1- personality mentioned in several Treaty provisions[2], in respect

 

1-     
General Principles of EU External
Action

–         
EU as an International Actor

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Article 47 of the Treaty of
European Union (TEU) states the legal personality of the Union as saying “The
Union shall have legal personality.”1
Although the Union’s legal personality mentioned in several Treaty provisions2,
in respect to “international personality” of the Union there is no expressed
mention in Treaty (TEU, TFEU) provision.3
Besides the lack of expressed mention in Treaties, ERTA4
ruling has an essential role in regard to define legal personality of Union in
respect to International Law.5 In
ERTA Case, the judgment of the ECJ
(European Court of Justice) came to a conclusion that European Commission (EC)
has a legal personality under public international law in the scope of all
policy areas that it has competence to act.6
Other essential impact on EU’s international existence that ERTA ruling provided is establishment of
self-rule of the legal order of the EC.7

Within the above mentioned provisions
and ECJ case law taking into consideration, It is possible to state that EU
holds international personality. Indeed, it enjoys the right to conclude and
negotiate international agreements, represent Member States before
international institutions, establish relationships with third parties on
behalf of Member States and be subject to legal duties.8

–         
EU external competence under the
light of Principle of Conferral

External Competences of
European Union can be defined as: “competences
are those that fall within the framework of the EU’s relations and partnerships
with non-EU countries and

 

international,
regional or global organizations.”9Allocation of the competences between Union and Member
States has always been a significant issue in respect to conclude and negotiate
international agreements. Since European Union (EU) can only act within the
limit of competences attributed to itself by Member States through the Treaties,
Principle of conferral (Article 5 TEU), as one of the fundamental principle of
EU, represents the key point in regard to assessing the extent of the Union’s
competence.10
In other words, within the limited scope that not attributed to Union, Member
States remain able to act. In regard to Union’s competence, Article 5(1)(2) TEU
stated as follows: “The limits of Union competences are governed by the
principle of conferral. The use of Union competences is governed by the principles
of Subsidiarity and proportionality. Under the principle of conferral, the
Union shall act only within the limits of the competences conferred upon it by
the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member
States…”11

Article 3 TFEU should also
be mentioned in regard to external competence of European Union. One of the
exclusive competence areas mentioned in the scope of Article 3 TFEU is Common
Commercial Policy of EU.12 In regard to EU International
relations, Common Commercial Policy (CCP) is further defined in Article 207
TFEU (Article 133 EC). The provision provides an external exclusive competence
to the institutions of European Union (EU) in order to “implement the Common
Commercial Policy (CCP).”13

Common Commercial Policy within the scope of Article 207 TFEU

–         
The concept and Background

The Common Commercial Policy
(CCP) has been an essential policy area under the European Union’s (EU)
external relations since the early days of the Community by reason of the fact that
it expressly provides exclusive EU competences.14
Since it provides exclusive competences to EU itself, i.e. allow Union conclude
and negotiate trade related agreements independently of the Member States, CCP
had been subject to various discussions among the Member States in respect to
its scope.15
Article 207 TFEU provides an exclusive competence to EU and limits the autonomy
of Member States, therefore the question of whether an agreement falls within
the scope of the Article 207 TFEU has a significant importance. In respect to
determine whether an international agreement falling under the Article 207 the
purpose of the agreement should be examined. 16
If the relevant agreement aims to broaden the territory of EU internal market,
the agreements can be examined as falling under the CCP.17 On
the other hand, even if the agreement has impact on international level in the
case of its purpose is developing the functioning of the internal market it
could be argued that the agreement would not be falling under the CCP.18

–         
Development of the Common Commercial
Policy and Competence Issues

The scope of the CCP under
the meaning of Article 207 TFEU (Article 133 EC), have been enlarged over the
time. Before the contribution of Lisbon Treaty, EU’s exclusive competence in
the field of CCP has been accepted in Opinion 1/75.19
In support of exclusivity, few arguments had been brought out from ECJ. In
Opinion 1/7520,
The Court defended that exclusivity is needed in order to fulfill the
Community’s common interests in regard to trade related issues, avoid
distortions of competition between undertakings and ensure the Member States’
loyalty towards the Union and its institutions.21
Within the framework of Opinion 1/75, it can be argued that ECJ interpreted CCP
in broad terms. In opinion 1/7822,
ECJ stated that “Any measure regulating
foreign trade should be included in the EU Trade policy”.23
It could be concluded from the Opinion 1/7824
that the wording of Article 133(1) EC (Article 207(1)) is not all-inclusive.25

In 1994, after the Uruguay
Round negotiations ended, regarding the concluding WTO Agreement, The European
Commission supported the idea of the joint competence between Member States
which brought a legal issue in regard to distribution of legal competences
between Commission and Member States.26
An opinion requested by Commission from Court in order to solve the competence
matter. Thus, Opinion 1/94 came out which accepted one of the most important
judgments delivered by ECJ27.
In Opinion 1/94, The ECJ assumed the exclusive competence of the Community to
conclude international agreements concerning services and the protection of
intellectual property while in regard to GATS and TRIPS ECJ assumed joint
competence between Commission and Member States.28 

In 1990, The Treaty of
Lisbon has brought the most significant change and introduced a broader context
in accordance with the idea of integration and stability among Member States in
respect to fulfilling the Union power.29
After the Lisbon Treaty came into force in 1990, “trade in services, the commercial aspects of intellectual property and
foreign direct investments”30
had started to be covered by the scope of CCP. In other words, after Lisbon
Treaty Member States are no more able to conclude international agreements
individually and independently of Union regarding the fields of expressed in
Article 207 TFEU.

In conjunction with the
Lisbon Treaty, within the scope of CCP, alongside of uniformity and
liberalization principles, it is assumed that a broader context which promotes
economic and social progress between Member States had been introduced.31
While it is possible to argue that the scope introduced by Lisbon Treaty lead
certain reductions in uncertainty regarding to the scope of CCP, there are
still an ongoing discussion about the definition of “trade in services, the commercial aspects of intellectual property and
foreign direct investments”32.
Defining the scope of CCP is an
essential issue due to the fact that implementation of the scope of CCP widely
would cause less effectiveness of the Member States in the external trade area
of EU.33

As it has stated by Advocate General Kokott, European Union has an
exclusive external competence while exercising the external relations falling
under the scope of CCP unless “Article 133(6) EC
(Article 207(6) TFEU) requires the common accord of the Member States.”34Therefore, Article 207(6)
has to be examined in order to have a clear understanding of competence issues.

EU’s external competence under Article 207 (6) TFEU

a)     
Common Framework

Under the light of above
mentioned ongoing discussion regarding the exclusive competence of European
Union, Article 207(6) TFEU which contains an exception provision in respect to
Union’s competence under CCP should be examined. Article 207(6)35
consists of two limitations as follows: “The exercise
of the competences conferred by this Article in the field of the common
commercial policy shall not affect the delimitation of competences between the
Union and the Member States, and shall not lead to harmonisation of legislative
or regulatory provisions of the Member States in so far as the Treaties exclude
such harmonisation.”36
The first limitation could be read as a reflection of principle of conferral.37
Within the Advocate General Sharpston’s words in Opinion 2/15 the scope of the
limitation could also be defined: “the exercise
of the European Union’s exclusive competence over the common commercial policy
may not alter or otherwise affect the Treaty provisions on the allocation of
competences in other areas falling
outside the scope of that competence (such as, for example, trade in the
internal market).”38
Indeed, the exclusive competence that European Union enjoys under Article
207(1) as regard to the entire trade related agreement falls within the scope
of CCP cannot be read as Union has also competence to conduct all internal
matters Agreement covers.39
Limitation should be imposed in the case of provisions of international
agreement exceeds the internal powers of Union.40
In other words, “CCP competence should find a systemic limit in
the internal competences of the Union.”41

The
second limitation appointed by Article 207(6) is regard to prohibition of
harmonization of Member State’s legislative regulations where the Treaties
expressly forbid it.42
However, Article 207(4) expressly states that such matters as social policy,
education, public health would be falling under the scope of CCP.43
Therefore, it could be argued that the limitation does not prohibit the entire
cover of the CCP since such matters which are subject to precluded
harmonisation in other Treaty provisions44
explicitly mentioned in Article 207(4).45
Thus, from the wide interpretation perspective of EU competences, It will not
be wrong to say that EU may still has the competence to conclude agreements in
regard to areas which are subject to precluded harmonisation in particular
health, education etc.46
In respect to underlying aim of the second limitation, also could be said
“through the exercise of its competences under Article 207 TFEU, the European
Union cannot act so ac circumvent the prohibition of harmonisation under the
Treaties.”47 One of the different
interpretations in regard to Article 207(6) belongs to Ceyssens. From the “principle
of parallelism”48 point of view which
implied in Opinion 1/9449,
he indicated that “where the EU does not even have internal competences, there
is no need to protect the uniformity of EU rules by conducting a common
commercial policy.”50

 

 

b)    
ECJ Jurisprudence

In the context of
applicability of Article 207 TFEU and its limitations (Article 207(6)), ECJ had
concluded several interpretations in order to clarify the exclusive competence
dispute. Opinion 1/9451
considered as a landmark decision of ECJ in regard to EU’s external
competences.52
One of the essential judgments of ECJ in regard to “commercial aspects of Intellectual
Property”53
is Daiichi Sankyo case,54
which had been subject to a discussion whether the scope of it falls within the
scope of Article 207 TFEU.55
In this case, ECJ came to the conclusion that the dispute was falling under the
scope of Article 207 (1) and hence the field of common commercial policy due to
its “specific link to international trade”.56
In Daiichi Sankyo case57,
in respect to intellectual property rights ECJ stated as follows: “Admittedly, it remains altogether open to the European
Union, after the entry into force of the FEU Treaty, to legislate on the
subject of intellectual property rights by virtue of competence relating to the
field of the internal market.”58
In the context of Daiichi Sankyo judgement, it could be argued that ECJ tends
to interpret the scope of the Article 207 widely.

Conclusion

On the basis of above
considerations,

In the light of the above,

 

Parallellism
ilkesi

ECJ
207/6 geni? yorumlanmamal? diyor. Yani commisssion yetkili demek bu.

1 Article 47 Treaty of European
Union (TEU),
http://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF

2 Article 335 TFEU

3 Craig P., Burca G., EU LAW,
Text, Cases, And Materials, Sixth Edition, 2015, p.321.

4 ECJ Case 22/70, Commission v.
Council (AETR/ERTA), 1971 ecr 263

5 Kadelbach S., ERTA Case, Max
Planck Encyclopedia of Public International Law MPEPIL, paragraph 7.

6 Kadelbach S., ERTA Case, Max
Planck Encyclopedia of Public International Law MPEPIL, paragraph 7.

7 Kadelbach S., ERTA Case, Max
Planck Encyclopedia of Public International Law MPEPIL, paragraph 7.

8 Craig P., Burca G., EU LAW,
Text, Cases, And Materials, Sixth Edition, 2015, p.322.

9 EUROPA, EU Law and Publications,
EUR-Lex, Summaries of EjoiU Legislation, Glossary of Summaries, The

European Unions’s External
Action, http://eur-lex.europa.eu/summary/glossary/external_responsibilities.html

10 Article 5 teu

11 Article 5 teu

12 Article 3 TFEU

13 Article 207 TFEU

14
Holdgaard R., External Relations Law of the European Community Legal Reasoning
and Legal Discourses Wolters Kluwer Law, 2008, p. 25

15
Koutrakos P., EU International Relations Law, Modern Studies In European Law,
2006, p.33.

16 Opinion
2/15 para 104

17 Opinion
2/15 para 104, Case Judgment of 22 October 2013, Commission v
Council, C?137/12, EU:C:2013:675, paragraph 67

18 Opinion
2/15 para 104 , This affect could be seen in opinion 1/94.

19
Devuyst Y., The European Union’s Competence In International Trade after Lisbon
Treaty, Vol 39,639, p. 647

20
Opinion 1/75, Understanding on a Local Cost Standart 1975 ECR 1355, p. 1362.

21
Eeckhout P., External Relations of the European Union, Legal and Constitutional
Foundations, Oxford EC Law Libary, 2004, p. 14

22
Opinion 1/78

23
Dimopoulos A, EU External Relations, The Evolation of the Common Commercial
Policy, Slide 3. 

24 Opinion
1/78 1979 ECR 2871, para 45. Case 165/87 Commission v. Council 1989 ECR
5545, para 45. 

25 Koutrakos
P., EU International Relations Law, Modern Studies In European Law, 2006, p.33.

26 Hilf
M., The ECJ’s Opinion 1/94 on the WTO – No Surprise, but Wise? – , p. 251.

27
Neuwahl N., The General Law of E.C. External Relations, Centre For European
Studies (Cambridge), 2000, p.139

28 Hilf
M., The ECJ’s Opinion 1/94 on the WTO – No Surprise, but Wise? – , p. 251.

29
Dimopoulos A, The Effects of the Lisbon Treaty on the Principles and Objectives
of the Common Commercial Policy (2010), 15, European Foreign Affairs Review,
p.153-170

30
Devuyst Y., The European Union’s Competence In International Trade after Lisbon
Treaty, Vol 39,639, p. 653, Dimopoulos A., The Common Commercial Policy after
Lisbon: Establishing Parallelism between Internal and External Economic
Relations?, 101, 107-08, 2008.

31 Dimopoulos A, The Effects of the Lisbon Treaty on the
Principles and Objectives of the Common Commercial Policy (2010), 15, European
Foreign Affairs Review, p.153-170 Ibid,
p. 153-170

32
Devuyst Y., The European Union’s Competence In International Trade after Lisbon
Treaty, Vol 39,639, p. 653, Dimopoulos A., The Common Commercial Policy after
Lisbon: Establishing Parallelism between Internal and External Economic
Relations?, 101, 107-08, 2008.

33
Koutrakos P., EU International Relations Law, Modern Studies In European Law,
2006, p.33.

34
Case C-13/07 Opinion of Advocate General Kokott p. 85

35
Article 207(6)

36
Article 207(6)

37
Opinion 2/15 para 107

38 Opinion
2/15 para 107

39 Opinion 2/15 para 108

40 
Case C-13/07 Opinion of Advocate General Kokott Para 116

41 Schutze R., European Union Law,
External Powers, Competence and Procedures, p194.

42 Opinion 2/15 para 110

43 Article 207(4)

44 See Article 19,79,84,149,165
TFEU

45 Opinion 2/15 para 110

46 Krajewski M., The Reform of the
Common Commercial Policy, p.21.

47 Opinion 2/15 para 110

48 Shan W., Zhang S., The Treaty Of
Lisbon: Half Way Toward a Common Investmen Policy, European Journol of
International Law, Volume 21, Issue 4, 1 November 2010, Pages 1049- 1073.

49 Opinion 1/94

50 Ceyssens,
‘Towards a Common Foreign Investment Policy? Foreign Investment in the European
Commission’, 32 Legal Issues of Economic Integration (2005)
259, at 281.

51

52

53 53
Tanghe Y., The Borders of EU Competences with Regard to the International
Regulation of Intellectual Property Rights: Constructing a Dam to Resist a
River Bursting Its Banks, 2016, 32(82), Utrecht Journal of International and
European Law 27, p. 1.

54 Case
414/11

55 Tanghe
Y., The Borders of EU Competences with Regard to the International Regulation
of Intellectual Property Rights: Constructing a Dam to Resist a River Bursting
Its Banks, 2016, 32(82), Utrecht Journal of International and European Law 27,
p. 29.

56 Case
414/11 Paragraph 49-52.

57

58 Case
414/11 para 59.

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