Reading Opinion 2/15: Standards of Analysis, the Court's Discretion, and the Legal View of the Advocate General

Abstract

In Opinion 2/15, the Commission, the European Parliament, the Council, and the Member States litigate whether the Union is exclusively competent to conclude the EU-Singapore Free Trade Agreement (EUSFTA) alone, or whether the EU ought to involve the Member States as independent parties to a ‘mixed’ agreement. The delineation of the material scope of EU Common Commercial Policy following the Lisbon Treaty reform of 2009 is central to this proceeding. The Court’s opinion stands in the tradition of seminal EU external competence litigation, such as Opinion 1/78 and Opinion 1/94. It is widely expected that the Court’s judgment will further clarify the Union’s constitutional identity in the area of EU external economic relations. It therefore has the potential to have profound implications for EU external economic governance. This note reviews the evolution of the Union’s Common Commercial Policy in context of the Court’s past jurisprudence and scrutinizes the relevant standards of analysis, which the Court employs in its competence enquiry. It is argued that the Court retains ample space for discretionary judicial decision-making, which surfaces at the intersection of the competence enquiry and the determination of appropriate legal bases. The clarification and further refinement of the Court’s analytical standards in its judgment and their transparent and consistent application could substantially reduce incentives for future litigation and inter-institutional political combat. The recent quarrels over the signing, provisional application, and conclusion of CETA provide sufficient emphasis to this point. Using the legal view of Advocate General as a benchmark, the paper discusses the practical implications of the Court’s judgment for EU trade and investment treaty-making. Finally, a number of institutional alternatives are proposed that may ‘save’ EU economic treaty-making from ‘mixity’ and the pitfalls of associated procedures in the EU and the member states.