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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

Journal article
Authors Hannes Lenk
Published in European Papers
Volume 2
Issue 1
Pages 357-382
ISSN 2499-8249
Publication year 2017
Published at Department of Law
Pages 357-382
Language en
Links https://doi.org/10.15166/2499-8249/...
Keywords foreign direct investment – investment protection – common commercial policy – external relations – competences – free trade agreement
Subject categories European law

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.

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