1 Opinion 1/08, Community Competence to Conclude with Certain Members of the World Trade Organization Agreements Modifying the Schedules of Specific Commitments of the Community and Its Member States Under the General Agreement on Trade in Services (Eur. Ct. Justice Nov. 30, 2009). The opinions and other decisions of the European Court of Justice are available at http://curia.europa.eu.

2 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Annex IB, in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 325 (1999) reprinted in 33 ILM 1167 (1994) [hereinafter The Legal Texts].

3 Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 33. EU treaty documents are available at http://www.eur–lex.europa.eu.

4 Treaty Of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Lisbon Treaty]; see also Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191). As a result of the Lisbon Treaty, which entered into force on December 1, 2009, the distinction between the EC and EU has disappeared. The EC no longer exists under this name but is integrated within the EU, which is now given explicit legal personality.

5 Case C–13/07, Comm’n v. Council, 2007 O.J. (C 56) 22 (Eur. Ct. Justice). It should be noted that this case was removed from the Court register on June 10, 2010, following the Commission’s withdrawal of its action.

6 General Agreement on Trade in Services, Apr. 15, 1994, WTO Agreement, Art. XXI(2)(a), in The Legal Texts, supra note 2, at 345. The compensatory adjustments concerned the horizontal limitations on public utilities and investment; commitments for intra–corporate transferees and business visitors as well as engineering services; integrated engineering services; urban planning and landscape architectural services; computer and related services; advertising services; telecommunications services; financial services (insurance services and banking); hotels, restaurants, and catering; travel agency and tour operator services; and hairdressing services.

7 Treaty Establishing the European Community, Mar. 25, 1957, 298 UNTS 11, as amended by Treaty of Amsterdam,Oct.2, 1997, 1997 O.J. (C340) 1, as amended byTreaty OF Nice ,supranotz3, [hereinafter EC Treaty]. As a result of the entry into force of the Lisbon Treaty, the EC Treaty was renamed the Treaty on the Functioning of the European Union. Treaty ON THE Functioning OF THE European Union, May 9, 2008, 2008 O.J. ( C I 15).

8 In the explanatory memorandum to that proposal, the Commission justified its choice of legal basis by claiming that, in view of the compensatory adjustments negotiated, its choice did not go beyond the EC’s internal powers and did not lead to harmonization of the laws of the member states in an area for which the Treaty rules out such harmonization so that the second subparagraph of Article 133(6) of the EC Treaty would not be applicable.

9 A mixed agreement can be defined as an agreement that includes among its parties the EC and all or some of the member states and that falls partly within the competence of the EC and partly within the competence of the member states.

10 Indeed, whether the EC alone has competence to conclude an agreement or whether such a competence is shared with the member states depends, inter alia, on the scope of the provisions of European law that are capable of empowering the EC institutions to participate in such agreement.

11 Geert de, Baere Constitutional Principles of EU External Action 11 (2008)Google Scholar.

12 See EC Treaty, supra note 7, Art. 5 (now Treaty on European Union, supra note 4, Art. 5).

13 Opinion 2/94, Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 ECR1–1759, paras. 23–24.

14 Opinion 2/00, Cartagena Protocol, 2001 ECR 1–9713, para. 5.

15 For an evaluation of this strategic use of the advisory opinion procedure, see Eeckhout, Piet External Relations of the European Union: Legal and Constitutional Foundations 12 (2004)Google Scholar.

16 See EC Treaty, supra note 7, Art. 300(6); Treaty on the Functioning of the European Union, supra note 7, Art. 218(11).

17 On mixity within the WTO, see Koutrakos, Panos EU International Relations Law (2006)Google Scholar; Steinberger, Eva The WTO as a Mixed Agreement: Problems with the EC’s and the EC Member States’ Membership of the WTO, 17 Eur. J. Int’l L. 837–62 (2006)Google Scholar. In general, on the relationship between the EU and the WTO, see The EU and The WTO: Legal and Constitutional Issues (Gráinne De Burca & Joanne Scott eds., 2001).

18 For a useful taxonomy of “different roads” that can lead to the conclusion that the EC is exclusively competent to act internationally, see De Baere, supra note 11, at 3 9 – 6 1 , 72; David O’Keeffe, Exclusive, Concurrent and Shared Competence, in The General Law of E.C. External Relations 181– 84 (Allan Dashwood & ChristopheHillion eds., 2000).

19 See Case 22/70, Comm’n v. Council (ERTA), 1971 ECR263, para. 17.

20 Opinion 1/94, Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, 1994 ECR1–5267, para. 77 (reported by John R. Schmertz at 89 AJIL 772 (1995)).

21 Under the so–called ERTA doctrine, exclusivity may also arise out of the exercise of EC internal competence. See Case 22/70, para. 17.

22 See id.; Joined Cases 3/76, 4/76 & 6/76, Officier van Justitie v. Kramer, 1976 ECR 1279. In EU law, implied external competences only arise by implication from express internal competences. In particular, under this doctrine, when common rules exist on the EC level, the EC alone is capable of assuming any obligation arising out of international agreements with third countries. For an overview on the subtleties of implied external competences, see De Baere, supra note 11, 16–32.

23 Treaty of Amsterdam, supra note 7.

24 Opinion 1/94, supra note 20.

25 This provision expressly places trade in services as well as the commercial aspects of intellectual property rights on the same footing as the conventional areas and the common commercial policy as a whole is assigned to the exclusive competence of the EU. Treaty on the Functioning of the European Union, supra note 7, Art. 207.

26 In the Court’s explanatory paraphrase of Article 1(2) of the GATS, the four modes are described as follows:

For the purposes of this Agreement, trade in services is defined as the supply of a service:

• (a)

  (a) from the territory of one Member into the territory of any other Member [(“mode 1”)];

• (b)

  (b) in the territory of one Member to the service consumer of any other Member [(“mode 2”)];

• (c)

  (c) by a service supplier of one Member, through commercial presence in the territory of any other Member [(“mode 3”)];

• (d)

  (d) by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member [(“mode 4”)]. (Para. 4)

It should be noted that mode 1 (cross border supply), unlike modes 2 to 4, had already been recognized by the Court as falling within the exclusive competence of the EC. Opinion 1/94, supra note 20.

27 The first subparagraph of Article 133(6) of the EC Treaty prohibits the Council alone from concluding an international agreement if it includes provisions that go beyond the EC’s internal power. Likewise, the second subparagraph of the same article prescribes shared competence wherever an international agreement relates to trade in the specified services, i.e., trade in cultural, audiovisual, education, social, and human services.

28 A similar reasoning has been applied, mutatis mutandis, concerning the transport policy, where the third subparagraph of Article 133(6) of the EC Treaty specifically provides that the negotiation and conclusion of international agreements in the field of transport are to continue to be governed by the provisions of Title V and Article 300 of the EC Treaty. Contrary to what has been argued by the Commission, the “transport” aspect of the Agreements falls within the sphere of transport policy (and not that of the CCP) even though they are not exclusively or predominantly concerned with transport. This is because the Council’s interpretation of the third subparagraph of Article 133(6) of the EC Treaty would—as highlighted by the Court—deprive that provision of its effectiveness.

29 With regard to the choice of the legal basis for (internal) EC action, the Court has consistently held that a main purpose test must be carried out. See, e.g., Case C–91 /05, Comm’n v. Council, 2008 ECR 1–3651, para. 73; Case C–94/03, Comm’n v. Council, 2006 ECR 1–1, para. 35; Case C–155/91, Comm’n v. Council, 1993 ECR 1–939, paras. 19, 21. However, those cases involved the interpretation of existing EC competences.

30 Even the Lisbon Treaty will not provide the EC with a uniform and comprehensive external trade competence for horizontal agreements because, for the field of transport, Article 207(5) of the Treaty on the Functioning of the European Union still requires recourse to the provisions of the common transport policy.

31 Pastis is “an anise–flavored liqueur and aperitif from France, typically containing 4 0 – 4 5% alcohol by volume,” which can cloud a clear liquid. Wikipedia Free Encyclopedia, pastis, at http://en.wikipedia.org/wiki/Pastis.

32 Article 133(5) of the EC Treaty states: “Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.”

33 See Opinion of the Advocate General Kokott (Mar. 26, 2009), Case C–13/07, Comm’n v. Council, 2009 ECR (not yet reported).

34 Yet, within the Council, unanimity is required for the negotiation and conclusion of agreements in the same sensitive areas. See Treaty on the Functioning of the European Union, supra note 7, Art. 207(4) (ii)–(iii).

35 See supra note 4.