The CJEU’s Opinion 2/15 and the future of EU investment policy and law-making

Abstract:

On 16 May 2017, the Court of Justice of the European Union (CJEU) issued its Opinion 2/15 on the requisite competence of the European Union to conclude the EU-Singapore Free Trade Agreement (EUSFTA) without additional ratification by the Member States’ parliaments.

The decision produced implications that extend beyond the specific EU-Singapore relation by defining generally how far the exclusive EU competence of the Common Commercial Policy (CCP) under Article 207(1) TFEU stretches post-Lisbon. By ruling that all EUSFTA subject matters except non-direct forms of investments and investor-state dispute settlement (ISDS) fall within the scope of the CCP, the Court adopted a broad view that grants much leeway to EU institutions in exercising treaty-making powers exclusively.

While this was clearly meant to simplify the internal division of competences and strengthen the EU’s role as a credible, reliable and unitary actor in external economic relations, the Case Review will highlight two negative side effects for the future of EU investment policy and law-making. It will argue that the Opinion negatively impacts the EU’s ability to use its unitary political weight to continue shaping the reformation of international investment law and incentivizes a discontinuation of concluding contemporary trade and investment issues jointly together in one comprehensive economic agreement.

• Primary Source

ESO: Opinion 2/15: The free trade agreement with Singapore cannot, in its current form, be concluded by the European Union alone http://www.europeansources.info/record/opinion-2-15-the-free-trade-agreement-with-singapore-cannot-in-its-current-form-be-concluded-by-the-european-union-alone/

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