Elisabet Ruiz Cairó , 13 juin 2018

Following discussions on horizontal issues of the EU external action (a summary of which can be found here in French), Topic III of the FIDE Congress 2018 tackled the much debated issue of the EU trade policy after Lisbon.

Two main issues were analysed during the sessions: the competence of the Union within the Common Commercial Policy and the new challenges concerning investment after the Achmeajudgment.

Regarding the Common Commercial Policy (CCP), three main questions were raised. First, the enlargement of the notion of the CCP was discussed. Some national reports had underlined that this notion could not be extended indefinitely. The concept itself had already been enlarged through the Treaty modifications brought by the Lisbon Treaty and it was thus unnecessary to also enlarge it through the case-law. The definition of CCP was interpreted by the Court in Opinion 2/15 but it was discussed whether such interpretation could be understood in absolute terms. Rather, it was largely admitted that, for any new agreement, we should look at all the provisions contained in it and analyse them in light of Opinion 2/15.

Second, there was a discussion on the links between Articles 207 TFEU and 21 TEU. More specifically, the question was whether sustainable development should be integrated within the CCP or whether we need a specific legal basis. The main conclusion was that it was necessary to look at the goal of the provisions on sustainable development within a trade agreement. If they were included in the agreement exclusively to support trade provisions and to facilitate trade, then the agreement could be based exclusively on Article 207 TFEU and the provisions would be considered as an integral part of the CCP. The division between both fields is not, from this perspective, a clear-cut one, and a parallel was drawn between this debate and the one on the division between trade and development issues as discussed in Opinion 1/78 and in Portugal v Council. However, one of the participants considered that this could be in violation of the principle of conferral. The link between Article 21 TEU and Article 207 TFEU also raised some doubts on the consequences of the violation of one of the objectives contained in Article 21 TEU. What would happen in the event of a violation of a clause related with labour or environmental standards? Taking into account Opinion 2/15, this should lead to the suspension of the agreement. However, some participants to the FIDE Congress argued that an assessment should be carried out on a case-by-case basis.

Third, the procedure of the negotiation of free trade agreements itself was discussed. This brought discussions on the transparency of the procedure and solutions were sought on the public debate surrounding these negotiations. The idea of adopting a sort of “European trade act” containing horizontal issues on the negotiation of future trade agreements was raised. This would allow a debate on such a document and could maybe avoid future debates on every specific agreement negotiated by the Union. However, some doubts surrounded this idea. There were questions as to the content of such a document, on the difference between the content of that document and the general principles contained in Article 207 TFEU, and on whether this would really avoid public debate on future trade agreements. It was highlighted that trade negotiations were already one of the most scrutinized areas and it was even wondered whether so much transparency was positive. While transparency was seen as an essential democratic requirement by some, it was also seen as a risk to the negotiating power of the Union and a very difficult objective to reach by others.

Regarding investments, the participants mainly discussed the effects of the Achmea judgment. More specifically, the question arises as to whether this judgment, which concerns an intra-EU bilateral investment treaty, extends to extra-EU BITs. The wording of the judgment could lead to several misreadings, which makes the interpretation of the judgment somehow difficult. Moreover, the extrapolation of the judgment would be very problematic for thousands of agreements concluded by Member States with third countries and for any dispute settlement system that could be established by the European Union in its own trade agreements. With such doubts on the table, it was argued that CETA should not be ratified for the moment and that it would be appropriate to wait for the Court’s opinion on the compatibility of the investment court system with EU law.

The FIDE Congress brought together most of the specialists in EU external relations law and it was the perfect occasion to put all the hot topics in this area on the table. While, obviously, most of the debates did not find a definitive conclusion, the discussions allowed for a rich exchange of ideas between academics, practitioners and the representatives of the EU institutions.

Elisabet Ruiz Cairó, 'FIDE Congress 2018: Trade and Investment Issues in the EU External Action', Actualité du 13 juin 2018, disponible sur www.ceje.ch