Law and practice of the common commercial policy : the first 10 years after the Treaty of Lisbon

Présentation de l'éditeur : "Law and Practice of the Common Commercial Policy provides a critical analysis of the European Union (EU)'s trade law and policy since the Treaty of Lisbon. In particular, it analyses the salient changes brought by the Treaty of Lisbon to the Common Commercial Policy (CCP), focussing on the relevant case law of the Court of Justice of the European Union (ECJ), EU free trade agreements, investment protection, trade defence, institutional developments and the nexus between the CCP and other EU policies. The volume brings together a group of distinguished authors, including former and current members of the ECJ, practitioners, officials from EU institutions and Member States and leading scholars in the area of EU trade and external relations law." Law and Practice of the Common Commercial - Michael Hahn Half Title Series Information Title Page Copyright Page Contents Acknowledgements Forewords Abbreviations Notes on Contributors Introduction: 10 Years Common Commercial Policy Since the Treaty of Lisbon 1 A Bird’s Eye Perspective on the EU’s Trade and Investment Policies Since the Treaty of Lisbon 2 Outline of the Book 3 Outlook: Priorities for the EU’s ccp in the Next Decade Part 1 The Scope of the ccp Chapter 1 Mixity and the Common Commercial Policy after Opinion 2/15: An Overview 1 Introduction 2 Union External Competence: a Categorisation 3 The Enlarged Scope of the ccp 4 Exclusivity by Virtue of Article 3(2) tfeu 5 The cfsp 6 Conclusion: When Are Union-only Agreements Legally Necessary or Legally Possible? Chapter 2 Defining the Scope of the Common Commercial Policy 1 Introduction 2 Defining the Field of Action 3 Regulatory Measures and the ccp 3.1 Governing the Adoption and Implementation of Regulatory Measures 3.2 Establishing Regulatory Standards 4 The ccp and Non-commercial Purposes 5 Some Concluding Observations Part 2 The EU’s Investment Policies Chapter 3 The First 10 Years of the European Union’s Policy on Investment Dispute Settlement: From Initial Reforms to the Multilateral Investment Court 1 Introduction 2 Setting the Scene: the Framework Created by the Treaty of Lisbon and the EU’s Framework Legislation 2.1 The Initial Understanding of the Treaty framework 2.2 The Grandfathering Regulation (Regulation EU No. 1219/2012) 2.3 The Financial Responsibility Regulation (Regulation EU No. 912/2014) and the Respondent Mechanism 3 Opinion 2/15 on the Singapore fta 4 Initial Policy Approaches: the 2010 Communication and the Initial Treaties with 3rd Countries 4.1 The 2010 Communication on Investment Policy 4.2 The Initial Approach in ceta and the Agreements with Singapore and India 4.3 The uncitral Transparency Rules and the Mauritius Convention 5 The Policy Shift to the Investment Court System 5.1 The Initial Traces in the 2010 Communication on Investment Policy 5.2 The 2015 Concept Paper/ttip Proposal 5.3 ceta and the Agreements with Singapore, Vietnam and Mexico 6 The Multilateral Investment Court 6.1 The 2015 Concept Paper and ceta 6.2 The EU’s Negotiating Directives (March 2018) 6.3 uncitral Discussions 7 Conclusion: the Next 10 Years? Acknowledgement Chapter 4 Opinion 1/17: Legitimising the EU’s Investment Court System but Raising the Bar for Compliance with EU Law 1 Introduction 2 Opinion 1/17: a Legal Analysis 2.1 The Compatibility of ceta’s ics with the Autonomy of the EU Legal Order 2.1.1 The ecj’s Autonomy Criteria and Belgium’s Doubts about the ics 2.1.2 Constitutional Principles 2.1.3 No Jurisdiction to Interpret and Apply Rules of EU Law Other than the Provisions of ceta 2.1.4 No Effect on the Operation of the EU Institutions in Accordance with the EU Constitutional Framework – Protection of the Level of the Public Interest 2.2 Compatibility of ceta with the General Principle of Equal Treatment and with the Requirement of Effectiveness 2.3 The Compatibility of the Envisaged isds Mechanism with the Right of Access to an Independent Tribunal 3 Comments 3.1 A Pragmatic Approach by the Court? 3.2 Implications for Future Agreements and the mic 4 Conclusion and Outlook Acknowledgements Chapter 5 Never Get High on Your Own Supply – ‘Autonomy of the EU Legal Order’ and Effective Treaty-Based Dispute Settlement Mechanisms 1 Introduction 2 The ecj’s eea Opinions: Autonomy of the Union Legal Order and Treaty-Based Dispute Settlement Mechanisms in International Economic Law 2.1 Overview of Opinion 1/91 2.2 The Implementation of Opinion 1/91’s Concept of Autonomy in the eea and the ecaa 3 The Development of the Autonomy Jurisprudence Post eea and ecaa 4 Opinion 1/17 and the Principle of Autonomy 4.1 An Addition to the Concept of Autonomy 4.2 An Unexpected Appetite for Risk? 5 Conclusion: Never Get High on Your Own Supply Chapter 6 Investment Screening – a New Era of European Protectionism? 1 Introduction 2 The EU Regulation 2.1 Economic and Political Background 2.2 The Union Competence for a Screening Framework 2.3 The Key Characteristics of the Regulation 2.3.1 Cooperation Mechanisms 2.3.2 The Competences of the EU Commission 2.3.3 Access to Legal Remedies 2.3.4 Interim Conclusion: Possible Circumvention 2.4 Interaction with Other Union Instruments 3 EU Member States Screening Mechanisms 3.1 Germany 3.2 Austria 3.3 France 3.4 Northern European Countries 4 Excursus: Investment Screening in the US and China 4.1 Investment Screening in the United States 4.2 The Chinese Foreign Investment Law 5 Conclusion Part 3 The Scope of the EU’s Free Trade Agreements Chapter 7 Trade and Sustainable Development Post-Lisbon 1 Introduction 2 Sustainable Development Provisions in FTAs 2.1 The Roots of Sustainable Development Provisions 2.2 Sustainable Development Conditionality in the eu gsp 2.3 Sustainable Development Chapters in fta s 3 Impact, Effective Implementation and Enforcement 3.1 Monitoring and Civil Society Mechanisms 3.2 Dispute Settlement Mechanisms 3.3 Enhanced Engagement 4 Outlook Chapter 8 Technical Barriers to Trade in the New Generation of EU Trade Agreements 1 Introduction 2 The Definition of “Technical Barriers to Trade” 3 Models of Mutual Recognition of the Results of Conformity Assessment Procedures 4 Horizontal Chapters on Good Regulatory Practices and Regulatory Cooperation 5 Chapters on Technical Barriers to Trade: Generally Applicable Obligations Regarding Technical Barriers to Trade 5.1 Introduction 5.2 Using the tbt Agreement as the Baseline 5.3 Increased Cooperation and Transparency 5.4 Cooperation and Information Sharing Regarding the Development of (International) Standards 5.5 Enhancing the Compatibility and Convergence of Technical Regulations 5.6 Harmonisation 5.7 Conformity Assessment Procedures: Testing and Certification 6 Sector-Specific Obligations Regarding Technical Barriers to Trade 7 Chapters on Trade and Sustainable Development, Trade and Labour and Trade and Environment, Renewable Energy 8 Conclusion Acknowledgement Chapter 9 Public Procurement in EU fta s 1 The Wider Context 2 Why Include Public Procurement? 3 Why Preferential Trade Agreements? 4 How Successful? 4.1 Agreements with gpa Signatories 4.2 High- and Middle-Income Developing Countries 4.3 Smaller and Less Developed Partners 4.4 The Emerging Markets 4.5 The Challenges Establishing (and Defending) a Rules-based Order in Procurement 4.5.1 Resistance to Rule-making 4.5.2 Shaping Normative Views 4.5.2.1 Conflating Normative and Commercial Arguments 4.5.2.2 A General Dilemma 5 Conclusions on the Way Forward Chapter 10 Prudential Carve-outs for Financial Services in EU fta s 1 Introduction 2 The Prudential Carve-out in the GAT S 3 A Comparative Analysis of the Selected Prudential Carve-outs 3.1 The Same Modal Scope 3.2 A Similar Approach to the First Condition 3.3 Substantial Variation in the Second Condition 3.3.1 The EU-Singapore fta 3.3.1.1 “Reasonable” 3.3.1.2 “Not More Burdensome than Necessary to Achieve Its Aim” 3.3.1.3 The Chapeau 3.3.2 The EU-Korea fta 3.3.3 The EU-Vietnam fta 3.3.4 TiSA 3.3.5 ceta 3.3.5.1 The Text of the Prudential Carve-out 3.3.5.2 In Particular the Fourth Principle of the Understanding 3.3.5.3 In Particular the Fifth Principle of the Understanding 3.3.5.4 The Exception for Non-discriminatory Prohibitions 3.3.6 Overview 3.4 A Specific Prudential Exception for Authorisation and/or Registration 4 Conclusions Acknowledgement Chapter 11 The Evolution of the EU Digital Trade Policy 1 Introduction 2 Literature Review 3 Analysis of eu pta s 3.1 Dedicated E-commerce Provisions 3.2 Recurring Provisions in E-commerce Sections 3.3 Newest E-commerce Topics 3.4 Other Digital Trade-related Provisions 3.5 Future Directions in eu pta s 4 The EU General Data Protection Regulation 5 EU Digital Trade Policy and the wto 6 Concluding Remarks Part 4 Trade Defence Chapter 12 The EU’s Anti-Subsidy Practice during the Last Decade: Increasingly Aggressive Application 1 Introduction 2 Use of the Anti-subsidy Instrument from 2008–2018 2.1 Overview 2.2 Developments and Trends 3 Key Elements of a Countervailable Subsidy 3.1 Financial Contribution by a Government 3.1.1 Government or Public Body 3.1.2 Forms of Financial Contribution 3.1.2.1 Direct and Indirect Transfer of Funds, Revenue foregone, Provision of Goods and Services 3.1.2.2 Government Entrustment and Direction; Payments via a Funding Mechanism 3.2 Specificity 3.2.1 Sector Specificity 3.2.2 Regional Specificity 3.2.3 Export Contingent Subsidies 3.2.3.1 Duty Drawback Schemes 3.2.3.2 Export Oriented Units (“eou s)] and Special Economic Zones (“sez s”) 3.2.3.3 Import Duty Exemption Capital Goods 3.2.3.4 Export Credits and Export Credit Insurance 3.2.3.5 Tax Exemptions 3.2.4 Import Substitution Subsidies 3.3 Benefit and Subsidy Margin Calculation 3.3.1 Calculation of the Subsidy Amount in Practice 3.3.2 Subsidy Margin Calculation 3.3.3 Instances When Subsidies Were Not Countervailed 4 Conclusions Acknowledgement Chapter 13 The Devil is in the Detail – a First Guide on the EU’s New Trade Defence Rules 1 Introduction 2 Historical Development 3 The New Anti-dumping Methodology 3.1 The Determination of Significant Distortions in the Exporting Country 3.2 The Appropriate Benchmarks for Replacing Distorted Cost Factors 3.3 wto Dimension 4 The Main Features of tdi Modernisation 4.1 Improved Transparency and Predictability 4.2 Fight against Retaliation by Third Countries 4.3 Improved Effectiveness and Enforcement 4.3.1 Lesser Duty Rule 4.3.2 Profit Target 4.3.3 Additional Reasons for Interim Reviews 4.3.4 Refined Test for Expiry Reviews 4.3.5 Stricter Conditions for Accepting Undertakings 4.3.6 Trade Unions and sme s 4.3.7 Shorter Deadline for Provisional Measures 4.4 Optimising Review Practice 4.5 Codifications Issues 4.6 Institutional Issues 5 Conclusion Chapter 14 The EU’s Amended Basic Anti-dumping Regulation – a Practitioner’s View 1 Introduction 2 The New Normal Value Methodology Introduced by Regulation (EU) 2017/2321 2.1 Significant Distortions 2.2 Undistorted Prices and Benchmarks 2.3 International Social and Environmental Standards 2.4 Burden of Proof 2.5 Grandfathering Provisions 2.6 Consistency of the New Methodology with WTO Rules 2.6.1 Rejecting Domestic Prices as a Basis for Normal Value Due to the Existence of Significant Distortions 2.6.2 Replacing Distorted Costs by Undistorted Costs 2.6.3 Grandfathering Existing Measures 2.6.4 Burden of Proof 2.7 De Facto Discriminatory Treatment of China 2.8 Conclusion 3 Modernisation of the EU’s Anti-dumping Legislation 3.1 Partial Non-application of the Lesser-duty Rule 3.1.1 Non-Application of the ldr in Case of a Significant Distortion on Raw Materials 3.1.2 Target Price 3.2 Social and Environmental Standards 3.3 Four-Week Notice Period 3.4 Application of Duties to the Continental Shelf and Exclusive Economic Zone 3.5 wto Consistency of the New Rules 4 Possibility of a wto Challenge of the New Rules 5 Conclusion Acknowledgement Part 5 The Nexus between the ccp and Other EU External Policies Chapter 15 Tightening the EU’s Trade-Development Nexus: A Strategic Turn in Search for Enhanced Effectiveness 1 Introduction: the Trade-Development Nexus from an EU Perspective 2 New Goals, Actors and Instruments in the Post-Lisbon Era 3 eu-acp Relations: ‘Privilege Erosion’ and the Strategic Turn 3.1 Changing Form, Contents and Partners 3.2 Impact: from a Group-to-Group Approach to a Patchwork 4 The 2012 Reform of the gsp: Preference Erosion and the Strategic Turn 4.1 Changing Form, Contents and Partners 4.2 Impact: from a Generalised to a Select System of Preferences 5 Conclusion: the EU’s Continuing Quest for Trade-Development Coherence Acknowledgement Chapter 16 The Nexus between the ccp and the cfsp 1 Introduction 2 EU Rules in Sectors on the Borderline between Trade and Security 2.1 EU Rules on Dual-use Items 2.2 EU Rules on Arms Trade 2.3 EU Rules on Restrictive Measures 3 Case Study: EU Relations with Iran 4 Conclusion Chapter 17 The Nexus between the Common Commercial Policy and Human Rights: Implications of the Lisbon Treaty 1 Introduction 2 Policy Impact of the Lisbon Treaty: the Practice of Human Rights Impact Assessments 3 The Trade-human Rights Nexus before the Court of Justice and the External Dimension of the EU Charter of Fundamental Rights 4 The Practice of Human Rights Clauses and Social Norms in EU Free Trade Agreements and the Challenge of Enforcement 5 Conclusions Chapter 18 The European Union and the Multilateral Trade Regime: Reciprocal Influences 1 Introduction 2 wto Law and the EU Legal Order 2.1 wto Law and the EU Legal Order 2.2 EU Law before Panels and the Appellate Body 3 Achieving Compliance 3.1 ec − Bananas 3.2 ec − Biotech 3.3 ec − Seals 3.4 Conclusion 4 Influencing the Global Regime – Enforcing Rules, Developing Rules, and Breaking Rules 4.1 The Rule Enforcer: Zeroing 4.2 The Rule Developer: Agricultural Subsidies 4.3 The Rule-breaker: Hormone-treated Beef 5 Conclusion Part 6 The Institutional and Procedural Dimension of the ccp Chapter 19 The Legitimacy of ‘EU-Only’ Preferential Trade Agreements 1 Introduction 2 De Jure Legitimation of EU External Economic Treaty-making 2.1 Exclusive Competence for Common Commercial Policy after Lisbon 2.2 Opinion 2/15: Litigating EU Exclusive Competence for External Economic Governance 3 Output Legitimation of EU-only External Economic Treaty-making 4 The New EU Economic Treaty Architecture 5 Input Legitimation of EU-only Preferential Trade Agreements 6 Conclusions Acknowledgement Chapter 20 EU Trade Policy after Opinion 2/15: Internal and External Threats to Broad and Comprehensive Free Trade Agreements 1 Introduction 2 ceta Ratification: Rough Ride on a Rollercoaster or Plan B? 2.1 Will ceta Be Ratified? 2.2 Plan B: an EU-only Agreement? 3 EU Trade Policy Vis-à-Vis the United States and China 3.1 The United States – Managed Trade Instead of Further Trade Liberalisation 3.2 China – Not So Liberal after All? 4 Conclusions Chapter 21 The Integration of EU Trade Defence in the Horizontal Comitology Regime 1 Introduction 2 The Lisbon Treaty’s Reform of Comitology and the ccp 2.1 Comitology under the Treaty of Lisbon 2.2 Comitology and the ccp 3 The New Framework for ccp Measures 3.1 Pre-comitology Procedures under the Basic Anti-Dumping Regulation 3.2 The Commission’s Proposal and the Updated Basic Anti-Dumping Regulation 4 The Institutional Practice under the New Framework 4.1 The Position of Private Parties in Comitology Procedures 4.2 Anti-dumping Cases 5 Reassessing the Law and Practice in Light of the Lisbon Treaty 6 Conclusion Chapter 22 The Role of the Member States in the CCP 1 Introduction 2 The Council’s Conclusions on the Negotiation and Conclusion of EU Trade Agreements 2.1 Evaluation of Opinion 2/15 and the “Separation Solution” 2.2 Relationship between Trade and Investment Provisions 2.3 Informing the Council and the Member States – Legitimacy of EU-only Agreements 2.4 Participation of Parliaments and Stakeholders 3 Participation of the National Parliaments: the German Example 3.1 Basic Principles 3.2 Information Requirements under the Act on Cooperation between the Federal Government and the German Bundestag on European Union Affairs 4 Transparency of Free Trade Negotiations: the Member States’ Perspective 4.1 Efforts by the European Commission 4.2 Evaluation from the Perspective of the Member States 5 Comments on Comitology in the CCP 6 Final Comments Chapter 23 The Council, the Common Commercial Policy and the Institutional Balance: Recent Developments 1 Introduction 2 The Institutional Balance in EU Law 3 The Council and the Member States 4 Relation with the Commission 5 Relations with the European Parliament 6 Conclusion Acknowledgement Chapter 24 The Role of the European Parliament in the Shaping of the Common Commercial Policy 1 Introduction 2 Institutional Adaptation after Lisbon 3 Policy Formulation 4 Conclusion Chapter 25 Provisional Application of EU Free Trade Agreements 1 Introduction 2 The Legal Basis and Effects of Provisional Application by the EU and the Member States 3 The Definition of the Scope of Provisional Application of EU FTAs 3.1 Preliminary Considerations 3.2 The Techniques of Defining the Scope of Provisional Application 3.2.1 Provisional Application of the Entire Agreement by the EU and Its Member States 3.2.2 Partial Provisional Application of the Agreement by the EU, with an Express Definition in the Agreement and in the Decision of the Council, Possibly Together with a Caveat on the Scope of the Union’s Competence 3.2.3 Partial Provisional Application of the Agreement by the EU with No Definition in the Agreement but with an Express Definition in the Decision of the Council, Possibly Together with a Caveat on the Scope of the Union’s Competence 3.2.4 Partial Provisional Application of the Agreement by the EU (and the Member States) with a Procedure Set out in the Agreement to Define the Scope Thereof 3.2.5 Assessment 3.3 The Material Scope of Provisional Application of FTA s in Practice 4 Termination of Provisional Application 5 Conclusions Index "While provisions relating to a common commercial policy (CCP) were already to be found in Articles 110- 116 of the original Treaty of Rome, and a common customs tariff was established during the 1960s,1 it was only in an Opinion of 1975 that the European Court of Justice (ECJ) confirmed explicitly that the CCP belongs to the area of the exclusive competence of the Community.2 The Court held that the field of export credits fell under the ccp, observing that a concurrent competence of the Member States would distort competition between undertakings of the various Member States. In subsequent case law, the Court, as far as the trade in goods was concerned, confirmed its fairly broad understanding of the concept of ccp, including various sorts of restrictions or regulations such as technical, sanitary and other barriers to trade and tariff preferences in favour of developing countries"-- Provided by publisher Présentation de l'éditeur : "Law and Practice of the Common Commercial Policy provides a critical analysis of the European Union (EU)'s trade law and policy since the Treaty of Lisbon. In particular, it analyses the salient changes brought by the Treaty of Lisbon to the Common Commercial Policy (CCP), focussing on the relevant case law of the Court of Justice of the European Union (ECJ), EU free trade agreements, investment protection, trade defence, institutional developments and the nexus between the CCP and other EU policies. The volume brings together a group of distinguished authors, including former and current members of the ECJ, practitioners, officials from EU institutions and Member States and leading scholars in the area of EU trade and external relations law."