Opinion procedure 2/15

88.At the hearing, it became clear that the Council and a number of Member States consider that the allocation of competences between the European Union and the Member States as regards the EUSFTA must first be established before determining, as a subsequent step, the legal basis on which the European Union’s decision to sign and conclude the EUSFTA should rest.

89.Clearly, the Court is not being asked to determine that second issue here. However, in my view, the Council and a number of Member States misunderstand the relationship between the principles governing the allocation of (external) competences and those governing the choice of legal basis of EU action.

90.The European Union enjoys conferred powers only.(36) It must therefore link a measure which it adopts to a Treaty provision empowering it to approve that measure.(37) That legal basis must be established on the grounds of objective factors amenable to judicial review, which include the aim and content of the measure.(38)

91.In Opinion1/08, the Court explained that the character, whether exclusive or not, of the European Union’s competence to conclude agreements and the legal basis which is to be used for that purpose are two closely linked questions.(39) Indeed, whether the European Union alone has the competence to conclude an agreement or whether such competence is shared with the Member States depends, inter alia, on the scope of the provisions of EU law which are capable of empowering the EU institutions to participate in the agreement.(40)

92.Establishing that the European Union has competence to act at all in a particular field (and thus identifying the legal basis for such action) is therefore a precondition to determining the allocation of competences between the European Union and the Member States, in accordance with Articles 3 and 4 TFEU, as regards a specific external action.(41)

93.In identifying the legal basis, it follows from well-settled case-law that, where an agreement of the European Union pursues more than one purpose or comprises two or more components of which one is identifiable as the main or predominant purpose or component, whereas the other(s) is (or are) merely incidental or extremely limited in scope, the European Union has to conclude that agreement based on a single legal basis, namely that required by the main or predominant purpose or component.(42) Thus, if the predominant purpose of the EUSFTA is that of pursuing the common commercial policy and other aspects of it are properly to be regarded either as constituting a necessary adjunct to that main component or as being extremely limited in scope, the substantive legal basis for concluding that agreement would be Article 207(1) TFEU.(43) It would then follow from Article 3(1)(e) TFEU that the European Union has exclusive competence to conclude the EUSFTA.(44)

94.On the other hand, if the Court were to establish that the EUSFTA simultaneously pursues a number of objectives, or has several components, which are inextricably linked without one being incidental to the other, such that various provisions of the Treaties are applicable, the European Union’s act concluding that agreement would need to be founded on the various legal bases corresponding to those components.(45)

95.Against that background, I now turn to the scope of the common commercial policy within the meaning of Article 207 TFEU.