1- General Principles of EU ExternalAction- EU as an International Actor Article 47 of the Treaty ofEuropean Union (TEU) states the legal personality of the Union as saying “TheUnion shall have legal personality.
“1Although the Union’s legal personality mentioned in several Treaty provisions2,in respect to “international personality” of the Union there is no expressedmention in Treaty (TEU, TFEU) provision.3Besides the lack of expressed mention in Treaties, ERTA4ruling has an essential role in regard to define legal personality of Union inrespect to International Law.5 InERTA Case, the judgment of the ECJ(European Court of Justice) came to a conclusion that European Commission (EC)has a legal personality under public international law in the scope of allpolicy areas that it has competence to act.6Other essential impact on EU’s international existence that ERTA ruling provided is establishment ofself-rule of the legal order of the EC.
7 Within the above mentioned provisionsand ECJ case law taking into consideration, It is possible to state that EUholds international personality. Indeed, it enjoys the right to conclude andnegotiate international agreements, represent Member States beforeinternational institutions, establish relationships with third parties onbehalf of Member States and be subject to legal duties.8- EU external competence under thelight of Principle of Conferral External Competences ofEuropean Union can be defined as: “competencesare those that fall within the framework of the EU’s relations and partnershipswith non-EU countries and international,regional or global organizations.”9Allocation of the competences between Union and MemberStates has always been a significant issue in respect to conclude and negotiateinternational agreements. Since European Union (EU) can only act within thelimit of competences attributed to itself by Member States through the Treaties,Principle of conferral (Article 5 TEU), as one of the fundamental principle ofEU, represents the key point in regard to assessing the extent of the Union’scompetence.10In other words, within the limited scope that not attributed to Union, MemberStates remain able to act.
In regard to Union’s competence, Article 5(1)(2) TEUstated as follows: “The limits of Union competences are governed by theprinciple of conferral. The use of Union competences is governed by the principlesof Subsidiarity and proportionality. Under the principle of conferral, theUnion shall act only within the limits of the competences conferred upon it bythe Member States in the Treaties to attain the objectives set out therein.Competences not conferred upon the Union in the Treaties remain with the MemberStates..
.”11 Article 3 TFEU should alsobe mentioned in regard to external competence of European Union. One of theexclusive competence areas mentioned in the scope of Article 3 TFEU is CommonCommercial Policy of EU.12 In regard to EU Internationalrelations, Common Commercial Policy (CCP) is further defined in Article 207TFEU (Article 133 EC). The provision provides an external exclusive competenceto the institutions of European Union (EU) in order to “implement the CommonCommercial Policy (CCP).”13 Common Commercial Policy within the scope of Article 207 TFEU – The concept and Background The Common Commercial Policy(CCP) has been an essential policy area under the European Union’s (EU)external relations since the early days of the Community by reason of the fact thatit expressly provides exclusive EU competences.14Since it provides exclusive competences to EU itself, i.e.
allow Union concludeand negotiate trade related agreements independently of the Member States, CCPhad been subject to various discussions among the Member States in respect toits scope.15Article 207 TFEU provides an exclusive competence to EU and limits the autonomyof Member States, therefore the question of whether an agreement falls withinthe scope of the Article 207 TFEU has a significant importance. In respect todetermine whether an international agreement falling under the Article 207 thepurpose of the agreement should be examined. 16If the relevant agreement aims to broaden the territory of EU internal market,the agreements can be examined as falling under the CCP.
17 Onthe other hand, even if the agreement has impact on international level in thecase of its purpose is developing the functioning of the internal market itcould be argued that the agreement would not be falling under the CCP.18- Development of the Common CommercialPolicy and Competence Issues The scope of the CCP underthe meaning of Article 207 TFEU (Article 133 EC), have been enlarged over thetime. Before the contribution of Lisbon Treaty, EU’s exclusive competence inthe field of CCP has been accepted in Opinion 1/75.19In support of exclusivity, few arguments had been brought out from ECJ. InOpinion 1/7520,The Court defended that exclusivity is needed in order to fulfill theCommunity’s common interests in regard to trade related issues, avoiddistortions of competition between undertakings and ensure the Member States’loyalty towards the Union and its institutions.
21Within the framework of Opinion 1/75, it can be argued that ECJ interpreted CCPin broad terms. In opinion 1/7822,ECJ stated that “Any measure regulatingforeign trade should be included in the EU Trade policy”.23It could be concluded from the Opinion 1/7824that the wording of Article 133(1) EC (Article 207(1)) is not all-inclusive.25In 1994, after the UruguayRound negotiations ended, regarding the concluding WTO Agreement, The EuropeanCommission supported the idea of the joint competence between Member Stateswhich brought a legal issue in regard to distribution of legal competencesbetween Commission and Member States.26An opinion requested by Commission from Court in order to solve the competencematter.
Thus, Opinion 1/94 came out which accepted one of the most importantjudgments delivered by ECJ27.In Opinion 1/94, The ECJ assumed the exclusive competence of the Community toconclude international agreements concerning services and the protection ofintellectual property while in regard to GATS and TRIPS ECJ assumed jointcompetence between Commission and Member States.28 In 1990, The Treaty ofLisbon has brought the most significant change and introduced a broader contextin accordance with the idea of integration and stability among Member States inrespect to fulfilling the Union power.29After the Lisbon Treaty came into force in 1990, “trade in services, the commercial aspects of intellectual property andforeign direct investments”30had started to be covered by the scope of CCP.
In other words, after LisbonTreaty Member States are no more able to conclude international agreementsindividually and independently of Union regarding the fields of expressed inArticle 207 TFEU. In conjunction with theLisbon Treaty, within the scope of CCP, alongside of uniformity andliberalization principles, it is assumed that a broader context which promoteseconomic and social progress between Member States had been introduced.31While it is possible to argue that the scope introduced by Lisbon Treaty leadcertain reductions in uncertainty regarding to the scope of CCP, there arestill an ongoing discussion about the definition of “trade in services, the commercial aspects of intellectual property andforeign direct investments”32.
Defining the scope of CCP is anessential issue due to the fact that implementation of the scope of CCP widelywould cause less effectiveness of the Member States in the external trade areaof EU.33As it has stated by Advocate General Kokott, European Union has anexclusive external competence while exercising the external relations fallingunder the scope of CCP unless “Article 133(6) EC(Article 207(6) TFEU) requires the common accord of the Member States.”34Therefore, Article 207(6)has to be examined in order to have a clear understanding of competence issues.EU’s external competence under Article 207 (6) TFEU a) Common FrameworkUnder the light of abovementioned ongoing discussion regarding the exclusive competence of EuropeanUnion, Article 207(6) TFEU which contains an exception provision in respect toUnion’s competence under CCP should be examined. Article 207(6)35consists of two limitations as follows: “The exerciseof the competences conferred by this Article in the field of the commoncommercial policy shall not affect the delimitation of competences between theUnion and the Member States, and shall not lead to harmonisation of legislativeor regulatory provisions of the Member States in so far as the Treaties excludesuch harmonisation.”36The first limitation could be read as a reflection of principle of conferral.
37Within the Advocate General Sharpston’s words in Opinion 2/15 the scope of thelimitation could also be defined: “the exerciseof the European Union’s exclusive competence over the common commercial policymay not alter or otherwise affect the Treaty provisions on the allocation ofcompetences in other areas fallingoutside the scope of that competence (such as, for example, trade in theinternal market).”38Indeed, the exclusive competence that European Union enjoys under Article207(1) as regard to the entire trade related agreement falls within the scopeof CCP cannot be read as Union has also competence to conduct all internalmatters Agreement covers.39Limitation should be imposed in the case of provisions of internationalagreement exceeds the internal powers of Union.40In other words, “CCP competence should find a systemic limit inthe internal competences of the Union.”41Thesecond limitation appointed by Article 207(6) is regard to prohibition ofharmonization of Member State’s legislative regulations where the Treatiesexpressly forbid it.42However, Article 207(4) expressly states that such matters as social policy,education, public health would be falling under the scope of CCP.43Therefore, it could be argued that the limitation does not prohibit the entirecover of the CCP since such matters which are subject to precludedharmonisation in other Treaty provisions44explicitly mentioned in Article 207(4).
45Thus, from the wide interpretation perspective of EU competences, It will notbe wrong to say that EU may still has the competence to conclude agreements inregard to areas which are subject to precluded harmonisation in particularhealth, education etc.46In respect to underlying aim of the second limitation, also could be said”through the exercise of its competences under Article 207 TFEU, the EuropeanUnion cannot act so ac circumvent the prohibition of harmonisation under theTreaties.”47 One of the differentinterpretations in regard to Article 207(6) belongs to Ceyssens. From the “principleof parallelism”48 point of view whichimplied in Opinion 1/9449,he indicated that “where the EU does not even have internal competences, thereis no need to protect the uniformity of EU rules by conducting a commoncommercial policy.”50 b) ECJ Jurisprudence In the context ofapplicability of Article 207 TFEU and its limitations (Article 207(6)), ECJ hadconcluded several interpretations in order to clarify the exclusive competencedispute. Opinion 1/9451considered as a landmark decision of ECJ in regard to EU’s externalcompetences.52One of the essential judgments of ECJ in regard to “commercial aspects of IntellectualProperty”53is Daiichi Sankyo case,54which had been subject to a discussion whether the scope of it falls within thescope of Article 207 TFEU.55In this case, ECJ came to the conclusion that the dispute was falling under thescope of Article 207 (1) and hence the field of common commercial policy due toits “specific link to international trade”.
56In Daiichi Sankyo case57,in respect to intellectual property rights ECJ stated as follows: “Admittedly, it remains altogether open to the EuropeanUnion, after the entry into force of the FEU Treaty, to legislate on thesubject of intellectual property rights by virtue of competence relating to thefield of the internal market.”58In the context of Daiichi Sankyo judgement, it could be argued that ECJ tendsto interpret the scope of the Article 207 widely. Conclusion On the basis of aboveconsiderations, In the light of the above, Parallellismilkesi ECJ207/6 geni? yorumlanmamal? diyor. Yani commisssion yetkili demek bu.1 Article 47 Treaty of EuropeanUnion (TEU),http://eur-lex.europa.
eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF2 Article 335 TFEU 3 Craig P., Burca G., EU LAW,Text, Cases, And Materials, Sixth Edition, 2015, p.
321. 4 ECJ Case 22/70, Commission v.Council (AETR/ERTA), 1971 ecr 2635 Kadelbach S., ERTA Case, MaxPlanck Encyclopedia of Public International Law MPEPIL, paragraph 7.
6 Kadelbach S., ERTA Case, MaxPlanck Encyclopedia of Public International Law MPEPIL, paragraph 7.7 Kadelbach S., ERTA Case, MaxPlanck Encyclopedia of Public International Law MPEPIL, paragraph 7.8 Craig P., Burca G., EU LAW,Text, Cases, And Materials, Sixth Edition, 2015, p.322.
9 EUROPA, EU Law and Publications,EUR-Lex, Summaries of EjoiU Legislation, Glossary of Summaries, TheEuropean Unions’s ExternalAction, http://eur-lex.europa.eu/summary/glossary/external_responsibilities.html10 Article 5 teu 11 Article 5 teu12 Article 3 TFEU 13 Article 207 TFEU 14Holdgaard R., External Relations Law of the European Community Legal Reasoningand Legal Discourses Wolters Kluwer Law, 2008, p. 25 15Koutrakos P.
, EU International Relations Law, Modern Studies In European Law,2006, p.33.16 Opinion2/15 para 10417 Opinion2/15 para 104, Case Judgment of 22 October 2013, Commission vCouncil, C?137/12, EU:C:2013:675, paragraph 6718 Opinion2/15 para 104 , This affect could be seen in opinion 1/94. 19Devuyst Y., The European Union’s Competence In International Trade after LisbonTreaty, Vol 39,639, p. 64720Opinion 1/75, Understanding on a Local Cost Standart 1975 ECR 1355, p. 1362. 21Eeckhout P.
, External Relations of the European Union, Legal and ConstitutionalFoundations, Oxford EC Law Libary, 2004, p. 1422Opinion 1/7823Dimopoulos A, EU External Relations, The Evolation of the Common CommercialPolicy, Slide 3. 24 Opinion1/78 1979 ECR 2871, para 45. Case 165/87 Commission v. Council 1989 ECR5545, para 45. 25 KoutrakosP., EU International Relations Law, Modern Studies In European Law, 2006, p.33.
26 HilfM., The ECJ’s Opinion 1/94 on the WTO – No Surprise, but Wise? – , p. 251.
27Neuwahl N., The General Law of E.C. External Relations, Centre For EuropeanStudies (Cambridge), 2000, p.139 28 HilfM., The ECJ’s Opinion 1/94 on the WTO – No Surprise, but Wise? – , p. 251.
29Dimopoulos A, The Effects of the Lisbon Treaty on the Principles and Objectivesof the Common Commercial Policy (2010), 15, European Foreign Affairs Review,p.153-170 30Devuyst Y., The European Union’s Competence In International Trade after LisbonTreaty, Vol 39,639, p. 653, Dimopoulos A., The Common Commercial Policy afterLisbon: Establishing Parallelism between Internal and External EconomicRelations?, 101, 107-08, 2008. 31 Dimopoulos A, The Effects of the Lisbon Treaty on thePrinciples and Objectives of the Common Commercial Policy (2010), 15, EuropeanForeign Affairs Review, p.153-170 Ibid,p.
153-17032Devuyst Y., The European Union’s Competence In International Trade after LisbonTreaty, Vol 39,639, p. 653, Dimopoulos A., The Common Commercial Policy afterLisbon: Establishing Parallelism between Internal and External EconomicRelations?, 101, 107-08, 2008.
33Koutrakos P., EU International Relations Law, Modern Studies In European Law,2006, p.33.34Case C-13/07 Opinion of Advocate General Kokott p. 8535Article 207(6)36Article 207(6) 37Opinion 2/15 para 10738 Opinion2/15 para 107 39 Opinion 2/15 para 108 40 Case C-13/07 Opinion of Advocate General Kokott Para 11641 Schutze R., European Union Law,External Powers, Competence and Procedures, p194.42 Opinion 2/15 para 110 43 Article 207(4) 44 See Article 19,79,84,149,165TFEU 45 Opinion 2/15 para 110 46 Krajewski M.
, The Reform of theCommon Commercial Policy, p.21. 47 Opinion 2/15 para 110 48 Shan W., Zhang S., The Treaty OfLisbon: Half Way Toward a Common Investmen Policy, European Journol ofInternational Law, Volume 21, Issue 4, 1 November 2010, Pages 1049- 1073. 49 Opinion 1/9450 Ceyssens,’Towards a Common Foreign Investment Policy? Foreign Investment in the EuropeanCommission’, 32 Legal Issues of Economic Integration (2005)259, at 281.51 52 53 53Tanghe Y.
, The Borders of EU Competences with Regard to the InternationalRegulation of Intellectual Property Rights: Constructing a Dam to Resist aRiver Bursting Its Banks, 2016, 32(82), Utrecht Journal of International andEuropean Law 27, p. 1.54 Case414/11 55 TangheY., The Borders of EU Competences with Regard to the International Regulationof Intellectual Property Rights: Constructing a Dam to Resist a River BurstingIts Banks, 2016, 32(82), Utrecht Journal of International and European Law 27,p. 29. 56 Case414/11 Paragraph 49-52.57 58 Case414/11 para 59.