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Opinion 2/15: Implications for the Scope of Future EU Trade and Investment Agreements

David Kleimann

In Opinion 2/15, the Commission, the European Parliament, the Council, and the Member States litigated whether the Union is exclusively competent to conclude the EU-Singapore Free Trade Agreement (EUSFTA) alone, or whether the EU ought to involve the Member States as parties to a ‘mixed’ agreement in their own right. The delineation of the scope of EU Common Commercial Policy following the Lisbon Treaty reform of 2009 is central to the proceeding. The Court’s opinion, which stands in the tradition of seminal EU external competence cases such as Opinion 1/78 and Opinion 1/94, has further clarified the Union’s constitutional identity in the area of EU external economic relations and has the potential to result into significant changes in EU external economic governance. The article, first, reviews the evolution of the Union’s Common Commercial Policy in context of the Court’s past jurisprudence and, secondly, scrutinizes the relevant methodological approaches and standards of analysis, which the Court employs in its competence enquiry. It is argued that the Court retained and made use of ample space for discretionary judicial decision-making, which surfaces at the intersection of the competence enquiry and the necessary determination of the appropriate legal bases. The clarification and further refinement of the Court’s analytical standards in its judgment as well as their transparent and consistent application may have substantially reduced incentives for future litigation and inter-institutional political combat. The recent quarrels over the signing, provisional application, and conclusion of CETA provide sufficient emphasis to this point. Using the legal view of Advocate General as a benchmark for the evaluation of the Court’s opinion, this paper, third, discusses the practical implications of the Court’s judgment for EU international trade and investment treaty-making. The article, fourth, proposes a number of institutional alternatives that may serve to ‘save’ EU external economic treaty-making from ‘mixity’ and the pitfalls of the associated treaty-making procedures in the EU and the member states.

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