Opinion procedure 2/15

Arguments

138.The Commission submits that Chapters Two to Six fall entirely within the common commercial policy.

139.The Commission argues that all the provisions of Chapter Two relate specifically to international trade in goods because they seek to liberalise trade in goods between the Parties and have a direct and immediate effect on that trade. That is so both as regards the provisions of that chapter on tariffs, to which reference is made in Article 207(1) TFEU, and as regards non-tariff provisions, which reproduce, incorporate by reference or elaborate upon existing provisions of the GATT 1994 and other multilateral agreements on trade in goods (and thus, as the Court held in Opinion1/94, fall automatically within the common commercial policy).

140.The Commission puts forward similar arguments regarding Chapter Three (Article 207(1) TFEU covers ‘measures to protect trade such as those to be taken in the event of dumping and subsidies’); Chapter Four (because it facilitates trade in goods by providing a framework to prevent, identify and eliminate unnecessary barriers to trade within the scope of the TBT Agreement) and Chapter Five (because it seeks to minimise the negative effects of SPS measures on trade). The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the Anti-Dumping Agreement’), the Agreement on Subsidies and Countervailing Measures (‘the SCM Agreement’), the Agreement on Safeguards, the TBT Agreement and the SPS Agreement all form part of the multilateral agreements on trade in goods which, according to Opinion1/94, fall within the scope of the common commercial policy.

141.Finally, Chapter Six is also specifically related to international trade because it seeks to facilitate trade in goods and ensure effective customs controls. The Commission adds that most of the provisions of that chapter correspond with more detailed provisions on the same subject matter in the WTO Agreement on Trade Facilitation, which has now been inserted in Annex 1A of the WTO Agreement.(100) According to the Commission, neither the Member States nor the other institutions contest the European Union’s exclusive competence with regard to that new WTO agreement.

142.The Parliament agrees in essence with the Commission’s position.

143.Whilst the Council and almost all of the Member States have made no specific argument in relation to Chapters Two to Six, one Member State submits that the European Union’s exclusive competence does not cover the customs cooperation for which the second sentence of Article 6.1.1 of the EUSFTA provides. Article 206 TFEU refers only to the establishment of a customs union in accordance with Articles 28 to 32 TFEU. It therefore does not cover Article 33 TFEU, which provides a legal basis for adopting ‘… measures in order to strengthen customs cooperation between Member States and between the latter and the Commission’. Furthermore, it follows from Article 6(g) TFEU as confirmed in Article 197(2) TFEU (the single provision of Title XXIV on ‘Administrative Cooperation’) that, as regards administrative cooperation, the European Union only has competence to support, coordinate or supplement actions of the Member States.

Analysis

144.Chapters Two to Six govern different aspects of the regulation of trade in goods. The matters covered by those chapters and the type of obligations for which they provide correspond to some extent to certain WTO agreements relating to trade in goods.

145.Prior to the entry into force of the Treaty of Lisbon, the common commercial policy already covered trade in goods. In Opinion1/94, the Court concluded that (what was then) the European Community had, pursuant to Article 113 of the EC Treaty, exclusive competence to conclude ‘the Multilateral Agreements on Trade in Goods’, that is to say, the agreements included in Annex 1A to the WTO Agreement (‘the Annex 1A agreements’).(101) That encompasses the GATT 1994 but also 12 other agreements. The Court concluded that all of the agreements in Annex 1A fell within the common commercial policy without examining each individually.(102) Therefore, all were deemed to relate specifically to international trade in that they essentially intended to promote, facilitate or govern trade and had direct and immediate effects on trade. Most of the agreements in Annex 1A to the WTO Agreement encompass obligations regarding, inter alia, market access, national treatment and other forms of domestic regulation, transparency, judicial and administrative review and the balancing of trade objectives with non-trade objectives. The scope of application of some of those agreements is defined by reference to the type of goods (for example, the Agreement on Agriculture and the Agreement on Textiles and Clothing); others apply to specific types of trade instruments (for example, the TBT Agreement; the Agreement on Trade-Related Investment Measures; the Anti-Dumping Agreement; the SCM Agreement; and the Agreement on Safeguards); trade measures having a specific objective (for example, the SPS Agreement) or certain stages of the importation or exportation process (for example, the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (‘the Customs Valuation Agreement’); the Agreement on Preshipment Inspection; the Agreement on Rules of Origin; and the Agreement on Import Licensing Procedures).

146.It is therefore clear from Opinion1/94 that the European Union enjoys exclusive competence regarding the matters covered by those agreements and the obligations assumed thereunder.(103) That position remains the same under the Treaty of Lisbon, which did not alter the description of the common commercial policy in so far as it relates to trade in goods.

147.Against that background, it is clear to me that Chapters Two to Five specifically concern trade in goods. Their subject matter corresponds in essence with the matters covered by certain agreements in Annex 1A to the WTO Agreement falling within the European Union’s exclusive competence over the common commercial policy. Thus, Chapter Two relates to the subject matters of Articles I, II, and XI of the GATT 1994, which contain the core market access obligations on trade in goods. The matters covered by Chapter Three relate to the GATT 1994 provisions on anti-dumping, subsidies and safeguards and the corresponding more specific agreements (the Anti-Dumping Agreement, the Agreement on Subsidies and Countervailing Measures and the Safeguards Agreement) in Annex 1A to the WTO Agreement. Chapters Four and Five concern non-tariff barriers covered by the disciplines in Article III of the GATT 1994 (‘national treatment’) and the more specific disciplines found in the TBT Agreement and the SPS Agreement, also included in Annex 1A to the WTO Agreement.

148.Those matters concern the process of moving goods across borders, releasing and clearing them and their treatment within a market. They are thus specifically related to international trade.

149.Furthermore, rules aimed at facilitating that process (essential to the importation and exportation of goods) and making that process and the rules governing the treatment of those goods within a market more transparent, predictable, efficient and cost-effective promote, facilitate or govern trade and have direct and immediate effects on trade.(104)

150.That conclusion also applies to customs cooperation under Chapter Six and to the additional customs-related provisions found in Understanding 3 and the rules in Understanding 4 on mutual recognition of authorised economic operator programmes (both understandings are related to Chapter Six).

151.Chapter Six relates to customs procedures and valuation and trade facilitation (partly covered by the GATT 1994), the Customs Valuation Agreement, and the recent WTO Trade Facilitation Agreement. The forms of cooperation provided for in Chapter Six correspond to some extent with those applicable to customs matters under the GATT 1994 and the Customs Valuation Agreement. The latter agreements also provide, apart from general provisions on publication,(105) for consultation on matters relating to the administration of the customs valuation system.(106) Furthermore, at a more general level, the GATT 1994 and the Annex 1A agreements provide for many similar forms of cooperation on various matters regarding trade in goods.(107) Such provisions did not preclude the Court from concluding, in Opinion1/94, that those agreements fall in their entirety within the common commercial policy.(108)

152.I cannot subscribe to the formalistic argument based on a distinction, as regards the trade in goods within the internal market, between the Treaty provisions governing the customs union (Articles 30 to 32 TFEU) and customs cooperation (Article 33 TFEU). It is true that Article 206 TFEU, which sets out the objectives of the customs union, refers only to Articles 28 to 32 TFEU. However, that is because those are the provisions which establish the customs union. That is not the purpose of a provision such as Article 33 TFEU, which offers a legal basis for adopting legislation to strengthen customs cooperation within the European Union. No inference on the scope of the common commercial policy can therefore sensibly be drawn from the fact that Article 206 TFEU does not expressly refer to Article 33 TFEU. Nor do Articles 6(g) and 197 TFEU have any impact on the scope of that policy. Those provisions address in general terms administrative cooperation among the Member States and between them and the European Union. They are therefore without prejudice to the exclusive competence of the European Union to include within its common commercial policy measures aimed at improving administrative cooperation with third States as regards matters falling within that policy.

153.Finally, my analysis of Chapters Two to Six also applies to Protocol 1 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation. That protocol concerns rules of origin. It is clearly specifically related to international trade in goods.

154.I therefore conclude that Chapters Two to Six fall entirely within the European Union’s exclusive competence over the common commercial policy under Article 207 TFEU.

155.I now turn to Chapter Eight. Because Chapters Seven (Non-tariff barriers to trade and investment in renewable energy generation) and Thirteen (Trade and sustainable development) raise similar questions regarding the scope of the common commercial policy and the relationship between trade and non-trade related objectives,(109) I discuss Chapter Seven later in conjunction with Chapter Thirteen.