13 Colum. J. Eur. L. 305 (2007)

Rafael Leal-Arcas. Lecturer in Law, and Deputy-Director of Graduate Studies, Queen Mary, University of London, (Centre for Commercial Law Studies, U.K.); Formerly, Visiting Researcher at Harvard Law School (European Law Research Center) and Fellow at the Real Colegio Complutense (Harvard University); Emile Noel Fellow 2004-2005 at New York University School of Law (Jean Monnet Center for International and Regional Economic Law and Justice); Visiting Scholar during the fall of 2003 at the University of Wisconsin-Madison Law School (Institute for Legal Studies). Ph.D. candidate, LL.M. (European University Institute, Florence, Italy); J.S.M. (Stanford Law School); LL.M. (Columbia Law School); M.Phil. (London School of Economics and Political Science): B.A., J.D. (Granada University, Spain).

This Article is an attempt at a thorough chronological analysis of the European Community’s (EC) existing law and policy in the field of international trade law since the beginning of the European Economic Community. It deals with the evolution of the EC’s common commercial policy competence through the years, starting with the European Coal and Steel Community (ECSC), moving on to the necessary changes brought by the World Trade Organization (WTO) Agreement, signed in Marrakesh in 1994, until the days of the European Union (EU) Constitutional Treaty, with a view to enabling the EC with a coherent trade policy within the WTO framework. Thus, a legal analysis of EC trade policy in the pre-Amsterdam Treaty period, at the Treaty of Amsterdam, at the Treaty of Nice, and during the European Convention period, is provided, taking into account the most recent constitutional developments of division of competences between the EC and its Member States.


The European Community (EC) has become an important actor on the international scene and since the 1970s its external relations have been growing both in the number of agreements signed and in the realms of EC participation. The European Communities have participated in an important number of multilateral conventions within the framework of the international or regional organizations and are increasingly present in world affairs. In the context of multilateral relations, they have a growing role. As we will see in the analysis of this Article, the EC’s progression was not steady, but achieved in small steps. This Article begins with a legal clarification of Article 133 of the EC Treaty. It then continues with an analysis of the emergence of the European Economic Community (EEC) (1958-1967). Next is a discussion of the transfer of competence during the merger period of the three European Communities in 1965 and the end of the transitional period after the formation of the EEC (1967-1977), as well as other legal bases used by the EC for international trade agreements. Opinion 1/94 of the European Court of Justice (ECJ) and its consequences for EC trade policy is explored. An analysis of the Amsterdam and Nice negotiations, the changes made to Article 133 EC by the Nice Treaty, and the confusion brought by those changes follows. Finally, the Article will conclude with an analysis of the EU Constitutional Treaty’s work on EU trade policy to see whether it could be a part of the optimal solution to the trade-off of efficiency versus accountability in trade policy decision-making.