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The Elusive Quest for Uniformity in EC External Relations
Published online by Cambridge University Press: 27 October 2017
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Within the context of Community law, the negotiation, conclusion and implementation of international agreements is often fraught with legal problems about competence. There are various reasons for this: the EC Treaty set out a sui generis legal order based on the principle of limited powers pursuant to Article 5 EC. On the other hand, international trade relations deal with a wide range of distinct, albeit interdependent, areas not necessarily falling within the Community’s competence. This substantive discrepancy entails the simultaneous involvement of both Member States and Community institutions, whose often differing agenda may give rise to disputes of a procedural and practical nature. This process has been seen as a threat to the uniformity of the Community’s external relations. The Commission, for instance, has often argued that, in order for the Community to maintain a unified position on the international trade scene, to preserve the coherence of its policies and protect the credibility of its negotiating stance, the exclusive nature of its competence should be interpreted broadly.
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References
1 These arrangements have been viewed as ‘self-indulgent’: Smith, M.E. ‘The Quest for Coherence: Institutional Dilemmas of External Action from Maastricht to Amsterdam’ in Stone Sweet, A., Sandholtz, W. and Fligstein, N. (eds.) The Institutionalization of Europe (Oxford, OUP, 2001) 171 CrossRefGoogle Scholar, 192.
2 Opinion 1/75 OECD Local Cost Standard [1975] ECR 1355, para B.2.
3 Case 8/73 Hauptzollamt Bremerhaven v. Massey Fergusson GmBH [1973] ECR 897, para 4.
4 Ibid.
5 Case 41/76 Criel, née Donckerwolke et al. v. Procureur de la République au Tribunal de Grande Instance, Lille et al. [1976] ECR 1921, para 32.
6 Opinion 1/78 Natural Rubber agreement [1979] ECR 2871.
7 Para 41.
8 Para 43.
9 Para 44.
10 Ibid.
11 Ibid.
12 Ibid., para 45.
13 The same approach was adopted in relation to the Council’s contention that the agreement fell beyond the scope of Art. 133 EC because of its links with general economic policy and the strategic nature of its subject matter. The Court ruled that the scope of the CCP ‘cannot be restricted in the light of more general provisions relating to economic policy’ and, therefore, ‘where the organisation of the Community’s links with non-member countries may have repercussions on certain sectors of economic policy …, that consideration does not constitute a reason for excluding [the regulation of international trade in commodities] from the field of application of the rules relating to the Common Commercial Policy’ (para 49). The Court went on to point out that ‘the fact that a product may have political importance by reason of the building up of a security stock is not a reason for excluding that product from the domain of the Common Commercial Policy’.
14 Case C–70/94 Fritz Werner Industrie-Ausrustungen GmbH v. Federal Republic of Germany [1995] ECR I–3189, para 10.
15 Case C–124/95 The Queen, ex parte Centro-Com Srl v. HM Treasury and Bank of England [1997] ECR I–81, para 26.
16 Paras 52–60.
17 Weiler, J. ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle’ in Schermers, H.G. and O’Keeffe, D. (eds.) Mixed Agreements (Deventer, Kluwer, 1981) 35 Google Scholar, 72, reprinted in Weiler, J. The Constitution of Europe (Cambridge, CUP, 1999) 130 Google Scholar, 174.
18 As Cremona pointed out early on, whilst the foundation of the doctrine of exclusivity is the separation of powers between the EC and Member States, ‘when applied to international agreements [it] seems in practice to be having the contrary effect of encouraging the joint participation of the Community and the Member States in the negotiation and conclusion of agreements’; see Cremona, M. ‘The Doctrine of Exclusivity and the Position of Mixed Agreements in the External Relations of the European Community’ (1982) 2 OJLS 393 CrossRefGoogle Scholar, 427.
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24 Opinion 1/76 Draft Agreement establishing a European laying up fund for inland waterway vessels [1977] ECR 741.
25 Para 103.
26 See Opinion 1/94, paras 38–9.
27 This tendency of applying a broad principle in a restrictive manner is not unique to the external relations jurisprudence. A striking example was provided when the Court sought to define the circumstances under which a private applicant would be individually concerned by a decision addressed to a third person so as to challenge it before the Community’s judicature. In Case 25/62 Plaumann v. Commission [1963] ECR 95, the starting point of the Court’s analysis was that ‘the words and the natural meaning [of Article 230(4) EC] justify the broadest interpretation’ (106–7); however, this did not prevent it from interpreting the requirement of individual concern in an extraordinarily strict manner. For an analysis of the relevant issues, see Arnull, A. ‘Challenging Community acts – an introduction’ in Micklitz, H. and Reich, N. (eds.) Public Interest Litigation before European Courts (Nomos, Baden-Baden 1996) 39 Google Scholar and Arnull, A. ‘Private Applicants and the Action for Annulment Since Codorniu ’, (2001) 38 CMLRev 7 Google Scholar.
28 See Tridimas and Eeckhout, above n 22.
29 Para 86.
30 Para 90.
31 Para 59.
32 Paras 61–71.
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34 Para 76 of Opinion 1/94 referring to para 27 of the ERTA judgment.
35 Para 77 of Opinion 1/94; emphasis added.
36 For the Maastricht debate on the scope of CCP, see Maresceau, M. ‘The Concept “Common Commercial Policy” and the Difficult Road to Maastricht’ in Maresceau, M. (ed.) The European Community’s Commercial Policy after 1992: The Legal Dimension (Dordrecht, Martinus Nihjoff, 1993) 3 Google Scholar.
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38 Art. 24 of Reg. 3285/94 on the common rules for imports; OJ 1994 L 349/53.
39 See Reg. 288/82/EEC on common rules for imports; OJ 1982 L 35/1.
40 See Eeckhout, P. The European Internal Market and International Trade: A Legal Analysis (Oxford, Clarendon Press, 1994)Google Scholar ch. 6, where the cases of imports of textiles and bananas are also considered.
41 See Case 218/82 Commission v. Council (rum) [1983] ECR 4063, Case 288/83 Commission v. Ireland (potatoes from Cyprus) [1985] ECR 1761.
42 See Koutrakos, above n 19 at 60–66. The Court interpreted sanction regimes imposed under Art. 133 EC and EPC in Case C–124/95 Centro-Com (above n 15) Case C–84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications, Ireland and Attorney General [1996] ECR I–3953 and Case C–177/95 Ebony Maritime SA and Loten Navigation Co. Ltd v. Prefetto della Provincia di Brindisi and Ministero dell’Interno, [1997] ECR I–1111. For an analysis of this case law, see Canor, I. ‘“Can Two Walk Together, Except They Be Agreed?” The Relationship Between International Law and European Law: The Incorporation of United Nations Sanctions Against Yugoslavia into European Community Law Through the Perspective of the European Court of Justice’, (1998) 35 CMLRev 137 and Koutrakos, ibid. at ch. 7.
43 It was made clear in Opinion 1/94, that international agreements in transport matters were not covered by Article 133 EC, whilst the practice of the Council to suspend transport services pursuant to Art. 133 EC measures imposing an embargo against a third country ‘cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis’ (para 52).
44 Council Reg. 3381/94 setting up common rules on exports of dual-use goods; OJ 1994 L 367/1 and Dec. 94/942/CFSP; OJ 1994 L 367/8. Following the Court’s judgments in Case C–70/94 Werner, above n 14 and Case C–83/94 Criminal Proceedings against Peter Leifer and Others [1995] ECR I–3231, this regime was replaced by Council Reg. 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology, OJ 2000 L 159/1 and Dec. 2000/402/CFSP repealing Dec. 94/942/CFSP on the joint action concerning the control of exports of dual-use goods. For an analysis of this case-law, see Koutrakos, ibid. at ch. 6.
45 On post-Nice CCP, see Cremona, M. ‘A Policy of Bits and Pieces? The Common Commercial Policy after Nice’ in this Volume, Krenzler, H. and Pitschas, C. ‘Progress or Stagnation?: The Common Commercial Policy After Nice’ (2001) 6 EFA Rev. 291 Google Scholar. On Art. 133 EC as amended by the Amsterdam Treaty, see Blin, O. ‘L’article 113 CE Après Amsterdam’ (1998) RMCUE 420, 447 Google Scholar and Cremona, M. ‘External Economic Relations and the Amsterdam Treaty’ in O’Keeffe, D. and Twomey, P. (eds.) Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 225 Google Scholar.
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47 Council Dec. 2001/352/CFSP concerning the conclusion of the Agreement between the European Union and the Federal Republic of Yugoslavia on the activities of the European Union Monitoring Mission in the FRY, OJ 2000 L 125/1.
48 See de Zwaan, J. ‘The Legal Personality of the European Communities and the European Union’ (1999) 30 Netherlands Yearbook of International Law 75 CrossRefGoogle Scholar and Wessel, R. The European Union’s Foreign and Security Policy—A Legal Institutional Perspective (The Hague, Kluwer Law International, 1999)Google Scholar ch. 7.
49 See Editorial Comments, ‘The European Union—A New International Actor’ (2001) 38 CMLRev 825.
50 See the typology suggested in Rosas, A. ‘The European Union and Mixed Agreements’ in Dashwood and Hillion, above n 33 at 239.
51 For an early analysis, see O’Keeffe and Schermers, above n 17.
52 See Dashwood, A. ‘Why continue to have mixed agreements at all?’ in Bourgeois, J., Dewost, J.-L. and Gaiffe, M.-A. (eds.) La Communauté europeénne et les accords mixtes: Quelles perspectives? (Bruxelles, Presses Interuniversitaires Européennes, 1997) 93 Google Scholar.
53 Case C–53/96 Hermès International v. FHT Marketing [1998] ECR I–3603.
54 The issue of the Court’s jurisdiction is dealt with in Koutrakos, P. ‘The Interpretation of Mixed Agreements under the Preliminary Reference Procedure’ (2002) 7 EFA Rev 25 Google Scholar.
55 Case 12/86 Demirel v Stadt Schwabisch Gnuend [1987] ECR 1545.
56 Ibid, para 9 of the judgment.
57 See Dashwood, A. ‘Preliminary Rulings on the Interpretation of Mixed Agreements’ in O’Keeffe, D. and Bavasso, A. (eds.) Judicial Review in EU Law. Liber Amicorum in Honour of Lord Slynn of Hadley. Volume I (The Hague, Kluwer Law International, 2000) 167 Google Scholar, Heliskoski, J. ‘The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements’ 69 (2000) Nordic Journal of International Law, 395 CrossRefGoogle Scholar and the annotations by Neuwahl, N. (1988) 13 ELRev 360 Google Scholar and Nolte, G. (1988) 25 CMLRev 403 Google Scholar.
58 Case C–53/96, above n 53.
59 OJ 1994 L 11/1.
60 Reference was made to Case C–130/95 Giloy v. Hauptzollamt Frankfurt am Main-Ost [1997] ECR I–4291, paragraph 28, and Case C–28/95 Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen [1997] ECR I–4161.
61 Cremona, M. ‘EC External Commercial Policy after Amsterdam: Authority and Interpretation within Interconnected Legal Orders’ in Weiler, J. (ed.) The EU, the WTO and the NAFTA—Towards a Common Law of International Trade (Oxford, OUP, 2000) 5, 31–32 Google Scholar.
62 Joined Cases 300/98 and 392/98 Parfums Christian Dior SA and Tuk Consultancy BV and Assco Gerüste GmbH, Rob van Dijk, and Wilhelm Layher GmbH & Co. Kg [2000] ECR I–11307.
63 Ibid., para 33; see also Case C–89/99 Schieving-Nijstad vof and Others and Robert Groeneveld [2001] ECR I–5851.
64 Case C-149/96 Portugal v. Council [1999] ECR I–8395, para 47.
65 Para 44.
66 Ibid., para 47.
67 Opinion 2/91 Convention No 170 of the ILO concerning safety in the use of chemicals at work [1993] ECR 1061, paras 36–38.
68 A similar duty had already been outlined in Joined Cases 3, 4 and 6/76 Cornelis Kramer and others [1976] ECR 1279 where Member States were deemed competent to conclude the North-East Atlantic Fisheries Convention only on a transitional basis. Having referred to Article 10 EC, the Court held that ‘Member States participating in the Convention and in other similar agreements are now not only under a duty not to enter into any commitments within the framework of those conventions which could hinder the Community in carrying out the tasks entrusted to it, but also under a duty to proceed by common action within the Fisheries Commission ….’ (paras 44/45).
69 Paras 106–110.
70 Para 107.
71 Para 108. The Court went on to point out that the duty of cooperation was ‘all the more imperative in the case of agreements such as those annexed to the WTO Agreement, which are inextricably interlinked, and in view of the cross-retaliation measures established by the Dispute Settlement Understanding’ (para 109).
72 See Editorial Comments, ‘The aftermath of Opinion 1/94 or how to ensure unity of representation for joint competence’ (1995) 32 CMLRev 385, Heliskoski, J. ‘Should There Be a New Article on External Relations?’ in Koskenniemi, M. (ed.) International Law Aspects of the European Union (The Hague, Kluwer Law International, 1998) 273 Google Scholar, Timmermans, above n 33 at 239.
73 Opinion 2/00 of 6 December 2001, not yet reported.
74 Art. 1 of the Protocol.
75 Para 15 of the Opinion.
76 Para 16.
77 Para 17. As the Court pointed out, Art. 300(6) EC ‘is not intended to solve difficulties associated with implementation of an envisaged agreement which falls within shared Community and Member States competence’ (ibid).
78 Para 18 of Opinion 2/00.
79 Para 19.
80 The Commission argued that Art. 133 EC was applicable when the relevant measure is intended specifically to govern the Community’s external trade, even if it served multiple objectives, with reference to Case C–62/88 Greece v. Council (Chernobyl) ECR I–1527; Case 45/86 Commission v. Council [1987] ECR 1493; Case C–70/94 Werner (above n 14); Case C–83/94 Leifer (above n 44); Case C–124/95 Centro-Com (above n 15); Opinion 1/78 (above n 6); Opinion 1/94 (above n 22). It also stressed that the proliferation of international agreements imposing restrictions on trade in response to non-commercial concerns and stressed that recourse to legal bases other than Art. 133 EC would deprive the CCP of its substance and prejudice the coherence of the EC policy towards its trade partners and the overall interests of the Community.
81 Para 37. It was pointed out in para 39 that, whilst the focus of the application of the Protocol is on transboundary movement of living modifiged organisms, that term was left ostensibly wide, hence able to cover movements of no commercial purpose, for instance illegal movements and movements for charitable or scientific purposes or serving the public interest.
82 Para 40.
83 See Opinion 1/78, above n 6 and related developments.
84 Para 41.
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86 Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837, para 5.
87 Case 120/98 Rewe-Zentrale AG v. Bundesmonopolverwaltung fuer Branntewein [1979] ECR 649.
88 Joined Cases C–267–8/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I–6097, para 16.
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91 Case C–292/92 Huenermund and others v. Landesapothekerkammer Baden-Wuerttemberg [1993] ECR I–6787, para 1 of his Opinion.
92 Case C–376/98 Germany v. European Parliament and Council (tobacco advertising) [2000] ECR I–2247. For a comment, see Hervey, T ‘Up in smoke? Community (anti)-tobacco law and policy’ (2001) 26 ELRev 101 Google Scholar, especially 105–09 and 115–25 and Hillion, C. ‘Tobacco advertising: if you must, you may’ (2001) 60 CLJ 486 CrossRefGoogle Scholar.
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94 First recital.
95 Art. 3(1).
96 Art. 3(4).
97 Art. 3(5).
98 Art. 5.
99 Para 78 of the judgment.
100 Para 79 of the judgment.
101 Para 83 of the judgment.
102 Para 84 of the judgment.
103 The conclusion that Art. 95 EC does not confer on the Community a general power to regulate the internal market was further supported by reference to the other legal bases, namely Arts. 47(2) and 55, in relation to which the Court pointed out that they ‘are also intended to confer on the Community legislature specific powers to adopt measures intended to improve the functioning of the internal market’ (emphasis added) (para 87).
104 Para 85, where reference to Case C–350/92 Spain v. Council [1995] ECR I–1985, paras 25–41 and Case C–233/94 Germany v. Parliament and Council [1997] ECR I–2405, paras 10–21.
105 Statement of 5 October 2000.
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110 Joined Cases C–34–6/95 Konsummentombudsmannen v. De Agostini Forlag AB and TV-Shop in Sverige AB [1997] ECR I–3843.
111 Para 42 of the judgment.
112 Case C–254/98 Schutzverband gegen unlauteren Wettbewerb v. TK-Heimdienst Sass GmbH [2000] ECR I–151.
113 Ibid.
114 Case C–405/98 Konsumerntombudsmannen (KO) v. Gourmet International Products AB (GIP) [2001] ECR I–1795.
115 Para 20 of the judgment. For the problems that this conclusion raised for the referring court which, then, had to determine whether the Swedish rule was proportionate, see Biondi, A. ‘Advertising alcohol and the free movement principle: the Gourmet decision’ (2001) 26 ELRev 616 Google Scholar and Koutrakos, above n 109 at 399.
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117 Art. 1(2) of Dir. 98/34. Dir. 98/34 makes the distinction between technical standards and technical specifications, that is non-compulsory and compulsory technical specifications respectively.
118 Ibid., Art. 9 (1).
119 Case C–194/94 CIA Security International SA v. Signalson SA and Securitel SPRL [1996] ECR I–2201.
120 See the analysis in paras 48–50 of the judgment.
121 Case C–443/98 Unilever Italia SpA v. Central Food SpA [2000] ECR I–7535.
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123 The reason for this was that Dir. 83/189 comprised, essentially a number of procedural provisions which neither imposed duties nor granted rights on individuals: see paras 50–1 of the judgment.
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