EXTERNAL ACTION:
TREATY PROVIDES POWERS FOR
AND MAINTAIN KEY TRADE AGREEMENTS ON WORLD STAGE
[ARTICLE 188C]
|
AMENDMENT TO: Treaty of |
Policy Area:
Treaty=
on
the Functioning of the European Union, Part Five, External Action by the Un=
ion,
Title II Common commercial policy, Article 188C
Amendment:
Clause 2, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragr=
aphs
154 to 168, new Part Five TEC (TFEU) relating to external action by the
European Union; and
(ii)’.
“158) An Article 188 C shall be inserted, replacing
Article 133:
"ARTICLE 188 C
1. The common commercial policy shall be based on uniform
principles, particularly with regard to changes in tariff rates, the conclu=
sion
of tariff and trade agreements relating to trade in goods and services, and=
the
commercial aspects of intellectual property, foreign direct investment, the
achievement of uniformity in measures of liberalisatio=
n,
export policy and measures to protect trade such as those to be taken in the
event of dumping or subsidies. The common commercial policy shall be conduc=
ted
in the context of the principles and objectives of the
2. The European Parliament and the Council, acting by me=
ans
of regulations in accordance with the ordinary legislative procedure, shall
adopt the measures defining the framework for implementing the common comme=
rcial
policy.
3. Where agreements with one or more third countries or
international organisations need to be negotiat=
ed and
concluded, Article 188 N shall apply, subject to the special provisions of =
this
Article.
The Commission shall make recommendations to the Council,
which shall authorise it to open the necessary
negotiations. The Council and the Commission shall be responsible for ensur=
ing
that the agreements negotiated are compatible with internal Union policies =
and
rules.
The Commission shall conduct these negotiations in
consultation with a special committee appointed by the Council to assist the
Commission in this task and within the framework of such directives as the
Council may issue to it. The Commission shall report regularly to the speci=
al
committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements
referred to in paragraph 3, the
Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the =
fields
of trade in services and the commercial aspects of intellectual property, as
well as foreign direct investment, the Council shall act unanimously where =
such
agreements include provisions for which unanimity is required for the adopt=
ion
of internal rules.
The Council shall also act unanimously for the negotiati=
on
and conclusion of agreements:
(a) in the field of trade in
cultural and audiovisual services, where these agreements risk prejudicing =
the
(b) in the field of trade in
social, education and health services, where these agreements risk seriously
disturbing the national organisation of such se=
rvices
and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international
agreements in the field of transport shall be subject to Title V of Part Th=
ree
and to Article 188 N.
6. The exercise of the competences conferred by this Art=
icle
in the field of the common commercial policy shall not affect the delimitat=
ion
of competences between the Union and the
Consolidated Treaty Article(s):
“Article 133
1. The common commercial poli=
cy
shall be based on uniform principles, particularly in regard to changes in
tariff rates, the conclusion of tariff and trade agreements, the achievemen=
t of
uniformity in measures of liberalisation, export
policy and measures to protect trade such as those to be taken in the event=
of
dumping or subsidies.
2. The Commission shall submit
proposals to the Council for implementing the common
com=
mercial po=
licy.
3. Where agreements with one =
or
more States or international organisations need=
to be
neg=
otiated, t=
he
Commission shall make recommendations to the Council, which shall authorize=
the
Commission to open the necessary negotiations. The Council and the Commissi=
on
shall be responsible for ensuring that the agreements negotiated are compat=
ible
with internal Community policies and rules.
The Commission shall conduct
these negotiations in consultation with a special committee appointed by the
Council to assist the Commission in this task and within the framework of s=
uch
directives as the Council may issue to it. The Commission shall report
regularly to the special committee on the progress of negotiations.
The relevant provisions of
Article 300 shall apply.
4. In exercising the powers
conferred upon it by this Article, the Council shall act by a qualified
majority.
5. Paragraphs 1 to 4 shall also apply to the negotiation=
and
conclusion of agreements in the fields of trade in services and the commerc=
ial
aspects of intellectual property, in so far as those agreements are not cov=
ered
by the said paragraphs and without prejudice to paragraph 6.
By way of derogation from paragraph 4, the Council shall=
act
unanimously when negotiating and concluding an agreement in one of the fiel=
ds
referred to in the first subparagraph, where that agreement includes provis=
ions
for which unanimity is required for the adoption of internal rules or where=
it
relates to a field in which the Community has not yet exercised the powers
conferred upon it by this Treaty by adopting internal rules.
The Council shall act unanimously with respect to the
negotiation and conclusion of a horizontal agreement insofar as it also
concerns the preceding subparagraph or the second subparagraph of paragraph=
6.
This paragraph shall not affect the right of the Member
States to maintain and conclude
agreements with third countries or
international organisations in so far as such
agreements comply with Community law and other relevant international
agreements.
6. An agreement may not be concluded by the Council if it
includes provisions which would go beyond the Community's internal powers, =
in
particular by leading to harmonisation of the l=
aws or
regulations of the Member States in an area for which this Treaty rules out
such harmonisation.
In this regard, by way of derogation from the first subp=
aragraph
of paragraph 5, agreements relating to trade in cultural and audiovisual
services, educational services, and social and human health services, shall
fall within the shared competence of the Community and its
Consequently, in addition to a Community decision taken =
in
accordance with the relevant
provisions of Article 300, the negotiati=
on of
such agreements shall require the common accord of the Member States.
Agreements thus negotiated shall be concluded jointly by the Community and =
the
The negotiation and conclusion of international agreemen=
ts
in the field of transport shall continue to be governed by the provisions of
Title V and Article 300.
7. Without prejudice to the first subparagraph of paragr=
aph
6, the Council, acting unanimously on a proposal from the Commission and af=
ter
consulting the European Parliament, may extend the application of paragraph=
s 1
to 4 to international negotiations and agreements on intellectual property =
in
so far as they are not covered by paragraph 5.”
Expl=
anation:
The EU’s C=
ommon
commercial policy has been recognised by the Eu=
ropean
Court of Justice as one the areas in which the Community’s competence=
is
exclusive. The Lisbon Treaty has codified the ECJ case law, according to
Article 2 B (e) Common Commercial Policy, as belonging to one of the
The Common commercial policy involves a harmonised conduct of trade relations with third coun=
tries
mainly through a common customs tariff and common import and export regimes.
The Commission negotiates and concludes international agreements on behalf =
of
the Community at the bilateral and multilateral levels. All trade negotiations with third countries are conducted by the
Commission and such agreements are binding on all Member States.
Article 188C (1) reads as follows: “The
common commercial policy shall be based on uniform principles, particularly
with regard to changes in tariff rates, the conclusion of tariff and trade
agreements relating to trade in goods and services, and the commercial aspe=
cts
of intellectual property, foreign direct investment, the achievement of
uniformity in measures of liberalisation, export
policy and measures to protect trade such as those to be taken in the event=
of
dumping or subsidies.” Article 188 C develops upon Article 133 TEC,
specifying “the conclusion of trade agreements relating to trade in
services, and the commercial aspects of intellectual property, foreign dire=
ct
investment” making them subject to the
The Lisbon Treaty has broadened the scope of=
the
exclusive competence of the
Article 188 C (1) also states that “The
common commercial policy shall be conducted in the context of the principles
and objectives of the
The Lisbon Treaty
changes the decision-making process for the adoption of internal legislation
increasing the powers of the European Parliament. Accor=
ding
to Article 188 C (2) “The European Parliament and the Council, acting=
by
means of regulations in accordance with the ordinary legislative procedure,
shall adopt the measures defining the framework for implementing the common
commercial policy.” Hence, the European Parliament has now
acquired the power of co-decision.
The Commission maintains its capacity as the
institution which recommends the beginning of negotiations to the Council a=
nd
conducting those negotiations “in consultation with a special committ=
ee
appointed by the Council to assist the Commission in this task.” Such
committee is known as “the Article 133 Committee.” This committee coordinates EU trade
policy and it is composed of
Under the present Article 133 (3) the Commis=
sion
is only required to report on the progress of negotiations to the 133 Commi=
ttee
but the new provision requires the Commission to also report to the European
Parliament. According =
to
Article 188C (4) “In exerc=
ising
the powers conferred upon it by this Article, the Council shall act by a
qualified majority.” Therefore, as presently, the Counc=
il, in
exercising its powers in the common commercial policy, acts by QMV. =
Unanimity is still
required where necessary for the adoption of internal rules. Article 188C (=
4)
states “For the negotiation and conclusion of agreements in the field=
s of
trade in services and the commercial aspects of intellectual property, as w=
ell
as foreign direct investment, the Council shall act unanimously where such
agreements include provisions for which unanimity is required for the adopt=
ion
of internal rules.” This provision is similar to Article 133 (5) TEC,
however the new provision does not require unanimity where the agreement
“relates to a field in which the Community has not yet exercised the =
powers
conferred upon it by this Treaty by adopting internal rules” –
therefore trade in services and commercial aspects of intellectual property=
are
definitely part of the Union’s exclusive competence whether it will
decide to exercise its internal competences in respect of that area or not.=
This new provision implies that the agreemen=
ts
relating to trade in cultural and audiovisual services, educational service=
s,
and social and human health services are no longer a shared competence of t=
he
Community and the
The Union will not have exclusive competence to negotiat=
e or
conclude an international agreement in areas which the
The Lisbon Treaty will enhance the Union position as the
only actor to negotiate and conclude agreements. The scope of the common
commercial policy was massively expanded and therefore it seems that the