THE COMMON COMMERCIAL POLICY UNDER THE LISBON TREATY
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Jean Monnet seminar
Advanced Issues of European Law
6th session
April 20-27, 2008, Dubrovnik
Re-thinking the European Constitution in an Enlarged European Union
THE COMMON COMMERCIAL POLICY UNDER THE LISBON TREATY
George-Dian Balan1
I. Introduction
1. The CCP is the most developed external policy of the EU and it is an exclusive European
competence since the Treaty of Rome (1957). Member States were precluded from
conducting individual commercial policies. The European Court of Justice (ECJ) makes it
clear in its Opinion 1/1975 in the Low Cost Standard case that,
It cannot therefore be accepted that, in a field such as that governed by the understanding in question, which is
covered by export policy and more generally by the common commercial policy, the Member States should
exercise a power concurrent to that of the Community, in the Community sphere and in the international sphere.
The provisions of Articles 113 and 114 concerning the conditions under which, according to the Treaty,
agreements on commercial policy must be concluded show clearly that the exercise of concurrent powers by the
Member States and the Community in this matter is impossible. (emphasis added)
2. However, a lot of debate took place as to the scope of the CCP, in particular regarding
trade in services, intellectual property and investments. The famous Opinion 1/94 of the ECJ
shed some light on the delimitations between exclusive Community competences and
competences shared with the Member States. From a legislative point of view some changes
took place with the coming into force of the Treaties of Amsterdam and especially Nice. The
contested Constitutional Treaty tried to further expand the competences of the Community in
the CCP and now the Reformed Treaty of Lisbon preserves the original text of the
Constitutional Treaty almost unchanged.
3. The main critics addressed to the Lisbon Treaty as a whole and to the CCP in particular are
the democratic deficit and lack of accountability. As we will see, the increased role of the EP,
a body directly elected by the European citizens, is not seen as a sufficient guarantee. The
decreasing participation of citizens in the EU elections over the years seem to show little
interest and failure to mobilize. But would it be a better way out? Difficult to say at this
1
Assistant lecturer, “Petre Andrei” University and “Stefan Lupascu” Institute of European Studies, Iasi,
Romania; PhD candidate and Master in European Studies/EU Law; Avocat, Iasi Bar.
George-Dian BALAN 1stage, probably not- as the EU internal procedures are par excellence chronophages and one
should avoid complicating things more than it is necessary.
4. In our CCP analysis we will pay attention to four categories of changes, regarding:
(i) the general architecture of the Treaty
(ii) the scope of the CCP
(iii) the distribution of competences within the EU institutions
(iv) the voting rules in the Council
II. The general architecture of the Treaty
5. Under the Lisbon Treaty the Union is finally accorded legal personality and the three EU
pillars are “merged”, while the intergovernmental decision-making procedures remain
effective. The European Community Treaty (TEC) becomes the Treaty on the Functioning of
the European Union (TFEU)2. The European Union Treaty (TEU) remains in place and
preserves its name, both treaties (TEU and TFEU) having the same legal value; furthermore,
on equal footing is placed the Charter of Fundamental Rights. The Secretariat of the Council,
which seems to possess the Ariadne’s thread, will consolidate the text of the Treaties after the
coming into force of the Lisbon amendments.
6. The structure of the TFEU preserves the main lines of its predecessor, the TEC. Two
distinct chapters on EU’s external action are introduced in both treaties (TEU and TFEU).
The external action comprises the common foreign and security policy (CFSP), the common
security and defense policy (CSDP), the CCP, the development cooperation and economic,
financial and technical cooperation with third countries.
7. Article 21 para 3 TEU embodies the new principle of consistency between different areas
of external action, on the one hand, and between these areas and “other policies”, namely its
internal action, on the other hand3:
The Union shall ensure consistency between the different areas of its external action and between these and its
other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign
Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
8. The CCP provisions are placed in Title II of Part V of the TFEU, namely Articles 206 and
2074 (replacing Articles 131 and 133 TEC). The objectives of the CCP remain unchanged,
with the exception of introducing the FDI amongst them, in Article 206:
2
As the EU takes over the prerogatives of the EC through the newly acquired legal personality, a solution must
be sought from the WTO Membership perspective, whereas Article XI of the WTO Agreement mentions the EC
as a Member of the Organization and not the EU. The same problem occurs with respect to the EC membership
of the Agreement establishing the European Bank for Reconstruction and Development (Article 3). We do
consider that a revision of the two mentioned agreements is not strictly necessary, as we have the precedent of
de facto succession of the EC to its Member States in the GATT 1947 era.
3
Article 10 A of the Lisbon Treaty.
4
Articles 188 B and 188 C of the Lisbon Treaty.
George-Dian BALAN 2By establishing a customs union in accordance with Articles 23 to 27, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers. 9. In relation to this text, two more observations should be added: (a) the aim is no longer the aim of Member States, but the aim of the Union, suggesting the full transfer to exclusive competence and (b) the new wording (shall) might be associated with a stronger obligation towards trade liberalization for the EU5. 10. Article 207 TFEU reiterates at the end of its first paragraph the principle of consistency: The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action. 11. A uniform representation of EU is definitely a must and a Europe with one voice is more trustful. But this consistency requirement can throw trade policy in human rights or other similar hot debates6. III. The scope of the CCP 12. Under the Lisbon Treaty the CCP covers trade in goods and services, commercial aspects of intellectual property and foreign direct investment. 13. It is worth mentioning the role of the ECJ in defining the scope of trade policy along the years. Although as a general trend the ECJ favored the integration process and implicitly Commission’s position, on some occasions it was more reserved, siding with the preservation of Member States’ prerogatives. The latter approach was confirmed by the Amsterdam and Nice amendments, who maintained some exceptions from the exclusive competence. 14. Without insisting on a subject already widely debated, we will remind the relevant ECJ cases and opinions for the CCP, such as Case 22/70 Commission v. Council (ERTA, the doctrine of implied powers), Opinion 1/75 (OECD Local Cost Standard), Joined cases 3-4 and 6/76 Kramer and others (Fisheries), Opinion 1/76 (Rhine Navigation), Opinion 1/78 (International Rubber Agreement), Opinion 2/91 (ILO), Opinion 2/92 (OECD National Treatment Instrument) and Opinion 1/94 (WTO)7. 3.1. trade in goods 15. Trade in goods is entirely covered by the CCP, as the ECJ makes it clear in its Opinion 1/94, although some questions were raised as to agriculture and technical barriers to trade (TBT), also answered on the same occasion. 5 See Marise Cremona, A Constitutional Basis for Effective External Action?-An Assessment of the Provisions on EU External Action in the Constitutional Treaty, EUI Working Papers, Law no. 2006/30. 6 Under the current state of play the EC can already suspend trade agreements and impose commercial sanctions. 7 For a landmark analysis of these moments see Piet Eeckhout, External Relations of the European Union, Legal and Constitutional Foundations, OUP, 2005 George-Dian BALAN 3
3.2. trade in services
16. Under the Lisbon Treaty trade in services is entirely covered by the CCP, as exclusive
Union competence. A particular sensitivity with regard to trade in services still subsists,
being reflected in the voting rules in the Council8.
17. For the moment, under the Nice Treaty, some services might still fall under shared
competences- cultural and audiovisual services, educational, and social and human health
services- but in so far as the proposed elements go beyond the internal powers of the EC.
3.3. commercial aspects of intellectual property rights
18. The inclusion of commercial aspects of IP in the WTO agreements was said to open
Pandora’s Box. However, the commercial aspects of IP are already exclusive competence
and will remain after the entry into force of the Lisbon Treaty.
3.4. foreign direct investment
19. The big novelty of the Constitutional Treaty and, subsequently, of the Lisbon Treaty is
the inclusion of the FDI in the scope of the CCP.
20. FDI accounts for two-thirds of the world’s money, against a share of one-third for trade.
A multilateral framework was not possible to achieve and states preferred the “spaghetti
bowl” of bilateral investment agreements9. The champions of this process can count as much
as more than 80 agreements each10.
21. Accordingly, FDI does not have a unique definition and each bilateral agreement
provides for its own definition. However, Directive 88/361/EEC provides for a Community
level agreed definition, which might be used as to CCP purposes11:
“Investments of all kinds by natural persons or commercial, industrial or financial undertakings, and which
serve to establish or to maintain lasting and direct links between the person providing the capital and the
8
See infra, section V.
9
In the WTO framework it was possible to agree only on limited aspects related to investments, namely the
TRIMS Agreement. For details see Mitsuo Matsushita, Thomas Schoenbaum and Petros Mavroidis, The World
Trade Organization. Law, Practice and Policy, second edition, OUP, 2006, p. 831-850.
10
See the case of Investment Promotion and Protection Agreements (IPPAs) – EU Member States such as
Germany, UK, France, Italy, Netherlands, Belgium and Luxembourg, and Romania (Le régime juridique
international de l’investissement, UNCTAD presentation in Rome, 2006).
11
See also OECD Benchmark Definition of Foreign Direct Investment, third edition, p7: “Foreign direct
investment reflects the objective of obtaining a lasting interest by a resident entity in one economy (‘‘direct
investor’’) in an entity resident in an economy other than that of the investor (‘‘direct investment enterprise’’).
The lasting interest implies the existence of a long-term relationship between the direct investor and the
enterprise and a significant degree of influence on the management of the enterprise. Direct investment involves
both the initial transaction between the two entities and all subsequent capital transactions between them and
among affiliated enterprises, both incorporated and unincorporated”.
George-Dian BALAN 4entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity. This concept must therefore be understood in its widest sense.” 22. The inclusion of FDI within the scope of the CCP raises a number of questions: (i) do the Member States really lose their prerogatives in the FDI sector? (ii) which will be the legal status of the existing agreements concluded by the Member States and (iii) which would be the consequences in terms of external representation of the Union? We will try to answer all these questions in the following lines. (i) do the Member States really lose their prerogatives in the FDI sector? 23. Under the Lisbon Treaty the Union has exclusive powers to negotiate FDI agreements in all sectors and to adopt the appropriate legislation12. Apparently the language of the Treaty leaves no room for exceptions, including sensitive issues such as protection in case of expropriation13. This approach is a result of a combined textual, contextual and teleological interpretation14. 24. Article 2 of the TFEU15 makes it clear that in areas of exclusive competence Member States are precluded to overlap Union’s prerogatives: When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. 25. The principle of parallelism enunciated in the last paragraph of Article 207 TFEU reiterates, inter alia, the provisions of Article 216: 12 Before Lisbon it has been argued that the provisions of Article 56 TEC can be considered as harmonization. 13 The Court seems flexible in interpreting Article 295 ECT, stating that “[…] the provisions of the Treaty and in particular Article 222, which provides that the Treaty does not in any way prejudice the rules in Member States governing the system of property ownership cannot be interpreted as reserving to the national legislature, in relation to industrial and commercial property, the power to adopt measures which would adversely affect the principle of free movement of goods within the common market as provided for and regulated by the Treaty […]. Thus, far from endorsing the argument that rules concerning the very existence of industrial property rights fall within the sole jurisdiction of the national legislature, the Court was anticipating the unification of patent provisions or harmonization of the relevant national legislation. (Case C-350/92, Spain v Council, [1995] ECR 1493, para 18 and 19) 14 A footnote intended to exclude investment protection from the scope of the CCP was removed during the travaux préparatoires. 15 Article 2 A of the Lisbon Treaty. 16 This principle should be read in conjunction with the principle of consistency enunciated in Article 10 TEU. However, a different reading would suggest that the Union will be free to conclude any trade agreement (as such), with limitations only to its implementation (as applied). In this case the external competence would go beyond the internal prerogatives of the Union. Moreover, inconsistency between external and internal powers is not unusual in some federal systems (Belgium, Germany or Switzerland). See Karen Kaiser, Comment on Dorota Leczykiewicz - Common Commercial Policy: The Expanding Competence of the European Union in the Area of International Trade, in GERMAN LAW JOURNAL, p. 1691, referring to previous assessments by Jacques H. J. Bourgeois and Markus Krajewski. George-Dian BALAN 5
The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonization of legislative or regulatory provisions of the Member States insofar as the Treaties exclude such harmonization. 26. This paragraph plays an “anti-circumvention” role, making sure that one cannot harmonize internally by means of an external policy. But how effective would it be this principle in practice to except from the exclusive Union competence the areas not subject to harmonization? 27. To the moment, the equivalent provisions in the TEC -article 133(6), and especially the specific services- are subject to dispute between Commission and Council, where the outcome is to be decided by the ECJ. The case at stake is C-13/07, an action for annulment of the Council and Member States decision establishing the Community’ and Member States’ position within the WTO General Council on the accession of Viet Nam17. However, the Lisbon text does not provide for an explicit exception from the exclusive competence, as the present text does for some services (under the above mentioned circumstances). Accordingly, we need to find practical examples of possible trade deals which would go beyond the harmonization in place at domestic (Union) level. The Lisbon Treaty excludes harmonization, for instance, in fields such as occupation, social policy, health, industry or culture18. 28. Finally, it is worth mentioning the duty of sincere cooperation between Member States and the Union, embodied in Article 4 TEU19. However, this remains an obligation of conduct and not an obligation of result: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. […] The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.’ 29. At the end of the day, it is a question of precedence of two important values: Members States’ participation or a quicker and more efficient EU decision-making. (ii) which will be the legal status of the existing agreements concluded by the Member States? 17 See OJEU, C56/22, 10.3.2007. The Commission seeks the avoidance of a dangerous precedent sending under mixed competence agreements concluded in the WTO context. Under the current Nice Treaty a mixed agreement has to follow the national track and any Member State discontent with the provisions of a chapter under exclusive Community competence (agriculture, for instance) can veto the whole agreement using the sensitive services issues. 18 An international trade agreement containing provisions addressing one of these aspects will qualify as a mixed agreement. 19 Article 3a of the Lisbon Treaty; under the Nice Treaty article 10 TEC provides for a duty of cooperation of Member States and Community institutions, confirmed by the ECJ in Opinion 1/94. This provision is repealed by the Lisbon Treaty. George-Dian BALAN 6
30. In contrast to the language of the original EC Treaty, (1) no transitional period is provided by the Treaty and (2) there is no provision recognizing the right of Member States to keep in place their existing agreements as long as they are fully complying with EU Law. 31. As the situation stands now, from the moment of entry into force of the Lisbon Treaty (1) the member States will be precluded to conclude any FDI agreements, (2) the existing domestic laws and regulations will become unlawful and (3) the existing bilateral FDI agreements will have to be denunciated, (4) having to be replaced by the new generation of agreements concluded at Union level. 32. We could already see that some MS have concluded a significant number of IPPAs. Therefore, a “shock” approach would be highly un-recommended and, accordingly, a solution should be sought. The classic grandfathering could guarantee a smooth landing on this issue. A transition period might help MS in accepting the transfer of their competences to the Brussels-based bureaucracy, but one should keep in mind that by ratifying the Treaty the transfer of competence is already sealed.20 (iii) which would be the consequences in terms of external representation of the Union? 33. Under the current practice the Member States conclude IPPAs, while at Community level there are concluded a number of investment liberalization agreements (with separate titles on capital movement and payments). 34. Accordingly, the Union FTAs will be reshaped according to the stage of the negotiation process (e.g.- already concluded, under negotiation, to be negotiated after the entry into force of the reformed Treaty.) 35. The Union (more specifically the Commission) will replace the Member States in all international fora dealing with investment issues (WTO, UNCTAD, OECD etc). In some cases specific arrangements will have to be made. 36. The Commission will probably stand in investor-to-state dispute settlement proceedings before the World Bank International Centre for the Settlement of Investment Disputes (ICSID) on behalf of its Member States or before any tribunal established under the UNCITRAL arbitration rules (subject to agreements in this respect). As FTA dispute settlement are now included in the scope of the TBR, such proceedings could be launched by the Commission on behalf of EU investors. Accordingly, the workload of the Commission specialized services will increase. IV. The distribution of competences within the EU institutions 37. As a general remark, there will be no radical change in the day-by-day decision making process in trade issues, except the (increased) role of the EP. 20 See Jan Ceyssens, Towards a common foreign investment policy? Foreign investment in the European Constitution in Legal Issues of Economic Integration, September 2005. George-Dian BALAN 7
4.1. How the decision making process will work in practice 38. The initiative of proposing to open negotiations belongs to the Commission, who makes recommendations to the Council. The latter one formally authorizes the Commission and defines negotiating directives. The specialized Commission service is the Directorate- General for External Trade (DG TRADE). However, all proposals have to be approved by the College of Commissioners. 39. The negotiation process is conducted by the Commission in consultations with a special committee appointed by the Council, named today the 133 committee (207 committee in the future?). The committee is composed of the representatives of Member States and the Commission. Under the current practice the Committee meets one every week in Brussels, usually on Friday. Once a month it meets in the senior officials’ formula. The meetings of the Committee will be chaired either by a member of the External Action Service or by the rotating Presidency. 40. The Commission has the duty, according to the Treaty, to report regularly to the European Parliament (EP), which already has a specialized committee dealing with trade issues- the INTA. 41. Once the negotiations are concluded, the Council adopts a decision authorizing the signing of the agreement (Art. 218 (5)(6))21. 42. The EP has to give its assent to a number of agreements, including agreements in the fields where the ordinary legislative procedure applies (CCP falls within this category). The EP’s assent will be required in a number of other agreements which might contain trade provisions: association agreements, agreements establishing a specific institutional framework by organizing cooperation procedures or agreements with important budgetary implications for the EU. 43. The Council and the Commission are jointly responsible for making sure that the agreements are consistent with the internal rules and policies of the Union. 44. As one could easily notice from this short description of the decision-making chain, the role of the EP has considerably increased under the new Article 20722. Companies are already adding in the job profiles of their trade representatives lobbying with the MEPs. 45. The EP will adopt jointly with the Council regulations in accordance with "the ordinary legislative procedure" (the co-decision procedure) for taking the measures for implementing 21 Article 188 N of the Lisbon Treaty. 22 The state of play provides for a limited role of the EP in trade policy. It is consulted for the conclusion of agreements that go beyond trade policy and has to give its assent for a number of other issues (Association Agreements, agreements setting up institutional frameworks etc). For all the other issues the EP has no role assigned under the Nice Treaty. However, the 2000 Framework Agreement makes the EP an observer of the trade arena. Its specialized committee- the International Trade Committee (INTA) - is regularly “informed” by the Commission on developments in trade policy. MEPs can ask written or oral questions to the Commission or Council, and sometimes debates on trade policy topics take place during the monthly plenary sessions. George-Dian BALAN 8
the CCP. This is a consequence of the overall increase of power of the EP during the last
waves of treaty reform and a counter-balance of the decreasing role of national parliaments in
trade policy.
46. The day-to-day administration of trade policy, not involving the adoption of international
agreements or legislative acts, will be in the hands of the Commission, in consultations with
the same 207? committee.
47. Several aspects of the administration of trade policy are currently handled through
comitology. Twelve comitology committees are presently assisting the Commission in trade
policy23. Their object varies from market access and Trade Barrier Regulation (TBR) to
sector-specific committees (textiles, footwear, porcelain and ceramics kitchenware, steel or
medicines), transshipment or retaliation. The typology of the committees ranges from
advisory and safeguards to management and regulatory.
48. Article 290 TFEU24 provides the new legal basis for regulating the transfer of executive
powers and the comitology mechanism, in the pursuit of placing on equal footing the Council
and Parliament in the regular legislative procedure.
1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general
application to supplement or amend certain non-essential elements of the legislative act. The objectives,
content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The
essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a
delegation of power.
49. The de facto result of the extension of EP competence to CCP could be actually the
proliferation of comitology, as delegation of powers would appear suitable in an otherwise
lengthy co-decision process. However, the future of comitology is not very clear and a lot of
debate is still in place25.
4.2. Institutional framework for dispute settlement
50. The Commission initiates dispute settlement proceedings under trade agreements. In
order to build up a case there are close inter-service consultations among the legal unit in the
Directorate-General External Trade and the corresponding unit in the Legal Service, with
participation of relevant units from other Directorates- General (Agriculture, Enterprise,
Environment etc).
51. Under the Lisbon Treaty the Commission will continue to carry out dispute settlement
actions, as a consequence of the exclusive Union competence in trade policy and its role in
ensuring the law enforcement. The Union, through the Commission, will stand always on
behalf of Member States both as complainant or defendant, even when only one Member
23
See Comités de comitologie assistant la Commission, document which can be found at
http://ec.europa.eu/transparency/regcomitology/include/comitology_committees_FR.pdf
24
Article 249 B of the Lisbon Treaty.
25
As to the first semester of 2008 COREPER established the “Friends of the Presidency Group – comitology”
charged with the examination of alignment proposals according to the omnibus method. Furthermore, article
249 C (implementing legislation) could be also seen as a sort of comitology.
George-Dian BALAN 9State is directly affected by a measure of a third country (however, it might be also a Community/Union interest test to be passed)26 or when the challenged measure is a law of only one Member State27. 52. All WTO-related actions- consultations, panel and Appellate Body proceedings, DSB meetings etc will continue to fit in the “job description” fiche of the Commission. Member States are informed on the developments on dispute settlement during the 133 Committee meetings and the INTA committee of the EP will continue to be briefed on latest evolutions. Under the current practice the Commission circulates once a month a detailed report on dispute settlement proceedings involving the Community to Directors-General of Trade Ministries of the Member States; the document is made public through the website of the Directorate-General External Trade. 53. In the implementation phase of WTO reports/ bilateral agreements panel reports the Commission will propose the act modifying/repealing the original act found to be inconsistent with the Union’s obligations. The Council and the EP will take the necessary action according to the procedure foreseen for the adoption of the original measure (the principle of symmetry). 54. Comitology will probably continue to play a role in dispute settlement. At the present the activity of two comitology committees is particularly relevant for our analysis: the TBR Committee and the Retaliation Committee. 55. The TBR Committee is advisory, with the particularity that in its initial phase it works as a safeguards committee- one single Member State can defer the case to the Council. Decisions are taken with simple majority. The violations analyzed may concern WTO or bilateral commitments28. Following the decision of the Committee the Commission may open a case. 56. The Retaliation Committee is regulatory and it was founded as response to the needs of adjusting the sanctions in a specific case (US-Byrd Amendment). Its activity may involve in the future other cases as well, as there is a general policy of avoiding the creation of new comitology committees. 26 This test formally exists in the TBR. 27 A WTO panel in DS 174 EC-Geographical Indications stated at para 7.725 that: “The Panel also recalls its findings […] that it has accepted the European Communities' explanation of what amount to its sui generis domestic constitutional arrangements that Community laws are generally not executed through authorities at Community level but rather through recourse to the authorities of its member States which, in such a situation, "act de facto as organs of the Community, for which the Community would be responsible under WTO law and international law in general"”. 28 The Trade Barrier Regulation (TBR) is the equivalent of the US Section 301, a legal instrument to allow offensive action of Community industries which encounter obstacles to trade in third countries. For more details see Maclean and Volpi, EU Trade Barrier Regulation, Tackling Unfair Foreign Trade Practices, Palladian Law Publishing, 2000 and Van Bael & Bellis, Anti-Dumping and Other Trade Protection Laws of the EC, Kluwer Law International, fourth edition, 2004. Until January 2008 25 TBR cases have been instrumented. George-Dian BALAN 10
V. The voting rules in the Council
57. The qualified majority voting (QMV) for the negotiation and conclusion of agreements
remains the general rule in the Council.
58. However, unanimity is still required for a number of sectors. In comparison to the
Constitutional Treaty, it has (surprisingly) a wider coverage. Accordingly, unanimity will be
applied:
(a) for services29, commercial aspects of IP and FDI when unanimity is required for the
adoption of internal rules, according to the principle in foro interno, in foro externo;
(b) in the field of trade in cultural and audiovisual services, if the agreements ‘‘risk
prejudicing the Union’s cultural and linguistic diversity’’. As the phrase is far from being
self-interpreting, its reach remains unclear.
(c) for trade in education, social and health services, if these agreements risk ‘‘seriously
disturbing the national organization of such services and prejudicing the responsibility of
Member States to deliver them’’.
VI. Conclusions
59. In a nutshell, the main changes brought by the Treaty of Lisbon in comparison to the
Treaty of Nice are:
(i) as to the structure of the Treaty, the sedes materiae of the CCP is Title II of the new
Part five of the TFEU- External Action by the Union (Articles 206 and 207)
(ii) as to the scope of the CCP: (a) FDI are covered by the CCP for the first time, while
(b) the exceptions regarding cultural and audiovisual services, educational services,
and social and human health services are removed, all services falling under exclusive
European competence.
(iii) as to the distribution of competences within the EU institutions, the European
Parliament becomes a player
(iv) as to the voting rules in the Council, unanimity for the negotiation and conclusion of
agreements is required (a) for services, IP and FDI when unanimity is required for the
adoption of internal rules, according to the principle in foro interno, in foro externo
and (b) in the field of trade in cultural and audiovisual services and trade in education,
social and health services, under specific conditions set up in the Treaty.
29
In the Constitutional Treaty unanimity was intended only for trade in services involving the movement of
persons (Mode 4 of GATS).
George-Dian BALAN 1160. Therefore, we can conclude that:
(i) national parliaments do not play a role anymore in ratifying trade agreements, as all
trade in goods, services, IP and the FDI is exclusive European competence
(ii) the actual decision making process will be substantially the same: the Commission
makes recommendations to the Council, which authorizes it to open the negotiations;
then the Commission conducts the negotiations in consultation with a special
committee (133 committee at the present) appointed by the Council and regularly
reports to the special committee.
(iii) the European Parliament, which has no competence in CCP under the Nice Treaty (is
“informed” according to the 2000 Framework agreement) is now taking action under
the co-decision procedure and gives its assent
(iv) the qualified majority remains the voting rule in the Council, unanimity being
required only in the mentioned cases.
(v) international agreements in the field of transport continue to not be covered by the
CCP
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