Under the Lisbon Treaty, the European Commission was granted new powers over negotiating trade agreements but the extent that it still had to involve the Member States before agreeing the final deal has remained unclear.
Accordingly, the Commission decided to ask the EU’s Court of Justice (CJEU) to examine the issue.
The free trade agreement (FTA) with Singapore was chosen as the test case as it is similar to several other agreements that are currently under consideration. The result is “Opinion 2/15”, as this is not a legal case and is not therefore delivered as a ruling.
Available at curia.europa.eu, the Opinion must have slightly disappointed the Commission as it makes clear that certain matters in the FTA do not fall within its exclusive competence and must, therefore, be concluded by the EU and the Member States acting together.
What will please the Commission, however, is that the CJEU makes clear for the first time the areas where it does have competence.
These are the parts of the agreement relating to: access to the EU market and the Singapore market so far as concerns goods and services (including all transport services); the fields of public procurement and energy generation from sustainable non-fossil sources.
The Commission can also deal with provisions concerning intellectual property rights, those designed to combat anti-competitive activity, those concerning sustainable development and the rules relating to exchange of information, and to obligations governing “notification, verification, co-operation, mediation, transparency and dispute settlement between the parties”.
It has already been noted in Brussels that this, in theory, makes agreeing a swift trade deal with the UK easier as the Commission could restrict such an agreement to the areas of its own competence while leaving other matters to the slower process of agreement by the 27 Member States.
