THE STATE OF PLAY OF THE EC'S COMMON COMMERCIAL POLICY: A LEGAL AND POLICY ANALYSIS

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References

I X.A. Yataganas, 'The Treaty of Nice: The Sharing of Power and the Institutional Balance in the European Union - A Continental Perspective,' Jean Monnet Working Paper 1/01, available through (last accessed November 29, 2002). 2 J.H.H. WEILER, THE CONSTITUTION OF EUROPE: "Do THE NEW Clothes HAVE AN EMPEROR?" AND Other ESSAYS ON EUROPEAN INTEGRATION. (Cambridge: Cambridge University Press, 1999). 3 P.C. Mavroidis, Lexcalibur: The House That Joe Built, 38 COLUMBIA JOURNAL OF TRANSNATIONAL LAW, 669, 671 (2000).

4 Article 251 EC. 5 Yataganas, supra note 1.

6 See eight most recent ECJ judgments on transport on 5 November 2002: C-466/98 Commission v. United Kingdom; C-467/98 Commission v. Denmark; C-468/98 Commission v. Sweden; C-469/98 Commission v. Finland; C-471/98 Commission v. Belgium; C-472/98 Commission v. Luxembourg; C-475/98 Commission v. Austria; C- 476/98 Commission v. Germany. 7 Opinion 1/94, paras. 48-53. 8 C.W. Herrmann, Common Commercial Policy after Nice: Sisyphus Would Have Done a Better Job, 39 COMMON MARKET LAW REVIEW, 7, 28 (2002).

9 J. Heliskoski, The Nice Reform of Article 133 EC on the Common Commercial Policy, 1 JOURNAL OF INTERNATIONAL COMMERCIAL LAW, 1, 5 (2002). 10 R. TORRENT, DERECHO Y PRACTICA DE LAS RELACIONES EXTERIORES EN LA UNION EUROPEA. (Barcelona: Cedecs Editorial, 1998), p. 94. 11 European Commission, The reform of Article 133 by the Nice Treaty. The logic of parallelism, in Frequently Asked Questions. Intergovernmental Conference discusses Article 133, December 2000, . 12 Article 133(3) EC.

13 M. Cremona, A Policy of Bits and Pieces? The Common Commercial Policy After Nice, 4 THE CAMBRIDGE YEARBOOK OF EUROPEAN LEGAL STUDIES, 61, 5-76 (2001). 14 Opinion 1/75 (Re OECD Local Cost Standard) [1975] ECR 1355, pp. 1363-1364. ls Protocol on External Relations of the Member States with regard to the Crossing of External Borders, annexed to the Treaty of Amsterdam, OJ C 340 [1997], p. 108.

16 Heliskoski, supra note 9. 17 J. HELISKOSKI, MIXED AGREEMENTS AS A TECHNIQUE FOR ORGANIZING THE INTERNATIONAL RELATIONS OF THE EUROPEAN COMMUNITY AND ITS MEMBER STATES. (The Hague: Kluwer Law International, 2001). ). 18 Heliskoski, supra note 9. 19 Heliskoski, supra note 9. z° See supra para. 1.1.2 Changes made to Article 133 EC at Nice, point 6. 21 Article 149(4) EC. zz Article 150(4) EC. z3 Article 151(5) EC. 24 Article 152(4) EC.

2S Finnish Government Bill 93/2001, p. 42. 26 Commission Opinion on the IGC, 26 January 2000, COM (2000) at 26 and 30. 27 European Commission, supra note 11.

Z8 E.-U. Petersmann, The Foreign Policy Constitution of the European Union: A Kantian Perspective, in U. Immenga, W. Moeschel & D. Reuter (eds.), FESTSCHRIFT FUER ERNST- JOACMM MESTMAECKER. (Nomos Verlag, Baden-Baden, 1996), pp. 433-447, at 435. 29 Article 133(6)(2) of the Nice Treaty. 30 See, in contrast, the position under GATT after the transfer of common commercial policy competence to the EC in Cases 22-24/72 International Fruit Company [1972] ECR 1219.

31 Opinion 1/94 at paras. 96-98. 32 For a further explanation of the duty of close cooperation, see R. Leal-Arcas, United We Stand, Divided We Fall - The European Community and its Member States in the WTO Forum: Towards Greater Cooperation on Issues of Shared Competence?, 1 EUROPEAN POLITICAL ECONOMY REVIEW, 65, 66-69 (2003), . 33 B. De Witte, Simplifzcation and Reorganization of the European Treaties, 39 COMMON MARKET LAW REVIEW, 1255-1288 (2002). 34 European Commission, supra note 11.

3s P. Pescatore, Guest Editorial: Nice - Aftermath, 38 COMMON MARKET LAW REVIEW, 265-271 (2001). 36 Legal Adviser to the IGC, Note for the Member State Government Representatives Group on External Economic Relations, 10 May 2000, SN 2705/00. 37 Article 133 (5) of the Nice Treaty. 3g Cremona, supra note 13. 39 See . 40 Yataganas, supra note 1.

41 Yataganas, supra note 1. a2 H.G. Krenzler & C. Pitschas, Progress or Stagnation?: The Common Commercial Policy After Nice, 6 EUROPEAN FOREIGN AFFAIRS REV., 291, 312 (2001).

a3 H.G. Krenzler & C. Pitschas, Progress or Stagnation?: The Common Commercial Policy After Nice, 6 EUROPEAN FOREIGN AFFAIRS REv., 291, 310 (2001 ). aa For a list of the 27 articles where unanimity has been changed by qualified-majority voting, see Commission of the European Communities, Secretary-General, "List of provisions to which the qualified majority rules will apply", CONFER 4706/1/00 REV 1.

45 Article 133(5)(2) of the Nice Treaty. °6 Article 133(6)(2) of the Nice Treaty. 47 Draft Treaty of Nice, doc. CONFER 4816/00, of 6 December 2000. 4s Provisional text of Treaty of Nice, doc. SN 533/00, of 12 December 2000. Final text SN 1247/01, of 30 January 2001. See also the Nice Treaty web site at . 49 These seven articles are Articles 13, 62, 63, 65, 157, 159 and 191 EC.

so A. Dashwood, "The Convention on the Future of Europe and the Draft Constitution", p. 2. Paper presented at the British Institute of International and Comparative Law, London, on March 10, 2003, in the framework of a seminar under the title "EU External Relations and the Constitutional Convention". 51 See a declaration by Jacques Delors, in a dialogue with former Czech President V. Havel, LE MONDE, 2 February 2001. sz Doc. CONV 369/02, 28 October 2002. 53 Dashwood, supra note 49.

54 A team from Cambridge University (UK) received an invitation and support of the Foreign and Commonwealth Office to prepare a draft Treaty that was submitted to the Convention on 22 October 2002. ss Dashwood, supra note 49.

ss 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. s� See the German experience of a clear division of competences between the Federal level and the Laender level in Title VII of the Fundamental Law for the Federal Republic of Germany of May 23`d 1949, especially Articles 70-75. s8 Article I-12 of the Constitutional Treaty.

59 Case 6/64, [1964] E.C.R. 585.

s° Article I-12 of the Constitutional Treaty. 61 Article I-13 of the Constitutional Treaty. sz Article I-16 of the Constitutional Treaty. s3 House of Lords, supra note 55. 64 Article 1-12(1). ss Article I-12(2). ss House of Lords, supra note 55. 67 Article I-12(1) of the Constitutional Treaty.

68 Article 133(6) of the Nice Treaty reads as follows: An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonization of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonization. In this regard, by way of derogation form the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States. The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300. 69 Opinion 1/94, WTO [1994] E.C.R. 1-5267. 70 ERTA, Case 22/70, Commission v. Council, [1971] E.C.R. 263. 71 Rhine navigation, Opinion 1/76 [1977] E.C.R.A. 741.

72 For example, article 174(4) EC. 73 For an overview of the EC and mixed agreements, see R. Leal-Arcas, The European Community and Mixed Agreements, 6 EUROPEAN FOREIGN AFFAIRS REVIEW, 483-513, (2001). ).

74 P. Lamy, "Europe's Role in Global Governance: The Way Ahead", Speech given at Humboldt University, Berlin, 6 May 2002, see .

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