Trade Policy and the Court of Justice: A History of Ups ... · iii Abstract When Opinion 2/15 on...

COLLEGE OF EUROPE

BRUGES CAMPUS

EUROPEAN POLITICAL AND

GOVERNANCE STUDIES DEPARTMENT

Trade Policy and the Court of

Justice: A History of Ups and

Downs

The Political Influence on the CJEU in the

Definition of the CCP

Supervisor: Professor Sabine SAURUGGER Thesis presented by

Luca MEDICHINI for the Degree of Master of Arts in

European Political and Governance

Studies

Academic Year 2017-2018

ii

Statutory Declaration

I hereby declare that this thesis has been written by myself without any external unauthorised

help, that it has been neither presented to any institution for evaluation nor previously

published in its entirety or in parts. Any parts, words or ideas, of the thesis, however limited,

and including tables, graphs, maps etc., which are quoted from or based on other sources,

have been acknowledged as such without exception.

Moreover, I have also taken note and accepted the College rules with regard to plagiarism

(Section 4.2 of the College study regulations).

Words: 21.696

iii

Abstract

When Opinion 2/15 on the EU-Singapore Free Trade Agreement was delivered by

the Court of Justice of the European Union (CJEU) in May 2017, many expressed

disappointment for the exclusive competences denied to the EU, others cheered for the

exclusive competences recognised to the EU. The division on the assessment of Opinion

2/15 represents quite interestingly the complex and the multifaceted history that has long

existed between the CJEU and the Common Commercial Policy (CCP). It is indeed a history

which has known its ‘ups and downs’ – the CJEU has at times expanded, sometimes

restricted the interpretation of the Treaty provisions on the CCP. Why would something like

this happen? What are the reasons behind the shifting Opinions of the CJEU? It is the aim

of this dissertation to understand why the CJEU has been so irregular in painting the

landscape in which the EU should exercise its own trade policy.

Assuming that the CJEU is embedded in an institutional and political structure which

at the same time is capable of constraining and protecting the Court’s autonomy, the question

to ask is which factors determine the outcome of the CJEU’s decisions – beyond the letter

of the law? An analysis will be carried on the basis of the relevant – although not copious –

jurisprudence and on the existing secondary literature. The hypotheses will focus on the

analysis of the clarity of the legal bases; the pressure of the Member States and the political

environment around the CJEU.

Awareness of the limits of this quest is essential when approaching the CJEU – as

discretion and secrecy are rules very much observed in the Court. Yet politics have always

found their way into courtrooms and Luxembourg makes no exception – what remains to be

seen is if they left any trace.

iv

Keywords

Court of Justice of the European Union

Trade policy

Common Commercial Policy

European legal integration

Judicial independence

v

Table of Contents

Statutory Declaration .......................................................................................................... ii

Abstract ............................................................................................................................... iii

Keywords ............................................................................................................................. iv

List of Abbreviations ......................................................................................................... vii

1 Introduction ................................................................................................................. 1

1.1 The CCP and the CJEU ......................................................................................... 2

1.1.1 The relevance of the CCP .............................................................................. 3

1.1.2 The relevance of the CJEU ............................................................................ 4

1.2 Research question .................................................................................................. 5

2 The Court embedded ................................................................................................... 7

2.1 Theoretical framework: the embeddedness of the CJEU ...................................... 7

2.2 Perspectives on European legal integration ........................................................... 8

2.2.1 The ‘legal autonomy’ approach ..................................................................... 8

2.2.2 The ‘political power’ approach...................................................................... 9

2.3 The embeddedness: different approaches ............................................................ 10

2.3.1 A constraining embeddedness ..................................................................... 10

2.3.2 An empowering embeddedness ................................................................... 10

2.4 The applied theoretical framework ...................................................................... 11

2.5 Independent variables .......................................................................................... 11

2.6 Hypotheses........................................................................................................... 12

2.7 Structure and methodology .................................................................................. 14

3 “A good start…”: the first period of CCP case law, an incremental expansion .. 15

3.1 Common commercial policy and the CJEU from the 1970s until Opinion 1/94:

an expansive case law ...................................................................................................... 15

3.2 The indeterminacy of Article 113: a playground for the Court ........................... 16

3.3 Member States and the CJEU in the earlier years: a display of autonomy ......... 19

3.3.1 Preferences of Member States: previous studies ......................................... 20

3.3.2 Member States and the CJEU: a quiet opposition ....................................... 21

3.4 Around the Court: more friends than foes ........................................................... 22

3.4.1 All is good: the favourable environment around the Court ......................... 23

3.4.2 Catching up with the world: the preoccupations of the Court ..................... 25

3.5 Preliminary conclusions ...................................................................................... 26

vi

4 From Opinion 1/94 to Lisbon: dancing to a different tune .................................... 27

4.1 The Uruguay Round and the ‘new issues’: the changing landscape of

international trade ............................................................................................................ 27

4.2 Opinion 1/94: where it all began ......................................................................... 28

4.3 Two’s a company, three’s a crowd… and eight’s a threat .................................. 29

4.3.1 Unchanged Treaty provisions and the case law of the CJEU ...................... 29

4.3.2 There’s strength in numbers: Member States and the threat of constitutional

overriding..................................................................................................................... 30

4.3.3 Legal weaknesses in the reasoning of the Court: politics trumping the law 31

4.4 An uncomfortable position: the problems emerged with Maastricht .................. 33

4.4.1 The problems of Maastricht: the price of a compromise ............................. 33

4.4.2 What emerged with Maastricht: the price of integration ............................. 35

4.4.3 Contextualising Opinion 1/94 ...................................................................... 36


5 Recovering after Opinion 1/94: the clarity of Lisbon and the doubts of Opinion

2/15 38

5.1 The development of the CCP after Opinion 1/94: from Amsterdam to Lisbon .. 38

5.1.1 The scars of Opinion 1/94: reasons to change ............................................. 38

5.1.2 From Amsterdam to Lisbon, via Nice ......................................................... 39

5.2 The post-Lisbon case law: an overview .............................................................. 40

5.3 Shedding long-needed light: The Court and the clarity of Lisbon ...................... 42

5.4 Upholding the law: The CJEU’s resistance to Member States ............................ 43

5.4.1 Opinion 2/15: a serious test for the CJEU ................................................... 45

5.4.2 Opinion 2/15: a balancing act – assessment ................................................ 46

5.5 Chaos and doubts: the uncertain environment surrounding the Court ................ 47

5.5.1 International trade after the WTO: the role of the EU ................................. 48

5.5.2 The new political salience of international trade ......................................... 49

5.5.3 The increasing unpopularity of free trade agreements: TTIP & CETA ...... 50

5.6 An assessment: despite politics, the Court stands firm ....................................... 52


6 Conclusion .................................................................................................................. 55

Bibliography ....................................................................................................................... 60

ANNEX I ............................................................................................................................ 69

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List of Abbreviations

AG Advocate General

CCP Common Commercial Policy

CETA Comprehensive and Economic Trade Agreement

CJEU Court of Justice of the European Union

EC European Community

EEC European Economic Communities

ERTA European Road Transport Agreement

EU European Union

EUSFTA European Union-Singapore Free Trade Agreement

FTA(s) Free Trade Agreement(s)

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

PTA(s) Preferential Trade Agreement(s)

TFEU Treaty on the Functioning of the European Union

TRIPS Trade-Related Aspects of Intellectual Property Rights

TTIP Transatlantic Trade and Investment Partnership

WTO World Trade Organization

1

1 Introduction

“The Treaty of Rome was written in 1957, the era when trade negotiations were

almost exclusively about tariffs, where trade rounds could be launched on the sea-front in

Torquay… and when the EU had six members. You understand that it doesn't make sense to

exclude IPR, services, and investment from trade negotiations, given the modern European

economy.” 1

Pascal Lamy, July 2000

“"J'accuse la Cour de Justice" – said [former French Prime Minister Michel Debré]

as late as 1979 – "de mégalomanie maladive", by which, of course, he meant insufficient

deference to the sovereign rights and interests of France.” 2

Judge G.F. Mancini, 1989

The statements above belong to two key figures of European integration. In his

speech to the Confederation of British Industries, Pascal Lamy, then European

Commissioner for Trade, referred to the difficulties of the European Union's (hereinafter

‘EU’) Common Commercial Policy (hereinafter ‘CCP’) to keep up with the rapidly changing

nature of international trade – one of the underlying themes of this thesis. The words of

Judge Mancini instead eloquently hint at the other underlying theme, namely the autonomy

of the Court of Justice of the European Union (hereinafter ‘the CJEU’ or ‘the Court’) vis-à-

vis the preferences of Member States. Both these themes are today extremely topical, as

demonstrated by the importance of Opinion 2/15, delivered by the Court on 16 May 2017,

on the division of competences between the EU and its Member States to conclude the free

trade agreement negotiated with Singapore (hereinafter ‘the EUSFTA’ or ‘the Singapore

1 P. Lamy, Speech at the Confederation of British Industries, London, 6 July 2000, http://europa.eu/rapid/press-

release_SPEECH-00-258_en.htm. 2 G. F. Mancini, ‘The Making of a Constitution for Europe’, in Common Market Law Review 26, 1989, pp.

595-614.

2

Agreement’).3 Shortly after, another politically important Advisory Opinion was requested

by Belgium on the compatibility with EU law of the Comprehensive Economic and Trade

Agreement (hereinafter ‘CETA’), the free trade agreement (hereinafter ‘FTA’ or ‘FTAs’, if

plural) signed by the EU and its Member States with Canada.4

The renewed salience of questions such as the division of competences and the scope

of the CCP reveals the persistence of unresolved tensions that have historically characterised

the EU since its very inception. Tensions between the powers expressly provided by the

Treaties and the ever more complex nature of international economic relations; tensions

between the ambitions of supranational institutions and the preoccupations of Member

States. An ongoing dialectic that has always served as a catalyst for European integration,

pushing at times towards compromise, other times towards conflict. These dynamics have

of course been reflected in the evolution of the CCP, the oldest and perhaps most important

exclusive external competence of the EU.

1.1 The CCP and the CJEU

Although the CCP has always belonged to the realm of exclusive competences, its

exact scope was never defined in precise terms by the drafters of the Treaty of Rome.5 In

fact, the original scope of the CCP reflected the preoccupations of the international trade

agenda of the time, focusing on trade in goods, with emphasis on tariffs and quantitative

restrictions.6 The Treaty only offered a non-exhaustive list of trade policy instruments, and

Art. 113 EEC (today’s Art. 207 TFEU) provided that:

“the common commercial policy shall be based on uniform principles,

particularly in regard to changes in tariff rates, the conclusion of tariff

and trade agreements, the achievement of uniformity in measures of

liberalisation, export policy and measures to protect trade such as those

to be taken in case of dumping or subsidies.”

3 Opinion of the Court (Full Court) of 16 May 2017, Opinion 2/15, EU:C:2017:376. 4 Request for an opinion submitted by the Kingdom of Belgium pursuant to Article 218(11) TFEU

(Opinion 1/17). 5 A. R. Young and J. Peterson, Parochial Global Europe, Oxford, Oxford University Press, 2014, pp. 51. 6 A. R. Young, Extending European cooperation: The European Union and the ‘new’ international trade

agenda, Manchester, Manchester University Press, 2003, pp. 24-25.

3

Yet trade has dramatically evolved throughout the past sixty years – and continues to do so

at very high speed. In this respect, Baldwin highlighted that:

“Today’s trade is radically more complex. The ICT revolution fostered an

internationalisation of supply chains, and this in turned created the ‘trade-

investment-service nexus’ at the heart of so much of today’s international

commerce”.7

The inadequacy of Art. 113 EEC became more and more evident with time, and with the

growing complexity of international trade it provided the CJEU with breeding ground for

creative interpretations.8 In its jurisprudence the Court was called upon to define not just the

nature of EU competences, exclusive or shared, but their extent as well. Although the Lisbon

Treaty introduced much-needed clarity on the competences of the EU in trade policy, the

emergence of ‘new generation’ comprehensive trade agreements and their wide scope has

led once again to doubts over the reach of such competences.

1.1.1 The relevance of the CCP

The CCP is one of the EU’s first policy areas blessed with privilege of exclusivity.9

The relevance of CCP is due to several factors, amongst which the prominence of the EU in

international trade. Since the 1970s, the EU had started to establish itself as a world trading

power on an equal footing with the United States. Yet especially after the Uruguay Round

(1986-1994) – which led to the creation of the World Trade Organization (hereinafter ‘the

WTO’) in 1994 – the EU emerged as the “pace setter in multilateral trade negotiations”.10

Despite the currently languishing conditions of multilateral trade, epitomised by the failure

of the Doha Round, the EU has remained committed to furthering trade integration, both at

the multilateral and preferential levels.11 This should not come as a surprise, considering

both the importance of services to the EU economy and the difficulties to agree, at the

7 R. Baldwin, 21st Century Regionalism: Filling the gap between 21st century trade and 20th century trade

rules, World Trade Organization, 2011, p. 3. 8 Young and Peterson, op. cit., pp. 51-52. 9 S. Gstöhl, ‘The European Union’s Trade Policy’, in Ritsumeikan International Affairs, Vol. 11, 2013, pp.1-

22. 10 A. R. Young and J. Peterson, Parochial Global Europe, Oxford, Oxford University Press, 2014, pp. 5-8. 11 European Commission, Trade for all: Towards a more responsible trade and investment policy, October

2015, http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf.

4

multilateral level, on further trade integration in categories other than goods. Therefore, far

from being ‘just’ a multilateral champion, the EU is actively engaged in an “extensive and

growing network” of FTAs.12

Yet the relevance of trade policy is not just a matter of power.13 It is one of identity as well,

the CCP being one of the EU’s constitutive policies.14 The Treaty drafters specifically chose

to establish a customs union, which required a common external tariff, out of other

alternatives which would not necessarily demand such a high degree of cooperation.15 As

the EU’s first exclusive external competence, the CCP is a “foundational plank of the EU’s

external identity”.16

As suggested by Meunier and Nicolaïdis, the uniqueness of the CCP should also be

appreciated in the awareness that “the very idea that nation-states could give up such a key

area of their external affairs was, and continues to be, revolutionary.”17 The exercise of

foreign policy is the direct manifestation of state sovereignty outside of the state’s own

territorial boundaries, hence the “revolutionary” nature of the sacrifice accepted by the

founding members in 1957.

1.1.2 The relevance of the CJEU

The CJEU has for a long time managed to keep its distance from the public eye – a

circumstance which allowed it to operate in relative isolation. As notoriously put by Eric

Stein in 1981:

“[t]ucked away in the fairyland Duchy of Luxembourg and blessed, until

recently, with benign neglect by the powers that be and the mass media,

12 Young and Peterson, loc. cit. 13 On the power of the EU as a trade actor, most notably: C. Damro, “Market Power Europe”, in Journal of

European Public Policy, Vol. 19, 2012, pp. 682-699. 14 Young and Peterson, op. cit., p. 11. 15 A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, London,

UCL Press, 1998, p. 86. 16 M. Cremona, ‘A Quiet Revolution: The Common Commercial Policy Six Years after the Treaty of Lisbon’,

SIEPS, 2017, p. 6. 17 S. Meunier and K. Nicolaïdis, ‘Who Speaks for Europe?The Delegation of Trade Authority in the EU’, in

Journal of Common Market Studies Vol. 37, 1999, pp. 477-501: 478 (emphasis added).

5

the Court of Justice of the European Communities has fashioned a

constitutional framework for a federal-type structure in Europe.”18

The Court today does not enjoy that “benign neglect” from mass media and powers anymore.

An example of that is the fact that one of the major arguments for pro-Brexit campaigners –

and one of the major preoccupations for most Brexit voters – to leave the European Union

was the long-coveted independence of the United Kingdom from the jurisdiction of the

CJEU.19

If in the past the CJEU has played a crucial role in the construction of the European legal

order, today the Court maintains its vital importance, both to advance EU integration and to

safeguard the acquis communautaire, with the task of ensuring that “in the interpretation and

application of the Treaties the law is observed” – as provided by Art. 19 TEU.

Lastly, with the departure of the United Kingdom looming on the horizon, the Court will be

called upon to (at least) watch over the correct application of the Treaties – whether the

United Kingdom likes it or not – and perhaps something more.20 And this will be true not

just for the application of Art. 50 TEU, but for whatever kind of arrangement the two parties

shall negotiate.

1.2 Research question

The aim of this work is neither to demonstrate the CJEU’s political or institutional

independence, nor to guide through the evolution of the CCP through the jurisprudence of

the Court, which may well be prerogative of legal scholarship. Given the fundamental role

of the Court in shaping the CCP, this dissertation intends to understand the reasons why the

Court has interpreted the CCP Treaty provisions in rather diverging ways throughout its case

law, that is either in an expansive or in a restrictive fashion. So, the research question is why

has the Court interpreted CCP provisions in such different ways, which brings to the heart

18 E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, in The American Journal of

International Law, vol. 75, no. 1, 1981, pp. 1-27: 1. 19 ‘Britain may find it hard to escape the European Court of Justice’, The Economist, 2 May 2017,

https://www.economist.com/news/europe/21717836-every-trade-relationship-needs-umpire-it-or-not-britain-

may-find-it-hard-escape (retrieved on 4 April 2018). 20 D. Sarmiento, ‘The Singapore Silver Bullet’, in Verfassungsblog on Matters Constitutional, 17 May 2017,

https://verfassungsblog.de/the-singapore-silver-bullet/ (retrieved on 4 April 2018).

6

of the matter, namely which are the factors that determined (and continue to determine) the

Court’s decisions in the domain of trade policy,21 beyond the mere application of the law?

The following chapter will present the research design of the analysis. The research

design includes the theoretical framework within which the analysis will be carried out as

well as the independent variables and the hypotheses which should allow to answer the

research question.

21 Trade policy and CCP will be used as synonyms, as CCP is the trade policy of the EU proper.

7

2 The Court embedded

The Court is one of the “engines” of European integration, according to Pollack.22

Yet Kelemen notes that engines may find themselves operating “under strain, [facing] a

daunting set of challenges”.23 As this work sets out to assess the reasons why the Court has

decided in certain ways rather than others, when dealing with the CCP, it is necessary to

examine those ‘challenges’ faced by the Court and the extent to which they may condition

or influence its decision-making process. Although such quest is ultimately an empirical one,

an “informed theorizing” is needed – within which hypotheses may be systematically

applied.24

The current chapter will therefore present the theoretical framework within which the

analysis will be carried out, with an overview of the relevant literature. Then, it will provide

the independent variables and the hypotheses put forward to answer the research question.

2.1 Theoretical framework: the embeddedness of the CJEU

There is wide agreement, among political scientists and lawyers, that the CJEU is a

“sophisticated strategic actor”25 with “a clear institutional interest in extending the scope of

Community law and its authority to interpret it.”26 Starting from this observation, the

theoretical framework used to carry out the analysis hinges upon the consideration that the

CJEU is embedded in institutional and political structures which, at the same time, may

either constrain or protect it.

More precisely, due to the institutional and political framework in which the Court

is embedded, two distinct and contrasting drivers operate: the first constrains the Court’s

autonomy by limiting the range of possible legal solutions, either as a result of political

22 M. Pollack, The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU,

Oxford: Oxford University Press, 2003. 23 R.D. Kelemen, ‘The political foundations of judicial independence in the EU’, in Journal of European Public

Policy 19:1, 2012, pp. 43-58: 43. 24 A.M. Slaughter Burley, ‘New Directions in Legal Research on the European Community’, in Journal of

Common Market Studies Vol. 31(3), 1993, pp. 391-400: 393. 25 Pollack, op. cit., p. 188. 26 G. Garrett, R.D. Kelemen, H. Schulz, ‘The European Court of Justice, National Governments, and Legal

Integration in the European Union’, in International Organization (52)1, 1998, pp. 149-176.

8

pressure or of institutional checks; the second protects the Court from threats or

interferences, either as a result of a generalised political support or of institutional

guarantees. These two drivers can of course operate at the same time.

It is relevant to give an overview, without the ambition to do so exhaustively, on how

such a theoretical framework has been developed by the relevant literature.

2.2 Perspectives on European legal integration

On the basis of the common assumption that the Court is a strategic actor pursuing

its own preferences, the evolution of the EU legal system has been studied from two main

perspectives, identified by Garrett, Kelemen and Schulz in the ‘legal autonomy’ (or neo-

functionalist) and in the ‘political power’ (or neo-rationalist) approaches.27

2.2.1 The ‘legal autonomy’ approach

The ‘legal autonomy’ approach posits that the CJEU managed to “push forward its

European integration agenda against the interests of some member states”.28 Accordingly,

the CJEU would have taken advantage of governments’ scarce attention – as well as of key

strategic actors such as national lower courts – to develop ground-breaking legal principles

and doctrines – most prominently exemplified by the supremacy of EU law and the direct

effect.29 In the opinion of Stone Sweet and his collaborators, Member States would therefore

be “reactive rather than proactive”,30 meaning that they would tend to adapt to changes they

are not able to influence – therefore passively participating in the process of legal integration

rather than driving it.31 Pollack explains that governments’ lack of control is justified by

three main reasons.32 The first, argued by Burley and Mattli, is that the Court uses the

language of the law as a “mask” and a “shield”, which “hides and protects the promotion of

27 Ibid., p. 149-150. 28 Ibid. 29 K.J. Alter, ‘The European Court’s Political Power’, in West European Politics, Vol. 19, No. 3, 1996, pp.

458-487. 30 Pollack, op. cit., p. 192. 31 See: A. Stone Sweet and T. Brunell, ‘The European Court and the national courts: a statistical analysis of

preliminary references, 1961-95’, in Journal of European Public Policy (5)1, 1998, pp. 66-97; A. Stone Sweet

and J.A. Caporaso, ‘La Cour de justice et l'intégration européenne’, in Revue française de science politique

(48)2, 1998, pp. 195-244; A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford,

Oxford University Press, 2000. 32 Pollack, loc. cit.

9

one particular set of political objectives”.33 Accordingly, Member States were deceived by

the Court in its advancement of legal integration. Yet Stein noted that the significance of

landmark cases did not pass completely unnoticed, and criticism was not spared.34 The

second is the role played by national lower courts, whose complicity with the CJEU gave

substance to its rulings, raising the costs of governments’ non-compliance.35 The third, and

most relevant to the present dissertation, is the presence of high thresholds for constitutional

override. According to this view, the EU’s institutional framework offers the Court a solid

protection from potential political fallout.36

2.2.2 The ‘political power’ approach

Conversely, the ‘political power’ approach postulates that the reason why the CJEU

managed to expand the EU’s powers to the detriment of Member States is that such

expansion was supported by the governments themselves.37 Accordingly, the logic behind

Member States’ delegation of authority is “to increase the effectiveness of the incomplete

contracts governments have signed with each other”, with judges being ultimately aware that

their power depends upon the “acquiescence” of Member States.38 Garrett and Weingast

concede that the Court might use “constructed focal points” to more efficiently pursue its

interests, although they conclude that the force of the rulings will ultimately depend on the

acceptance of the governments.39

33 A.M. Burley and W. Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’, in

International Organization 47(1), 1993, pp. 41-76: 72. 34 E. Stein, ‘Lawyers, judges and the making of a transnational constitution’, in American Journal of

International Law 75(1), 1981, pp. 1-27. 35 K.J. Alter, ‘Who Are the “Masters of the Treaty”?: European Governments and the European Court of

Justice’, in International Organization Vol. 52(1), 1998, pp.121-147. 36 Stone Sweet and Brunell, ‘The European Court and the national courts’, op. cit., p. 69 (see footnote n. 34). 37 G. Garrett, ‘The politics of legal integration in the European Union’, International Organization 49, 1, 1995,

pp. 171-181. 38 Alter, ‘Who Are the Masters of the Treaty’, op. cit., p. 150. 39 G. Garrett and B.R. Weingast, ‘Ideas, Interests and Institutions: Constructing the EC Internal Market’, in J.

Goldstein and R.O. Keohane (eds.), Ideas & Foreign Policy: Beliefs, Institutions and Political Change, Cornell

University Press, 1993, pp. 176 and 202.

10

2.3 The embeddedness: different approaches

To better understand the theoretical framework in which the analysis will be carried

out, it is relevant to provide an overview of how some of the most prominent political science

scholars have envisaged – explicitly or implicitly – the embeddedness of the CJEU.

2.3.1 A constraining embeddedness

Garrett and Weingast, consistently with their view on the European legal integration

more broadly, argued that the CJEU (the EU ‘legal system’) is embedded in “a broader

political structure [that] places direct constraints on the discretion of the Court”, as political

actors possess an assorted toolbox with which they can alter or limit the Court’s activity.40

They conclude that the CJEU is in an institutional structure that strongly constrains the

Court’s “latitude” to act in ways that would be opposed by most Member States, therefore

envisaging an ‘embeddedness’ which basically limits the Court’s discretion, rather than

protecting it.41

2.3.2 An empowering embeddedness

In contrast Alter suggests that although national leaders disagreed with the direction

taken by the Court’s jurisprudence, especially in the 1960s and the 1970s, they were

“institutionally unable to reverse it”.42 She argues that the institutional constraints limiting

Member States’ action constitute what Scharpf defined a “joint-decision trap”.43 According

to Scharpf, a ‘joint-decision trap’ occurs when two conditions are met: (1) when the central

authority’s decisions are directly dependent upon the agreement of constituent authorities;

and (2) when the agreement of constituent authorities must be unanimous or nearly

unanimous. In addition to that, Scharpf underlines that it will ultimately depend on the

consequences of a ‘no agreement’ scenario – if such scenario “assures the continuation of

[the status quo], rather than reversion to the ‘zero base’”, then there is a ‘joint-decision

trap’.44 The same conclusion is reached by Kelemen, who argues that the Court is well

‘insulated’ against the court curbing mechanisms that political actors can generally deploy

40 Ibid. p. 200. 41 Ibid. 42 Alter, ‘Who Are the “Masters of the Treaty”?’, op. cit., pp. 135-136. 43 W.F. Scharpf, ‘The Joint-decision trap: Lessons from German Federalism and European Integration’, in

Public Administration, Vol. 66, 1988, pp. 239–78. 44 Ibid., p. 257.

11

in other democratic polities.45 In particular, Kelemen points out to a number of factors which

isolate the Court: the large number of Member States; the high degree of power

fragmentation in the EU; the uncoordinated judicial appointment processes; the internal

organisation of the Court; and the high level of public support for the Court.46 In sum,

Kelemen defines the CJEU’s embeddedness in the following way:

“The CJEU is deeply embedded in and responsive to the EU’s political

system. Member governments control the appointment of judges to the

CJEU, and political actors in the Council of Ministers, the European

Parliament and the Commission shape the legal norms that the CJEU must

interpret and enforce. But within this very broad set of political

constraints, the CJEU enjoys a remarkable degree of independence.”47

2.4 The applied theoretical framework

The theoretical framework of this dissertation is therefore that of the ‘embeddedness’

of the Court. An overview has been provided on the main approaches that scholars developed

thereon. Although all agree on the Court being a strategic actor pursuing its own preferences

– namely the furthering of European integration – they tend to reach diverging conclusions.

The extent to which the institutional and political structures constrain or protect the Court in

the domain of trade policy can only be assessed after carrying out an analysis of the relevant

case law, identifying and examining the factors which might have determined certain

outcomes rather than others. To determine these factors, three main hypotheses have been

formulated on the basis of three independent variables, which will be explained below.

2.5 Independent variables

The first independent variable identified is the legal basis of the CCP, namely the

Treaties and the CJEU case law. The law is an element which cannot be overlooked when

analysing a judicial institution, whose main activity consists of giving life to the law by

interpreting and applying it to concrete cases. The law is therefore the first thing a judge

45 R.D. Kelemen, ‘The political foundations of judicial independence in the European Union’, in Journal of

European Public Policy Vol. 19(1), 2012, pp. 43-58: 54. 46 Ibid., pp- 51-52. 47 Ibid., p. 54 (emphasis added).

12

must look at when taking a decision – hence the importance of this independent variable.

Moreover, when the law is clear and precise, the Court will have less room for interpretation,

whereas if the provisions are more vaguely worded and unclear in their scope, the Court will

have more discretion in interpreting them. Interestingly, the consequences of the different

degrees of clarity may well depend on extra-legal factors, which have been identified in the

following two independent variables – hence the additional interest of this independent

variable.

The second independent variable consists of the preferences of Member States. As seen

above, Member States are constitutive elements of the political and institutional framework

in which the Court is embedded, and they represent perhaps the biggest challenge faced by

the Court. Indeed, they possess the means to ultimately rein in the Court’s power, notably

through Treaty amendment. To the present work, other court curbing mechanisms such as

legislative override do not apply, being the CCP governed directly by the Treaties.

The third independent variable is the external context surrounding the Court. Despite the

difficulty in defining what the ‘external context’ is, an attempt will be made to identify

elements that deserve to be taken into account in the measurement of the influence that

exogenous factor may have on the CJEU. The external context is understood to be the

environment around the Court which precedes the issuing of a ruling and which is likely to

have affected the outcome thereof. More precisely, an external context which is relevant to

the analysis of the Court is everything that occurs outside of the Court which is nonetheless

likely to have contributed to determine the outcome of judges’ decisions. For instance, by

making some outcomes more difficult to justify or costlier in terms of reputation for the

CJEU (e.g. a case in which the Court has to overturn an established case law). The ways to

measure the potential influence of the external context may be of different nature: the

occurrence of significant events before a ruling, the political salience of an issue, a general

trend presumably perceived by the Court may all be valid indicators of either pressure or

encouragement.

2.6 Hypotheses

In order to answer the research question – that is why the Court decided at times in

an more expansive and other times in a more restrictive way on the scope of the CCP – three

hypotheses have been formulated on the basis of the identified independent variables. The

13

formulation of the following hypotheses has drawn on the works of Garrett, Kelemen and

Schulz48, and of Kelemen.49

Fist hypothesis (H1): the greater the clarity of the Treaties, the less likely the Court

will rule in an expansionist fashion; whereas the greater the clarity of the CJEU

jurisprudence, the more likely the Court will follow it. Although it might at first seem self-

evident, the testing of this hypothesis will allow to understand when the Court is actually

able to exercise discretion, and if so to what extent. If confirmed, it should be expected that

in presence of widely-worded provisions, the Court will take advantage of the greater

discretion it can dispose of in order to promote further integration. At the same time, the

existence of discretion for the Court will allow to test the second hypothesis, which will

attempt to assess the impact of Member States.50

Second hypothesis (H2): the larger the number of Member States contrary to a certain

outcome, the greater the likelihood that responses by governments will be a ‘coordinated

retaliation’, therefore the greater the CJEU’s reluctance to offer decisions contrary to the

Member States. To carry out a more realistic analysis, however, not just the sheer number of

countries should be taken into account, but their size, and therefore their power and political

weight, too. This hypothesis is probably the one that can provide the strongest evidence of

influence on the Court. Indeed, Member States are the only actors – in the complex

institutional and political system in which the Court is embedded – that can pose a direct

threat to the Court’s prerogatives, having themselves the power (altogether) to change the

Treaties.51 Should H2 be confirmed, it would be legitimate to question the autonomy and the

independence of the CJEU.

Third hypothesis (H3): the more supportive the external and geopolitical context

around the Court is towards a certain outcome, the more likely the Court will deliver that

outcome. More precisely, if the political environment around the Court shows signs of strong

opposition to an expansive interpretation of Treaty provisions, the Court will tend to avoid

that interpretation – as it was made politically costlier than others. This hypothesis also

applies in the case of a generally supportive environment – as opposed to one supporting a

specific outcome – namely one, for instance, in which the authority and legitimacy of the

48 Garrett, Kelemen, Schulz, op. cit. 49 Kelemen, ‘The political foundations of judicial independence’, op. cit. 50 Also see: Garrett, Kelemen, Schulz, op. cit., pp. 157-159. 51 Ibid., p. 161.

14

Court are not a priori questioned. H3 is particularly difficult to define and therefore to test.

Yet an attempt will be made to measure, as concretely as possible, the relationship between

the CJEU and the political context in which it delivers its rulings.

2.7 Structure and methodology

In the following chapters, the analysis of the Court’s relevant case law will be carried

out. The cases are divided in three periods, in an attempt to identify specific trends which

have characterised each period.

The first period covers the CCP case law developed in the 1970s; the second period

covers the 1990s, with specific focus on Opinion 1/94. The third period instead covers the

post-Lisbon CCP case law until Opinion 2/15. Given that the scope of the analysis is limited

to the CCP, the generalisability of the findings has to be considered against this background.

As for the methodology, the analysis will be carried out mostly on the basis of rulings

and advisory opinions of the CJEU and on the relevant secondary literature, both on the

CJEU and on the CCP.

15

3 “A good start…”: the first period of CCP case law, an

incremental expansion

3.1 Common commercial policy and the CJEU from the 1970s until Opinion

1/94: an expansive case law

The period which is about to be examined covers the earlier years of European legal

integration, from the 1970s until before notorious Opinion 1/94.52 The reason why these

cases have been grouped together is that they all contributed to the significant expansion of

both the scope of the CCP and the scope of the EU’s general external competences. In order

to test the hypotheses and understand why the Court developed this case law, it is relevant

to first provide a brief overview of the cases.

The Massey-Ferguson case of 1973 is one of the earliest cases on the scope of the

CCP, where the CJEU was asked to interpret the validity of a Council regulation on the

valuation of goods for customs purposes.53 A few years later in 1975, landmark Opinion 1/75

was delivered.54 The Court had to establish whether a draft agreement negotiated under the

auspices of the OECD (‘Understanding on a Local Cost Standard’), was compatible with the

EEC Treaty. The importance of this ruling is due to the fact that the Court for the first time

recognised the ‘exclusive’ nature of the CCP.55 The Donckerwolcke case dealt instead with

quantitative restrictions and the CCP; here, the Court confirmed the principle of uniformity

in the exercise of the CCP.56 Another building block was Opinion 1/78, where the Court,

asked whether the Community had the competence to conclude a draft international

agreement on natural rubber, sanctioned a very extensive reading of Art. 113 EEC.57

In the same period, other very important rulings were issued by the CJEU on the

scope of the Union’s external competences. Despite not exclusively related to the CCP, the

52 Opinion of the Court of 15 November 1994, Opinion 1/94, EU:C:1994:384. 53 Judgment of the Court of 12 July 1973, Hauptzollamt Bremerhaven v Massey-Ferguson GmbH, Case 8-73,

Massey Ferguson, EU:C:1973:90. 54 Opinion of the Court of 11 November 1975, Opinion 1/75, EU:C:1975:145. 55 Cremona, ‘A Quiet Revolution’, op. cit., p. 13. 56 Judgment of the Court of 15 December 1976 in case C-41/76, Donckerwolcke, EU:C:1976:182. 57 Opinion of the Court of 4 October 1979, Opinion 1/78 on International Agreement on Natural Rubber,

EU:C:1979:224

16

relevance of this case law is evidenced by the centrality of the CCP in the EU external

action.58 These rulings include the ERTA case,59 the Kramer case 60 and Opinion 1/76.61 In

the ERTA case, the Commission asked the Court to annul a Council decision establishing

that Member States continue the negotiations of the European Road Transport Agreement

(ERTA) becoming parties thereto, and to declare the Community’s exclusive competence to

sign said agreement – as it will be shown below, this landmark ruling established the doctrine

of ‘implied powers’.62 This doctrine was further developed by the Kramer case and Opinion

1/76, which dealt with the power of the Union to conclude a fisheries convention and an

agreement establishing a laying-up fund, respectively.63

In order to assess why the Court in these years adopted such expansionist

interpretations, the hypotheses formulated above shall be tested. Hence, the degree of

discretion offered by the relevant provisions will be examined, to see if the correlation

suggested by H1 is confirmed.

3.2 The indeterminacy of Article 113: a playground for the Court

Applying the first hypothesis to this set of cases will allow us to understand both the

margin for interpretation which the Court could potentially dispose of and, by extension, the

room for possible influence from outside the Court. Accordingly, the greater the clarity of

the Treaties, the less likely the Court will rule in an expansionist fashion.

During the examined period, no amendments to the CCP provisions occurred – the

legal basis for the Court’s interpretations therefore remained unchanged. Yet Article 113

EEC is not very ‘clear’ in defining the scope of the CCP, as shown above. In this context, a

‘clear’ provision is to be understood either as one which exhaustively defines the subject

areas under EU competence, or one that expressly excludes some areas, or again one that

provides specific procedures for the inclusion of non-listed subject areas. In the case of Art.

58 Cremona, ‘A Quiet Revolution’, op. cit., p. 3. 59 Judgment of the Court of 31 March 1971 in case C-22/70, Commission of the European Communities v

Council of the European Communities, ERTA, EU:C:1971:32. 60 Judgment of the Court of 14 July 1976 in joint cases C-3-4-6/76, Cornelis Kramer and others (Kramer),

EU:C:1976:114. 61 Opinion of the Court of 26 April 1977, Opinion 1/76, EU:C:1977:63. 62 S. Kadelbach, ‘ERTA Case’, Max Planck Encyclopedia of Public International Law, 2013,

http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-

e1691?rskey=RXZLqG&result=1&prd=EPIL. 63 Ibid.

17

113 EEC, its open and non-exhaustive nature emerges clearly from its wording, in that it

affirms that the CCP “shall be based on uniform principles, particularly in regard to…”

(emphasis added). Thus, the Court supposedly enjoys a rather ample margin for

interpretation as to the scope of the CCP. To verify whether this has meant a more

expansionist and bolder approach, the value of the interpretations needs to be assessed.

In Massey-Ferguson, the Court first attempted to clarify the scope of the CCP as

defined by Art. 113 of the Treaty establishing the European Economic Community (EEC)

(corresponding to today’s Article 207 TFEU). It affirmed that the proper functioning of the

customs Union justified a wide interpretation of the CCP provisions – to allow the Union to

“thoroughly control external trade” through unilateral acts and conventional agreements

alike.64

Yet it is with Opinion 1/75 and Opinion 1/78 that the Court gave proof of what

Dehousse labelled a “daring jurisprudence both for its method and for its impact”.65 Indeed,

in Opinion 1/75 the CJEU defined the scope of the CCP “very broadly”66: it compared the

CCP with the trade policy of a sovereign state by affirming that the “concept [of commercial

policy has] the same content whether it is applied in the context of the international action

of a State or to that of the Community.”67 The significance of Opinion 1/75 is further stressed

by Koutrakos, who notes that the Court’s reference to the external commercial policy of a

state makes the EU’s CCP appear “potentially unlimited”.68 Moreover, the justification used

by the Court demonstrates even more clearly the considerable importance of such a

“dynamic definition”69: the CJEU underlines that deciding otherwise – namely recognising

concurrent powers to Member States – would “distort the institutional framework, call into

question the mutual trust within the Community and prevent the latter from fulfilling its task

in the defence of the common interest”.70 Hence, the Court adopted a strikingly bold and

expansive interpretation of Art. 113 EEC, building the foundations of one of the most

supranational policies of the EU71 and leading scholars to argue that the CCP “represents the

64 Massey Ferguson, para. 4. 65 R. Dehousse, The European Court of Justice: The Politics of Judicial Integration, Macmillan, London, 1998.,

p. 58. 66 P. Craig and G. De Búrca, EU Law: Texts, Cases and Materials, (V ed.) Oxford University Press: Oxford,

2011, p. 320. 67 Opinion 1/75, p. 1362. 68 P. Koutrakos, EU International Relations Law, Hart, 2006, p. 34. 69 Ibid., p. 35. 70 Opinion 1/75, p. 1364. 71 Koutrakos, op. cit., p. 35.

18

EC at the height of its legal powers, control and supremacy over the member states”.72 The

Court confirmed the exclusive nature of the CCP – although not so consistently – in

Donckerwolcke, where the Court confirmed the principle of uniformity exceptionally

allowing that Member States may adopt national external commercial measures upon

“specific authorization” of the EU.73

The other building block in the Court’s ambitious construction of the CCP was laid

down in 1979 with Opinion 1/78. Here the Court affirmed a very important principle: after

recognising the growing complexity of international trade, it concluded that it would be no

longer “possible to carry on any worthwhile common commercial policy if the Community

were not in a position to avail itself also of more elaborate means devised with a view to

furthering the development of international trade.”74 The Court ruled out any restrictive

interpretation to avoid that the CCP came down to just “instruments intended to have an

effect only on the traditional aspects of external trade”.75 A CCP understood that way,

according to the Court, would be “destined to become nugatory in the course of time”.76 If

applied consistently, this interpretation could virtually lead to unlimited competence

expansion, regardless of Treaty amendment. However, this was not (and is not) the case, as

specified by Advocate General Sharpston in her Opinion on the EUSFTA.77

During the same years, the Court developed one of its most famous doctrines, that of

‘implied powers’. Apparently, from the 1960s on, the Court “took the view that the

Community would not be able to develop a sufficiently strong international presence on the

basis of its express powers alone”,78 reason why the doctrine of implied powers was

introduced. The genesis of this doctrine is to be found in the ERTA judgment, in which the

CJEU stated that the EU’s authority to conclude agreements with third countries “arises not

only from an express conferment by the Treaty, but may equally flow from other provisions

of the Treaty” or from internally adopted measures.79 In a further development of the

‘implied powers’ doctrine, in the Kramer case the Court added that the EU’s external legal

72 D. McGoldrick, International Relations Law of the European Union, Longman, London, 1997, p. 70, in

Koutrakos, op. cit., p. 35. 73 Craig and De Búrca, op. cit., p. 321. 74 Opinion 1/78, para. 44 (emphasis added). 75 Ibid. (emphasis added). 76 Ibid. 77 Opinion of Advocate General Sharpston, delivered on 21 December 2016, EU:C:2016:992, para. 102. 78 Craig and De Búrca, op. cit., p. 309. 79 ERTA case, para. 16.

19

authority “may equally flow implicitly form other Treaty provisions”80, excluding the need

for internal measures. Ultimately, in Opinion 1/76 the CJEU further refined this doctrine –

also referred to as the principle of parallelism81 – introducing two requirements: that the

Treaty confers an internal competence pursuing a specific objective and that its attainment

makes the participation to the agreement necessary.82

What emerges from the analysis above is that the Court, in this first period, boldly

introduced fundamental principles building long-lasting legal doctrines.83 This assessment

allows us to register an apparent confirmation of the first hypothesis, according to which the

less clear the applicable law, the greater the room for interpretation and therefore the more

likely the CJEU will interpret provisions in an expansionist fashion. Indeed, the analysis

showed that the Court took advantage of the indeterminacy of Art. 113 EEC’s wording to

expand the scope of the CCP beyond the letter of the Treaty. Ascertained this, it is now

relevant to consider the other aspects which, according to the hypotheses, might have

influenced the Court.

3.3 Member States and the CJEU in the earlier years: a display of autonomy

As it has been argued when explaining the different perspectives developed by the

scholarship on the relationship between Member States and the CJEU, the latter is embedded

in a political and institutional system which at the same time constrains and protects it. To

assess whether in the examined case law the direction taken by the CJEU was encouraged

by Member States or rather opposed, the positions of the countries that submitted

observations will be examined. According to the second hypothesis, the larger the number

of Member States contrary to a certain outcome, the greater the likelihood that responses by

governments will constitute a ‘coordinated retaliation’, therefore the greater the CJEU’s

reluctance to offer decisions contrary thereto. The likeliness of a ‘coordinated retaliation’

will obviously depend not just on the number of opposing countries, but on their size as well.

It must be stressed that the measurement of Member States’ influence on the Court

will rely on a comparison between the content of the rulings and the observations submitted

80 Craig and De Búrca, op. cit., p. 310. 81 T. Tridimas and P. Eeckhout, ‘The External Competence of the Community and the Case-Law of the Court

of Justice: Principle versus Pragmatism’, in Yearbook of European Law, Vol. (14)1, 1994, pp. 143–177: 143. 82 Craig and De Búrca, op. cit., p. 311. 83 Dehousse, op. cit., pp. 36-59.

20

by the governments, rather than on the procedural logics of winning-losing. After all, the

Court has often made used of the judicial practice of declaring the existence of principles,

without applying them to the concrete case.84 A practice which can have the advantage of

not awakening – at least not immediately – political sensitivities which might prompt

governments’ response, assuming that the latter are mainly preoccupied with shorter-terms

objectives contrary to the Court’s longer-term perspectives.85

3.3.1 Preferences of Member States: previous studies

Observations submitted by Member States to the Court are not consistently published

and when they are accessible it is usually because the Court refers to them in the justification

of its reasoning. Therefore, data collection in this regard is not always easy and complete,

often having to assume non-published positions or preferences. Previous studies with the

same purpose were carried out using different methodologies.

A qualitative study was conducted by Stein, who selected eleven cases with a

considerable impact on the EU from a constitutional perspective.86 The results of his study

suggest that the Court proceeded with a high degree of independence compared to Member

States’ preferences – often following the position supported by the Commission.87

Stone Sweet and Brunell carried out a quantitative study instead, focusing on the

relationship between preliminary rulings and intra-EC trade and EC-level regulation.88 Their

findings, based on almost three-thousand cases issued between 1961 and 1995, showed that

the Court ruled against Member States (declaring violation of EC law) in 53% of the

analysed cases, with a 59% rate against the three largest Member States (United Kingdom,

France and Germany).89 At the same time, confirming the findings of Stein, they found that

the Commission is followed by the Court in 88% of the cases.90

84 Alter, ‘The European Court’s Political Power’, op. cit., p. 473. 85 Ibid. 86 Pollack, op. cit., pp. 195-196. 87 Ibid. 88 A. Stone Sweet and T. Brunell, ‘The European Court and the national courts’, op. cit.; and Kilroy in Pollack,

op. cit., p. 196. 89 Pollack, op. cit., p. 197. 90 Ibid.

21

3.3.2 Member States and the CJEU: a quiet opposition

Looking at the cases examined in this first period, some observations should be made.

The first thing to notice is that the Court’s case law has consistently expanded EU external

competences. Secondly, the Court has consistently ruled according to the submissions

presented by the Commission, as opposed to those presented by either the Council or the

Member States. This applies also to the cases in which the Court, rejecting the claims of the

Commission, eventually confirmed the principle implied therein – an emblematic example

of this is the ERTA case. It must be noted, however, that not in all of these cases Member

States submitted observations. On the contrary, the Council always submitted observations

and although it is not possible to consider Member States’ and Council’s observations on a

par, it should be noted that they often stand on similar positions. Thirdly, it is important to

underline that in all the cases examined, the extension of competences went beyond what

had been envisaged by Member States’ governments – with the exception of the Kramer

case in which the Court sided with the Council.91

The ERTA case is particularly interesting, as it allows to see how the Court managed

to establish an important legal doctrine in a way that did not immediately affect Member

States’ prerogatives. Both the Council and the Commission submitted observations: the

former argued that the Community’s “authority to enter into agreements with third countries

cannot be assumed in the absence of an express provision”,92 whereas the latter argued that

article 75 EEC, regulating the common transport policy, “must apply to external relations

just as much as to domestic measures”.93 The Court, after accepting the Commission’s claims

and interpretation, rejected its request to annul the Council decision on the basis of the

Commission’s omitted exercise of its own prerogatives94 – thus, the Council won the case

and the doctrine of ‘implied powers’ was introduced.

In landmark Opinion 1/75, the Council, the governments of Ireland, Italy, the

Netherlands and the United Kingdom did submit observations, but unfortunately the content

thereof has not been reported. It is reasonable to assume however that such observations

were not in favour of a deeper erosion of Member States competences – especially

considering that Opinion 1/75 recognised for the first time the exclusive nature of the CCP.

91 This is also confirmed by Young, Extending European cooperation, op. cit., pp. 32-34. 92 ERTA, para. 9. 93 Ibid., para. 6. 94 Ibid., paras. 88-92.

22

In the proceedings, not only the Court promptly ruled out claims by Member States invoking

concurrent powers, it also held that for the exclusive nature of the CCP it was of “little

importance that the obligations and financial burdens inherent in the execution of the

agreement envisaged are borne directly by the Member States”.95

In Opinion 1/78, the Commission and the Council, along with the United Kingdom

and France, submitted observations. The Council, France and the United Kingdom first

argued that it was too early in the negotiations for the Court to decide – although only France

claimed the Commission’s request for an opinion was inadmissible. Then, the countries

argued that the questions fell outside of the CCP scope. The Court did not follow their

indications and went on to adopt the famous interpretation of Art. 113 EEC so as to include

also ‘non-traditional’ aspects of trade, as shown above.

Finally, the Kramer case and Opinion 1/76, building on and developing the doctrine

of ‘implied powers’, also saw the victory of the Commission over the Council and Member

States. Only in the Kramer judgment, however, Member States submitted observations –

namely Denmark, the Netherlands and the United Kingdom. It is interesting to note that the

United Kingdom has been a consistent presence at the greffier of the CJEU. Perhaps by

default, because of its renowned lack of passion for the process of European integration, or

perhaps because it had cleverly understood the potential implications of those cases and the

consequences that they would have had on the future relationship between the EU and

Member States’ competences in the CCP.

3.4 Around the Court: more friends than foes

There is wide agreement among scholars that the achievements of the Court of Justice

– in this period as well as in the earlier years of legal integration – were possible because of

a very favourable political context around the Court.96 The acceptance of its rulings – of

which the Court took advantage – was of course a fundamental element in the building of its

confidence.97

95 Opinion 1/75, p. 1364. 96 R.D. Kelemen, ‘The Court of Justice of the European Union in the Twenty- First Century’, in Law and

Contemporary Problems, Vol. 79, 2016, pp. 117-140. 97 See: Alter, ‘The European Court’s Political Power’, op. cit.

23

The assessment of the political context which preceded the delivery of the rulings

will allow to understand whether the outcome of the CJEU’s decisions was in part

determined by the encouragement or the resistance of external factors. Kelemen argues that

“contextual factors have played a profound role in shaping the law and politics of the

European Court of Justice”, allowing it to emerge as “the most powerful supranational court

in world history”.98 Therefore on a general level Kelemen identifies three categories of

political factors which allowed the Court to build its authority in the early years of

integration: first, an “overarching geopolitical context – including its linkage to the project

of regional integration in Europe […] – highly supportive of the expansion of judicial

authority”;99 second, the scarce political salience of the earliest cases dealt with by the Court,

which shielded it from public opinion “behind a veil of technocratic obscurantism”;100 and

third, the compliance of national courts and other legal actors which supported its

empowerment.101 It should also be added that the institutional dimension creating the ‘joint-

decision trap’ argued above made it very difficult for Member States to have leverage against

the Court.

3.4.1 All is good: the favourable environment around the Court

Therefore, it can be argued that the Court of Justice did benefit from an overall

supportive context for European integration, which in the 1970s still enjoyed what is known

as ‘permissive consensus’ – namely the almost unquestioned and widespread support for

European integration.102 Until the 1980s, evidence suggests that the Court did not face any

significant resistance, as highlighted by Dehousse, who points out to a dominant pattern of

compliance and generally unchallenged authority.103 Outspoken critiques of the Court were

sporadic and limited to Member State officials and some governments, at least until the

Treaty of Maastricht, but they never amounted to real threats, nor to widespread criticism.104

Signs that the Court’s activity was starting to be received with more resistance however

98 Kelemen, ‘The Court of Justice of the European Union in the Twenty- First Century’, op. cit., pp. 117-118. 99 Ibid., p. 118. 100 Ibid. 101 Ibid. 102 S. Saurugger, F. Terpan, The Court of Justice of the European Union and the Politics of Law, Palgrave,

2016, p. 37. 103 Dehousse, op. cit., p. 146. 104 Ibid., pp. 118-119.

24

appeared in the 1980s. Inter alia, French President Valery Giscard D’Estaing in 1980 urged

his colleagues to do something in response to the “European Court and its illegal

decisions”,105 whereas German Chancellor Helmut Kohl denounced the CJEU’s record in an

address to the Bundestag.106

At the same time, the process of European integration had been suffering a political

stalemate since the mid-1960s – specifically since the ‘empty chair crisis’ and the

Luxembourg compromise – victim of its own internal conflicts and tensions.107 The political

will at the highest level was not as strong as in the first years following the Treaty of Rome

and the appetite for further integration seemed to be waning. The process of integration

therefore proceeded despite the absence of energetic push from political leaders.108

Nevertheless, the presence of this stalemate did not prevent the process of legal integration

from advancing. On the contrary, Weiler pointed out that the most notable steps ahead in

European legal integration were taken “at the same time that member states were scaling

down the supra-national pretensions of the Treaty of Rome and re-asserting national

prerogatives.”109

Studies also showed that the rate of compliance with preliminary rulings between

1960 and 1985 was as high as 95%,110 demonstrating that the support for the CJEU’s activity

was particularly well-grounded in the judicial systems of Member States. As anticipated

above, the compliance of national courts was a key element, as these actors turned out to be

essential allies for the Court, especially in the early years.111 Alter in particular argues that

lower courts proved particularly useful to the Court, as they saw in the CJEU a way “to

circumvent the restrictive jurisprudence of higher courts, and to re-open legal debates which

had been closed”.112 Moreover, Alter notes that lower courts brought legal questions before

105 H. Rasmussen, On Law and Policy in the European Court of Justice, Martinus Nijhoff Publishers, 1986, p.

354. 106 Alter, ‘The European Court’s Political Power’, op. cit., p. 473. 107 Dehousse, op. cit., p. 154. 108 Alter, ‘The European Court’s Political Power’, op. cit., p. 474. 109 J.H.H. Weiler, 'The community System: The Dual character of supranationalism', in Yearbook of European

Law 1, 1981, pp. 251-306, as cited in Alter, ‘The European Court’s Political Power’, op. cit., p. 474. 110 J.H.H. Weiler, ‘Primus inter Pares: The European Court and National Courts – Thirty Years of Cooperation’,

1992, unpublished manuscript, pp. 102-104, as cited in Dehousse, op. cit., p. 120. 111 Alter, ‘The European Court’s Political Power’, op. cit. 112 Ibid., p. 466.

25

the CJEU that higher courts would have never asked, with the effect of “shifting the national

legal context away from the high courts”.113

3.4.2 Catching up with the world: the preoccupations of the Court

More specifically to the case law analysed in this section, it must be stressed that the

political salience of the concerned issues also played an important role. Member States have

never hidden their sensitivity to the loss of foreign policy prerogatives, and commercial

policy – which they gave up when ratifying the Treaty of Rome – is an important

manifestation thereof. However, the international consensus on the benefits of trade

liberalisation allowed commercial policy to be considered a technical issue mostly dealt with

by trade diplomats and experts.114 Trade agreements were therefore kept out of the public

eye and did not raise widespread interest in the public.115

Nonetheless, the Court proved to be a careful observer of what happens outside

Luxembourg – which it clearly showed in some of the analysed cases. In Massey Ferguson

(1973), for instance, the Court recognised the necessity to adopt a “wide interpretation” of

Art. 113 EEC, linking it specifically to the functioning of the customs union116 – this is

particularly relevant in the light of the weak political appetite for deeper integration in the

1970s. In Opinion 1/75, the CJEU advanced its push for deeper integration by underlining

the negative repercussions that the acceptance of concurrent Member States’ competences

might have on “the effective defence of the common interests of the Community”.117 Even

more interesting was the reference of the Court, in Opinion 1/78, to the ‘geopolitical context’

within which the issue had to be framed, namely the fast-evolving landscape of international

trade, which obliged the Court to promote a wide interpretation of the CCP competences, in

order to prevent it from becoming “nugatory” with time.118 The generally successful

development and advancement of multilateral trade also understandably played a role in the

Court’s attitude towards a more integrationist approach in the CCP competences. Since the

Dillon Rounds of 1960-1961, where 26 countries participated in multilateral trade

113 Ibid., p. 468. 114 M. Cremona, ‘Shaping EU Trade Policy post-Lisbon: Opinion 2/15 of 16 May 2017’, Case Note, in

European Constitutional Law Review, Vol. 14, 2018, pp. 231-259: 234. 115 Cremona, A Quiet Revolution, op. cit., p. 12. 116 Massey Ferguson, para. 4. 117 Opinion 1/75, p. 1364. 118 Opinion 1/78, para. 44.

26

negotiations, the number of participants rapidly increased, bringing 102 countries around the

negotiating table of the Tokyo Round of 1973-1979.119

3.5 Preliminary conclusions

The analysis carried out in this chapter covered the first years of European legal

integration relevant to the CCP, which corresponded to the 1970s. It was first shown that the

degree of indeterminacy of the scope of the CCP allowed the Court to adopt wide and

expansive interpretations, leading to a significant extension of the EU’s powers and

confirming H1. Member States, although attempting to limit the Court’s expansionist trend

– especially in the wake of the landmark rulings of the 1960s120 – did not manage to organise

a coordinated opposition, failing to exert effective pressure on the CJEU – confirming H2.

Then, a fundamental part was played by the environment surrounding the Court. Although

the 1970s are associated to political stalemate and scarce appetite for deeper integration, the

CJEU operated in a particularly supportive political context, which helped it build the

confidence and authority necessary to pursue its own preferences – therefore H3 may also

be confirmed.

In the case law just examined, the Court has shown a considerable degree of

independence vis-à-vis the Member States. Therefore, it may be argued that the analysis so

far showed the prevalence of the ‘protecting driver’ mentioned in Chapter 2 as opposed to

the ‘constraining driver’. However, it must be borne in mind that no real ‘collective’ threat

ever emerged, as Member States did not consistently (nor numerously) submit observations

before the Court. What remains to be seen is how the CJEU would react in front of a more

challenging opposition.

119 Young, Parochial Global Europe, op. cit., p. 75. 120 Notably those establishing the direct effect and the supremacy of EU law: Judgment of the Court of 5

February 1963, in Case 26-62, Van Gend en Loos, EU:C:1963:1; and Judgment of the Court of 15 July 1964,

in Case 6-64, Costa v. Enel, EU:C:1964:66, respectively.

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4 From Opinion 1/94 to Lisbon: dancing to a different tune

4.1 The Uruguay Round and the ‘new issues’: the changing landscape of

international trade

The GATT-based multilateral trade system, through its periodic multilateral

negotiations rounds, was extremely successful in achieving substantial tariff reductions.121

Thus, the unprecedented degree of trade liberalisation achieved under the aegis of the GATT

made so that since the Uruguay Round launched in 1986, trade “negotiations have focused

on a much wider range of issues”.122 Negotiators’ attention shifted away from tariffs and

border measures – significantly reduced during the previous Rounds – to concentrate on the

so-called ‘new issues’, namely investments, trade-related aspects of intellectual property and

trade in services.123 A shift which reflected the deeper mutations that the global economy

underwent due to the staggering technological innovations of the time.124

Yet despite its undeniable success, the GATT was not an institution, but rather an

‘institutionalised’ agreement emerged out of the failed International Trade Organization in

1945. The Uruguay Round therefore set out to establish the World Trade Organization

(WTO), an international institution with legal personality.125 The EU signed the WTO

Agreement next to Member States representatives, who took the view that the Agreement

did not fall completely under EU competences.126 The Commission thus lodged a request for

an Opinion under Article 228(6) EC.127

121 B.M. Hoekman, ‘New Issues in the Uruguay Round and Beyond’, in The Economic Journal 103, 1993, pp.

1528-1539, p. 1528. 122 Young, Parochial Global Europe, op. cit., p. 75. 123 Hoekman, loc. cit. 124 Ibid. 125 S.S. Pitroda, ‘From GATT to WTO: The institutionalization of world trade’, in Harvard International

Review, Vol. 17, 1995. 126 N. Emiliou, ‘The death of exclusive competence?’, in European Law Review 21(4), 1996, pp. 294-311: 297-

298. In the WTO Agreement, Art. XI(1) establishes that “the European Communities […] shall become

Original Members of the WTO”. 127 Opinion 1/94, p. 5282.

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4.2 Opinion 1/94: where it all began

Opinion 1/94 is probably one of the most famous (or perhaps infamous) cases of the

CJEU. Amongst the many critiques,128 Bourgeois compared it to the “Echternach

procession” – a religious procession in Luxembourg where “for each three steps forward

participants take two steps backward.”129

The view of the Commission was that the EU had exclusive competence to conclude

the whole of the WTO Agreement, including therefore the Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in

Services (GATS).130 At the heart of the matter was of course the disagreement over who had

the competence for services and intellectual property rights. The questions posed to the Court

were of high relevance, as noted by Bourgeois, for three fundamental reasons. First, the

GATS and the TRIPS are two significant milestones in the development of multilateral trade,

the former providing an overall framework for deeper trade in services integration and the

latter laying down more specific rules on intellectual property rights.131 Second, this case

had the potential to clearly define the relationships between the EU and its Member States

as to the WTO membership.132 Finally and most importantly, it was a case of significant

constitutional implications for the EU.133 The Commission based its main claim on Article

113 EC, which the Court had already recognised as conferring ‘exclusive competence’ to

the Community134 and the extent of which had been expressly interpreted in a non-exhaustive

manner.135 The great importance of Opinion 1/94 is demonstrated by the fact that not just

the Council, but the European Parliament and eight Member States out of twelve submitted

observations. This is an element which stands in contrast with most of the previously

examined cases, in which at best two Member States submitted observations – with the

exception of Opinion 1/75, where four governments participated to the proceedings.

128 To mention but a few: J.H.J Bourgeois, ‘The EC in the WTO and Advisory Opinion 1/94: An Echternach

Procession’, in Common Market Law Review 32, 1995, pp. 763-787; Emiliou, op. cit.; Meunier and Nicolaïdis,

‘Who Speaks for Europe?’, op. cit.; P. Pescatore, ‘Opinion 1/94 On “Conclusion” of the WTO Agreement: Is

There an Escape from a Programmed Disaster?’, in Common Market Law Review, 36, 1999, pp. 387-405. 129 Bourgeois, op. cit., p. 763. 130 Opinion 1/94, p. 5283. 131 Bourgeois, op. cit., pp. 764-765. 132 Ibid., pp. 765-766. 133 Ibid. 134 Opinion 1/75, p. 1364. 135 Opinion 1/78, para. 44.

29

The Court did not uphold its earlier expansive jurisprudence – not surprisingly,

according to some.136 Despite confirming the EU’s exclusive competence over trade in

goods,137 the CJEU affirmed that the EU had no exclusive competence to conclude the rest

of the WTO Agreement. As for services, only cross-border supplies of services, for their

assimilability to trade in goods, fell within the scope of the CCP138 – with the consequence

that the GATS fell within EU-Member States shared competences.139 The same conclusion

was reached with regards to the TRIPS – with the exception of provisions on the prohibition

of counterfeit goods.140 The reasons that pushed the Court to take this stance will be

examined below, along with the positions of the Member States that submitted observations

and the general political context which preceded the delivery of this ruling.

4.3 Two’s a company, three’s a crowd… and eight’s a threat

One of the features that strikes the most about this ruling is the high number of

Member States that submitted observations before the Court – all but Ireland, Italy and

Luxembourg. Interestingly, Belgium was the only country siding with the Commission.

Testing H1 will require to take into account the case law of the Court rather than the Treaty

provisions, as they remained unchanged. It must be anticipated that in Opinion 1/94 the

pressure exercised by Member States played a predominant role, but their impact will be

analysed only after providing a brief overview of the legal basis chosen by the Commission.

4.3.1 Unchanged Treaty provisions and the case law of the CJEU

The first argumentation the Commission to substantiate its claim to exclusivity was

the case law of the CJEU.141 Understandably, the Commission referred to the expansive

reading the Court gave in Opinion 1/75, in which it put on an equal footing the commercial

policy of a state and the CCP – the CJEU had indeed sanctioned a very wide interpretation

of Article 113 EC. Yet instead of walking down the beaten path of its jurisprudence,

extending Art. 113 EC to services and intellectual property rights, the Court denied the EU

136 M. Hilf, ‘The ECJ's Opinion 1/94 on the WTO - No Surprise, but Wise?’ in European Journal of

International Law 6, 1995, pp. 245-259. 137 Opinion 1/94, para. 34. 138 Ibid., para. 44. 139 Ibid., para. 98. 140 Ibid., para. 105. 141 Opinion 1/94, p. 5304.

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such competence. This ruling is particularly striking considering that the CJEU “governs

primarily through precedent”, according to Stone Sweet – who also argues that precedent

serves as an instrument to normatively organise the future, as the Court has done since the

early years of integration. 142 In Opinion 1/94, however, this logic did not apply as the CJEU

did not uphold its previous case law. This indicates that in Opinion 1/94 H1 may not be

confirmed. As a matter of fact, despite a clear set of precedents, the Court decided otherwise.

It is the aim of the next section to understand why this was the case.

4.3.2 There’s strength in numbers: Member States and the threat of constitutional

overriding

The previous chapter showed that the CJEU proved to be resistant vis-à-vis Member

States’ pressure. Yet the number of Member States pleading before the Court was never as

high as it was in Opinion 1/94.143 It may thus be argued that they never posed a serious

enough threat to the Court – the case of Opinion 1/94 is in this respect different. For the sake

of clarity, it is relevant to remind that H2 posits that the larger the number of Member States

contrary to a certain outcome, the greater the likelihood that responses by governments will

constitute a ‘coordinated retaliation’, therefore the greater the CJEU’s reluctance to offer

decisions contrary to those backed by Member States.

The most effective means for Member States to rein in the CJEU is Treaty revision

– for the CCP it is de facto the only one.144 However, Treaty revision requires unanimity,

which makes the threshold extremely high. As mentioned above, unanimity is likely to result

– if the absence of agreement means continuation of the status quo – in a ‘joint-decision

trap’.145 Eight out of twelve Member States is a significant number and the risk of reaching

consensus on court curbing measures was not an unimaginable scenario – especially

considering that the three biggest Member States were the staunchest opponents to the

Commission’s alleged exclusivity. Thus, what did the governments ask for and obtain?

The governments of Denmark, France, Germany, Greece, the Netherlands, Portugal,

Spain and the United Kingdom submitted observations to oppose the Commission’s claim

142 A. Stone Sweet, The Judicial Construction of Europe, Oxford: Oxford University Press, 2004, p. 243. 143 In Opinion 1/75, Member States submitting observations were four out of nine, therefore still a minority,

whereas in Opinion 1/94 they were eight out of twelve, including Germany, France and the United Kingdom. 144 Garrett, Kelemen, Schulz, op. cit., pp. 160-161. 145 Scharpf, op. cit.

31

of exclusive competence over GATS and TRIPS. However, there were some differences

among them. The Council, Denmark, France, Germany and the United Kingdom insisted

that also cross-border services should fall outside of the CCP146, whereas Denmark,

Germany, the Netherlands and the United Kingdom specifically insisted on keeping

transport services outside of the CCP.147 In this context, the European Parliament sided with

the Member States, arguing that the Commission intended to bring in the CCP a whole series

of competences not related to the CCP, such as the free movement of services, transport,

taxation and others,148 via an artificial extension of its scope.149 It should be stressed that at

the time of Opinion 1/94, the European Parliament did not participate in the shaping of the

CCP, which was the prerogative of the Council, and by supporting Member States’ positions,

it “hoped to derive some form of consultative power on trade policy in the event that Art.

113 would be altered”.150

4.3.3 Legal weaknesses in the reasoning of the Court: politics trumping the law

The Commission’s argumentations were mainly based on a “path-coherent

interpretation of the Court’s case law”151 (in particular Opinion 1/75 and Opinion 1/78), and

alternatively on the doctrine of ‘implied powers’ as developed in the ERTA case and in

Opinion 1/76. In addition, the Commission insisted on the necessity for the EU to catch up

with the rapid evolution of international trade – a consideration which had already been part

of the Court’s own reasoning in Opinion 1/78.152 The CJEU, despite denying the exclusive

competence of the Community, still framed the EU’s competence on GATS and TRIPS in a

less restrictive fashion than requested by Member States – cross-border services and

provisions concerning the prohibition of counterfeit goods were in fact included within Art.

113 EC. The CJEU also recognised the existence of a “duty of cooperation between the

Member States and the Community institutions”.153 The Court spelt out this principle in

response to the Commission’s claim that not recognising the exclusive competence of the

146 Opinion 1/94, pp. 5307-5311. 147 Ibid. 148 Ibid., p. 5312. 149 Ibid. 150 Meunier and Nicolaïdis, op. cit., p. 485. 151 M. Elsig, The EU’s Common Commercial Policy: Institutions, Interests and Ideas, Ashgate, 2002, p. 95. 152 Opinion 1/78, para. 44; the danger that the CCP might become “nugatory” with time. 153 Opinion 1/94, para. 106.

32

EU would have generated serious problems both in terms of representation within the WTO

and in its negotiating position in international trade negotiations. While the CJEU admitted

the legitimacy of such a claim, it stressed that considerations linked to the implementation

of the WTO Agreement or the unity of action of the EU abroad “cannot modify the answer

to the question of competence”.154

What emerges from the analysis of the proceedings is that Member States made their

voices very well heard. Yet legal scholars identified some weaknesses in the reasoning of

the CJEU, which could be justified with the Court’s preference not to deliver a ruling against

a dangerous opposition of governments – therefore a political choice of the Court. Meunier

and Nicolaïdis, also drawing on Bourgeois155 and Hilf,156 pointed out that the Court could

have ruled in favour of a more expansive reading of the CCP competences, on the basis of

at least four arguments.157 First, the case law on ‘implied powers’, introduced by the Court

with ERTA and further developed with Opinion 1/76 and Kramer, would have provided

“consistency” between internal and external competences – especially after the internal

expansion due to the Single European Act in 1986 and the ‘completion’ of the internal

market in 1993.158 Second, the necessity for the CCP to be “adaptable” to the rapidly

changing landscape of international trade, as also stressed by the Commission.159 Third, the

CJEU did not manage to uphold one of the major victories of the Uruguay Round, namely

the subsumption of different sorts of activities under the category of ‘trade in services’,

organised in four different ‘modes of supply’.160 The Court instead accepted Member States’

arguments according to which the involvement of persons put those services out of the scope

of art. 113 EC. Finally, the authors denounce the lost political opportunity to formally

acknowledge what “the other contracting parties […] within the WTO, by accepting the EC

as a contracting party in Article XI, [seemed] to be more and more willing to accept”, namely

“the unitary representation of European interests”.161

All of these elements point to the apparent confirmation of H2. Indeed, the opposition

of several Member States has prevented the Court from delivering a ruling which would

154 Ibid., para. 107. 155 Bourgeois, op. cit. 156 Hilf, ‘The ECJ's Opinion 1/94’, op. cit. 157 Meunier and Nicolaïdis, op. cit., pp. 489-491. 158 Ibid. 159 Ibid. 160 Meunier and Nicolaïdis, loc. cit. 161 Hilf, ‘The ECJ's Opinion 1/94’, op. cit., p. 258.

33

have been logical and justifiable in the light of its previous jurisprudence. The threat of

constitutional override was in this case made concrete. To rein in the powers of the Court is

not an easy job, however: unanimity is required, and the costs of non-agreement are not as

high as to make the reaching of an outcome indispensable. Yet the Court in Opinion 1/94

must have felt that the danger of some sort of retaliation was getting real. To ascertain this

preliminary finding, H3 needs to be tested to verify whether the surrounding geopolitical

context contributed in making this threat more credible.

4.4 An uncomfortable position: the problems emerged with Maastricht

4.4.1 The problems of Maastricht: the price of a compromise

To fully ascertain whether the CJEU was effectively conditioned by external factors

– that is, not related to the law – once the impact of Member States has been analysed, with

the preliminary conclusion that the CJEU was affected by their strong and ‘coordinated’

opposition, it is necessary to examine the broader political context in which the CJEU had

to operate.

First, it must be stressed that the Commission in 1992 had just suffered an “external

legitimacy” crisis with the re-negotiation of the Blair House accord, dealing with trade and

agricultural issues in the context of the Uruguay Round.162 This episode caused a loss of

trust in the Commission’s ability to take care of Member States’ interests as specified in the

Council’s negotiating mandate.163 Although agriculture deserves a unique place in European

politics and does not allow for much comparison, it is difficult to deny that this circumstance

affected governments’ perception of the Commission, and by extension the CJEU’s

consideration of Member States’ sensitivities.164

On a more general level, of fundamental importance is the 1992 Treaty of Maastricht

(Treaty on the European Union), which entered into force in 1993. The most characterising

162 S. Meunier, ‘What Single Voice? European Institutions and EU-U.S. Trade Negotiations’ in International

Organization 54, 2000, pp. 103-105: 121-126. The Blair House accord was an agreement negotiated by the

European Community and the United States in 1992 to unlock agriculture-related trade talks in the Uruguay

Round; the accord had to be re-negotiated after France vocally opposed the leaked draft of the agreement,

publicly challenging Commissioner Brittan. 163 Meunier and Nicolaïdis, op. cit., p. 492. 164 Ibid.

34

feature of the Maastricht Treaty was the institutional overhaul it introduced by devising the

EU structure in three pillars, the first being composed of the already existing Communities,

the second and the third dealing with the Common Foreign and Security Policy (CFSP) and

Justice and Home Affairs (JHA), respectively.165 The Maastricht Treaty received extensive

criticism, notably for the institutionalization of an intergovernmental policy-making method

– the one used in the second and third pillars – and the introduction of a ‘variable geometry’

in the Treaty, made of numerous opt-outs and exceptions.166 Thus, the main preoccupations

concerned the “perceived loss of unity and coherence of the Community legal order”.167 The

fears for the integrity of the acquis communautaire where efficiently expressed by Curtin,

who noted that: 168

“The result of the Maastricht summit is an umbrella Union threatening to

lead to constitutional chaos; the potential victims are the cohesiveness and

the unity and the concomitant power of a legal system painstakingly

constructed over the course of some 30 odd years. […] It must be said, at

the heart of all this chaos and fragmentation, the unique sui generis nature

of the European Community, its true world- historical significance, is

being destroyed.”

The Maastricht Treaty therefore sent a strong political signal to the legal community,

epitomised in a compromise which reflected the governments’ weariness vis-à-vis the

deepening and widening process of legal integration occurred since the Treaty of Rome.

Burley and Mattli argued that the Maastricht Treaty “reflects a determination on the part of

the member states to limit the CJEU”, both for the exclusion of the Court from two of the

three pillars and for the wording of numerous articles aimed at limiting the CJEU’s

jurisdiction.169 CJEU judges, both as experts of the Union’s constitutional texts and as

observers of the political debate, could not ignore the nature and potential implications of

these developments.

165 Craig and De Búrca, op. cit., p. 13. 166 Ibid., p. 15. 167 Ibid. 168 D. Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ in Common Market

Law Review 30, 1993, pp. 17-69. 169 Burley and Mattli, ‘Europe before the Court’, op. cit., p. 73.

35

4.4.2 What emerged with Maastricht: the price of integration

A few Member States mentioned the same ‘integration fatigue’ in the observations

submitted before the CJEU. More precisely, together with the Council, in response to the

Commission’s view that art. 113 EC should be interpreted in an expansive way as to include

the GATS and the TRIPS, they underlined that similar Commission proposals had been

rejected during the Maastricht negotiations.170 In particular the Commission had argued for

the replacement of the CCP with a “common external economic policy” which would

include, inter alia, services, investments, intellectual property rights and competition.171

In addition, the German Federal Constitutional Court in 1993 delivered the famous

Maastricht decision172 which, although confirming the compatibility of the Treaty with the

German Basic Law (the German Constitution), put some potential brakes on further

supranational integration.173 In particular, the ruling established that “the Federal

Constitutional Court will examine whether legal acts of the European institutions and organs

are within or exceed the sovereign powers transferred to them”.174 The German court also

affirmed that the Bundestag would retain competences in important policy areas and that

rebus sic stantibus there would never be a European state.175 This ruling undeniably sent a

strong message to the CJEU, adding fuel to the notoriously complicated relationship between

the CJEU and several national constitutional and supreme courts.

Concrete attempts at curbing the Court’s powers were made during the Maastricht

negotiations by the British delegation.176 In particular, the British asked to introduce

discussions on the Court’s power in the negotiations’ agenda.177 These were strong signals

for the Court, which perhaps saw the prospect of constitutional overriding more concrete

170 Opinion 1/94, pp. 5306-5315. 171 M. Cremona, ‘A Policy of Bits and Pieces? The Common Commercial Policy After Nice’, in Cambridge

Yearbook of European Legal Studies 4, 2001-2002, pp. 61-92. 172 German Constitutional Court decision of 12 October 1993, BVerfGE 89, 155; Brunner v European Union

Treaty (hereinafter ‘Maastricht decision’), 173 S. J. Boom, ‘The European Union after the Maastricht Decision: Is Germany the "Virginia of Europe?"’,

The Jean Monnet Center for International and Regional Economic Law & Justice, 1995,

http://www.jeanmonnetprogram.org/archive/papers/95/9505ind.html. 174 Maastricht decision, p. 188. 175 Boom, ‘The European Union after the Maastricht Decision’, op. cit. 176 Alter, ‘Who are the Masters of the Treaty?’, op. cit., pp. 140-141. 177 Ibid.

36

than usual.178 At the same time, it may be argued that the failure to follow up these attempts

is in itself a demonstration of the ‘joint-decision trap’ protecting the CJEU.

Thus, the public debate over the Treaty of Maastricht rose several existential

questions on the future of the Union. It would be impossible to exhaustively summarise in

the present work the major issues that emerged during those years; however, the depth of the

penetration of the EU political and institutional system in domestic structures became

evident.179 At the same time, the grand debate on the EU’s democratic deficit took shape, as

a logical consequence of the realization of the huge role that European policymaking had

taken up.180

4.4.3 Contextualising Opinion 1/94

Overall, Opinion 1/94 deserves to be assessed within the broader context in which it

was conceived. The analysis showed the existence of a general trend in the 1990s that

demonstrates a certain ‘fatigue’ following the intense process of legal integration since the

Rome Treaty. The first response of the Court to this political phenomenon is perhaps

represented by the controversial internal market case Keck and Mithouard,181 considered a

remarkable step backwards compared to the Court’s previous case law.182 Meunier and

Nicolaïdis therefore conclude that183:

“By making a ruling which respects the national governments’ sovereign

powers instead of promoting further European integration, the Court

acted to preserve its own role in the EU’s institutional edifice. In this

sense, the opinion on trade competence is representative of a broader

trend of Court rulings signaling a retreat from judicial activism and an

attempt by the CJEU to recast itself as more even-handed in issues of

distribution of competence between the different levels of the EU polity.”

178 Garrett and Weingast, op. cit. 179 D. Grimm, ‘Does Europe Need a Constitution?’, in European Law Journal, Vol. 1, No. 3, 1995, pp. 282-

302: 283. 180 Ibid. 181 Judgment of the Court of 24 November 1993, in joined cases C-267/91 and C-268/91 (hereinafter ‘Keck

and Mithouard’), EU:C:1993:905. 182 R. Chriss, ‘Keck Considered: A New Doctrinal Model for the Free Movement of Goods in the European

Union’, in Pace International Law Review, Vol. 7, 1995, pp. 149-175: 175. 183 Meunier and Nicolaïdis, op. cit., p. 493.

37

The analysis just carried out leads to the conclusion that the CJEU in the 1990s operated in

a political context far from that of the first years of integration. The elements taken into

account tend to confirm H3, in that the political context has likely pushed the Court into

showing greater deference towards Member States, instead of protecting it.


What can be drawn from the analysis of Opinion 1/94 – which is part of a larger trend

of ‘retreating’ jurisprudence – is that the climate around the Court has dramatically changed

compared to that of the previous years. This can be primarily observed from the positions of

Member States, which vigorously opposed further potential erosion of their sovereign

prerogatives. The strength of such opposition was enough to prevent the CJEU from

upholding its established jurisprudence. Moreover, the Treaty of Maastricht signalled the

need for differentiation within Member States, establishing lighter forms of integration and

institutionalising intergovernmental patterns. Overall, the political context in which the

CJEU operated was far from supportive of further integration.

The present chapter showed the potential constraints and limitations that the Court

may face as a result of the institutional and political structure in which it is embedded. It

may thus be argued that the analysis carried out in this chapter showed the prevalence of the

‘constraining driver’ as opposed to the ‘protecting driver’. However, it remains to be seen

whether in the presence of similar circumstances this pattern will occur again in the future.

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5 Recovering after Opinion 1/94: the clarity of Lisbon and the

doubts of Opinion 2/15

5.1 The development of the CCP after Opinion 1/94: from Amsterdam to

Lisbon

The blow struck by the Court with Opinion 1/94 – a “severe setback” as defined by

former CJEU judge Pierre Pescatore184 – called for resolute action at the highest political

level. With that ruling the CJEU made it clear that constitutional matters as sensitive as trade

policy had to be dealt with by politicians and not by judges – not anymore at least. Hence,

what followed Opinion 1/94 was an intense series of Treaty amendments which culminated

in the 2009 Treaty of Lisbon, bringing about unprecedented changes to the scope of the CCP.

An overview will first be provided to the road which led to Lisbon, in order to then analyse

the position of the Court according to the formulated hypotheses – with particular emphasis

on Opinion 2/15.185

Thus, the analysis of this chapter will cover the following cases: Daiichi Sankyo,186

Commission v. Council (Conditional Access Convention),187 Opinion 3/15188 and Opinion

2/15. However, more space will be dedicated to Opinion 2/15, for its particular relevance

both to the study of the Court’s interpretation of the CCP, and to the future comprehensive

free trade agreements in which the EU is engaged.

5.1.1 The scars of Opinion 1/94: reasons to change

To begin, one of the most important consequences of Opinion 1/94 was the

sanctioning of the category of ‘mixed agreements’ in the CCP. The CJEU on that occasion

recognised their potential risks – namely the EU’s lack of unitary representation abroad –

184 P. Pescatore, ‘Opinion 1/94 On “Conclusion” of the WTO Agreement: Is There an Escape from a

Programmed Disaster?’, in Common Market Law Review, 36, 1999, pp. 387-405. 185 Opinion of the Court (Full Court) of 16 May 2017, Opinion 2/15, EU:C:2017:376. 186 Judgment of the Court (Grand Chamber) of 18 July 2013, in Case C-414/11, Daiichi Sankyo,

EU:C:2013:520. 187 Judgment of the Court (Grand Chamber) of 22 October 2013, in Case C-137/12, Commission v. Council

(Conditional Access Convention), EU:C:2013:675. 188 Opinion of the Court (Grand Chamber) of 14 February 2017, Opinion 3/15, EU:C:2017:114.

39

although it refused to take them into account for the definition of competences. It is relevant

to remind what mixed agreements are and under which circumstances one may expect to

find them. Mixed agreements are international agreements to which both the EU and

Member States are contracting parties, and they may occur on two occasions. When the

agreement falls partly within the EU’s exclusive competence and partly within Member

States’ exclusive competence, ‘mixity’ is legally required; when instead the agreement falls

partly within the EU’s exclusive competence and partly within shared competence, it is a

matter of political discretion to decide whether the agreement should be ‘mixed’ or not – the

so-called ‘facultative mixity’.189

Mixed agreements are now central in the debate on the CCP, as their nature de facto

confers on Member States a veto right over the entire agreements, and the problems they

generated will be analysed further below.

5.1.2 From Amsterdam to Lisbon, via Nice

The thorny issues exhumed by Opinion 1/94 were first addressed by the 1997 Treaty

of Amsterdam. Yet legal scholars did not spare criticism for Amsterdam’s “non-decision on

Art. 133”.190 As a matter of fact, the new Treaty did not provide a solution to the unresolved

dispute between the Council and the Commission which was at the heart of Opinion 1/94.191

It simply introduced the possibility for the Council to extend by unanimity the scope of the

CCP to services and intellectual property.192 The 2001 Treaty of Nice introduced a more

articulated definition of the scope of Art. 133 EC.193 Yet Pescatore referred to the changes

brought about by the Treaty of Nice as “examples of legal bricolage”, pointing out that they

“constitute a patchwork of incoherent additions to the provisions of the EU and EC

Treaties”.194 In particular, Art. 133 as amended by the Treaty of Nice includes the possibility

to extend its application to agreements covering services and commercial aspects of

189 D. Kleimann, ‘Reading Opinion 2/15: Standards of Analysis, the Court’s Discretion, and the Legal View of

the Advocate General’, in European University Institute Working Paper, Florence, 2017, pp. 2-3. 190 Elsig, op. cit., p. 90. It is important to remind that the Treaty of Amsterdam, although not substantially

amending the content of former Art. 113 EEC, it renumbered it as “Article 133”. 191 Cremona, ‘A Policy of Bits and Pieces?’, op. cit., p. 64. 192 Article 133, Treaty of Amsterdam amending the Treaty on European Union. 193 Cremona, ‘A Policy of Bits and Pieces?’, op. cit., p. 88. 194 P. Pescatore, ‘Guest Editorial: Nice – Aftermath’, in Common Market Law Review 38, 2001, pp. 265-271:

265.

40

intellectual property – although with safeguard clauses to prevent international agreements

from going beyond internal rules and from harmonizing in areas where the Treaties does not

allow harmonization.195

The situation emerging from Nice was therefore not a satisfactory one for a CCP that

should have been based on “clear, simple, transparent, effective legal rules”, to use the word

of the Council’s former Legal Advisor Jean-Claude Piris.196 These difficulties were finally

addressed by the 2009 Treaty of Lisbon, which brought about significant changes to the

CCP. Art. 207(1) TFEU abandoned all distinctions within services and expressly included

both commercial aspects of intellectual property and foreign direct investments.197

Overall, the Lisbon Treaty considerably simplified Art. 207 TFEU and codified the

doctrine of ‘implied powers’ in Art. 3(2) TFEU.198 This overview on the CCP’s most recent

evolution is followed by the analysis of the post-Lisbon relevant case law.

5.2 The post-Lisbon case law: an overview

Daiichi Sankyo concerned a preliminary ruling dealing with the patentability of a

pharmaceutical product in which the CJEU was asked to interpret the applicable TRIPS

provision.199 Conditional Access Services concerned the identification of the correct legal

basis for an international convention on specific services providers, with the Commission

arguing for Art. 207 TFEU and the Council for Art. 114 TFEU on internal market.200 Opinion

3/15 concerned the conclusion of the Marrakesh Treaty201 and the question before the Court

verted both on the EU’s power to conclude it and on the relevant legal basis to adopt –

195 Article 133(5)(6), Treaty of Nice amending the Treaty on European Union. 196 Legal Adviser to the IGC, Note for the Member State Government Representatives Group on

External Economic Relations, 10 May 2000, SN 2705/00, as cited in Cremona, op. cit., p. 65. 197 Craig and De Búrca, op. cit., p. 322. 198 Art. 3(2) TFEU: “The Union shall also have exclusive competence for the conclusion of an international

agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the

Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their

scope.” 199 L. Ankersmit, ‘The Scope of the Common Commercial Policy after Lisbon: The Daiichi Sankyo and

Conditional Access Services Grand Chamber Judgments’, in Legal Issues of Economic Integration 42, no. 2,

2014, pp. 192-210: 194. 200 J. Larik, ‘No mixed feelings: The post-Lisbon Common Commercial Policy in Daiichi Sankyo and

Commission v. Council (Conditional Access Convention)’, in Common Market Law Review 52, 2015, pp. 779-

800. 201 The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually

Impaired, or Otherwise Print Disabled (hereinafter ‘the Marrakesh Treaty’).

41

whether under Art. 3(1)(e) TFEU or 3(2) TFEU.202 Opinion 2/15, the most important case

of the relevant post-Lisbon jurisprudence, concerns the competence of the EU to conclude

the EUSFTA, one of the ‘new generation’ free trade agreements negotiated by the EU.

Opinion 2/15 deserves more space than the other cases for its importance which goes well

beyond the individual case, as the EUSFTA is one of the “deep and comprehensive trade

agreements that represent the core of the EU trade policy”.203 It is therefore easy to

understand the potential implications both for the EU trade policy at large and for the so far

mysterious and steep path towards Brexit.

In the first three cases, the CJEU confirmed the EU’s exclusive competence as

pleaded by the Commission. It can be argued that these cases are in line with the Court's

earlier CCP-expansive jurisprudence of the earlier years. Yet the circumstances were not the

same, in particular the Treaty provisions interpreted by the Court. The assessment of the

CJEU’s approach to Opinion 2/15 needs instead to be more nuanced, as the answer of the

Court was more balanced compared to the requests made by the parties. In particular, the

CJEU found that the EU has exclusive competence on a rather vast number of areas.204 It

held a more expansive reading than that proposed by Advocate General (hereinafter ‘AG’)

Sharpston,205 who argued that one of the areas covered by the EUSFTA fell within Member

States’ exclusive competence, whereas the CJEU found that most of the agreement falls

within the EU’s exclusive competence with some areas belonging to shared competence. Yet

the Court and the AG agreed on the central question that “non-direct foreign investment,

including portfolio investment, falls outside the CCP and is currently a matter of shared

competence”.206 Moreover, the Court built upon its post-Lisbon jurisprudence (Daiichi

Sankyo and Conditional Access Services in particular) and endeavoured to include in the

202 G. Kübek, ‘The Marrakesh Treaty judgment: the ECJ clarifies EU external powers over copyright law’, EU

Law Analysis, 17 February 2017, http://eulawanalysis.blogspot.be/2017/02/the-marrakesh-treaty-judgment-

ecj.html (retrieved on 15 April 2018). 203 Cremona, ‘Shaping EU Trade Policy post-Lisbon’, op. cit., p. 232. 204 D. Kleimann and G. Kübek, ‘The Singapore Opinion or the End of Mixity as We Know It’, in

Verfassungsblog on Matters Constitutional, 23 May 2017, https://verfassungsblog.de/the-singapore-opinion-

or-the-end-of-mixity-as-we-know-it/ (retrieved on 16 April 2018). 205 Opinion of AG Sharpston delivered on 21 December 2016, EU:C:2016:992 206 Cremona, ‘Shaping EU Trade Policy post-Lisbon’, op. cit., p. 236. It should be added, after all, that Art.

207 TFEU only explicitly mentions ‘foreign direct investments’, a circumstance which led the Court to interpret

it as meaning that investments which are not foreign and direct should be excluded therefrom.

42

EU’s exclusive competence several of the agreement’s clauses.207 Finally, the Court also

expansively applied the conditions enshrined in Art. 3(2) TFEU.208

It is now relevant to turn to the analysis of this post-Lisbon case law from a political

standpoint in order to understand, by testing the hypotheses, what are the reasons that

determined the Court to rule the way it did.

5.3 Shedding long-needed light: The Court and the clarity of Lisbon

The novelties of the new CCP provisions have been briefly analysed above, therefore

in the present section attention will be paid to understanding whether the greater clarity of

the Treaty resulted in a less expansionist approach of the Court as posited by H1.

To begin, it must be stressed that all the cases analysed in this section, to different

extents, either confirmed Treaty-established extensions of the scope of the CCP or

introduced new areas therein. Thus, at a first glance it would seem that H1 may not be

confirmed, as to a greater clarity of the Treaty the Court responded with rulings expanding

the scope of the CCP. Indeed, Art. 207 TFEU provides a more complete list of areas that fall

under the CCP and the rest of the article introduces exceptions and ‘safeguard clauses’.209

However, the presence of a longer list does not necessarily mean a more precise provision –

as a matter of fact long lists may serve the purpose of excluding as many elements as those

not expressly included. At the same time, if it is true that the number of areas did increase

with Lisbon, it is also true that the list of Art. 207(1) TFEU is still a non-exhaustive one –

just like Art. 113 EEC – as it begins with “particularly”. Therefore, it can be argued that the

Court maintained a good deal of margin for interpretation, despite the clearer normative

setting introduced by Lisbon.

Despite the possibility to adopt a more nuanced approach, it is nonetheless difficult

to confirm the validity of H1. In the first period examined, the indeterminacy of the Treaty

provisions was particularly pronounced, and the Court enjoyed a remarkably favourable

environment: the combination of these two elements, inter alia, allowed the Court to develop

207 Cremona, ‘Shaping EU Trade Policy post-Lisbon’, op. cit., p. 236. In particular clauses related to sustainable

development. 208 Ibid. 209 Notably, Art. 207(4), (5) and (6) TFEU.

43

what Dehousse defined a “daring jurisprudence”.210 When such conditions are not met, the

result may indeed be different. In fact, the CJEU has often based its rulings on the telos (the

aim) of the Treaties, going beyond the letter of the law;211 it should therefore not surprise

that the Court, even in presence of relatively precise provisions, adopts extensive

interpretations.

Yet in Opinion 2/15 no interpretation is close to those deployed in Opinion 1/75 and

Opinion 1/78. Therefore, it seems reasonable to argue that the CJEU was indeed constrained

by the presence of more precise provisions – such as the express reference to foreign direct

investments. At the same time, it is difficult to confirm H1, not least for the specific

circumstances of the cases and for the concrete difficulties in defining ‘clarity’.

5.4 Upholding the law: The CJEU’s resistance to Member States

It is now relevant to examine whether Member States have been able to exert

sufficient influence as to meaningfully affect the outcome of the Court’s rulings. In the past,

it has been shown that the CJEU managed to fend off attempts by Member States aimed at

slowing down or preventing the deepening of legal integration. Authors justified this on the

basis of several reasons, amongst which the intrinsic difficulties of the European

constitutional decision-making process, which constitutes a ‘joint-decision trap’;212 the way

the Court has used the law as a “mask” to conceal its intentions and as a “shield” to protect

itself from the ever-growing attacks from Member States’ governments;213 the complicity of

national lower courts.214 Yet in Opinion 1/94 Member States managed to overcome the

institutional hurdles that apparently prevented them in the past from interfering with the

pursuit of the Court’s own preferences. What has changed since the long reforming road

triggered by Opinion 1/94 introduced the Lisbon Treaty?

In the case law examined in this section Member States have not consistently participated.

However, in the two more important rulings – Daiichi Sankyo and Opinion 2/15 – the

210 Dehousse, op. cit., p. 58. 211 M. Pollack, ‘The New EU Legal History: What’s New, What’s Missing?’, in American University

International Law Review 28, No. 5, 2013, pp. 1257-1310: 1279. 212 See, inter alia: Alter, ‘Who Are the “Masters of the Treaty”?’, op. cit; Scharpf, op. cit. 213 Burley and Mattli, ‘Europe Before the Court’, op. cit. 214 Alter, ‘The European Court’s Political Power’, op. cit.

44

participation rate was higher (especially in Opinion 2/15), as well as the weight of individual

Member States therein.

More precisely, in Daiichi Sankyo, nine Member States out of twenty-seven

submitted observations, including Germany, France, the United Kingdom and Italy, the four

biggest EU countries. The governments argued that for the EU’s exclusive competence to

exist, a previous exercise of internal powers was required, in application of the earliest

version of the ERTA doctrine.215 The Court however rejected Member States’ positions

supporting the Commission’s. It underlined the substantial difference between pre-Lisbon

and post-Lisbon CCP and declared the inapplicability of the ERTA doctrine to the TRIPS,

now covered by Art. 207(1) TFEU.216 Member States in Daiichi Sankyo did not manage to

exercise a considerable influence on the Court, which recognised Lisbon’s extension of the

CCP to the ‘commercial aspects of intellectual property’.

In Conditional Access Services, the Council (no individual Member State

participated) argued that its Council decision to sign an international convention on services

was correctly based on Art. 114 TFEU, with the consequence that Member States would

have had to sign the agreement next to the EU.217 The Court examined the objectives of the

disputed Council decision and ruled that it was sufficient for an EU act to have as primary

objective the regulation of trade with third countries to be subsumed under the CCP –

therefore to fall under the EU’s exclusive competence and be based on Art. 207 TFEU.218

The CJEU therefore accepted the interpretation of the Commission annulling the Council

Decision.219

Nine Member States participated in Opinion 3/15’s proceedings, with eight of them arguing

against the EU’s exclusive competence – amongst which France, the United Kingdom and

Italy – and Lithuania backing the Commission and the European Parliament. This case is

interesting because the Court agreed with Member States on the absence of exclusive

competence ex Art. 3(1) TFEU220 but recognised its existence under Art. 3(2) TFEU221 (the

215 Daiichi Sankyo, paras. 41-42. 216 Ibid., paras. 45-48. 217 A. Rosas, ‘EU External Relations: Exclusive Competence Revisited’, in Fordham International Law

Journal, Vol. 38, 2015, pp. 1073-1096: 1082-83. 218 Conditional Access Services, paras. 64-67. 219 Ibid., paras. 76-77. 220 Opinion 3/15, para. 101. 221 Ibid., para. 118.

45

codified ERTA doctrine).222 It appears that also in this case, Member States were not able to

exert determining influence on the outcome of the ruling.

5.4.1 Opinion 2/15: a serious test for the CJEU

The great salience of this case is evident from the number of governments submitting

observations before the Court – twenty-five out of twenty-eight, with the exception of

Croatia, Estonia and Sweden. The CJEU, conscious of the importance of this ruling,

immediately specified that whatever the decision of the Court, it will only concern the

competence of the EU to conclude the EUSFTA, without prejudice to matters of

compatibility with EU law.223

Opinion 2/15 saw the Commission opposed to twenty-five Member States and the

Council. The Commission argued in favour of a very wide all-encompassing interpretation

of art. 207 TFEU and Art. 3(2) TFEU, with a view to include the whole of EUSFTA under

the CCP’s exclusive competence. The governments and the Council argued instead for a

narrow and textual interpretation of Article 207 TFEU.224 Strikingly, Member States argued

that some parts of the agreement fell within their exclusive competence, whereas the Court

only recognised areas of EU’s exclusive competence and areas of shared competence.

The Commission did not get what it wanted – understandably so. Indeed, it is hard

to imagine the Court dismissing the preoccupations of twenty-five governments over issues

for which an exceptional interpretative effort would have been necessary. In fact, to confirm

EU’s exclusive competence over non-direct foreign investments would have required at least

a good deal of consensus among Member States.

The massive participation of governments in the proceedings sent a strong political signal to

the CJEU, perhaps materialising a potential threat of constitutional overriding. In

comparative terms, the number of Member States showing up against the Commission is

even higher than in Opinion 1/94, where they were eight out of twelve. However, the

222 T. Verellen, ‘Opinion 3/15 on the Marrakesh Treaty: ECJ Reaffirms Narrow ‘Minimum Harmonisation’

Exception to ERTA Principle’, in European Law Blog, 1 March 2017,

http://europeanlawblog.eu/2017/03/01/opinion-315-on-the-marrakesh-treaty-ecj-reaffirms-narrow-minimum-

harmonisation-exception-to-erta-principle/#_ftnref1 (retrieved on 17 April 2018). 223 Opinion 2/15, para. 30. 224 D. Kleimann and G. Kübek, ‘The Future of EU External Trade Policy - Opinion 2/15: Report from the

Hearing’ in EU Law Analysis, 4 October 2016, http://eulawanalysis.blogspot.be/2016/10/the-future-of-eu-

external-trade-policy.html (retrieved on 17 April 2018).

46

conditions were different: the Court in Opinion 2/15 could rely on clearer legal basis,

whereas in Opinion 1/94 the Court could rely on the indeterminacy of Art. 113 EC and at

best on its own case law. Furthermore, in Opinion 2/15 the Court could rely on the recent

Treaty-based expansion of the CCP to justify and protect itself from allegations of judicial

activism – whereas in Opinion 1/94 Member States not only did not support further CCP

expansion, but some of their highest-ranking politicians were not sparing criticism on the

CJEU.

Thus, the Court attempted to strike a balance between the diverging positions – although the

audacious interpretation proposed by the Commission was ultimately rejected.

5.4.2 Opinion 2/15: a balancing act – assessment

It is difficult to clearly assess the balancing act of the Court in Opinion 2/15, if the

aim is to understand whether it conceded more to the governments or more to the

Commission. No doubt however that it was indeed a balancing act – the outcome of efforts

to use “all the discretion available to it to produce a ‘middle way’ result”.225 Conscious of

the importance of the case and of the opposition of Member States, the Court concluded,

rather ambiguously, that the EUSFTA “cannot be approved by the European Union

alone”.226 This ambiguity raised questions and doubts on whether ‘facultative mixity’ was

still possible227 – it looked as if the presence of shared competence would prevent the

conclusion of ‘EU-only’ agreements. For this very reason, in a later case the CJEU

endeavoured to specify that the reason why in Opinion 2/15 it concluded that the EU could

not conclude the EUSFTA alone was that “there was no possibility of the required majority

being obtained within the Council,”228 without any prejudice to the compatibility of a ‘EU-

only’ EUSFTA with EU law. Beyond its intrinsic meaning, this infra-case reference – which

has the virtue of saving the practice of ‘mixed agreements’ – shows the CJEU’s keen interest

and engagement in the academic and political debates.

225 Kleimann and Kübek, ‘The Singapore Opinion or the End of Mixity as We Know It’, op. cit. 226 Opinion 2/15, paras. 244, 279, 282, 305. 227 See inter alia: Kleimann and Kübek, ‘The Future of EU External Trade Policy’ op. cit.; and Kleimann and

Kübek, ‘The Singapore Opinion or the End of Mixity as We Know It’, op. cit. 228 Judgment of the Court of 5 December 2017, in Case C-600/14, Germany v. Council – OTIF,

EU:C:2017:935, para. 68.

47

On the basis of this case law, H2 can to a certain extent be confirmed. In the first three cases

examined in the present section, the Court always accepted the claims presented by the

Commission, whereas only in Opinion 2/15 did the Court make concessions in favour of

Member States. As a matter of fact, although governments participated also in Daiichi

Sankyo and Opinion 3/15, only in Opinion 2/15 a concrete threat materialised, as almost 90%

of Member States openly opposed a specific outcome. In fact, the considerable degree of

autonomy maintained by the CJEU which allowed it to ultimately strike such a close balance

is perhaps the most striking feature of this case.

To conclude this part of the analysis, H2 may be confirmed in the sense that the opposition

of a high number of Member States to a specific outcome renders the delivery of that

outcome less likely. However, a caveat is necessary: the Court has shown a great degree of

autonomy and independence, demonstrating more resistance than in Opinion 1/94. As

difficult as the two situations may be to compare, not least for the different legal bases, it is

noteworthy to underline that the Court seems to have taken back that strength of the earlier

years that seemed to have lost during the 1990s.

5.5 Chaos and doubts: the uncertain environment surrounding the Court

It has been shown in the previous chapters how the external political context always

played a fundamental role in determining the outcome of the Court’s decisions – on some

occasions being arguably more important than the law itself.229 It is thus necessary, for the

sake of a valid analysis, that the external political context which preceded the delivery of the

cases – Opinion 2/15 in particular – be taken into account. According to H3, the more

supportive the political context towards a certain outcome, the more likely the Court will

deliver that outcome. However, if the political context may not be directly linked to a specific

outcome, it may nonetheless be inferred that a certain context may be more favourable to

certain types of outcomes rather than others – e.g. a more or less competence-expanding

outcome. The cases analysed in this section all positively contribute, by either confirming or

extending it, to the scope of the CCP – surely, none of them represents a step back. It is

229 It can be argued that in Opinion 1/94, the general political context – also represented by the unitary

opposition of most of the Member States in the proceedings – played a determining role, bringing the Court to

dismiss its own established case law.

48

relevant to understand the extent to which this was due to the political context surrounding

the Court.

5.5.1 International trade after the WTO: the role of the EU

“We need to adapt the tools of EU trade policy to new challenges, to ensure Europe

remains open to the world and other markets open to our trade”230

This extract is taken from the EU’s ‘Global Europe’ trade strategy of 2006, and it is

quite emblematic because it effectively summarises the greatest challenge the Union faced

in the aftermath of Opinion 1/94: to adapt the EU’s toolbox to the fast-changing reality of

international trade. If the EU intends to maintain its leading position in world trade, as well

as the political influence it derives from its commercial power,231 it is not difficult to

understand that internal competence divisions cannot but harm the credibility and reliability

of the EU as a global trade partner.

While in 1994 the Uruguay Round sanctioned the centrality of services in

international trade, the following years witnessed services’ ever-increasing presence in both

multilateral and regional trade integration. At the same time, regional trade agreements

(RTAs) and preferential trade agreements (PTAs) rose significantly, further contributing to

the fragmentation of international trade patterns.232 The phenomenon of regionalism, which

is at least as old as the European Union, developed in parallel to the launching of the Doha

Round in 2001 – the new round of multilateral trade negotiations. However, the Doha Round

never took off as expected – eventually failing after fourteen years of fruitless talks 233 – and

regionalism acquired ever-growing importance, with the United States and the EU strongly

supporting it.234 It is in this context that the EU published the above-mentioned global trade

strategy in 2006 and started negotiating many of the free trade agreements to which it is

230 European Commission, ‘Global Europe: Competing in the World’, 4 October 2006,

http://trade.ec.europa.eu/doclib/docs/2006/october/tradoc_130376.pdf (retrieved on 17 April 2018), p. 3. 231 C. Damro, ‘Market Power Europe’, in Journal of European Public Policy, 2012, pp. 682-699. 232 R. Baldwin and P. Low, Multilateralizing Regionalism Challenges for the Global Trading System,

Cambridge University Press, 2009, pp. 13-14. 233 ‘Global Trade After the Failure of the Doha Round’, The New York Times (Editorial Board), 1 January 2016,

https://www.nytimes.com/2016/01/01/opinion/global-trade-after-the-failure-of-the-doha-round.html

(retrieved on 18 April 2018). 234 ‘In my backyard’, The Economist, 12 October 2013, https://www.economist.com/news/special-

report/21587380-multilateral-trade-pacts-are-increasingly-giving-way-regional-ones-my-backyard (retrieved

on 18 April 2018).

49

currently part, including the EUSFTA.235 In this general climate of international and regional

trade development, however, new factors entered the scene.

5.5.2 The new political salience of international trade

“The toughest obstacle to true free trade is public opinion” – wrote The Economist

in 2001.236 This quotation rightly expresses the growing political salience that trade policy

and international trade have acquired in the last twenty-five years. As already shown above,

the global trade agenda has changed dramatically since the early 1990s. The depth of trade

in goods integration has shifted policymakers’ attention towards ‘behind the borders’

measures, namely regulatory and domestic policies. However, when liberalisation was about

bringing down tariffs, it meant “hurting the few (the protected producers) and benefiting the

many (consumers and user industries)”, whereas when liberalisation is about regulatory

reforms and public policies, the effects of costs distribution are different and more

complex.237 This ‘mutation’ also led to the emergence of new actors in the global trade

debate, representing interests that had hitherto not been significantly involved. These actors

include, inter alia, representatives of the civil society, something which is understandable

and logical considering the expansion of the world trade agenda towards more politically

sensitive issues.238 The emergence of these new policy actors has at the same time reinforced

– almost in a mutual perspective – the relationship between trade and politically sensitive

themes such as labour standards, development and environmental issues, which make a

considerable impact on European audiences.239 This growing salience of trade politics,

which was once prerogative of trade experts and diplomats working behind closed doors,240

should also be looked at against the general setback that globalisation and world economic

235 Cremona, ‘Shaping EU Trade Policy post-Lisbon’, op. cit., p. 232. 236 ‘All in the familia’, The Economist, 19 April 2001, https://www.economist.com/node/578904 (retrieved on

18 April 2018). 237 A.R. Young and J. Peterson, ‘The EU and the new trade politics’, in Journal of European Public Policy 13,

2006, pp. 795-814: 800. 238 J. Xu, ‘The Role of Civil Society in EU Preferential Trade Agreements’, in European Society of

International Law, Conference Paper No.17/2016,

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912010 (retrieved on 20 April 2018). 239 P. Evans, ‘Is trade policy democratic? And should it be?’, in N. Bayne and S. Woolcock (eds.), The New

Economic Diplomacy: Decision-Making and Negotiations in International Economic Relations, London:

Ashgate, 2003, pp. 147–59. 240 Cremona, ‘A Quiet Revolution’, op. cit., p. 7.

50

integration, what generated the so-called global value chains, is currently suffering – as can

clearly be inferred from the mounting presence of nationalists in Europe and America.241

Trade politics has therefore become a rather thorny issue to deal with since the

considerable expansion of the world trade agenda. Issues and problems that citizens are very

fond of are now the main focus of trade negotiations – food standards, environmental

protection, investment protection and labour costs, to name but a few. This has created the

need for a public debate on how trade agreements should be drafted and what they should

include.242 However, these needs have not been consistently addressed and some

comprehensive trade agreements (FTAs) were negotiated in obscurity and silence,

unleashing public uproar and effective street protests. Which factors could have affected the

CJEU in delivering its rulings?

5.5.3 The increasing unpopularity of free trade agreements: TTIP & CETA

When the Court had to rule on the EU’s competences in Opinion 2/15 (which was

delivered in May 2017), the European public debate had already experienced several

important ups and downs with regards to FTAs. The Transatlantic Trade and Investment

Partnership (TTIP) was perhaps the most controversial FTA to be negotiated by the EU. The

TTIP was fiercely opposed by street protesters and intellectuals alike. In Germany, in 2015,

250.000 people took to the streets to protest against the transatlantic trade agreement a few

weeks before a new round of talks was set to begin.243 NGOs of course did not shy away

from taking part in protests and public opposition against the TTIP, as was the case of

Greenpeace International.244

241 ‘Who will lose when globalisation retreats?’, The Economist, 2 March 2017,

https://www.economist.com/blogs/buttonwood/2017/03/post-2016-world-order-0 (retrieved on 20 April

2018). 242 P. Pinzler, ‘How to Free Trade – And Still Protect Democracy’, Foreign Affairs, 6 April 2016,

https://www.foreignaffairs.com/articles/united-states/2016-04-06/how-free-trade (retrieved on 20 April 2018). 243 ‘TTIP protesters take to streets across Germany’, The Guardian, 17 September 2016,

https://www.theguardian.com/business/2016/sep/17/ttip-protests-see-crowds-take-to-streets-of-seven-

german-cities (retrieved on 22 April 2018). 244 S.C. Jeroham, ‘6 things you need to know about the TTIP’, Greenpeace International,13 May 2016,

https://www.greenpeace.org/archive-international/en/news/Blogs/makingwaves/6-things-about-

ttip/blog/56429/ (retrieved on 22 April 2018).

51

Another remarkable event which might have reasonably had an impact on the Court

was the "STOP TTIP" European Citizens Initiative,245 whose registration was refused by the

Commission in 2014 and then accepted in 2017, after a ruling of the Court annulled the

Commission’s decision to refuse the registration. That ruling was delivered on 10 May 2017,

a week before Opinion 2/15 – it is legitimate to wonder whether the CJEU took it into

account when drafting Opinion 2/15. The initiative asks the Council to repeal the negotiating

mandate for the TTIP and for the CETA – although it is not applicable to CETA anymore,

since it was signed. Yet the TTIP is currently on hold after President Trump refused to

include it in its administration’s priorities.246

However, criticism did not just come from the streets. Perhaps more surprisingly, in

2016 the German Association of Judges publicly opposed the idea of an Investment Court

System, for which it denied both its legal basis and its necessity.247 The fact that German

judges oppose something which might potentially encroach upon their jurisdiction is nothing

new – the Maastricht decisions is one of the examples in which the German highest court

defended Germany’s ultimate sovereignty on fundamental issues – as shown above. Still,

spontaneously entering a heated debate to oppose something which is the subject of harsh

contestations is something that may be more difficult to expect from judges. At the highest

political level, the situation was rather unclear either. While some governments confirmed

their support, like the one led by Angela Merkel, others abandoned the deal, like the one led

by François Hollande – others yet maintained a more ambiguously cautious approach,

perhaps fearing an electoral backlash. 248

If the TTIP is now frozen in the middle of the Atlantic, the CETA is at the centre of

a still on-going controversial saga.249 In October 2016, the Parliament of the Belgian region

of Wallonia decided not to give mandate to the federal government to sign the CETA,

245 European Commission, Press Release, ‘European Citizens' Initiative: Commission registers 'Stop TTIP'

Initiative’, 4 July 2017, http://europa.eu/rapid/press-release_IP-17-1872_en.htm (retrieved on 22 April 2018). 246 J. Stearns, ‘Trade War Risk Alive as EU Talks Tough on Trump's Tariffs’, Bloomberg, 18 April 2018,

https://www.bloomberg.com/news/articles/2018-04-18/trans-atlantic-trade-war-risk-alive-as-eu-talks-tough-

on-tariffs (retrieved on 18 April 2018). 247 ‘TTIP trade talks: German judges oppose new investor courts’, BBC News, 5 February 2016,

http://www.bbc.com/news/world-europe-35503885 (retrieved on 22 April 2018). 248 ‘Traité de libre-échange transatlantique : vents mauvais pour le TTIP’, Le Monde, 3 April 2016,

http://www.lemonde.fr/idees/article/2016/04/30/traite-de-libre-echange-transatlantique-vents-mauvais-pour-

le-ttip_4911441_3232.html (retrieved on 18 April 2018). 249 ‘La saga du Ceta’, Le Soir, 9 February 2018, http://plus.lesoir.be/139271/article/2018-02-09/la-saga-du-ceta

(retrieved on 18 April 2018).

52

preventing the Council from adopting the decision necessary to sign the agreement.250 The

stall that followed laid bare the major weaknesses of the EU’s CCP institutional framework,

prompting authors to question the vitality itself of the CCP: if a regional parliament can

block the biggest trading power in the world, then is this really a trading power at all?251 The

question deserves to be meditated upon. Eventually, the issue was solved in Belgium, the

agreement was signed and is applied provisionally upon ratification of national parliaments.

However, on 13 October 2017, Belgium lodged a request for an Advisory Opinion at the

CJEU, asking the Court to assess the compatibility of CETA’s investment chapter with EU

law – Belgium decided to do so especially after the CJEU stressed that Opinion 2/15 was

only about the EU’s competence to conclude the EUSFTA, without prejudice to its

compatibility with EU law.252

5.6 An assessment: despite politics, the Court stands firm

What can be gathered from the analysis carried out above is that the CJEU, in the

years following the Lisbon Treaty, could not enjoy as favourable a political environment as

it did in the earlier years of legal integration. Yet it did not face a hostile environment like

the one prevailing in the 1990s that significantly conditioned the outcome of Opinion 1/94.

The political environment in which the CJEU had to examine the division of competences

for the signing of the EUSFTA was characterised by a certain degree of uncertainty. The

mass protests that vocally opposed the TTIP and the CETA have turned out to be effective.

The TTIP is not dead but has been described as “a tangled wreckage that will be difficult to

reassemble”.253 The CETA was instead signed, although a compromise had to be reached to

overcome the Walloon veto and a ruling on its compatibility is now expected from the CJEU.

Governments have reacted differently to the unease of their people, although hardly any of

250 G. Van der Loo and J. Pelkmans, ‘Does CETA spell the beginning of the end of EU trade policy?’, Euractiv,

26 October 2016, https://www.euractiv.com/section/trade-society/opinion/does-cetas-saga-spell-the-

beginning-of-the-end-of-eu-trade-policy/ (retrieved on 18 April 2018). 251 Ibid. 252 ‘Belgian Request for an Opinion from the European Court of Justice’, Government of Belgium, 6 September

2017, https://diplomatie.belgium.be/sites/default/files/downloads/ceta_summary.pdf (retrieved on 19 April

2018). 253 O. Jones, ‘Protest never changes anything? Look at how TTIP has been derailed’, The Guardian, 5 May

2016, https://www.theguardian.com/commentisfree/2016/may/05/protest-never-changes-anything-derailing-

ttip-trade-agreement (retrieved on 19 April 2018).

53

them has spoken out in a staunch defence of free trade, apart from Chancellor Merkel.254 It

may be argued that this uncertainty reflects the existential dilemmas that the Union went

through during the financial crisis, as well as the many unknowns of Brexit. However, the

presence of uncertainty should not necessarily be read as negative for the Court. Indeed, it

would be sensible to infer that the CJEU may well be encouraged to support a more

‘expansionist’ or ‘pro-integrationist’ outcome when political circumstances render a

‘restrictive’ interpretation dangerous for the sake of the Union.

H3 may therefore be confirmed to a limited extent. It is true that the presence of a

generally supportive political climate increases the likeliness that the Court rules in favour

of the ‘supported’ outcome. Yet it is difficult to argue the opposite. The example of Opinion

2/15 helps understand why: an environment which is not explicitly or evidently supportive

of a specific outcome or interpretation may nonetheless have the effect of favouring that

outcome or interpretation. Thus, more generally, all of the cases examined in this section

confirm that the Court enjoys a good deal of autonomy with regards to the political context

in which it delivers its rulings.


What can be drawn from the analysis of this last – and more recent – period? The

element which has perhaps most changed with comparison to the previous years is the legal

basis on which the CJEU had to base its reasoning: the Lisbon Treaty introduced a more

precise definition of the CCP. However, it has been demonstrated that it is very difficult to

confirm H1. Its virtue resides in helping to understand the ‘minimum’ margin of

interpretation available to the CJEU and by extension to understand if there is room for

influence on the Court. Yet the CJEU often goes beyond the letter of the law adopting

extensive interpretations, therefore the sole fact that a provision is more precise does not

suffice to confirm H1.

As for the role of Member States, the Court in Opinion 2/15 faced a serious test for

its autonomy vis-à-vis governments’ preferences. What allows to confirm H2 is the

difference that can be detected between Opinion 2/15 and the other cases analysed in this

254 ‘German government backs restarting TTIP talks’, Euractiv, 28 June 2017,

https://www.euractiv.com/section/global-europe/news/merkel-backs-restarting-ttip-talks/ (retrieved on 19

April 2018).

54

chapter: the former is the only one in which the Court conceded substantial issues to Member

States, as twenty-five vocally opposed further extension of EU exclusive competences.

However, it is worthy to note that the CJEU proved very resistant, as with more than 90%

of the governments against, more serious concessions might have been expected.

Finally, the political context around the Court before the issuing of a ruling may

influence the CJEU in the decisions it makes. Yet there is no sufficient evidence that the

political environment can direct affect decisions taken by the Court. H3 can therefore not be

confirmed. The impossibility to confirm this hypothesis should not however lead to believe

that the CJEU is not sensitive to political issues and debates. On the contrary, this has been

demonstrated more than once throughout the course of this dissertation.

55

6 Conclusion

The present dissertation has sought to answer the question of why the CJEU has taken

(sometimes considerably) different decisions when ruling on the scope and nature of the

CCP. While the CJEU is a judicial institution, whose task is to ensure the uniform

interpretation and application of EU law, it should be borne in mind that the CJEU

nonetheless acts, takes decisions and follows strategies in a composite political and

institutional framework. This assumption is at the core of the theoretical framework used by

the present work to answer the research question. More specifically, this dissertation’s

theoretical framework is based on the concept of embeddedness. Accordingly, the CJEU is

embedded in an institutional and political framework in which two main drivers affect its

operation: one that constrains the Court by limiting its possible avenues; the other protects

the Court by shielding it from external interferences. The competition between these two

drivers will determine which of them prevails and according to the outcome, the CJEU will

either benefit from a protecting institutional and political framework or it will suffer the

constraints of the same institutional and political framework.

To assess which of the drivers tends to prevail, the following independent variables

have been identified: the legal provisions which constitute the basis of the Court’s reasoning;

Member States, which try to influence the Court according to their own preferences; the

political context (or environment) surrounding the Court, which may either support or

oppose certain outcomes, adding constraints or protection to the institutional and political

structure in which the Court is embedded. According to these independent variables, three

hypotheses have been formulated – applied to all the cases under examination: (H1) the

clearer the law, the less expansive the interpretation of the CJEU will be; (H2) the higher the

number of Member States opposing a certain outcome, the less likely the CJEU will deliver

a ruling close to that outcome; (H3) the more supportive the surrounding political context is

towards a certain outcome (or towards the CJEU), the more likely the Court will deliver a

ruling close to that outcome. These hypotheses allowed to verify if and to what extent the

independent variables identified can effectively exercise influence on the CJEU.

The analysis is divided into three different periods, each of which examines one or

more case studies. The first one covers roughly the 1970s, the earlier period of legal

integration for the CCP. The second one mainly deals with one case, which however is very

56

representative of a more general trend the Court experienced in the 1990s. The third one

covers the relevant post-Lisbon case law. The rationale behind the structure of the analysis

is twofold: first, it is a historical one, as the cases grouped under each period were delivered

either in the same decade or during the same few years; second, it is a logical one, because

each of the groups generally corresponds to different interpretations of the CJEU.

The analysis has therefore consisted of the application of the selected hypotheses to

the three different periods – the results will be presented hereafter. In Chapter 3, the first

period is examined. This period, which mainly covers the 1970s, was characterised by an

incremental expansion of the EU’s competences in the CCP, which is aligned to the general

development of European legal integration of the earlier decades. In trying to understand the

reasons why the CJEU has so extensively interpreted CCP provisions, the three hypotheses

have been tested. What emerged from the relevant analysis was the power of the combination

of two factors: the indeterminacy of the Treaty provisions regulating the CCP (Art. 113 EEC)

and a political context which strongly favoured the Court, both by keeping it far from the

public eye and by confirming its authority. This allowed the Court to take advantage of

widely-worded Treaty provisions to pursue further integration. To this combination,

Member States have not managed to oppose great resistance – although the strength of

Member States in this period was difficult to test for the lower rate of participation in the

analysed case law. In these first years, it would seem that the CJEU was rather protected by

the institutional and political framework in which it is embedded.

In Chapter 4, the second period is examined, which covers the 1990s. Here another

strong combination emerged, namely the one composed by an organised and numerous

group of Member States opposing a certain outcome and the presence of a general climate –

mainly in the European politics – which seemed to be a symptom of fatigue and weariness

vis-à-vis European integration. The most powerful of the two is clearly the coordinated

preferences of Member States, that materialised a threat of constitutional override – which

the Court understandably sensed and to which it timely reacted. The first hypothesis here

was difficult to test, especially for the predominance of political aspects which appear to

prevail in front of widely-worded legal provisions. In this second period, what seemed to

prevail was the constraining force of the institutional and political framework in which the

CJEU is embedded.

57

In Chapter 5, the third and last period is examined. This period was more difficult to

test, because of the higher complexity of the elements involved. It was concluded that H1

may not be confirmed, as from a clearer legal basis it appears very hard to infer that the

Court will not adopt an extensive interpretation. In fact, the Court is very much used to

interpret the Treaties widely and according to their purpose. H3 was also not possible to

confirm. It is quite hard to find evidence that the political context around the Court may have

a direct influence thereon. This should not be read as if the Court is insensitive to what

happens outside of Luxembourg. On the contrary, it has been shown very often in this

dissertation that the Court is a keen observer and listener to the politics around it. However,

the extent to which this may influence the CJEU and under which circumstances, is

particularly difficult to detect. What emerged perhaps more interestingly from the analysis

of this last period was the validity of H2, as well as the autonomy that the Court can dispose

of – they may seem contradictory, but they are not. Indeed, when Member States coordinated

their opposition and presented twenty-five observations before the CJEU in Opinion 2/15,

the Court had to do concessions. Member States got perhaps most of what they wanted – but

not all. As a matter of fact, the Court managed to interpret in a rather extensive fashion the

relevant CCP provisions which were not central to the dispute. This emerges very clearly

from the differences, outlined above, between the Opinion of the Advocate General and the

final decision of the CJEU.

Generally speaking, the hypotheses formulated served their purpose in that they

allowed to investigate over the reasons behind the Court’s shifting attitude towards the CCP.

Even if they did not allow to identify specific reasons, they nonetheless helped excluding

some. First, the relationship between the clarity of the law and the extensiveness of the

CJEU’s interpretations could not be confirmed. Although the ambiguous wording of a

provision leaves to the judge more margin for interpretation, this cannot be taken as a rule

in the case of the CJEU and the CCP. Indeed, it should be stressed again that the CCP,

although Member States gave it up at the Treaty of Rome, still includes (actually, today more

than ever) very politically sensitive policy areas.

The political context surrounding the CJEU has proven rather difficult to frame, let

alone measuring its impact. However, what emerged from the analysis is that the political

environment around the Court is heeded by the institution. This is evident by the frequent

references in its judgments to situations external to the Court or preoccupations which reflect

a careful observation of the political debate. The third hypothesis (on the environment

58

around the Court) can be only partially confirmed, as the political environment alone has

never shown to be determining shifts in the case law – rather reinforcing them.

Finally, Member States, according to the second hypothesis, turned out to be the ones

more realistically able to determine (even just partially) the case law of the CJEU. However,

this power must be considered with due precaution – as the intensity of the threat it poses is

directly related to the power behind this threat. As the analysis showed, in two prominent

cases Member States managed to influence the outcome of the CJEU (Opinion 1/94, Opinion

2/15) and in those cases the number of Member States was particularly high – enough to

pose a survival threat to the Court. Still, the comparison between the two Opinions shows

that the Court has gained autonomy, responding to pressure from Member States with much

more strength and less deference.

Therefore, what can be drawn from the analysis carried out is that the embeddedness

of the Court in the EU institutional and political framework is a complex phenomenon which

is hard to label either as ‘constraining’ or ‘protecting’. It is made of several dynamics and

the extent to which it paves the way for the pursuit of the Court’s preferences or creates

obstacles to the furthering of legal integration depends on a number of other factors and

combinations thereof.

In conclusion, the answer to the research question – namely what are the factors that

determined and determine the Court’s decisions in the domain of trade policy, beyond the

law – should be, on the one hand, that Member States are probably the most potentially

effective actors as far as influence is concerned. On the other hand, that it is particularly

difficult to single out a number of actors capable of determining the CJEU’s decisions in

trade policy (Member States included). However, the findings of the present work indicate

that as difficult as it is, it is still possible to identify combinations, involuntary and sometimes

unpredictable alliances between individually powerless actors or events. This emerged

throughout the work on different occasions, such as when strong Member States’ opposition

was matched by an uncomfortable environment for the Court, with the effect of weakening

the Court; or when an uncertain political climate was matched by a strong opposition of

Member States, putting the Court in the condition to strike a close balance.

Politics may take many different shapes and their identification may be problematic,

especially in a policy domain as sensitive as the CCP, but what emerged from the present

59

analysis is that the Court is well protected against threats and attacks that come from a single

(type of) enemies – on the contrary the CJEU will have to be particularly careful should the

enemy front become suspiciously numerous.

60

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London, 1997.

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to Maastricht, London, UCL Press, 1998.

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66

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Judgment of the Court of 12 July 1973, Hauptzollamt Bremerhaven v Massey-Ferguson

GmbH, Case 8-73, Massey Ferguson, EU:C:1973:90.

Opinion of the Court of 11 November 1975, Opinion 1/75, EU:C:1975:145.

Judgment of the Court of 15 December 1976 in case C-41/76, Donckerwolcke,

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Judgment of the Court of 14 July 1976 in joint cases C-3-4-6/76, Cornelis Kramer and others

(Kramer), EU:C:1976:114.

Opinion of the Court of 26 April 1977, Opinion 1/76, EU:C:1977:63.

Opinion of the Court of 4 October 1979, Opinion 1/78 on International Agreement on

Natural Rubber, EU:C:1979:224

Opinion of the Court of 15 November 1994, Opinion 1/94, EU:C:1994:384.

Opinion of Advocate General Sharpston, delivered on 21 December 2016, EU:C:2016:992

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EU:C:2017:935, para. 68.

67

German Constitutional Court decision of 12 October 1993, BVerfGE 89, 155; Brunner v

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ANNEX(ES)

69

ANNEX I

CASE Submissions in line with ruling Submissions contrary to ruling

ERTA (1970) Commission (but lost the case) Council (but won the case)

Massey-Ferguson (1973) Commission Council

Opinion 1/75* (1975) Commission – presumed as content not disclosed Council + EI, IT, NL, UK – presumed as content

not disclosed

Kramer (1976) Commission Council

Donckerwolcke (1976) Commission Council

Opinion 1/76 (1976) Commission Council + DK, UK

Opinion 1/78 (1979) Commission Council + FR, UK

Maastricht Treaty (1992-93)

Opinion 1/94 (1994) Council** + DK**, FR**, DE**, NL, PT, ES,

UK**, GR

Commission, BE

DK, DE, NL, UK (for the exclusion of transport

services)

Commission

Amsterdam Treaty (1997)

Nice Treaty (2001)

Lisbon Treaty (2009-10)

Daiichi Sankyo (2013) Commission EL, DE, FR, IT, NL, PT, FI, SE, UK

Conditional Access Services (2013) Commission Council

Opinion 3/15 (2017) Commission (alternative claim accepted) CZ, FR, IT, LT, HU, RO, FI, UK

Opinion 2/15 (2017) Council + 25 MS (no: HR, EE, SE) – partly Commission – partly

* The Council, Ireland, Italy, the Netherlands and

the UK submitted observations but were not

reported

** The Council and these MS argued for the

exclusion of cross-border supply of services

(Data elaborated by the author on the basis of the case law and drawing on the work of: A. R.

Young, Extending European cooperation: The European Union and the ‘new’ international

trade agenda, Manchester, Manchester University Press, 2003).

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