Opinion procedure 2/15

Arguments

399.The Commission submits that the Court has already accepted, in Case C‑360/93,(294) that in principle the common commercial policy covers the conclusion of agreements on the reciprocal opening of public procurement markets for goods and for cross-border services. Since other modes of supply of services are now included within the scope of the common commercial policy, the same argument applies by extension to those other modes of supply. At a more general level, the Commission argues that international agreements governing access by, on the one hand, third country goods and services to the European Union’s public procurement markets and, on the other hand, EU goods and services to third country public procurement markets relate specifically to international trade and thus have direct and immediate effects on international trade. The Commission adds that the (recent) Protocol amending the WTO Agreement on Government Procurement was concluded by the European Union acting on the basis of its exclusive competence over the common commercial policy.

400.The other parties have made no specific arguments in relation to Chapter Ten.

Analysis

401.Unlike the Commission, I do not consider that Case C‑360/93(295) is relevant to deciding whether Chapter Ten falls within the common commercial policy. In that case, the Court annulled two Council decisions, respectively (i) concluding an agreement between the (now) European Union and the United States of America on government procurement, and (ii) extending the benefit of the provisions of a Council directive on procurement procedures so as to cover the United States of America.(296) It held that Article 113 EC was an inadequate legal basis for those decisions because at the time only the supply of cross-border services fell within the scope of the common commercial policy. However, both decisions also covered other modes of supply of services (the commercial presence or the presence of natural persons on the territory of the other Contracting Party).(297) The Court therefore did not take a position on whether government procurement as such falls within the common commercial policy.

402.I nonetheless agree with the Commission that the objective of Chapter Ten is primarily to facilitate the reciprocal opening of the government procurement markets of the European Union and Singapore, within the limits laid down in the market access Schedule of Commitments for each Party. That chapter also seeks to enhance competition in government purchasing of goods, services and construction work and to guarantee transparency and procedural fairness in that area. It does so by expanding on the commitments already assumed by both Parties under the (revised) WTO Agreement on Government Procurement.(298) In fact, large parts of that chapter correspond (word for word) to that WTO agreement.

403.The conclusion that trade in goods and services— and therefore rules relating to market access for, and domestic regulations governing, such goods and services— are covered by the common commercial policy is not affected by the fact that those goods and services are purchased by public authorities rather than private entities.

404.However, under Chapter Ten, certain commitments specific to the transport sector also apply. Annex 10.E, Part 2 (‘Union’s commitments’), which sets out the services with respect to which the Union accepts commitments, expressly confirms that different forms of transport services are covered by that chapter. Furthermore, note 2 to that part of the annex states that the Union’s commitments regarding services are subject to the limitations and conditions in the European Union’s commitments under Chapter Eight.

405.To the extent that Chapter Ten applies to transport services and services inherently linked to those services, it follows from Article 207(5) TFEU that the European Union’s competence over that chapter cannot be based on the common commercial policy.(299)

406.The Commission has not shown on what other basis the Union might enjoy exclusive competence over Chapter Ten.

407.As I see it, the European Union has shared competence over that chapter in so far as it applies to transport services and services inherently linked to those services. Chapter Ten ensures that procurements covered by that chapter are awarded in accordance with the principles of equal treatment, non-discrimination and transparency, and thus guarantees the opening-up of public procurement to competition in the European Union and in Singapore.(300) That chapter thus contributes to establishing or ensuring the functioning of the internal market which, as Protocol No27 on the internal market and competition makes clear, ‘includes a system ensuring that competition is not distorted’.(301) In that sense, Chapter Ten can be regarded as necessary to achieving the objective of establishing the internal market set out in Article 26(1) TFEU, within the meaning of the second ground under Article 216(1) TFEU.(302) That external competence is, however, shared between the European Union and its Member States, in accordance with Article 4(2)(a) TFEU.

408.I therefore conclude that the provisions of Chapter Ten on government procurement fall within the scope of the European Union’s exclusive competence under Article 207(1) TFEU, except in so far as they apply to procurement of transport services and services inherently linked to those services. To the extent that they apply to the latter categories of services, the provisions of Chapter Ten fall within the shared competence of the European Union.