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European Communities: Court of Justice Opinion 1/94 Concerning the Competence of the European Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property - Article 228(6) of the EC Treaty
Published online by Cambridge University Press: 27 February 2017
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- Type
- Judicial and Similar Proceedings
- Information
- Copyright
- Copyright © American Society of International Law 1995
Footnotes
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[Reproduced from Opinion 1/94, pp. 1-103-125, provided by the Court of Justice of the European Communities. The full table of contents of the Opinion indicating omissions appears at 34 I.L.M. 696 (1995). The Introductory Note was prepared for International Legal Materials by Dr. Rainer M. Bierwagen, Attorney at the Brussels, Belgium and Berlin, Germany law offices of Kemmler Rapp Bohlke & Crosby.
[The General Agreement on Tariffs and Trade Multilateral Trade Negotiations Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, done at Marrakesh on April 15, 1994, appears at 33 I.L.M. 1125 (1994), including the Agreement Establishing the World Trade Organization at 33 I.L.M. 1144 (1994), the General Agreement on Trade in Services (GATS) at 33 I.L.M. 1167 (1994), and the Agreement on Trade- Related Aspects of Intellectual Property Rights at 34 I.L.M. 1197 (1994).]
References
1 See Opinion 1/91 and Opinion 1/92, 1992 ECR 1-2821 (see also the review by Bierwagen/Hull in 87 AJIL 117(1993).
2 Opinion 2/91 of 19 March 1993, 1993 ECR 1-1061.
3 Case C-327/91, 9 August 1994.
4 Opinion 1/94 of the Court of Justice, 15 November 1994, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property - Article 228(6) of the EC Treaty, 1994 ECR I- not yet reported. References are to the report prepared by the Court and the opinion proper in the provisional English translation (102 and 23 typewritten pages respectively).
5 1975 ECR 1355, “Local costs linked to export operations”.
6 1977 ECR 741, “Inland waterways”.
7 1979 ECR 2871, “International agreement on natural rubber”.
8 Case 22/70, 1971 ECR 263, “AETR”.
9 See Report Point III. and Opinion para. 3: The start of the negotiations was approved by the Council and by the Member States “to the extent that they were concerned”. The Commission was empowered as the solenegotiator but it was noted that this decision “does not prejudge the question of the competence of the Community or the Member States on particular issues”.
10 See Report Point III. and Opinion para. 5. The Commission asked to include in the minutes of the meeting that “the Final Act … and the agreements annexed thereto fall exclusively within the competence of the European Community”.
11 See, for instance, “Draft code boosts Brussels’ aim of controlling EU trade policy”, Financial Times, 17/18 September 1994, page 24. See also Report Points XIV., XVII. D. and K. together with Opinion paras. 106-109. Regarding the post-Uruguay Round negotiations on services, a code was agreed upon; see Report Point XVII.D. for its content.
12 See the government's bill in Bundestagsdrucksache 12/7655 and the first footnote to the law. The law was enacted on 30 August 1994 and is published in Bundesgesetzblatt II Heft 40, pages 1438 et seq.
13 With respect to agriculture, the WTO Agreement can be ratified on the basis of Article 113 EC Treaty but certain implementing legislation requires Article 43 as legal basis, see Opinion paras. 28-31. Regarding ECSC products, Art. 71 ECSC Treaty provides that the powers of the Member States in matters of commercial policy are not affected by the treaty. However, this provision precedes the commercial policy provisions of the Treaty on the European Economic Community and the Court ruled that this provision “cannot in any event 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”, Opinion 1/75, 1975 ECR 1364 at 1365. In addition, it should be noted that the ECSC itself concluded international agreements on the basis of Article 95 of the ECSC Treaty. See Opinion paras. 25 to 27. Regarding Euratom products, the Euratom Treaty does not contain provisions relating to external trade; therefore, international agreements concluded pursuant to Article 113 EC Treaty can extend to Euratom products. See Opinion paras. 23 and 24.
14 Opinion, para. 45. The Court elaborates in addition on the particular situation of transport which is covered by specific provisions of the EC Treaty. International agreements in transport matters do not fall within the common commercial policy, see Opinion paras. 48-52.