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2017 | OriginalPaper | Buchkapitel

4. The Common Commercial Policy

verfasst von : Henri de Waele

Erschienen in: Legal Dynamics of EU External Relations

Verlag: Springer Berlin Heidelberg

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Abstract

Of all the external policies located in the Union’s ‘middle layers’, the Common Commercial Policy (CCP) stands out most notably. Here we encounter one of the oldest fields of external competence, already present in the original EEC Treaty, and also one of the broadest. Moreover, the CCP has given rise to a colourful and highly dynamic jurisprudence, which spurred the development of principles that have become of relevance for other fields of external competence as well. In this chapter, after a short introduction (Sect. 4.1), we will first touch upon some general aspects, among which the rationale, general objectives and institutional embedding of the CCP (Sect. 4.2). Next, we engage in a study of its exact scope and purview (Sect. 4.3). Hereafter, we look at the interplay between the CCP and international trade rules (Sect. 4.4). Finally, we discuss some of the trade policies enacted under the CCP, with particular emphasis on EU anti-dumping rules (Sect. 4.5).

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Vorheriges Kapitel The Common Security and Defence Policy

Nächstes Kapitel The External Environmental Policy

Of course, the actual pursuit of trade opportunities remains their own individual responsibility; but the competence for enacting legal agreements is largely transferred to, and closely circumscribed, by European (EU) and international (GATT/WTO) trade rules.

See Chap. 1, Sect. 1.6.

See Article 207(1) TFEU.

Though the EC already possessed related legislative powers as regards the freedom of establishment and free movement of capital.

Regulation 1219/2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ [2012] L 351/40.

Cf. Dimopoulos (2011), p. 75 et seq.

Communication from the Commission: Trade for All – Towards a More Responsible Trade and Investment Policy, COM 2015(497) final.

Detailed in Articles 289 and 294 TFEU. Delegated or implementing acts may follow, on the basis of Articles 290 and 291 TFEU.

Article 218 TFEU. Cf. Chap. 1, Sect. 1.5.

Regulation 3286/94 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization, OJ [1994] L 349/71.

To mention but one mundane example, the Agreement between the European Community and Australia on trade in wine, OJ [2009] L 28/3.

Specific Economic and Partnership Agreements are currently being concluded with groups of ACP states, in order to replace the relevant Cotonou provisions with WTO-compatible rules on reciprocal trade liberalisation.

As regards the adoption of implementing measures, trade has been brought under the umbrella of the revised comitology procedure, whereby the Commission’s autonomous powers have increased considerably. As before, for the adoption of certain implementing acts, it will need a positive opinion from the relevant comitology committee, made up of national experts, but it has become relatively more difficult for the latter to block proposals.

When convened to discuss CCP issues, the Council will be chaired by the representative of the country holding the six-monthly rotating Presidency of the Council, pursuant to Article 2(5) of Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure, OJ [2009] L 325/35.

Article 218 TFEU. Cf. Chap. 1, Sect. 1.5.

On this, see also Gstöhl and Hanf (2014).

Cf. Article 263 TFEU.

Opinion 1/75, Draft Understanding on a Local Cost Standard.

See e.g. Opinion 1/78, International Agreement on Natural Rubber, and Case 45/86, Commission v Council (Generalised Tariff Preferences).

Thus, for example, Member States were permitted to deviate from uniform import rules, as long as they had obtained specific authorisation from the EC: see Case 41/76, Criel, née Donckerwolcke and Schou v Procureur de la République au tribunal de grande instance de Lille and Director General of Customs.

Another popular explanation takes its cue from the stagnation resulting from the ‘Luxembourg compromise’ (1966), which averted a surge in qualified majority voting in the Council. Exclusivity in the CCP could then at least guarantee that the Commission would have a prominent role to play there.

Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property.

Transport services also rested outside the scope of the CCP, with the external competences in this field being subject to the operation of the ERTA (implied powers) mechanism. Thus, for the time being, competence was also shared to conclude these (parts of the) agreements.This changed with Opinion 2/15, Competence to conclude the EU-Singapore free trade agreement.

As confirmed in Opinion 1/08, Conclusion of agreements pursuant to Article XXI GATS . The EU could never operate as a wholly exclusive actor within the WTO anyway, since trade agreements on transport services would have to be agreed upon by both the Union and the Member States (see the previous footnote).

Trade in cultural and audiovisual services however only in those situations where the envisaged agreements risk prejudicing the Union’s cultural and linguistic diversity, and trade in social, education and health services only where these agreements risk to seriously disturb the national organisation of such services and prejudice the responsibility of Member States to deliver them.

For the time being however, both the EU and the Member States participate individually in the WTO, if only because the Union has not yet acquired exclusivity for every topic on the agenda. Yet, as one author has observed, in the daily practice of the WTO, the mixed membership is hardly visible: at least where the dispute settlement procedures are concerned, the EU operates as a single actor, with the Commission firmly in the hot seat. See Neframi (2010), p. 358.

Opinion 2/15, Competence to conclude the EU-Singapore free trade agreement.

See Chap. 9.

See e.g. Case C-286/90, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp; Case C-341/95, Gianni Bettati v Safety Hi-Tech Srl; Case C-162/96, A. Racke GmbH & Co. v Hauptzollamt Mainz.

See e.g. Joined Cases C-402/05 P & C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission; Case C-308/06, The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.

Joined Cases 41-44/70, NV International Fruit Company and others v Commission.

See e.g. Case 181/73, Haegeman v Belgium; Case 270/80, Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and Simons Records Limited.

Case 70/87, Fédération de l’industrie de l’huilerie de la CEE (FEDIOL) v Commission.

Case C-69/89, Nakajima All Precision Co. v Council.

At stake in Nakajima was the legality of provisions contained in the Community’s Anti-Dumping Regulation, adopted in accordance with Article VI GATT 1947 and the GATT Anti-Dumping Code.

In Fediol, this was established on a broad reading of a provision from the Trade Barriers Regulation, in conjunction with two recitals from its preamble.

See e.g. Case C-280/93, Germany v Council.

Case C-149/96, Portugal v Council.

In absolute terms, half of the WTO members recognise the direct effect of the WTO agreements. Measured in trade volumes however, the group denying direct effect is much larger than the other, roughly representing 70% of the world trade in goods and 80% of that in services. Unsurprisingly, in its decision concluding the WTO agreements, the Council expressed its view that the accords were incapable by nature of being directly invoked in EU or Member State courts (see Council Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994), OJ [1994] L 336/1, final recital of the preamble).

On top of this, the adoption of WTO panel reports can only be blocked by the DSB with a unanimous decision, which makes it nearly impossible for the DSB to overturn decisions of the WTO panels or the WTO Appellate Body – which thus function as genuine and competent adjudicators.

E.g. the Cotonou Agreement with the ACP countries, or the agreement establishing a customs union with Turkey. See further Chap. 8, Sect. 8.2.4, and Chap. 9, Sect. 9.2.2.

See e.g. Griller (2000); Zonnekeyn (2000); van den Broek (2001). Among the supporters of the Court’s position are Kuijper and Bronckers (2005); Mendez (2010).

See respectively Case C-337/95, Parfums Christian Dior SA v Evora BV; Joined Cases C-27/00 & C-122/00, The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte Omega Air Ltd and Omega Air Ltd, Aero Engines Ireland Ltd and Omega Aviation Services Ltd v Irish Aviation Authority; Case C-93/02 P, Biret International SA v Council.

Case T-18/99, Cordis Obst und Gemüse Groβhandel v Commission.

Joined Cases C-120/06 P & C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Others v Council and Commission.

Case T-2/99, T. Port GmbH & Co. KG v Council.

Case T-383/00, Beamglow Ltd v European Parliament and Others.

Case C-377/02, Léon van Parys NV v Belgisch Interventie- en Restitutiebureau.

It should be noted that this holds too for any national rules adopted pursuant to EU measures, which thus also become unassailable. However, national rules that lie outside the scope of EU competence can freely be attributed effects in the domestic legal order in accordance with the particular national (monist or dualist) tradition: see Case C-431/05, Merck Genéricos – Produtos Farmacêuticos Lda v Merck & Co. Inc. and Merck Sharp & Dohme Lda.

Case C-53/96, Hermès International v FHT Marketing Choice BV.

Case 14/83, Von Colson and Kamann v Land Nordrhein-Westfalen.

See Case C-337/95, Parfumes Christian Dior SA v Evora BV.

See e.g. Joined Cases C-320/11, C-330/11, C-382/11, and C-383/11, Digitalnet OOD, Tsifrova kompania OOD and M SAT CABLE AD v Nachalnik na Mitnicheski punkt - Varna Zapad pri Mitnitsa Varna; Joined cases C-288/09 and C-289/09, British Sky Broadcasting Group plc and Pace plc v The Commissioners for Her Majesty’s Revenue & Customs.

See e.g. Case C-105/03, Criminal proceedings against Maria Pupino.

See Bronckers (2008).

Prohibiting discrimination between third countries who are members of the WTO: any favours extended to one member country should automatically be extended to all other member countries.

Prohibiting discrimination against imported products originating from third countries that are WTO members: if no reservations have been made, these should principally be treated as being similar to domestic products.

See supra, footnote 10.

This option might nonetheless seem feasible when third countries have set up trade barriers in response to illegal conduct from the side of the EU; but instead of an instant solution, an endless game of shifting the blame might ensue. See also Perišin (2015).

The EU can decide on its possible follow-up to adverse rulings of the DSB on the basis of Regulation 1515/2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters, OJ [2001] L 201/10.

See respectively Wilson (2007) and Bourgeois and Lynskey (2008).

Regulation 952/2013 laying down the Union Customs Code, OJ [2013] L 269/1.

See e.g. Case C-395/93, Neckermann Versand AG v Hauptzollamt Frankfurt/Main-Ost; Case T-243/01, Sony Computer Entertainment Europe Ltd v Commission; Case C-56/08, Pärlitigu OÜ v Maksu- ja Tolliameti Põhja maksu- ja tollikeskus.

Regulation 978/2012 applying a scheme of generalised tariff preferences and repealing Council Regulation 732/2008, OJ [2012] L 303/1.

Excluding weaponry and military equipment (the ‘Everything But Arms’ arrangement).

Regulation 3285/94 on the common rules for imports, OJ [1994] L 349/53.

E.g. Regulation 570/2010/EU making imports of wireless wide area networking (WWAN) modems originating in the People’s Republic of China subject to registration, OJ [2010] L 163/34.

Regulation 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, OJ [2009] L 134/1.

Currently Regulation 2016/1036 on protection against dumped imports from countries not members of the European Community, OJ [2016] L 176/21. The EU may impose countervailing duties to neutralise the benefit of subsidies granted by third countries on the basis of Regulation 2016/1037 on protection against subsidised imports from countries not members of the European Union, OJ [2016] L 176/55.

Some commentators maintain that if certain products are sold at an extremely low price, this is still the outcome of the interplay between ordinary market processes; the fact that the receiving market attributes more economic value to the goods concerned ought not ipso facto to lead to any extra duties being slapped onto them. For an in-depth discussion, see Bentley and Silberston (2007).

With Article VI GATT 1994 defining dumping as ‘the practice by which products of one country are introduced into the commerce of another country at less than the normal value of the products’.

Where previously this power lie with the Council, the Commission has since 2014 been made responsible for adopting both provisional and definitive measures (subject to Member State control through comitology).

See e.g. Case 264/82, Timex Corporation v Council and Commission; Case C-358/89, Extramet Industrie SA v Council; Case C-239/99, Nachi Europe GmbH v Hauptzollamt Krefeld; Case T-1/07, Apache Footwear Ltd and Apache II Footwear Ltd v Council; Case T-122/09, Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd v Council; Case T-157/14, JingAo Solar and Others v Council.

Save for possible reliance on the Fediol or Nakajima doctrines.

Facilitated post-Lisbon by the inclusion of the ‘regulatory act’ category in Article 263 TFEU, which merely requires direct concern.

For further illustrations and criticism, see Koutrakos (2015), pp. 367–377.

Bentley P, Silberston A (2007) Anti-dumping and countervailing action–limits imposed by economic and legal theory. Edward Elgar, CheltenhamCrossRef

Bourgeois J, Lynskey O (2008) The extent to which the EC legislature takes Account of WTO obligations: Jousting Lessons from the European Parliament. In: Dashwood A, Maresceau M (eds) The law and practice of EU external relations. Cambridge University Press, Cambridge, pp 202–224CrossRef

Bronckers M (2008) From ‘direct effect’ to ‘muted dialogue’: recent developments in the European Courts’ case law on the WTO and beyond. J Int Econ Law 11:885–898CrossRef

Dimopoulos A (2011) EU foreign investment law. Oxford University Press, OxfordCrossRef

Griller S (2000) Judicial enforceability of WTO law in the European Union. J Int Econ Law 3:441–472CrossRef

Gstöhl S, Hanf D (2014) The EU’s Post-Lisbon free trade agreements: commercial interests in a changing constitutional context. Eur Law J 20:733–748CrossRef

Koutrakos P (2015) EU international relations law. Hart, Oxford

Kuijper PJ, Bronckers M (2005) WTO law in the European Court of Justice. Common Mark Law Rev 42:1313–1355

Mendez M (2010) The enforcement of EU agreements: bolstering the effectiveness of treaty law? Common Mark Law Rev 47:1719–1756

Neframi E (2010) The duty of loyalty: rethinking its scope through its application in the field of EU external relations. Common Mark Law Rev 47:323–359

Perišin T (2015) EU regulatory policy and world trade – should all EU institutions care what the world thinks? Eur Const Law Rev 11:99–120CrossRef

van den Broek N (2001) Legal persuasion, political realism and legitimacy: the European Court’s recent treatment of the effect of WTO agreements in the EC legal order. J Int Econ Law 4:411–440CrossRef

Wilson B (2007) Compliance by WTO members with adverse WTO dispute settlement rulings: the record to date. J Int Econ Law 10:397–403CrossRef

Zonnekeyn G (2000) The status of WTO law in the community legal order: some comments in the light of the Portuguese textiles case. Eur Law Rev 25:293–302

Titel: The Common Commercial Policy
verfasst von: Henri de Waele
Verlag: Springer Berlin Heidelberg
Buch: Legal Dynamics of EU External Relations
Print ISBN: 978-3-662-54816-5

Electronic ISBN: 978-3-662-54817-2

Copyright-Jahr: 2017
DOI: https://doi.org/10.1007/978-3-662-54817-2_4

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