Unitary Character of EC External Trade Relations

7 Colum. J. Eur. L. 355 (2001)

Rafael Leal-Arcas. J.D., Granada University (Spain), 1996; M.Phil., The London School of Economics and Political Science, 2000; LL.M., Columbia Law School, 2001; Currently, Stanford Program in International Legal Studies Fellow, Stanford Law School.

Weiler commented in 1992 that “the EC may not speak with one voice but increasingly speaks like a choir.” The objective of this paper is to examine some of the ways that choir is developing, specifically, the circumstances under which Member States confer the exercise of their national competencies on the European Commission in the negotiation of international agreements. The decision of Member States to allow the Commission to negotiate on their behalf does not imply any legal transfer of competencies; it is done merely for the purpose of obtaining greater bargaining power in international trade negotiations. The conferral of competencies allows the European Community (EC) to act with a single voice in its external trade relations in those areas where, according to the Treaties of the European Communities, there is shared competence between the Member States and the EC. These areas include services, intellectual property rights and investment. The necessary condition for exercise of shared competence is an agreement that is both a Community and national agreement, which inevitably creates a rather confusing situation. As there is no article in the Treaties of the EC that provides guidance for the transfer of these competencies, there is a significant legal vacuum on issues of mixed competencies in the European Union (EU).

In the framework of the EU, there is Community competence, national competence and mixed competence. Through Article 133 of the EC Treaty, the EC has been given exclusive competence to create common commercial policy in the field of external trade relations. However, this competence is not exclusive to the EC in such areas as services, investment and intellectual property rights, where Member States share competence with the EC, so-called “mixed competence”. In practice, Member States cede their negotiating role to the EC negotiator, and the European Commission negotiates. The Commission, therefore, attends negotiations on behalf of the EC and its Member States vis-A-vis a third party4 without prejudice to legal competence.

The primary difficulty is that as long as the external competence has not become exclusively EC competence, Member States, even acting collectively, remain free to enter into multilateral treaty relations. Member States prefer not to allow Community

Allan Rosas argues that only when the fifteen Member States “speak with one voice” can they aspire to be a powerful voice, and thus collaborate with the United States on equal terms. In the Single European Act of 1986, the (then 12) Member States declared that they were “aware of the responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice. . . .” However, the Edinburgh European Council of December 1992 stated that “the EU involves independent and sovereign States.”9 Ever present is the notion of European identity that is not yet strong enough to enable the subordination of fifteen national foreign policies to the common good in all areas of international relations.

This paper looks at the weaknesses and strengths of how mixed competence functions within the EC. Section I provides an introduction to the transfer of competence to the EC in areas where legally, it should be shared with the Member States. Section II is a historical overview of the development of shared competence. Section III describes the legal interpretations of the European Court of Justice and the French Conseil Constitutionnel on mixed competence. Section IV looks at Europe’s attempt to reconcile the need to present itself as a bloc with preservation of national sovereignty. Finally, the conclusion describes the current thinking on the direction the EC should take on this issue and looks at what the EU needs institutionally to prepare for the future.

The EC has become an important actor on the international scene, and since the 1970s, its external relations have been growing both in number of agreements signed and in domains of participation. The European Communities have participated in an important number of multilateral conventions within the framework of international or regional organizations, and are increasingly present in world affairs. In the context of multilateral relations, they have a growing role. It is important to take a balanced look at the functioning of the EU as a supranational organization to have a better understanding of its role in the future.