On May 16, the ECJ will issue its opinion on the EU-Singapre FTA. In anticipation of that, here's a new paper on the case from David Kleimann:
On December 21, the Court of Justice of the EU (CJEU) published the legal view of CJEU Advocate General (AG) Sharpston as part of the Opinion 2/15 proceedings.1 AG Sharpston’s opinion responds to the question to the Court of whether the EU has the ‘requisite competence’ to conclude the EUSingapore Free Trade Agreement (EUSFTA) alone and without including the Member States (MS) as independent parties to the treaty. The Commission had requested the Court’s opinion on this matter pursuant to Article 218(11) TFEU in October 2014. 2 More specifically, the Commission asked the Court to clarify which parts of the EUSFTA fall within the realm EU exclusive competence; competences shared with the member states; or even MS exclusive competences, respectively.3 In her submission to the Court, Advocate General Sharpston argues that certain parts of the EUSFTA fall under EU shared competence – including certain transport services, portfolio investment, labour rights and environmental protection obligations - whereas one provision, in her view, falls within the scope of exclusive competence of the member states. According to AG Sharpston, the EUSFTA hence ought to be concluded as a ‘mixed agreement’ by the EU and its member states independently. The Court is expected to issue its opinion on May 16 of this year. Against this background, this note aims at reviewing the constitutional fundamentals of the questions that are at stake in this important proceeding and outlines the practical implications of the Court’s judgment.
This paper is divided in two parts. The first part scrutinizes the relevant methodological approaches and standards of analysis, which the Court employs in its response to the Commission’s competence enquiry. Based on the examination of relevant case law, it is argued that the Court retains ample space for discretionary judicial decision-making, which surfaces in the delimitation of the substantive scope of the Common Commercial Policy; at the intersection of the competence enquiry and the necessary legal basis analysis; as well as in the Court’s reading of implied powers. It is desirable, against this background, that the Court renders its choice of analytical parameters and benchmarks transparent – or: inter-subjectively verifiable - so as to advance systemic clarity in regard of the unresolved question over the delimitation of EU external competence for the CCP and other external policies beyond the specific issues addressed in Opinion 2/15. It is in this way that the Court could profoundly minimize the legal-institutional incentives for future litigation and inter-institutional political battles over both external competences and the appropriate legal bases for external economic treaty making.
With these methodological considerations in mind, the second part of this paper examines key aspects of the legal view of Advocate General Eleonor Sharpston and points at contentious issues that may still be subject to further clarification by the Court. Using the legal view of Advocate General as a benchmark, this note discusses the practical implications of the Court’s judgment for EU international trade and investment treaty-making. Finally, the paper proposes a number of institutional alternatives that may serve to ‘save’ EU external economic treaty-making from ‘mixity’ and the pitfalls of the associated treaty-making procedures in the EU and the member states.