The European Union's Trade and Investment Policy after the Treaty of Lisbon

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The European Union's Trade and Investment Policy after the Treaty of Lisbon

in The Journal of World Investment & Trade

References

This proposed Treaty, commonly referred to as European Constitution, is an unimplemented Treaty which was signed in Rome in 2004 by the representatives of the 25 (at the time) EU Member States, but failed to be unanimously ratified as the populations of France and the Netherlands rejected the Treaty in referenda. Following a period of reflection given this initial defeat, the European Council met again in June 2007 and initiated negotiations on a draft to replace the failed form of the Constitutional Treaty. A revised and substantially reduced version of that Treaty (from then on referred to as the reform Treaty or Lisbon Treaty) was signed in Lisbon in December 2007 and entered into force on 1 December 2009. 2 Official Journal C 306 of 17 December 2007. 3 Official Journal C 310 of 16 December 2004. 4 Before the European Council ofJune 2007, the idea was that when the EU Constitutional Treaty would enter into force, the EC Treaty, the EU Treaty, as well as acts and Treaties which have supplemented or amended them, would have been repealed, as laid down in the general and final provisions in Part IV of the EU Constitutional Treaty. The EU Constitutional Treaty was supposed to enter into force after ratification by all EU Member States. It was also provided for that the Union would succeed to all the rights and obligations, whether internal or resulting from international agreements, which arose before the entry into force of the EU Constitutional Treaty. The case law of the European Court of Justice (Ecj) would have been maintained as a source of Union law interpretation. As stated in Article 1-6 of the EU Constitutional Treaty, the Constitution and law adopted by the Union's institutions in exercising competences conferred on it would have had primacy over the law of the Member States.

5 The intergovemmental conference (Ice) mandate also provided in its paragraph 22 that "a Protocol annexed to the Reform Treaty will amend the existing Protocols, as agreed in the 2004 IGC" (including the deletion of 10 of them). See Presidency Conclusions of the Brussels European Council, 21-22 June 2007, 11177/07, CONCL 2, Annex I, para. 22. 6 At present, the EU is founded on big and complex treaties that lay down the rules by which it has to operate. EU leaders intended to replace the EU's basic treaties with a single, shorter, simpler document spelling out the EU's purposes and aims and stating clearly who does what. This document (technically known as the Constitutional Treaty) would have been rather similar to the constitution of a country-even though the EU is not, and does not aim to be, a single country. The text of the EU Constitution was agreed in June 2004 and signed by all the Member State govemments in October 2004 in Rome. It was due to come into force in 2006, but it failed to be ratified by all the national parliaments and, in some countries, be approved by referendum. Vernon Bogdanor, however, argues that it would make more sense to have a Europe-wide referendum with a double and qualified majority of Member States and population required in order to ratify any proposed Treaty amendment. Article 47 TEU as amended by the Lisbon Treaty. 8 Laursen, F. "The Post-Nice Agenda: Towards a New 'Constitutional' Treaty?," in Laursen, F. (ed.) The Treaty of Nice: Actor Preferences, Bargaining and Institutional Choice, Martinus Nijhoff Publishers, 2006, pp. 543-60.

y Article 15(5) TEU as amended by the Lisbon Treaty. 10 Article 18 TEU as amended by the Lisbon Treaty. 11 Article 18(4) TEU as amended by the Lisbon Treaty.

12 For a summary of the literature, see Bretherton, C. and Vogler, The European Union as a Global Actor, 2nd ed., 2006. r3 See Allen, D. & Smith, M. 'Western Europe's presence in the contemporary international arena,' Review offtiternatiotial Studies, 16, 1:19-38, 1990. '`' Bretherton, C. and Vogler, J. The European Union as a CGlobal Actor, 2nd edition, 2006. 15 Gupta, J. and Ringius, L. "The EU's Climate Leadership: Reconciling Ambition and Reality," Intentational Environment Agreements: Politia, Law and Economics 1, pp. 281-299, 2001. 16 Jupille, J. and Caporaso, J.A. 'States, Agency, and Rules: The European Union in Global Environmental Politics,' in Rhodes, C. (ed.) The European Union in the World Community, 1998. 17 See generally Leal-Arcas, R. "50 Years of Trade Policy: Good Enough or as Good as it Gets?" Irish Journal of European Law, Vol. 15, No. 1 and 2, 2008, pp. 157-182.

18 See Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, chapter 8. r9 Leal-Arcas, R. "The Resumption of the Doha Round and the Future of Services Trade" l.oyola of Los Angeles International and Comparative Law Preview, Volume 29, Issue 3, 2007, pp. 339-461. 20 Dur A. 'Bargaining Power and Trade Liberalization: European External Trade Policies in the 1960s,' European journal of International Relations 4, pp. 645-671, 2008. 21 Leal-Arcas, R. "Is EC Trade Policy Up to Par?: A Legal Analysis Over Time-Rome, Marrakesh, Amsterdam, Nice, and the Constitutional Treaty," Columbia Journal of European Law, Vol. 13.2, Spring 2007, pp. 305-399. Zz On the relationship between emerging markets and the EU, see Leal-Areas, R. "The European Union and New Leading Powers: Towards Partnership in Strategic Trade Policy Areas," Fordham International Law Journal, Vol. 32, 2009, pp. 345-416; Leal-Areas, R. "The EU and Russia as Energy Trading Partners: Friends or Foes?" European Foreign Affairs Review, Vol. 14, Issue 3, 2009, pp. 337-366, 2009; Leal-Arcas, R. "The European Union vis-a-vis Brazil and India: Future Avenues in Selected Trade Policy Areas" International Journal ofPnvate Law, Vol. 2, Issue 2, 2009, pp. 109-134; Leal-Arcas, R. "EU Relations with China and Russia: How to Approach new Superpowers in Trade Matters," Journal of International Commercial Law and Technology, Vol. 4, Issue 1, 2009, pp. 22-52; Leal-Arcas, R. "How Will the EU Approach the BRic Countries? Future Trade Challenges," Vienna OnlineJournal of International Constitutional Law, Vol. 2, Issue 4, pp. 235-271, 2008.

=3 The so-called Singapore issues refers to four working groups set up during the WTO Ministerial Conference of 1996 in Singapore, namely investment protection, competition policy, transparency in government procurement, and trade facilitation. Disagreements between largely developed and developing economies prevented a resolution in these issues, despite repeated attempts to revisit them, notably during the 2003 Ministerial Conference in Cancun, whereby no progress was made. Since then, some progress has been achieved in the area of trade facilitation. In July 2004, WTO members formally agreed to launch negotiations. Under the mandate of the so-called 'July package', Members are directed to clarify and improve GATT Article v (Freedom of Transit), Article VIII (Fees and Formalities connected with Importation and Exportation) and Article x (Publication and Administration of Trade Regulations). The negotiations also aim to enhance technical assistance and capacity building in this area and to improve effective cooperation between customs and other appropriate authorities on trade facilitation and customs compliance issues. z° Woolcock, S. 'The Singapore Issues in Cancun: a failed negotiation ploy or a litmus test for global governance.,' Intereconomics, December 2003. z5 For an account of the EU's position in the multilateral trade agenda during the 2000s (specifically in trade in services), see Leal-Arcas, R. "Services as Key for the Conclusion of the Doha Round," Legal Issues of Economic, Integration, Vol. 35:4, pp. 301-321, at 308-318, 2008. =b For an analysis of the current weakness of multilateralism and the rise of bilateralism, see Leal-Arcas, R. International Trade and Investment Law: Multilateral, Regional and Bilateral Governance, Cheltenham: Edward Elgar Publishing, 2010, chapters 3 & 4; Evenett, S. (2007) 'Global Europe' An initial assessment of the European Commission's New Trade Policy,' http://www.evenett.com/articles.htm. 27 Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, pp. 564-580.

28 Jupille, J. and Caporaso, J.A. 'States, Agency, and Rules: The European Union in Global Environmental Politics,' in Rhodes, C. (ed.) The European Union in the World Community, 1998, p. 215. 29 Leal-Arcas, R. "Polycephalous Anatomy of the EC in the WTO: An Analysis of Law and Practice," Florida Journal of International Law, Vol. 19.3 (2007), pp. 569-670; also Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, chapters 2 & 3. 3(l See Opinion 1/94 [1994] ECR 1-5267. For a more in-depth explanation of the facts, see Van den Bossche, P. "The European Community and the Uruguay Round Agreements," in Jackson, J. & Sykes, A. (eds.) Irnplementing the Uruguay Round, Clarendon Press, Oxford, 1997, pp. 27-29. 31 See Leal-Arcas, R. "Is Lisbon the Answer or the Anathema to EC Trade Law and Policy?," International Joumal of Liability F> Scientific Enquiry, Vol. 2, No. 2, 2009, pp. 125-146.

z Jupille, J. and Caporaso, J.A. 'States, Agency, and Rules: The European Union in Global Environmental Politics,' in Rhodes, C. (ed.) The European Union in the World Community, 1998. 33 Woolcock, S. "Extemal Trade Policy: a Further Shift towards Brussels," in Polack, M., Young, A. and Wallace, H. (eds.) Policy Making in the European Union, 6th ed., Oxford: Oxford University Press, 2010. 3a In the specific case of the U.S., fast-track trade authority (now known as trade promotion authority) in essence allows the President to submit to Congress for an up-or-down vote an unamendable bill to implement into U.S. law any international trade agreement entered into by the United States. In other words, it is an unusual procedure through which the U.S. Congress delegates the President constitutional authority to set the terms of trade for the purpose of negotiating trade agreements. The fast-track mechanism also provides special rules which strictly limit Congress's role regarding such trade agreements to a "yes" or "no" vote on a completed deal, with no amendments allowed and only 20 hours of debate. Fast-track causes an extraordinary shift in power with the White House empowered to sign and enter into trade agreements before Congress ever votes on them.

35 Jupillc, J. and Caporaso, J.A. "States, Agency, and Rules: The European Union in Global Environmental Politics," in Rhodes, C. (ed.) 17,e European Union in the World Community, 1998. 36 Leal-Arcas, R. "50 Years of Trade Policy: Good Enough or as Good as it Gets?" Irish Journal of European Law, Vol. 15, No. 1 and 2, 2008, pp. 157-182; Leal-Arcas, R. "Is EC Trade Policy Up to Par?: A Legal Analysis Over Time-Rome, Marrakesh, Amsterdam, Nice, and the Constitutional Treaty," ColumbiaJournal of European Law, Vol. 13.2, Spring 2007, pp. 305-399; Leal-Arcas, R. "The State of Play of The EC's Common Commercial Policy: A Legal And Policy Analysis," Tilburg Foreign Law Reviem, Vol. 11:2, 537-559, 2003. On agriculture in the Uruguay Round, for example, see Hodges, M. and Woolcock, S. "The European Union in the Uruguay Round: the story behind the headlines," in Wallace, H. & Wallace, W. (eds.) Policy-Making in the European Union, OuP, 1996. 38 In their discussion of EU leadership in environmental policy, Gupta and Ringius distinguish among structural leadership resulting from relative powc:r-as in market power discussed above-directional leadership resulting from the exercise of normative power, and instrumental leadership in negotiations themselves. See Gupta, J. and Ringius, L. "The EU's Climate Leadership: Reconciling Ambition and Reality," Intemational Environment Agreements: Politics, Law and Economics 1, pp. 281-299, 2001. 39 Meunier, S. 'What Single Voice? European Institutions and EU-U.S. Trade Negotiations,' International Organization, 54, 1, Winter 2000, pp. 103-135.

;« Leal-Arcas, R. "Services as Key for the Conclusion of the Doha Round," Legal Issues of Economic Integration, Vol. 35:4, pp. 301-321, at 308-318, 2008. 41 See, e.g., Leal-Arcas, R. "China's Attitude to Multilateralism in International Economic Law and Governance: Challenges for the World Trading System" Journal of World Investment and Trade, Vol. 11, No. 2, 2010. 4z Young, A. R. and Yeterson, J. `The EU and the new trade politics,' Journal of European Public Policy 13:6, pp. 795-814, 2006.

13 The degree to which EU norms in trade and investment are distinctive is something that goes beyond the scope of this paper. A historical assessment of the evolution of the EU acguis shows that much has been the product of a broader international debate in which the U.S. approach to rules and regulations has played an important role. See Woolcock, S. "The Role of Regional Agreements in Trade and Investment Regimes," in Andrew F. Cooper, Christopher W. Hughcs, and Philippe De Lombaerde (eds.), Regionalism and Global Governance. T7re Taminq of Globalisation?, Poutledge/Warwick Studies in Globalisation, London: Routledge, pp. 118-141, 2008. ta Jupille, J. and Caporaso, J.A. 'States, Agency, and Rules: The European Union in Global Environmental Politics,' in Rhodes, C. (ed.) T7te European Union in the World Community, 1998. For an analysis of the implementation of trade agreements, see Leal-Arcas, R. Theory and Practice of EC External 'I'rade Law and Policy, London: Cameron May, 2008, chapter 6. 4. Official Journal C 191, 29 July 1992. On NGO opposition to trade and investment liberalization in the 1990s, see Leal-Arcas, R. "The Multilateralization of International Investment Law" NortH Carolirta Journal of International Law and Commercial Regulation, Vol. 35, Issue 1, 2009, pp. 33-135, at pp. 66-73.

aa Another example of the acknowledgment of the European public opinion is the so-called civil society dialogue, which means consulting civil society when the European Commission is drawing up its policies and proposals for legislation. For more insight information on the Civil Society Dialogue, see European Commission website at http://trade-info.cec.eu.int/civil soc/introl.php. For past meetings of the Civil Society Dialogue, see the following website at http://trade-info.cec.eu.int/civilsoc/index.cfin. .0 For an overview of the decision-making process in EU trade policy, see Leal-Arcas, R. "The EU Institutions and their Modus Operandi in the World Trading System," Columbia Journal ofEuropean Law, Vol. 12.1, Winter 2005/2006, pp. 125-197; Leal-Arcas, R. Theory and Practice ofEC External Trade Law and Policy, London: Cameron May, 2008, chapter 6. 50 See, e.g., Leal-Arcas, R. "The EU Institutions and their Modus Operandi in the World Trading System," Columbia Journal of European Law, Vol. 12.1, Winter 2005/2006, pp. 125-197; Woolcock, S. "External Trade Policy: a Further Shift towards Brussels," in 1'olack, M., Young, A. and Wallace, H. (eds.) Policy Makinq in the European Union, 6th ed., Oxford: Oxford University Press, 2010; Young, A. R and Peterson, J. 'The EU and the New Trade Politics,' Journal of European Public Policy 13:6, pp. 795-814, 2006; Meunier, S. and Nicolaidis, K. 'The European Union as a conflicted trade power,' Journal ofetiropean Public L'olicy, 13:6, pp. 906-925, 2006. 51 The Community method is the EU's usual method of decision-making, in which the Commission makes a proposal to the Council and Parliament who then debate it, propose amendments, and eventually adopt it as EU law. In the process, they will often consult other bodies, such as the European Economic and Social Committee and the Committee of the Regions. 5= Article 133(3) EC as amended by the Nice Treaty.

S3 For a debate on shared competence between the EU and its Member States on trade issues, see Leal-Arcas, R. "Polycephalous Anatomy of the EC in the WTO: An Analysis of Law and Practice," Floridajotirnal of International Law, Vol. 19.3 (2007), pp. 569-670. 54 France's many years of intense lobbying against any large tariff and subsidy cuts to agricultural products is well-known, since France fears that it could destroy its farming sector. The difficult marriage between France and agriculture is constant when it comes to finding a European common position prior to the negotiation of multilateral trade agreements. For example, in September 1993, in relation to the European Commission's mandate to renegotiate the Blair House Accord, Mr Juppe, the French foreign affairs minister, said to Sir Leon Brittan, trade commissioner at the time, that '/aim ne votisfaisotis pas ronfiance, tious ne vous avons jamais fait cotifiance, et nous tie vous ferons jamais confiance. We do not trust you, we have never trusted you, and we will never trust you'. See Lie Frgaro (27 September 1993) 8. The same story repeated itself in October 2005 and in January 2007 between the French government and the EU trade commissioner over the scope of the mandate to negotiate in the Doha Round negotiations. That said, none of these incidents took place at any of the actual multilateral trade negotiations, and not one EU Member State openly challenged the Commission's role as sole negotiator of international trade agreements by starting in parallel bilateral negotiations. S5 Article 300(3) EC as amended by the Nice Treaty.

sb The INTA Committee was only established during the 2004-2009 Parliament. As such, it is a fairly junior committee. This, together with its limited powers, has meant that it has not established a very high ranking among the EP committees, which has had implications for the effectiveness of the committee up to now. Before the establishment of INTA, external trade was dealt with in a broader committee whose responsibilities covered industry, external trade, research, and energy. So the EP was in a sense already moving to gear up its input on international trade because of the proposals already in the 2003 Draft Treaty establishing a Constitution for Europe that pointed to an increased role for the European Parliament. 5� For a detailed analysis, see Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, pp. 406-410. 58 For an analysis of the role of the European Parliament in the EC'S external relations, see M. Hilf and Schorkopf'Das Europaische Parlament in den Aussenbczichungen der Europaischen Union' (1999) Europarecht 185-202. 59 Article 300(3)(1) EC. (,0 See, for example, Leal-Arcas, R. "The EU Constitutional Treaty and International Trade," in Laursen, F. (ed.) The Rise and Fall qf the EU's Constitutional Treaty, Brill/Nijhoff, Leiden (2008), pp. 25-50, at pp. 35-36. �� Article 3(1)(e) TFEU.

62 This little participation of national parliamentarians in WTO matters is slowly being rectified, given the continued and growing interest of parliamentarians in the WTO. Their presence in the 6th WTO Ministerial Conference in Hong Kong certainly brought greater democracy and accountability to the W ro as an institution. 63 On mixed agreements, see Leal-Arcas, R. "The European Community and Mixed Agreements," European Foreign Affairs Revieva, Vol. 6, Issue 4, Winter 2001, pp. 483-513. fi^ Wwr-UK, "A League of Gentlemen. Who really runs EU Trade Decision-Making?" November 2003, p. 16.

65 House of Lords, "The World Trade Organization: the role of the EU post-Cancun," 16th Report of Session 2003-04, European Union Committee, Chapter 4, available at http://www.publications.parliament.uk/ pa/Id200304/)dselect/tdeucom/104/t0406.htm#nl3. ss House of Lords, "The World Trade Organization: the role of the EU post-Cancun," 16th Report of Session 2003-04, European Union Committee, p. 34, available at http://www.publications.parliament.uk/ pa/1d200304/Idselect/ldeucom/ 104/ 10406.htm#a43.

fi' See Opinion 1/75 Export Credits [19751 Ectt 1355 and Opinion 1/94 Re WToAgree"ient [19941 ECR 1-5267. 68 Opinion 1/94 Re WTOAqreemetit [1994J ECR 1-5267. 11 Article 207(1) TFEU in conjunction with Article 3 TFEU, Official Journal C 115 of 9 May 2008, 2008/C 115/1.

70 Article 133(5) EC as amended by the Nice Treaty.

71 The European Convention (also known as the Convention on the Future of Europe) was set up in December 2001. It had 105 members, representing the presidents or prime ministers of the EU Member States and candidate countries, their national parliaments, the European Parliament and the European Commission. Its Chairman was former French President Valcry Giscard d'Estaing. The Convention's job was to draw up a new Treaty that would set out clear rules for running the European Union after enlargement. It was, in effect, to be the Constitution of the EU. The Convention completed its work on 10 July 2003. In order to reach a compromise for all parties present, the Convention consulted diverse groups of civil society (citizens, social partners, NGOs, economic sectors, et cetera) in various ways, one of which was the Forum on the Future of the Union. The Forum on the Future of the Union was created by the Convention Secretariat, with the technical assistance of the Commission, and received contributions from interested national and supranational organizations. Eight contact groups were set up to prepare auditions for the academic world, study groups, the social sector, the environment, human rights, development, regions and local authorities, culture, and citizens and the EU institutions. The Convention also created an online forum on the future of Europe to connect with civil society.

72 Article 207(4) subparas. 2 & 3 TFEU. 73 Early analyses of the EU Constitutional Treaty can be found at Cremona, M. "The Draft Constitutional Treaty: External Relations and External Action," Common Market Law Preview, 40: 1347-1366, 2003; de Burca, G. "The EU Constitution: In Search of Europe's International Identity," Walter van Gerven lecture, Lcuven, November 2004, where de Burca argues that the external relations provisions of the EU Constitutional Treaty are the most innovative and important parts of the constitutional reform; De Witte, B. "The Constitutional Law of External Relations," in Pemicc, I. & Poiares Maduro, M. (eds.) A Constitutiotifor the European Union: First Comments on the 2003-Drnft of the European Convention, pp. 95-106, Nomos, 2003, available at http://www.ecln.net/ elements/conferences/booklisbon/dewitte.pdf. �� European Convention Secretariat, "Final Report of Working Group VII on External Action," CONV 459/02, of 16 December 2002. �s Id., at p. 4. �� For an analysis of the division of competences in the EU by the EU Constitutional Treaty, see Lenaerts, K. "The Constitution for Europe: Fiction or Reality?" Columbia Journal of Europeal1 Law, Vol. 11, No. 3, Summer 2005, pp.465-479. �� The Ecj, however, had already prefigured such a categorization in that it defines three types of competences: exclusive, shared, and complementary. 78 The general rule laid down in Article 3(1)(c) TFEU is that the Union has exclusive competence for the conclusion of an international agreement in areas defined by European legislative acts, when the competence is necessary to enable the Union to exercise its internal competence, or affects an internal Union act. This praxis gives a federal approach to the Union in trade agreements.

�'� Article 3(l)(c) TFEU. 80 Schiitze, R. "Lisbon and the Federal Order of Competence: A Prospective Analysis," European Law Review, 33(5), pp. 709-722, 2008. 81 For further discussion on the matter, see Leal-Arcas, R. "The EU Constitutional Treaty and International Trade," in Laursen, F. (ed.) 77re Rise and Fall of the EU's Constitutional Treaty, Brill/Nijhoff, Leiden (2008), pp. 25-50, at pp. 32-35. H2 Article 3 TFEU in conjunction with Article 207(1) TFEU. H3 See Govaere, 1. "Intellectual Property Protection and Commercial Policy," in Marcsccau, M. (ed.) The European Community's Commercial Policy after 1992, pp. 197-222, (1993); Demiray, P. "Intellectual Property and the External Power of the European Community: The New Dimension," 16 Michigan Journal of International Law, pp. 187-239, (1994). 14 P. Van den Bossche, The European Community and the Uruquay Round Agreements, in John H. Jackson & A. Sykes (eds.), Implementing The Uruguay Round, 23 at 56-7 (Clarendon Press, Oxford, 1997).

"5 Article 3 TFEU in conjunction with Article 207(1) TFEU. Rfi See lmp;/ /bit.ly /9FppQm. 87 European Commission Proposal for a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries, 7 July 2010, COM(201O)344 final.

11 Ibid, p. 2. 89 With the ToL, the EU formally replaced the European Community, so that now one must refer to European Union, and not European Community, competence for external trade and other policy areas. See Article 1(2) TFFU. ')() Article 3(l)(c) TFEU. 91 Articles 207(4), lst para TFEU. 92 Article 207(4)TFEU. 9' For an analysis of the intra-EU position on international trade in services during the pre-Lisbon Treaty era, see Leal-Arcas, R. "The Resumption of the Doha Round and the Future of Services Trade" Loyola of Los Angeles International and Comparative Law Review, Volume 29, Issue 3, 2007, pp. 339-461; Leal-Arcas, R. "Services as Key for the Conclusion of the Doha Round," Legal Issues of Economic Integration, 35(4), pp. 301-321, 2008; Leal-Arcas, R. "The GATS in the Doha Round: A European Perspective," in Alexander, K. & Andenas, M. (eds.) "fhe World Trade Organization and Trade in Services, l3rill/Nijhoff, 2008, pp. 9-104; Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, chapter 9.

94 Ibid. 9s Agreement on Trade-Related Investment Measures, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in Legal Texts: Results of The Uniquay Round of Multilateral Trade Negotiations 143, WTO, Cambridge University Press, 1999. 9e On investment promotion, see Guim6n, J. "It's Time for an EU Investment Promotion Agency," Columbia Fm Perspectives, No. 20, 4 March 2010.

11 Council Decision of 16 December 1969 on the progressive standardization of agreements concerning commercial relations between Member States and third countries and on the negotiation of Community agreements, Decision 69/494/EEC, Article 2. 91 Wehland, H. "Intra-EU Investment Agreements and Arbitration: Is European Community Law an Obstacle?" International and Comparative Law Quarterly, 58(2), pp. 297-320, 2009.

99 See Case C-205/06 Commission v. Republic of Austria; Case C-249-06 Commission v. Kingdom of Sweden, Decisions of the Court, 3 March 2009; and Case C-118/07 Commission v. Republic of Finland, decision of 19 November 2009. In these cases, the Ecj examined certain BITS pre-dating the accession of Austria, Sweden, and Finland to the EU in 1995, which contained wording conferring unrestricted freedom of transfer of capital and profits for investments covered by the BITS. Whilst free movement of capital is a fundamental principle of EU law, Articles 57, 59, and 60 EC give the EU Council powers to impose exchange controls for certain limited or temporary purposes. The EU Council has never exercised these powers. However, if it were to do so, the unrestricted freedom-of-transfer clauses in the relevant BITS would make it difficult or even impossible for Austria, Finland, and Sweden to comply with their obligation to cooperate with the EU Council, and the European Commission takes the view that there is a hypothetical conflict between the BITS and the EC Treaty. The Ecj agreed with the Commission, and ordered Finland, Austria, and Sweden to re-negotiate the relevant BITS or to denounce them. 110 EU Member State BITS have generally been based on model agreements. The U.S. has also used a model BIT, dating from 1982, as the basis for its BITS and for the investment chapters in bilateral FTAs. Currently, the U.S. Government is reviewing its 2004 model BIT. The issues still under serious discussion are the international minimum standard of treatment, enhanced transparency, increased labor and environmental protections, and state- owned enterprises. The CARIFORUM (Caribbean Forum of African, Caribbean and Pacific States) is a regional grouping of 15 Caribbean countries: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Christopher and Nevis, Surinam, and Trinidad and Tobago. toz Leal-Arcas, R. "The Multilateralization of International Investment Law" North Carolina Journal of International Law and Commercial Regulation, Vol. 35, Issue 1, 2009, pp. 33-135, at 63-66. to3 A report by French MEP Catherine Lalumiere contributed to the collapse of the Multilateral Agreement on Investment (MAI) in 1998 on the grounds that investment protection provisions combined with investor-State dispute settlement encroached too far into national sovereignty (the right to regulate) but not far enough in obligations on investors (i.e., on environment and labour standards). For an analysis of the MAI, see Leal-Arcas, R. "Towards the Multilateralization of Intemational Investment Law,"Joumal of World Investment and Trade, Vol. 10, No. 6, 2009, pp. 865-919, at 867-869.

�°; Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, "Towards a comprehensive European international investment policy," 7 July 2010, Com (2010)343 final, p. 11. 105 The actual competitive advantage is likely to be low given that most national BITS have very similar provisions. The research that has been undertaken on BITS also fails to show any clear correlation between BITS and investment flows. In other words, there is no clear evidence that national investors gain from BITS. �°6 Communication from the Commission to the Concil, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, "Towards a comprehensive European international investment policy," 7 July 2010, Cona(2010)343 final, p11. For an analysis of broad contours of the scope and standards that the European Union should be setting through international investment negotiations, see the above Communication.

I'll House of Lords, Select Committee on the European Union, "The Future of Europe: Constitutional Treaty-Draft Articles 1-16", Session 2002-03, 9th Report, 25 February 2003, p. 14. In relation to the exclusive competences of the Union, the EU can legislate alone and adopt legally binding acts in areas of exclusive competence (or authorize the Member States to do so). In areas of competences shared between the EU and its Member States, both can intervene. The areas of support, coordination or complimentary action open to the Union's competence are: industry; protection and improvement of human health; education, vocational training, youth and sport; tourism; administrative cooperation; culture; and civil protection. In these areas, the legally binding acts adopted by the Union (law, framework law, regulation and decision) on the basis of provisions specific to these areas, may not entail harmonization of Member States' laws or regulations. The Lisbon Treaty also recognizes the Union's competence for the definition and establishment of a common foreign and security policy, including the progressive definition of a common defense policy. However, the Lisbon Treaty does not give details about Member States' competences, in other words, areas in which the Union cannot intervene. That said, however, it is clear that "the rest" of the competences which are omitted are Member States' competences. t°ri See the German experience of a clear division of competences between the Federal level and the Lander level in Title VII of the Fundamental Law for the Federal Republic of Germany of May 23rd 1949, especially Articles 70-75. 109 Presidency Conclusions of the Brussels European Council, 21-22 June 2007, 1 1177/07, CONCL 2, Annex I, para. 19b, p. 20.

110 Article 3 TFEU. 111 Article 4 TFEU. 112 Article 5 TFEU. tta Cremona, however, has her doubts as to the desirability of the attempt to codify the Ecj's case law on competence, especially external competence. See Cremona, M. "The Union's External Action: Constitutional Perspectives," in Arnato, G., Bribosia, H., & de Witte, U. (eds.) Gerrese et destinee de la Constitution europeenne -Genesis and Destiny of the European Constitution, Bruxelles: Bruylant, 2007, pp. 1173-1217, at 1183. z Article 3 (2) TFEU. 115 Ibid. II" According to Article 4 TFEU, the Union has shared competence with the Member States on issues of common safety concerns in public health matters, as well as in the following issues: the internal market; areas of freedom, security and justice; agriculture and fisheries, excluding the conservation of marine biological resources; transport and trans-European networks; energy; social policy for aspects defined in the TFEU; economic, social, and territorial cohesion; common safety concerns in public health matters, for the aspects defined in the TFEU; the environment; and consumer protection. The Lisbon Treaty also includes two other areas: (1) research, technological development and space, for which the Union has competence to take actions without stopping Member States from doing so; and (2) in the areas of development cooperation and humanitarian aid, the Union can coordinate a common policy. However, the Union can only support, coordinate or supplement Member States' action in the area of civil defense. Administrative cooperation is recognized as a common interest question in Article 197 TFEU, for which the Union can support efforts made by Member States to improve their administrative capacity to establish Union law. No Member State is obliged to use this support. tt� Article 3(l)(b) TFEU.

118 Article 3(1) TFEU. t This idea of repealing the existing EU treaties was scrapped in favor of an "amending" treaty routine in the same format and style as previous treaties such as Maastricht, Amsterdam, and Nice. See Presidency Conclusions of the Brussels European Council, 21-22 June 2007, 11177/07, CONCL 2, Annex I, para. 1, p. 15. 1211 See, e.g., Antoniadis, A. "The Participation of the European Community in the World Trade Organization: An External Look at European Union Constitution-Building," in Tridimas, T. & Nebbia, P. (eds.) European Llnion Law(or the 21st CmtHry: Rethinking the New Legal Order, Vol. I, Oxford and Portland (Oregon), Hart Publishing, 2004, pp. 321-344, at 337. 121 However, dispute settlement body practice in the Wto dictates that WTO Members tend to bring actions against the EU, not against individual EU countries, even in areas of shared competence.

122 Authors that have previously analyzed the issue of supranationalism are, among others: Lindseth, P. "The Contradictions ofSupranationalism: Administrative Governance and Constitutionalization in European Integration since the 1950s," L,oyola of Los Angeles Law Review, Fall 2003, 363; Lindseth, P. "Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of The European Community," April 1999, 99 Colum. L. Rev. 628; Feddersen, D. "Papers from the Zavikon m Conference (1994): Between Supranationalism and Regionalism—Economic and Political Trends of Federal Systems in the East and West," 1995 St. Louis-Warsaw Transatlantic l.aw Joumall03; Esty, D. "Good Governance at the Supranational Scale: Globalizing Administrative Law," 115 Yale Law Journal 1490, May 2006; Joseph Weiler, "The Community System: The Dual Character of Supranationalism," 1 Y.B. European L. 268 (F.G. Jacobs ed., 1981); Erik Oddvar Eriksen, "Deliberative Supranationalism in the EU," in Democracy in the European Union: Integration through Deliberation? (Eric Oddvar Eriksen & John Erik Fossum eds., 2000). 12.\ Article 207(1) TFEU. Emphasis added by the author. 124 �leiler, J.H.H., Un'Europa Cristiana. Un Saggio Fsplorativo, Biblioteca Universale Rizzoli, 2003, p. 173. izs Article 133(6)(2) EC as amended by the Nice Treaty.

12h With the Lisbon Treaty in mind, an innovative definition of the EU is presented and the EU may be defined in the following manner: an organization of sovereign States, in which the citizens of the Member States are also citizens of the Union and in which the governance of the Union is not only bound by the rule of law, but is also required to meet similar democratic standards to those required of the governance of its Member States. See Article 6 TFEU. See also Article 168 TFEU. �2g Article 133 (4) EC: "in exercising the powers conferred upon it by this Article, the Council shall act by qualified majority."

12'' Pastis is an anise-flavored liqueur and aperitiffrom France, typically containing 40-45% alcohol by volume, although alcohol-free varieties exist. Pastis is normally diluted with water before drinking (generally 5 volumes of water for 1 volume of pastis). The resulting decrease in alcohol percentage causes some of the constituents to become insoluble, which changes the liqueur's appearance from dark transparent yellow to milky soft yellow. 130 According to Lamy, "...under the Pastis principle, a little drop of unanimity can taint the entire glass of Qn.fv [qualified majority vote] water," argued in a speech given in Bmssels, "The Convention and trade policy: concrete steps to enhance the EU's international profile," available at http:// http://europa.eu.int/comm/arclives/ commission_1999_2004/lamy/speeches_articles/splal46_en.htm.

131 TG4 is an Irish television channel aimed at Irish language speakers and established as a wholly owned subsidiary by Radio Telefis Eireann on October 31, 1996. It was known as Teilifis na Gaeilge or TnaG before a rebranding campaign in 1999. 132 TV3 Ireland is the sole commercial terrestrial television channel in the Republic of Ireland. la3 On the general question of cultural diversity, see von Bogdandy, A. "The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity-Elements of a Beautiful Friendship," jean Monnet Working Paper 13/07, 2007. 134 Cremona, M. "The Union's External Action: Constitutional Perspectives," in Amato, G., Bribosia, H., & de Witte, B. (eds.) Genese et destinee de la Constitution europ6entie--Getiesis and Destiny of the European Constitution, Bruxelles: Bruylant, 2007, pp. 1173-1217, at 1213. r35 Case C-62/88 Greece v. Council [1990] EcR 1527; Case 45/86 Commission v. Council [1987] EcR 1493. r36 Cremona, M. "The Union's External Action: Constitutional Perspectives," in Amato, G., Bribosia, H., & de Witte, B. (eds.) Genese et destitlée de la Constitution européel1tle-Getlesis and Destiny of the European Constitution, Bruxelles: Bruylant, 2007, pp. 1173-1217, at 1213.

137 See generally De Witte, B. "The Constitutional Law of External Relations," in Pernice, I. & Maduro, M. (eds.) A Constitution for the European Union: First Comments on the 2003-Draji of the Eurapean Convention, pp. 95-106, at pp. 104-105, Nomos. 2003, in http://www.ecln.net/elements/conferences/booklisbon/dewitte.pdf Cremona, M. "The Draft Constitutional Treaty: External Relations and External Action," 40 Common Market Law Review, pp. 1347-1366, 2003; I3ennann, G. "The Institutions Under the New Draft Constitution," in Pumice, 1. & Maduro, M. (eds.) A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention, pp. 45-50 at p. 47, Nomos, 2003, in http://www.ecln.net/elements/conferences/booklisbon/bcnnann.pdf. I3H De Witte, B. "The Constitutional Law of External Relations," in Pemice, I. & Maduro, M. (eds.) A COllStitutionfi" the European Union: First Comments on the 2003-Draft of the European Convention, pp. 95-106, at p. 105, Nomos, 2003, in http://www.ccln.net/elements/conferences/booklisbon/dewitte.pdf. '39 Van Schaik, L. & Egenhofcr, C. "Improving the Climate. Will the New Constitution Strengthen the EU's Performance in International Climate Negotiations?" CEPS Policy Brief 63/February, 2005. 140 Article 218(6)(a)(v) TFEU. 141 Article 300 (3) EC. 142 The Generalized System of Preferences, or Gsi�, is a formal system of exemption from the more general rules of the WTO. Specifically, it is a system of exemption from the most-favored-nation (MFN) principle that obligates WTO countries to treat the imports of all other WTO countries no worse than they treat the imports of their most favored trading partner. In essence, MFN requires WTO countries to treat imports coming from all other

WTO countries equally, that is, by imposing equal tariffs on them, inter alia. For example guides and regulations, see Office of the United States Trade Representative, U.S. Generalized System of Preferences Guidebook (March 2008), http://www.ustr.gov/assets/Tradc_Development/Preference_Programs/GSP/asset_upload_file666_8359.pdf; EC External Trade, Gsp Fact Sheet, Imp:! /trade.ec.europa.eu/ doclib/ docs/2008/july/tradoc _1399KK.pdf. r^4 See generally Lcal-Arcas, R. Theory and Practise of EC External Trade Law and Policy, London: Cameron May, 2008, chapter 6. r4^ Comitology, which is more correctly known as 'committee procedure,' is a method of implementing legislation in the European Union. It describes the practice of delegating the implementation of decisions reached by the European Commission to committees composed of officials from the Member States. The European Commission is responsible for carrying out decisions adopted by the Council of Ministers-the European Union's main legislative body-and has some legislative powers of its own. Under the Treaty establishing the European Community, it was for the Commission to implement legislation at Community level. In practice, each legislative instrument specified the scope of the implementing powers granted to the Commission and how the Commission was to use them. Frequently, the EC Treaty would also make provisions for the Commission to be assisted by a committee in accordance with a procedure known as 'comitology.' The committees, which were_/ora for discussion, consisted of representatives from the EU Member States and were chaired by the Commission. They enabled the Commission to establish a dialogue with national administrations before adopting implementing measures. The Commission would ensure that they reflected as far as possible the situation in each country in question.

tas See INTA, "ParGament's New Role and Responsibilities Implementing the Treaty of Lisbon," European Parliament 2008/2063 (INI), 27th May 2008.

For an analysis of Article 207 Committee (former Article 133 Committee), see Lcal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, pp. 374-391. 147 Kietz, D. & Maurer, A. "The European Parliament in Treaty Reform: Pre-defining Iocs through Interinstitutional Agreements," European LawJournal, Vol. 13, No. 1, pp. 20-46, 2007. In the ToL, the term 'consent' is used (see for example Articles 218(6) & 223(1) TFEU), whereas in the pre- Lisbon era the EP gave its assent (see for instance Articles 161, 192 & 300(3) EC as amended by the Nice Treaty).

149 Leal-Arcas, R. "The EU Constitutional Treaty and International Trade," in Laursen, F. (ed.) The Rise and Fall of the EU:c Constitutional Treaty, Brill/Nijhoff, Leiden (2008), pp. 25-50, at pp. 26-28. 150 For arguments that the EU is not yet ready to bypass its Member States in all areas of trade regulation, see Leal-Arcas, R. "Will EU Member States Play Any Role at the WTO after the EU Reform Treaty?" Vienna Online Journal of International Constitutional Law, Vol. 1, Issue 2, pp. 75-90, 2007.

151 See Articles 206 & 207 TFEU. 15' See Articles 21 & 22 of the TEU as amended by the Lisbon Treaty. IS3 The issue of coherence has featured in literature on EU foreign policy and some policy fields such as development and increasingly the environment. Coherence has been less prominent in the discussion of EU external trade policy. This is probably because there is less difficulty achieving vertical coherence (between the national and the supranational levels) given the exclusive EC competence for much of trade. The question of horizontal coherence between trade and other policies, (e.g. development, climate change) is, however, becoming more important.

IS4 Cases C-205/06 Cornrnission v. Austria, C-249/06 Commission v. Sweden, C-118/07 Commission v. Finland, Judgments of 3 March 2009 and 19 November 2009, not yet reported.

155 UK Treaty Series No. 8 (1999), Cm. 4260. 156 UK Treaty Series No. 18 (1996), Cm. 3076.

UK Treaty Series No. 7 (1981), Article VII. For a survey of early treaties, see Mann, "British Treaties for the Promotion and Protection of Investments," 1981 British Yearbook of International Law 241, printed in Further Studies in International Lnw, Oxford: Oxford University Press, 1990, at p. 234. 158 See, for example, the Agreement between Germany and Papua New Guinea, and Somarajah, M. The International Law on Foreign Investment, Cambridge: Cambridge University Press, 1994, at pp. 252-253. 151 Article 207(1) TFEU. tso For a discussion of whether a model EU BIT is possible-or even desirable, see de Mestral, A. "The Lisbon Treaty and the Expansion of EU Competence over Foreign Direct Investment and the Implications for Investor- State Arbitration," in Sauvant, K.P. (ed.) Yearbook on International lnvestment Law and 1'olicy 2009/2010, New York: Oxford University Press, forthcoming.

161 Regulation 847/2007/EC on the negotiation and implementation of air service agreements between EU Member States and third countries, Official Journal 2004, L 157/7. �b2 This aspect is explored by Panos Koutrakos in his Note on the cases brought by the European Commission against Austria and Sweden in 46 Cnac Rev. pp. 2059-2076, at p. 2075, 2009. 163 See notably the bilateral relations between the EU and the main emerging economies in Leal-Arcas, R. "The European Union and New Leading Powers: Towards Partnership in Strategic Trade Policy Areas," Fordham Illternatiollal Law Journal, Vol. 32, Issue 2, 2009, pp. 345-416.

r64 On issues of the EU, investment, and multilateralism, see Leal-Arcas, R. "The Multilateralization of International Investment Law" North CarolinaJournal qfinternational Law and Commercial Regulation, Vol. 35, Issue 1, 2009, pp.33-135. 165 Meunier, among many others, addresses the issue of legitimacy in EU trade policy in Meunier, S. "Trade Policy and Political Legitimacy in the European Union," Comparative European Politics, 2003, 1, pp. 67-90. Other authors that have dealt with the controversial issue of democratic deficit beyond the boundaries of trade policy are: Williams, S. "Sovereignty and Accountability in the European Community," in Keohane, R.O. & Hoffmann, S. (eds.) TIle New European Community: Decisionmaking and Institutional Change, Boulder: Westview, 1991; Wallace, H. "Deepening and Widening: Problems of Legitimacy for the EC," in Garcia, S. (cd.) European Identity and the Search for Legitimacy, London, Pinter, 1993, pp. 95-105; Weiler, J. "Legitimacy and Democracy of Union Governance," " in Edwards, G. & Pijpers, A. (eds.) The Politics of European Treaty Reform: The 1996 Intergovernmental Conference and Beyond, London, Pinter, 1997; Siedentop, L. Democracy in Europe, New York, Columbia University Press, 2001; Schmitter, P. How to Democratize the European Union...And Why Bother?, Lanham, MD: Rowman and Littlefield, 2000; Moravcsik, A. "Despotism in Brussels? Misreading the European Union," Foreign Affairs, 80(3):114-122, 2001; Majone, G. "Regulatory Legitimacy," in Majone, G. (ed.) Requlatinq Europe, London, Routlcdge, 1996; Cedemian, L.E. "Nationalism and Bounded Integration: What It Would Take to Construct a European Demos," Robert Schuman Centre for Advance Studies Working Paper No. 2000/34, 2000; Banchoff, T. & Smith, M. (eds.) Legitimacy and the European Union: The Contested Polity, New York, Routledge, 1999.

�fi� See Leal-Arcas, R. Theory and Practice of EC External Trade Law and Policy, London: Cameron May, 2008, Chapter 9; Leal-Arcas, R. "The Resumption of the Doha Round and the Future of Services Trade" Loyola of Los Angeles International and Comparative Law Review, Volume 29, Issue 3, 2007, pp. 339-461; Leal-Arcas, R. "Services as Key for the Conclusion of the Doha Round," Legal Issues of Economic Integration, 35(4), pp. 301-321, 2008.

1"7 Article 3(l)(e) TFEU. 168 Article 207(1) TFEU. 161 Article 207(2) TFEU. 170 Under the TFEU, the co-decision procedure, as provided for in Article 251 EC, is retained unchanged, becoming the "ordinary legislative procedure." 171 Articles 218(2) TFEU. 172 Article 218(6)(a)(i) TFEU. 173 Article 133(2) EC as amended by the Treaty of Nice.

174 Article 133(5) and (7) EC as amended by the Treaty of Nice. ��5 Article 300(3) EC as amended by the Treaty of Nice. ���' Article 218(7) TFEU. 177 Article 207(3)(2) TFEU. 178 Article 207(3)(3) TFEU.

��9 Article 133(3) EC as amended by the Treaty of Nice. '"0 Article 133(3)(2) EC as amended by the Treaty of Nice. 181 Article 133(6)(2) EC as amended by the Treaty of Nice. �"z Article 207(4)(a) TFEU. 1H3 Ward, I. A Critical Introduction to European Law, 3rd ed., Cambridge: Cambridge University Press, 2009, chapter 8. 184 Ibid. at p. 247. The idea of the 'blind watchmaker' was famously deployed by Richard Dawkins in Dawkins, R. 7he Blind Watchmaker, W.W. Norton, 1996.

185 Article 207(4) subparas. 2 & 3 TFEU.

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