Mixity in EU Foreign Trade Policy Is Here to Stay: Advocate General Sharpston on the Allocation of Competence for the Conclusion of the EU-Singapore Free Trade Agreement

• Main Author: Hannes Lenk
• Format: Article
• Language: English
• Published: European Papers (www.europeanpapers.eu) 2017-03-01
• Series: European Papers
• Subjects: foreign direct investment; investment protection; common commercial policy; external relations; competences; free trade agreement
• Online Access: https://www.europeanpapers.eu/en/europeanforum/mixity-in-eu-foreign-trade-policy-is-here-to-stay-ag-sharpston-on-the-allocation-of-competence

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 357-382 | European Forum Insight of 26 March 2017 | (Table of Contents) I. Introduction. - II. Setting the scene. - II.1. EU-Singapore FTA: a new era for EU foreign trade policy. - II.2. WTO opinion 2.0. - III. The Advocate General's opinion. - III.1. Exclusive competence. - III.2. Shared competence: the peculiar case of transport services and non-commercial aspects of intellectual property. - IV. Chapter 9: investment protection. - IV.1. Differentiating foreign direct investment from other forms of investment. - IV.2. Post-admission treatment. - IV.3. Treaty provisions as "common rules" for the purpose of Art. 3, para. 2, TFEU. - IV.4. Portfolio investment. - IV.5. The termination of existing bilateral agreements between Member States and Singapore. - IV.6. Synopsis. - V. Conclusions. | (Abstract) It has been two decades since the Court of Justice had the chance to comprehensively assess the scope of the common commercial policy. In Opinion 2/15 on the EU-Singapore free trade agreement (FTA) the Court is now asked to determine how far the EU's external competence stretches post-Lisbon. Ahead of the decision, AG Sharpston has recently rendered her legal view on the question of whether the EU is endowed with exclusive competence to conclude the EU-Singapore FTA, or whether and to what extent the requisite competences are shared or remain exclusively with the Member States. Unsurprisingly, the AG concludes that the agreement in its entirety is not covered by exclusive competence. Particularly, transport services and non-commercial aspects of intellectual property, but also foreign investment other than direct investment remains the territory of shared competence. Furthermore, the EU enjoys no competence to terminate existing bilateral agreements between Member States and Singapore. Its conclusion as a mixed agreement is therefore mandatory. Indeed, the EU-Singapore trade deal is paradigmatic of the new generation of EU deep and comprehensive FTAs, and the Court's decision is thus likely to have broader ramifications for other on going and recently finalized negotiations. Should the Court follow the AG, mixity in EU foreign trade policy is everything but a thing of the past.