Opinion 1/94 and the Division of Powers between the Member States and the European Community in International Economic Relations: For Whom the Bells Toll?

Revista Jurídica da AAFDL, No. 20, 1996, p. 203

16 Pages Posted: 28 Feb 2014

See all articles by Miguel Moura e Silva

Miguel Moura e Silva

University of Lisbon Law School; CIDEEFF

Date Written: April 21, 1995

Abstract

The conclusion of the Uruguay Round provided an excellent opportunity to test the extent of Community competence in the field of international economic relations. The Court’s opinion can thus be viewed as an indication of the current “state of the Union.” As a result of the Uruguay Round negotiations, services (GATS) and trade related aspects of intellectual property (TRIPs) were brought within the scope of multilateral rules shaped by traditional instruments of commercial policy, such as most-favored-nation and national treatment, which had evolved under GATT, and under a common institutional framework, the new World Trade Organization (WTO). Given the extent of internal competence retained by EC Member States in the area of services and intellectual property rights, the request of an opinion made by the European Commission (Commission) gave the European Court of Justice (Court) an opportunity to clarify two crucial issues. First, the scope of the concept of common commercial policy, and, second, should that concept not cover some domains included in the Uruguay Round, the extent to which the European Community could have an exclusive competence in these fields under the implied powers doutrine. Although the Court could hardly fudge these difficult issues, it nevertheless adopted a solution that may be properly termed as cautious, to say the least. This is even more striking in view of the Court’s earlier case-law, as will be seen. It is impossible to read this opinion without being reminded of the political debate surrounding the ratification of the Treaty on the European Union. This political mood is even reflected at a legal level by the recourse by some Member States to arguments of domestic constitutional law. This brief note discusses the Court’s judgment in the light of its earlier case-law and legal commentary. In Section 1 the concept of common commercial policy and its proper scope is examined. This is followed by the analysis of the doctrine of implied powers in Section 2. The paper ends with an evaluation of the Court’s opinion and some tentative conclusions.

Keywords: Uruguay Round; external competence; common commercial policy; EU Law

JEL Classification: K33

Suggested Citation

Moura e Silva, Miguel, Opinion 1/94 and the Division of Powers between the Member States and the European Community in International Economic Relations: For Whom the Bells Toll? (April 21, 1995). Revista Jurídica da AAFDL, No. 20, 1996, p. 203, Available at SSRN: https://ssrn.com/abstract=2401926

Miguel Moura e Silva (Contact Author)

University of Lisbon Law School ( email )

Alameda da Universidade, Cidade Universitária
Lisboa, 1649-014
Portugal

HOME PAGE: http://www.fd.ulisboa.pt/

CIDEEFF ( email )

Alameda da Universidade, Cidade Universitária
Lisbon, 1649-014
Portugal

HOME PAGE: http://www.cideeff.pt

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