Keywords
Summary

Keywords

1. International agreements – Conclusion – Preliminary Opinion of the Court – Purpose

(Art. 300(6) EC)

2. International agreements – Powers of the Community and of the Member States – Conclusion of agreements in the context of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation

(Art. 133(5) and (6) EC)

3. International agreements – Powers of the Community and of the Member States – Conclusion of agreements in the context of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation

(Art. 133(5), first subpara., and (6), second subpara., EC)

4. International agreements – Powers of the Community and of the Member States – Conclusion of agreements in the context of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation

(Art. 133(6), second subpara., EC)

5. International agreements – Powers of the Community and of the Member States – Conclusion of agreements in the context of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation

(Art. 133(5), third subpara., and (6), second subpara., EC)

6. International agreements – Powers of the Community and of the Member States – Conclusion of agreements in the field of trade in transport services

(Art. 133(6), second and third subparas, EC)

Summary

1. The procedure provided for in Article 300(6) EC, which seeks to obtain the preliminary opinion of the Court as to whether an international agreement concluded by the Community is compatible with the Treaty, must be available for all questions capable of submission for judicial consideration, in so far as such questions give rise to doubt as to either the substantive or the formal validity of the agreement with regard to the Treaty. A judgment on the compatibility of an agreement with the Treaty may in that regard depend not only on provisions of substantive law but also on those concerning the powers, procedure or organisation of the institutions of the Community.

The opinion of the Court may in particular be obtained on questions concerning the division, between the Community and the Member States, of competence to conclude a given agreement with non-member countries. Article 107(2) of the Rules of Procedure supports that interpretation.

Moreover, the choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie the agreement that it seeks to conclude to a Treaty provision which empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the Community’s consent to be bound by the agreement it has signed. That is so in particular where the Treaty does not confer on the Community sufficient competence to ratify the agreement in its entirety, a situation which entails examining the allocation as between the Community and the Member States of the powers to conclude the agreement that is envisaged with non-member countries, or where the appropriate legal basis for the measure concluding the agreement lays down a legislative procedure different from that which has in fact been followed by the Community institutions.

(see paras 108-110)

2. It follows from the first subparagraph of Article 133(5) EC, which was introduced by the Treaty of Nice, that the Community is now also competent to conclude, under the common commercial policy, international agreements relating to trade in services supplied under modes 2 to 4 within the meaning of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation. Such modes of supply of services, which the GATS refers to as ‘consumption abroad’, ‘commercial presence’ and ‘presence of natural persons’ respectively and which were formerly outside the sphere of the common commercial policy, now fall within it on the conditions laid down in Article 133(5) and (6) EC.

(see para. 119)

3. The first subparagraph of Article 133(5) EC, which establishes external Community competence in respect of international trade in services under modes 2 to 4 within the meaning of the General Agreement on Trade in Services (GATS) annexed to the Agreement establishing the World Trade Organisation, expressly provides that that competence is without prejudice to Article 133(6) EC. For its part, the second subparagraph of Article 133(6) EC provides that by way of derogation from the first subparagraph of Article 133(5) EC, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services are to fall within the shared competence of the Community and its Member States and are to be concluded jointly by the Member States and the Community.

It is thus apparent from the very wording of those provisions that, in contrast to the agreements relating to trade in services which do not concern the services identified in the second subparagraph of Article 133(6) EC, agreements which relate to those services cannot be concluded by the Community acting alone, such conclusion requiring the joint participation of the Community and its Member States.

By providing for common action by the Community and its Member States by virtue of their shared competence, the second subparagraph of Article 133(6) EC allows the interest of the Community in establishing a comprehensive, coherent and efficient external commercial policy to be pursued whilst at the same time allowing the special interests which the Member States might wish to defend in the sensitive areas identified by that provision to be taken into account. The requirement of unity in the international representation of the Community calls in addition for close cooperation between the Member States and the Community institutions in the process of negotiation and conclusion of such agreements.

(see paras 132-134, 136)

4. An interpretation to the effect that the second subparagraph of Article 133(6) EC covers only agreements which concern exclusively or predominantly trade in services in the sectors referred to by it, in addition to finding no support in the wording of that provision, cannot be reconciled with the aim pursued by the second subparagraph of Article 133(6) EC which seeks to preserve for the Member States an effective external competence in the sensitive areas covered by the provision.

Indeed, one of the consequences of such an interpretation would be to remove from the sphere of application of the second subparagraph of Article 133(6) EC all the horizontal agreements which concern trade in services as a whole. In addition, it would follow from that interpretation that international provisions with strictly the same object contained in an agreement and concerning the areas of sensitive services specified in the second subparagraph of Article 133(6) EC would fall within or outwith the shared competence of the Community and its Member States to which that provision refers depending solely on whether the contracting parties to the agreement decided to deal only with trade in such sensitive services or whether they agreed to deal at the same time with that trade and with trade in some other type of services or in services as a whole.

(see paras 138-140)

5. The fact that the third subparagraph of Article 133(5) EC provides that a Community act concluding a horizontal agreement relating to trade in services requires unanimity within the Council insofar as such an agreement also concerns the second subparagraph of Article 133(6) EC cannot support the conclusion that Community competence to conclude such an agreement must, contrary to the case of sectoral agreements which specifically concern the sensitive areas referred to in that second subparagraph, be exclusive in character.

The third subparagraph of Article 133(5) EC articulates moreover a rule whose purpose is to state the manner in which Community competence must be exercised and not to specify the nature of that competence. Furthermore, the requirement for unanimity within the Council in relation to the adoption of a Community act concluding an agreement is not in any way incompatible with the fact that such conclusion falls within a competence which is shared with the Member States.

(see paras 141-142)

6. The interpretation by virtue of which only agreements exclusively or predominantly relating to trade in transport services are covered by the third subparagraph of Article 133(6) EC would to a large extent deprive that provision of its effectiveness. Indeed, the consequence of that interpretation would be that international provisions with strictly the same object and contained in an agreement would fall in some cases within transport policy and in some cases within commercial policy depending solely on whether the parties to the agreement decided to deal only with trade in transport services or whether they agreed to deal at the same time with that trade and with trade in some other type of services or in services as a whole.

The third subparagraph of Article 133(6) EC seeks, on the contrary, to maintain, with regard to international trade in transport services, a fundamental parallelism between internal competence whereby Community rules are unilaterally adopted and external competence which operates through the conclusion of international agreements, each competence remaining anchored in the title of the Treaty specifically relating to the common transport policy.

Thus, the transport aspect of the agreements with the affected members of the World Trade Organisation modifying the Schedules of Specific Commitments of the Community and its Member States under the General Agreement on Trade in Services (GATS) falls, in accordance with the third subparagraph of Article 133(6) EC, within the sphere of transport policy and not that of the common commercial policy.

(see paras 163-164, 173)