The Court’s Opinion on the EU-Singapore FTA: Throwing off the shackles of mixity?

Abstract:

In its landmark Opinion 2/15 the Court of Justice of the European Union concluded that the entire EU-Singapore FTA falls under the exclusive competences of the EU, with the notable exception of portfolio investment and the Investor-State Dispute Settlement (ISDS) mechanism.

Although the result is that the trade agreement with Singapore is‘mixed’, and therefore also needs to be ratified by all the 28 member states, this Opinion may actually contribute to the credibility and effectiveness of the EU’s trade policy. In line with the EU’s broadened trade competences, brought about by the Treaty of Lisbon, the Court confirmed that the EU has the exclusive competences to realise almost all its broad trade-related objectives in ‘EU-only’ FTAs, covering trade in goods, services, intellectual property rights, public procurement and sustainable development.

If investor-state dispute settlement and portfolio investment are excluded, such future EU FTAs will not be jeopardised by 28 additional – and sometimes unpredictable – ratification procedures in the member states. The Commission should therefore pursue ‘EU-only’ FTAs and cover portfolio investment and investor-state dispute settlement, such as the new Investment Court System, in separate agreements, or not at all.

Member states on the other hand should refrain from deliberately making EU FTAs mixed, as this would contradict the spirit of the Lisbon Treaty and the Court’s case-law.

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