varieties of Plants.

344–It has been argued that Article 11.36.3 of the EUSFTA makes it clear that Chapter Eleven does not preclude the Parties from applying their domestic laws or require them to changes their domestic laws in order to apply intellectual property rights. However, I read that provision as meaning simply that compliance with Chapter Eleven does not necessarily require existing laws relating to the enforcement of intellectual property rights to be amended.

345–See judgment of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675.

346–The first sentence of Article 9.1 of the TRIPS Agreement provides that WTO Members must comply with Articles 1 to 21 of the Berne Convention and the Appendix thereto. However, the second sentence adds that WTO Members shall not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6bis of the Berne Convention or of the rights derived therefrom.

347–See point 437 above.

348– See point 437 above.

349– See point 109 above.

350–See points 92 to 97 of the Annex to my Opinion.

351–A clear illustration is the SCM Agreement, which is included in Annex 1A to the WTO Agreement and supplements Article XVI of the GATT (according to Articles 12.5 and 12.7 of the EUSFTA, the EUSFTA provisions on subsidies build upon the SCM Agreement). The SCM Agreement’s purpose is to prohibit and regulate the granting of subsidies to undertakings in a manner liable to distort competition in favour of domestic production and to regulate actions which WTO Members may adopt to counter the effects of subsidies.

352–Early WTO initiatives on the need for a multilateral framework to enhance the contribution of competition policy to international trade and development and for enhanced technical assistance and capacity-building in this area have not resulted in negotiations on competition law in the WTO. See ‘Working Group on the Interaction between Trade and Competition Policy (WGTCP)— History, Mandates and Decisions’, available at: www.wto.org/english/tratop_e/comp_e/history_e.htm#cancun; and ‘The July 2004 package’, available at: www.wto.org/english/tratop_e/dda_e/dda_package_july04_e.htm.

353–Articles 12.1.2 and 12.2 of the EUSFTA.

354–See the last sentence of Article 12.1.1 of the EUSFTA.

355–Article 12.3 of the EUSFTA.

356–Articles 12.5 to 12.8 of the EUSFTA and Annex 12-A to the EUSFTA.

357–See Article 12.7.1 of the EUSFTA.

358–Article 12.7.2, second subparagraph, of the EUSFTA.

359–See, by analogy, judgment of 22October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraphs 66 and 67.

360–Regulation of 20 January 2004 (the EC Merger Regulation) (OJ 2004 L24, p.1).

361–See points 508 to 513 below.

362– See points 13 to 18 of the Annex to my Opinion.

363– See points 98 to 112 of the Annex to my Opinion.

364– Article 13.17 of the EUSFTA.

365– Final sentence of Article 207(1) TFEU.

366– Article 21(2)(f) TEU. See also Article 3(5) TEU and Article 11 TFEU; the latter provision states that environmental protection requirements must be ‘integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’.

367– Both possibilities are reflected in Article 13.1.3 of the EUSFTA.

368– That objective has also been relevant to the Appellate Body’s interpretation of, in particular, the general exceptions clause in Article XX of the GATT 1994. See, for example, Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, p.2755, paragraphs 129 to 131 and 152 to 155, and Appellate Body Report, India – Certain Measures relating to Solar Cells and Solar Modules, WT/DS456/AB/R, adopted on 14 October 2016, not yet reported, paragraph 5.72.

369– See judgment of 22October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph 57 and the case-law cited.

370– See, in particular, Opinion1/78 (International agreement on natural rubber) of 4October 1979, EU:C:1979:224; and judgments of 26March 1987, Commission v Council, 45/86, EU:C:1987:163; of 29March 1990, Greece v Council, C‑62/88, EU:C:1990:153; and of 12December 2002, Commission v Council, C‑281/01, EU:C:2002:761.

371– Opinion2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 40.

372– Judgment of 8September 2009, Commission v Parliament and Council, C‑411/06, EU:C:2009:518.

373– OJ 2006 L190, p.1.

374–Judgment of 8September 2009, Commission v Parliament and Council, C‑411/06, EU:C:2009:518, paragraph 72.

375– Article 7.1 of the EUSFTA.

376– Article 7.3 of the EUSFTA.

377– See, in particular, point 103 above.

378– Article 7.4(a) and (b) of the EUSFTA.

379– Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15November 1994, EU:C:1994:384, paragraph 33. The Court made that statement as regards the TBT Agreement which applies to, in particular, technical regulations and standards and procedures for assessing conformity with technical regulations and standards.

380– See, for example, Article 1 of the Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part (OJ 2012 L354, p.3).

381– The terms of reference of the Panel of Experts, to which Article 13.17 of the EUSFTA refers, were only to ‘issue a report … making recommendations’. See also points 523 to 535 below.

382– Regulation (EU) No978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No732/2008 (OJ 2012 L303, p.1), Articles 9 to 16.

383– See Articles 13.16 and 13.17 of the EUSFTA and point 490 above.

384– That position is reinforced by Article 51(2) of the Charter, which provides that the Charter does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties.

385– Judgment of 11June 2014, Commission v Council, C‑377/12, EU:C:2014:1903.

386– The Union is a party to that agreement as a result of Council Decision2012/272/EU of 14 May 2012 (OJ 2012 L134, p.3).

387–Judgment of 11June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraph 59.

388– Judgment of 11June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraphs 38 and 49 and the case-law cited.

389–Article 43(2) TFEU constitutes the legal basis for adopting the provisions necessary for the pursuit of, in particular, the common fisheries policy, to which Article 3(1)(d) TFEU refers.

390– Article 191(4) TFEU confers upon the European Union competence to enter into agreements with third countries governing environmental cooperation in the areas for which it enjoys competence.

391– See, to that effect, the judgment of 4September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 75.

392–See points 113 to 118 of the Annex to my Opinion.

393–See points 7, 8, 10, 12, 15, 35, 37, 41, 42, 58, 72 to 75, 82, 88, 89, 95 and 96 of the Annex to my Opinion.

394– Article 14.1(a) of the EUSFTA.

395– See Article 14.2.1 of the EUSFTA.

396– See footnote 393 above. To the extent that those chapter-specific obligations regarding transparency and administrative and judicial review differ from the provisions in Chapter Fourteen, those more specific rules in other chapters are to prevail (Article 14.8 of the EUSFTA).

397– See, for example, judgment of 22 October 2013, Commission v Council, C‑137/12, EU:C:2013:675.

398–It is for that reason that the WTO agreements contain a broad set of obligations aimed at guaranteeing protection against such obstacles as regards preparation, adoption, entry into force, publication, implementation, notification and administration and (administrative and judicial) review of measures. See, for example, Article X of the GATT 1994.

399–See points 61 to 67 of the Annex to my Opinion.

400–See points 111, 112 and 119 to 123 of the Annex to my Opinion.

401– Regulation of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-State dispute settlement tribunals established by international agreements to which the European Union is party (OJ 2014 L257, p.121).

402– Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 20.

403– See Opinions1/91 (First Opinion on the EEA Agreement) of 14December 1991, EU:C:1991:490, paragraphs 40 and 70; 1/09 (Agreement creating a Unified Patent Litigation System) of 8March 2011, EU:C:2011:123, paragraph 74; and 2/13 (Accession of the European Union to the ECHR) of 18December 2014, EU:C:2014:2454, paragraph 182.

404–It also applies, by analogy, to the specific provisions concerning dispute settlement in Articles 13.16 and 13.17 of the EUSFTA.

405– Article 67 of that convention.

406– See, to that effect, Opinion2/91 (ILO Convention No 170) of 19 March 1993, EU:C:1993:106, paragraphs 3 to 5. In that case, the ILO Constitution precluded the (then) European Community from itself concluding Convention No170.

407– That results from Articles 9.11.2 and 9.15.2 of the EUSFTA, in conjunction with Article 9.24, under which the tribunal may award monetary damages and any applicable interest, and restitution of property.

408–See also the Joint declaration by the European Parliament, the Council and the Commission annexed to Regulation No912/2014.

409–In any event, Article 9.15.2 of the EUSFTA, under which the European Union is to determine the respondent within two months from the date of receipt of the notice of intent to arbitrate, does not refer (either expressly or by implication) to that regulation.

410–Opinion 1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p.1364. See also Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 21.

411–See, to that effect, Opinion 1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p.1364.

412– Opinion 1/78 (International agreement on natural rubber) of 4October 1979, EU:C:1979:224, paragraph 60. See also Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15November 1994, EU:C:1994:384, paragraph 21.

413– See point 85 above.

414– The main features of diplomatic protection have been described by the United Nations International Law Commission as consisting of ‘… the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility’. United Nations International Law Commission, Draft Articles on Diplomatic Protection with commentaries (2006), adopted by the International Law Commission at its fifty-eighth session and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10), Yearbook of the International Law Commission, 2006, vol.II, Part Two (‘UN ILC Draft Articles on Diplomatic Protection’), Article 1 and Commentary on Article 1, paragraph 2.

415– Permanent Court of International Justice, Mavrommatis Palestine Concessions (Greece v. UK), P.C.I.J. Reports, 1924, Series A, No 2, p.12. See also International Court of Justice, Case concerning the Barcelona Traction Light and Power Company Limited (Belgium v. Spain), Second Phase, judgment of 5 February 1970, I.C.J. Reports 1970, p.3, at paragraph 78.

416– International Court of Justice, Interhandel case (Switzerland v. United States of America), Preliminary objections, judgment of 21 March 1959, I.C.J. Reports 1959, p.6, at p.27. See also UN ILC Draft Articles on Diplomatic Protection, Article 14 and the commentary on that provision.

417– For a historical account of that development, see, for example, Parlett, K., The Individual in the International Legal System: Continuity and Change in International Law (Cambridge University Press, 2011), pp.47 to 123 (on ‘The individual and international claims’).

418– UN ILC Draft Articles on Diplomatic Protection, Commentary on Article 17, paragraph 2.

419– Article 27(1) of the ICSID Convention states that: ‘no Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute’.

420–See points 124 to 130 of the Annex to my Opinion.

421– See, to that effect, Opinions1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 107, and 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 127.

422– Judgment of 28 April 2015, Commission v Council, C‑28/12, EU:C:2015:282, paragraph 47.

423– See, inter alia, Opinions1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 108, and 2/00 (Cartagena Protocol on Biosafety) of 6December 2001, EU:C:2001:664, paragraph 18; and judgments of 20April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 73, and of 28April 2015, Commission v Council, C‑28/12, EU:C:2015:282, paragraph54.

424–This may appear as footnote 10 in certain language versions.

425–This may appear as footnote 51 in certain language versions.