Opinion procedure 2/15

The EUSFTA

EU law

Treaty on European Union

Treaty on the Functioning of the European Union

The request for an Opinion of the Court

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

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

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

Article 3(2) TFEU

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

Arguments

Analysis

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

Arguments

Analysis

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

Arguments

General arguments

Arguments regarding transport

Analysis

Introduction

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

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

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

–The first ground under Article 3(2) TFEU

–The third ground under Article 3(2) TFEU

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

Arguments

Analysis

Introduction

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

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

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

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

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

The European Union’s shared competences with the Member States

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

Government Procurement (Chapter Ten of the EUSFTA)

Arguments

Analysis

Intellectual Property (Chapter Eleven of the EUSFTA)

Arguments

Analysis

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

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

Competition and Related Matters (Chapter Twelve of the EUSFTA)

Arguments

Analysis

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

Arguments

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

Trade and sustainable development

Analysis

Trade and non-trade related objectives: general principles

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

Trade and sustainable development

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

Arguments

Analysis

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

Arguments

Analysis

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

Arguments

Analysis

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

Conclusion

Annex— Summary description of the EUSFTA

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

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

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

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