01. Re the Uruguay Round Treaties [1994] E.C.R. I–5267.

02. See Hartley, T. C., The Foundations of European Community Law (1994), p.167.Google Scholar

03. The purpose of this provision is to forestall difficulties arising from the incompatibility with the Treaty of international agreements binding upon the Community. Where the opinion of the Court is adverse, an agreement may enter into force only after an amendment of the Treaty in accordance with Art. N of the Treaty on European Union. For consideration of the admissibility of the request for an opinion, see Opinion 3/94 of 13 Dec. 1995 (unreported) in relation to the Framework Agreement on Bananas.

04. Opinion 2/92, [1995] E.C.R. I–521. For the judgment of 17 Oct. 1995, Case C-83/94 Criminal Proceedings against Peter Leifer, Reinhold Otto Krauskopf, Otto Holzer, see The Times, 2 Nov. 1995.

05. From the point of view of international trade, the conclusion of the Uruguay Round is a major achievement, which has been authoritatively defined as “an unprecedented exercise in international economic rule-making”: SirBrittan, Leon, “Guest Editorial” (1994) 31 C.M.L.Rev. 229.Google Scholar

06. The Uruguay Round negotiations were launched at Punta del Este on 20 Sept. 1986 and substantially ended at the meeting of the Trade Negotiations Committee on 15 Dec. 1993. See General Report on the Activities of the European Union 1994, points 985 et seq.; see also E.C. Bull. 12–1993, point 1.3.99. For the text of the Final Act, see (1994) 33 I.L.M. 1125; for a detailed analysis see the European Journal of International Trade, Special WTO issue, Vol.6 (1995) No.2.Google Scholar

07. The Founding Treaties have an acknowledged place in the Community legal system as the “Community constitutional charter”. For the development of this view in the case law of the ECJ see, more recently, judgment of 13 Apr. 1986, Case 294/83 Les Verts [1986] E.C.R. 1357; order of 6 Dec. 1989, Case 2/88 Zwartveid [1990] E.C.R. I–4405; Opinion 1/91 of 14 Dec.1991, Re European Economic Area [1991] E.C.R. I–6079; judgment of 23 Mar. 1993, Case C-311/91 Beate Weber/European Parliament [1993] E.C.R. I–1093.

08. This distinction is well known in federal constitutions: e.g. the relationship between federal and Länder authorities is clearly expressed in the German Grundgesetz (Arts.70–75).

09. The Commission's point of view is that an area falls within the exclusive jurisdiction of the Community if the Treaties impose on it the obligation to act because it is regarded as having the sole responsibility for the performance of a particular task. The Commission has therefore identified (Commission's Paper to the European Parliament on subsidiarity, E.C. Bull. 10–1992, 116) “a block of exclusive powers joined by the common thread of an internal market”.

10. The Founding Treaties are also silent on the scope of Community powers, whether they are exclusive or concurrent with the powers of the member States. The issue was not addressed by the Maastricht Treaty and it is doubted that it will be considered at the 1996 IGC.

11. There are few pioneering studies on the issue of pre-emption. For a distinction between dogmatic (“conceptualist-federalist”) and “pragmatic” approaches to pre-emption see Waelbroeck, M., “The Emergent Doctrine of Community Pre-emption—Consent and Re-delegation”, in Sandalow, and Stein, (Eds), Courts and Free Markets: Perspectives from the United States and Europe (1982) Vol.11, pp.548–580.Google Scholar For a comparison with the US legal system see Jacobs, F. and Karst, K., “A Juridical Perspective”, in Cappelletti, M., Seccombe, M. and Weiler, J. (Eds), Integration through Law, Vol.I, Book 1, p. 169 at p.237Google Scholar. For an outline of the practical difficulties arising from this “theoretically quite simple principle” see Bieber, R., “On the Mutual Completion of Overlapping Legal Systems: The Case of the European Communities and the National Legal Orders” (1988) 13 E.L.R. 147–158 esp. at p.150.Google Scholar For a more recent discussion, see Cross, E. D., “Pre-emption of Member State Law in the European Economic Community: A Framework for Analysis” (1992) 29 C.M.L.Rev. 447–472.Google Scholar

12. E.g. see Case 16/83 Prantl [1984] E.C.R. 1299: [Once the rules on the common organization of the market may be regarded as forming a complete system, the Member States no longer have competence in that field unless Community law expressly provides otherwise.”

13. Competence d'attribution or Enumerationsprinzip: it is generally stated that the Community has no unlimited and general competence but, rather, the powers which it received in the Founding Treaties, while the member States hold all residual powers. But this conception has been eroded by an expansive view of the Community's powers, based on the programmatic and dynamic nature of the Founding Treaties, and on the general legislative powers provided for the Community by Arts.100,100a and 235 EC Treaty, which enable the Community to take whatever measures are needed to establish the common market or simply to achieve the objectives of the Community. These provisions have in fact allowed a number of incursions into fields where the Community had not been granted an explicit competence.

14. Accordingly, the Community enjoys a functional competence and has been empowered to perform certain tasks which are necessary to achieve the general objectives set out in Art.2 o the EC Treaty. Its powers would therefore gradually evolve in potentially ever-expanding areas following by implication from the need to achieve those objectives.

15. The doctrine of enumerated powers in the US legal order is based on the Tenth Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, and to the people.“The growth of the congressional legislative powers through the doctrine of implied powers is due to the case law of the Supreme Court, notably McCulloch v. Maryland 17 U.S. (4 Wheat.) 316. This case constitutes authority for the proposition that the Constitution did not prohibit the exercise of powers not expressly delegated. In one of the most quoted dicta. Justice Marshall put it thus: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” See Sandalow, T., “The Expansion of Federal Legislative Authority”, in Sandalow and Stein, op. cit. supra n.11, at pp.49–91.Google Scholar

16. The WTO Agreement and its annexes were formally signed, on the one hand, by the President of the Council and Sir Leon Brittan, Member of the Commission, on behalf of the Council of the European Union and, on the other hand, by the representatives of the member States on behalf of their respective governments.

17. The international legal personality constitutes the source and origin of the external dimension of the Community and is a matter of public international law. It is based on Art.220 of the EC Treaty and has been developed in the case law of the ECJ. For a discussion of the relationship between Community law and international law see Cheyne, I., “International Agreements and the European Legal System” (1994) 19 E.L.R. 581–598.Google Scholar

18. For the distinction between the capacity of the Community to enter into binding agreements with other subjects of international law and its competence to exercise that capacity within more or less defined limits see Toth, A. G., “Treaty-Making Power”, in The Oxford Encyclopedia of European Community Law (1990), Vol.I, pp.521 et seq.Google Scholar

19. The ECSC Treaty confers no such powers: Art.6 only provides in general terms that “the Community shall have legal personality” and that “in international relations, the Community shall enjoy the legal capacity it requires to perform its functions and attain its objectives”. In contrast, the EURATOM Treaty contains the most comprehensive set of provisions: Art.101(1) expressly provides that “the Community may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with a third State, an international organisation or a national of a third State”. However, its scope of application is very limited.

20. Arts. 130M and 130R of the EC Treaty also provide that the Community may conclude agreements with third countries or international organisations relating to co-operation in research and technological development and to the environment, but in the latter case only to the extent to which the objectives can be attained better at Community level than at the level of the individual member States.

21. There is an extensive literature on this topic, of which it is not possible to give full account here. Reference should be made to Hartley, op. cit. supra n.2, at pp. 167–176.

22. In particular, the Multilateral Agreement on Trade in Goods, the GATS and the TRIPs.

23. The existence of the competence arising from a Treaty provision excludes any competence on the part of the member States which is concurrent with that of the Community, in the Community sphere and in the international sphere: Opinion 1/75, infra n.25, at p.1364. After the end of the transitional period, national commercial policy measures are permissible only by virtue of specific authorisation by the Community: Case 41/76 Donckerwolcke [1976] E.C.R. 1921, para.32.

24. E.g. see Bourgeois, J. H. J., “The Common Commercial Policy—Scope and Nature of the Powers”, in Volker, E. L. M. (Ed.), Protectionism and the European Community (1987).Google Scholar

25. [1975] E.C.R. 1355. The Local Cost Standard case concerned negotiations in the OECD on an international agreement to determine the maximum amount of aid (in the form of direct finance or credit guarantees) and other support which national authorities could give to the production or supply of goods or services for export to other countries.

26. [1979] E.C.R. 2871. The Natural Rubber Agreement concerned the negotiation in UNCTAD of an international commodity agreement regulating the market in natural rubber. The agreement was designed to stabilise trade by setting ranges of buying and selling prices and providing buffer stocks to even out price fluctuations.

27. Opinion 1/75, supra n.25, at p.1362.

28. Idem, pp.1362–1363.

29. Opinion 1/78, supra n.26, at paras.44–45. The wording of Art.113 of the EC Treaty refers to the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation of trade, export policy and measures to protect trade against dumping or unfair subsidies. But the enumeration in Art.113 of the subjects covered by the commercial policy is conceived as a non-exhaustive enumeration which must not, as such, close the door to the application in a Community context of any other process intended to regulate external trade.

30. E.g. a firm of architects established in country A supplies an electrical installation project to a firm of engineers established in country B.

31. E.g. services supplied in country A to tourists from country B.

32. E.g. the establishment and supply of banking services in country B by undertakings or professionals from country A.

33. E.g. the performance of construction works, where an undertaking from country A supplies services in country B by means of workers coming from country A.

34. For a detailed discussion on the TRIPs Agreement see Worthy, J., “Intellectual Property Protection after GATT” (1994) 5 E.I.P.R. 195.Google Scholar See also Bronckers, M. C. E. J., “The Impact of TRIPs: Intellectual Property Protection in Developing Countries” (1995) 32 C.M.L.Rev. 1245–1281.Google Scholar

35. A growing interpenetration between the supply of goods and the provision of services would also be revealed by economic realities. For expression of the view that a distinction between trade in services and trade in goods may not always be possible, see Footer, M. E., “Global and Regional Approaches to the Regulation of Trade in Services” (1994) 43 I.C.L.Q. 661.Google Scholar

36. The first occasion where the Commission asserted that the common commercial policy includes the external commercial aspects of transport was its communication entitled “Community Relations with Third Countries in Aviation Matters” COM(90)17 Final of 23 Feb. 1990. For an analysis of the Commission's arguments, see Close, G. L., “External Relations in the Air Transport Sector: Air Transport Policy or the Common Commercial Policy?” (1990) 27 C.M.L.Rev. 107–127.Google Scholar In the light of the Uruguay Round negotiations, the view that external commercial measures in the field of transport form part of the common commercial policy has been put forward by Van Rijn, T., “Transport Policy and Commercial Policy”, in Maresceau, M. (Ed.), The European Community's Commercial Policy after 1992: The Legal Dimension (1993), pp.249–266.Google Scholar

37. In particular, the Commission argues that the common commercial policy encompasses all measures which are designed chiefly to influence the volume or structure of trade in goods or services by regulating or harmonising intellectual property rights. Accordingly, the rules relating to IP rights are closely linked to trade in the products and services to which they apply.

38. This area is covered by the Multilateral Agreements on Trade in Goods, listed in Annex 1 A. They do not break new ground in the field of commercial policy, since they address a number of matters usually related to trade in goods. They comprise the “GATT 1994” and 12 additional multilateral agreements concerning, among others, agriculture, sanitary and phytosanitary measures, textiles and clothing, technical barriers to trade, and trade-related investmen measures (TRIMs).

39. The Agreement on Agriculture seeks to establish a global system of market-based trade in agricultural products. The fact that the provisions of the Agreement would impinge on the intra-Community organisation of agricultural markets, and that Art.43 had been used for harmonising directives which affected goods from third countries, did not take the Agreement outside the scope of Art. 113.

40. Art.232 EC Treaty provides that “the provisions of this Treaty shall not derogate from those of the Treaty establishing the European Atomic Energy Community”. However, the ECJ held that, since the Euratom Treaty did not include any provisions on external trade, there was no obstacle to these goods being within the scope of Art.113 EC Treaty.

41. ECSC goods were more controversial, since Art.71 ECSC Treaty provides that “the powers of the Governments of Member States in matters of commercial policy shall not be affected by this Treaty, save as otherwise provided therein”. This provision entitled the member States to continue to negotiate bilateral commercial agreements relating specifically to coal and steel products. However, the ECJ held that Art.113 of the later EC Treaty gave the Community exclusive competence to conclude commercial agreements covering goods of all categories, even including coal and steel. This general power could not be limited or rendered invalid by reason of Art.71 ECSC Treaty. This confirmed the previous ruling of the ECJ (Opinion 1/75) that Art.71 ECSC “cannot render inoperative Articles 113 and 114 of the EEC Treaty and affect the vesting of power in the Community for the negotiation and conclusion of international agreements in the realm of common commercial policy”.

42. Opinion 1/75, supra n.25, at p.1362.

43. In this respect the Commission cited a series of embargoes based on Art.113 and involving the suspension of transport services. The ECJ held that these precedents are not conclusive because the suspension of transport services is a necessary adjunct to the principal measure of the embargoes (the suspension of the export and import of products).

44. Reg.3824/86/EEC of 1 Dec. 1986 laying down measures to prohibit the release for free circulation of counterfeit goods (1986) OJ. L357/1.

45. Some of the member States submitting observations have used rather strong language by qualifying the Commission's position in respect of intellectual property as “extravagant”: see Point I–37 of Opinion 1/94.

46. The Commission had relied on three cases where measures had been taken pursuant to Reg.2641/84/EEC in response to a lack of protection in a non-member country of intellectual property rights held by Community undertakings. The ECJ held that these measures are unrelated to the harmonisation of intellectual property protection, which is the primary objective of TRIPs.

47. The Community and its institutions are entitled to incorporate within external agreements otherwise falling within the ambit of Art.113 ancillary provisions for the organisation of purely consultative procedures or clauses calling on the other party to raise the level of protection of intellectual property. The ECJ held that this does not mean that the Community has exclusive competence to conclude an international agreement of the type and scope of TRIPs.

48. According to the Commission (Financial Times, 12 Nov. 1994), these services include telecommunications, audiovisual and financial services that are transmitted electronically across frontiers in a way analogous to trade in goods.

49. The criterion adopted by the ECJ to distinguish among the types of supply of services is based on the similarity with trade in goods rather than with the economic reality. This would lead to an unnatural division of the services sector at a time when an overall approach is gaining ground and would result in the treatment of identical situations in a discriminatory manner. See Footer, M. E., “Opinion 1/94 on Community and Member States' Competence under the WTO: Implications for Public Procurement” (1995) 2 P.P.L.R. CS14.Google Scholar

50. See Hilf, M., “The ECJ's Opinion 1/94 on the WTO—No Surprise but Wise?” (1995) 6 E.J.I.L. 245. The Commission has published a guide which explains the sections covered by the GATS rules: see Press Release IP/95/1210.Google Scholar

51. Although it may be thought that at the time when the Treaty was drafted liberalis tion of trade was the dominant idea, the Treaty nevertheless does not form a barrier to the possibility of the Community's developing a commercial policy aiming at a regulation of the world market for certain products rather than at a mere liberalisation of trade. See Opinion 1/78, supra n.26, at para.44.

52. For an early expression of this view, see idem, para.43.

53. Art.Y17(2) of the Commission's proposal: the extensive notion would comprise economic and trade measures in respect of services, capital, intellectual property, investment, establishment and competition. For the text of the Commission's proposals see E.C. Bull. Supp. 2/91, points 89–116. Those proposals are discussed by Maresceau, M., “The Concept of Common Commercial Policy and the Difficult Road to Maastricht”, in his op. cit. supra n.36.Google Scholar

54. The proposals on commercial policy made by the Luxembourg Presidency and first presented in the so-called “non-paper” of 12 Apr. 1991 set aside almost totally the Commission's view on the matter. Further to Maastricht, the new Art.113 incorporates almost textually Art. 113 EEC Treaty, adding only a few minor and technical details. It is therefore a far cry from what was originally conceived by the Commission.

55. Opinion 2/92, 24 March 1995, [1995] E.C.R. I–521. This case concerned the position of undertakings, regardless of the sector in which they carry on their activities, which operate (in particular through branches and subsidiaries) on the territory of the member States of the Community and which are owned or controlled by nationals of other OECD member countries. The ECJ held that the national treatment rule covered by the OECD Third Decision relates only partly to international trade with non-member countries: it affects internal trade to the same extent as international trade (para.26), thus falling outside the scope of Art.l 13.

56. Case 22/70 Commission v. Council [1971] E.C.R. 263. This was the first case where the ECJ addressed the scope of the Community powers in the sensitive field of foreign relations. It was defined as a worthy counterpart to the van Gend en Loos case dealing with Community authority in the domestic field (see Stein, E., “Lawyers, Judges and the Making of a Transnational Constitution” (1981) 29 A.J.I.L. 1). The case arose in the context of the conclusion of the European Agreement concerning the work of crews of vehicles in international road transport. The Commission claimed that the Community alone was competent in respect of the subject matter of the Agreement, since it had the power to regulate corresponding matters internally under Art.75 of the Treaty (common transport policy) and following the enactment of Reg.543/69 on the harmonisation of certain social legislation relating to road transport.Google Scholar

57. Laying-Up Fund of the Rhine [1977] E.C.R. 741. This case concerned the draft agreement establishing a European laying-up fund for inland waterway vessels between the Commission, acting on behalf of the Community, the six member States directly concerned and Switzerland. The Commission claimed that the proposed agreement fell within the ambit of Arts.74–75 of the Treaty (common transport policy).

58. Cases 3,4 and 6/76 Kramer and Others [1976] E.C.R. 1279. This case arose from criminal proceedings against certain Dutch fishermen, who challenged the validity of Netherlands conservation measures. The question concerned whether the Community alone had authority to enter international fishery conservation commitments.

59. See ERTA, supra n.56, at para.16; Kramer, idem, paras.19–20; Opinion 1/76, supra n.57, at para.3. It should be noted that the expression “implied powers” does not appear in the ERTA judgment; the more refined and readjusted formula is to be found in the Kramer judgment.

60. See ERTA. idem, paras. 17–19.

61. See Opinion 1/76, supra n.57, at paras.3–4.

62. Opinion 2/91, [1993] E.C.R. I–1061, paras.10–11.

63. ERTA, supra n.56, atpara.22.

64. They related to transport policy which can be regulated internally by measures under Arts.74 and 75, and to fisheries policy which is integrated into the common agricultural policy and is regulated internally under Arts.41 and 43.

65. In short, the Commission claimed that all the provisions of the TRIPs Agreement in respect of intellectual property (copyright, trade marks, geographical indications and designations of origin, industrial designs, patents, topographies of integrated circuits, enforcement) have their counterparts at internal level in secondary Community legislation.

66. With regard to GATS, the Commission put forward the following internal reasons to justify this submission. Taking as an example the financial services sector, member States with strong financial centres would be placed in a position of strength in bilateral negotiations with non-member countries and their competitive position would be improved disproportionately by comparison with service suppliers from other member States. Moreover, the subsidiaries of non-member country banks, once established in a member State and henceforth regarded as Community nationals (under Art.58 of the Treaty) could compete with the banks of other member States without those States having had any say in the matter. Finally, if the Community competence were limited to sectors which have been the subject of internal harmonisation, the Community could be robbed of the possibility of using balanced bargaining power in the interests of all the member States across all service sectors. With regard to TRIPs, the need for external Community action would arise mainly from the risk of prejudice to the general cohesion of the common market and Community rules.

67. With regard to TRIPs, the Commission specifically argued that, as this Agreement lays down rules in areas where there are no Community harmonisation measures, its conclusion would make it possible, from the outset, to achieve harmonisation within the Community and thereby to contribute to the establishment and functioning of the internal market.

68. They contain no provisions on the problem of the first establishment of nationals of non-member countries and the rules governing their access to self-employed activities.

69. Council Directive 89/104/EEC on the approximation of the laws of the member States relating to trade marks (1989) O.J. L40/1.

70. (1986) O.J. L357/1.

71. For a recent expression that no harmonisation has been yet achieved in the field of IP rights, see the judgment of the ECJ in the Magill case, RTE/ITP v. Commission (Cases C-241 and C-242/91P), judgment of 6 Apr. 1995, [1995] E.C.R. I–743.

72. But where harmonising powers have been exercised, the harmonisation measures thus adopted may limit, or even remove, the freedom of the member States to negotiate with non-member countries.

73. A list of 33 acts of secondary legislation was supplied involving an external aspect (in the fields of banking, finance, insurance and telecommunications).

74. See supra n.55.

75. See Bourgeois, J. H. J.. “L'Avis de la Cour de Justice des Communautés Européennes a Propos de l'Uruguay Round: un Avis Mitigé” (1994) 4 Rev.Marché Unique Européen 11 and “The EC in the WTO and Advisory Opinion 1/94: An Echternach procession” (1995) 32 C.M.L.Rev. 763Google Scholar; Simon, D., La Compètence de la Communauté pour Conclure l'Accord OMC: l'Avis 1/94 de la Cour de Justice (1994) Ed. Techniques, Europe, 12 1994, p.1.Google Scholar

76. Here the ECJ held that directives which merely lay down minimum requirements do not give rise to exclusivity. See the case comment by N. A. Neuwhal in (1993) 30 C.M.L.Rev. 1185.

77. Brunner and Others v. the European Union Treaty (judgment of the Bundesverfassungsgericht) [1994] 1 C.M.L.R. 57, esp. paras.49,54,55 and 99.

78. The idea that the ECJ's jurisprudence may produce blockages in the internal decisionmaking process was expressed by Weiler, J. in the first issue of the Yearbook of European Law (1981), pp.267 et seq.: “The Community System: the Dual Character of Supranationalism”.CrossRefGoogle Scholar

79. It should be noted that “shared competence” does not mean that the Community and the member States have separate competence for different parts of the Agreements, as if the Community had exclusive power for certain parts of the Agreements and the member States retained their exclusive powers for other parts. It means, rather, that any decision in respect of the areas covered by the Agreement is to be decided jointly by the Community and the member States. See Neuwahl, , op. cit. supra n.76, esp. at p.1193.Google Scholar See also Dutheil, J. de la Rochére “L'ére des compétences partagées”. Rev. Marché Commun 09 1995, p.461.Google Scholar

80. For a discussion of the difficulties arising in relation to mixed agreements in the international field, see O'Keeffe, D. and Schermers, H. G. (Eds), Mixed Agreements (1983).Google Scholar

81. This provision had proved to be a useful legal basis for co-ordination of actions of member States and of the Community. See Editorial Comments, “The Aftermath of Opinion 1/94 or How to Ensure Unity of Representation for Joint Competences” (1995) 32 C.M.L.Rev. 385–390.

82. This duty arises from Art.5 of the EC Treaty. But the Court does not expressly me tion this provision in Opinion 1/94 and refers back to its previous opinion in the ILO case, Opinion 2/91, supra n.62, at para.36. For its application to the sphere of external relations, see Temple Lang, J., “The ERTA Judgment and the Court's Case Law on Competence and Conflict” (1986) 6 Y.E.L. 183, esp. 195–196, and, more generally, “Community Constitutional Law: Article 5 EEC Treaty” (1990) 27 C.M.L.Rev. 645, esp. 669–670.Google Scholar

83. A code of conduct is certainly needed as a basis for negotiation, but there is not yet a unanimous view of what sort of code.

84. It is for consideration whether an extension of the Community external competence would constitute the most efficient way to avoid practical and economic difficulties and to ensure the single voice and the single vote of the EU in the WTO. See Justus Lipsius “The 1996 Intergovernmental Conference” (1995) 32 C.M.L.Rev. 235, esp. at 252–253.

85. The Court has doubted whether it would be appropriate to remove to the judicial arena disputes which could just as satisfactorily be settled at a political level: see the Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, May 1995, at para. 14.

86. This may be assimilated to the line of evolution in federal States (for example the US) which are characterised by a movement from treaty-making power (and capacity) to internal competences. Federal government specific implementation competences have been extended by virtue of the treaty-making power. See Weiler, J. H. H., “External Legal Relations of Non-Unitary Actors”, in O'Keeffe and Schermers, op. cit. supra n.79, at pp.69 et seq.Google Scholar