The Recurrent Crisis of the European Union’s Common Commercial PolicyOpinion 2/15

Resumen

Opinion 2/15 (Court of Justice, opinion of 16 May 2017) represents just the latest example of the persistent crisis that affects the CCP. The EU’s CCP has developed historically through periods of renewal and crisis. After the developments in case law, and in particular after the cases of Daiichii Sankyo (Court of Justice, judgment of 18 July 2013, case C-414/11, Daiichi Sankyo and Sanofi-Aventis Deutschland [GC]) and Conditional Access Services (Court of Justice, judgment of 22 October 2013, case C-137/12, Commission v. Council [GC]), opinion 2/15 seems to entail a significant step back. The decision that the EU-Singapore FTA has a mixed character argues that the CCP deployed by the Commission after Lisbon goes beyond the competences established in the TFEU and, therefore, that this agreement incorporates matters that do not fall within the EU’s exclusive competence. Further, the Court implicitly held that there is no shared external competence that can be exercised by the EU alone on the basis of implied powers. If the interpretation adopted by the Court regarding the “Centre of gravity” test can be praised as positive, even though its manner of changing its case-law can be criticized as insufficiently explained, the decision to leave out portfolio investments from the CCP, together with the interpretation of the investor-State arbitration system through the lens of the autonomy of EU law, shows that it will be difficult for the Commission to handle the new CCP.