The World Trade Organization (WTO) is made of governments and The Commission coordinates the EU negotiating position with the EU. The 28 member States of the EU are also WTO members in their own right. The EU is a single customs union with a single trade policy and tariff. The European. In this perspective, this paper aims at exploring the interaction between the EU and WTO, from the angle of their jurisdictional bodies involved.
The Council Decision establishing the organization and functioning of the European External Action Service regulates the creation of Union Delegations18, a new figure derived from the pre-existing Commission Delegations For decades, the EU has had a Commission Delegation in Geneva to deal with international organizations. Asser Press, The Hague,pp. The Delegation represents the interests of the European Union and its 27 Member States in the area of multilateral trade, and negotiates on their behalf at the WTO; coordinates the positions of the European Union and its 27 Member States for multilateral trade negotiations; and promotes the visibility and understanding of the European Union's trade policy through contacts, information activities and networking with other diplomatic missions and Geneva-based international organizations, bodies and agencies The competences of the Permanent Mission in trade show how the Treaty of Lisbon has contributed with very useful instruments to a better representation of the EU at the WTO.
Time will confirm whether this tendency towards a stronger common position within the EU will be consolidated or not. Besides, mixed membership keeps being a challenge for the EU, as will be confirmed when analyzing the division of competences. Division of competences in the EU and its consequences for trade issues Recognition of the EU as a legitimate contracting party in the WTO meant an improvement in its situation compared to the now obsolete de facto recognition. However, as noted above, the dual membership regime maintained even after that legal recognition — EU and European member States — set out a controversy, especially regarding the division of competences in the EU.
European Primary Law states trade as an exclusive competence of the European Union. Nevertheless, before Lisbon, some other matters linked to the WTO norms remained in the sphere of authority of European member States. This unclear division of some competencies was aggravated by the lack of a code or regulation clarifying the borderline situations. This issue was of vital relevance, mainly for two reasons.
On the one hand, a distinction is needed between the European Union competences and those of member States in order to know who had to exercise each of them, internally and externally with third countries. That was the case of negotiations with the WTO, where clarification was essential for an adequate development of roles in that particular international organization and in its negotiations.
Otherwise, European and national interests would hardly be protected. The role of the Delegation can be consulted at URL: That is the origin of their characterization as mixed agreements.
The special nature of these mixed agreements makes them an interesting object of analysis because of the theoretical challenges they offer to the legal discipline, and because distinct legal effects derive from that mixed nature. In this section, the division of competences in trade between the EU and its member States is analyzed. The nature of mixed agreements is also studied, being mainly focused on its legal effects.
Different types of competences in the EU and the Common Trade Policy Before Lisbon, division of competences was unclear and dispersed along the Treaties. The Treaty of Lisbon contributed to the clarification of this issue, distinguishing between exclusive competences, shared competences and supporting competences Exclusive competences are regulated in article 3 of the TFEU, and only the EU is able to legislate and adopt binding acts in those matters.
Shared competences are regulated in article 4 of the same Treaty and are to be adopted by the EU and member States, but not simultaneously; Member States will exercise them only as far as the EU has not exercised them, or has decided not to exercise them. Principles of proportionality and subsidiarity need to be regarded when exercising those competences Finally, in supporting competences24 the main role is played by member States.
The EU role in those competences is to support, coordinate or complement their actions Chalmers, Davies, Monti, Explicit competences are those explicitly recognized in the Treaties. The doctrine of implicit competences developed by the jurisprudence of the ECJ states that some competences are to be exercised by the EU, even if they were not explicitly recognized in Treaties. This article allows the EU to exercise competences that were not attributed regularly by member States to the EU, in the case where this exercise is considered as necessary to achieve the EU goals.
The distinction of explicit, implicit and subsidiary competences shows the different mechanisms used by the EU to achieve its objectives in trade, internally and externally. The experience of sharing with its member states the condition of WTO contracting parties had a strong influence in this tendency to broaden its scope.
Based on this norm, the EU has developed a strong Common Commercial Policy that has become a key aspect of its policy and institutional activity. Measures and decisions have been taken regarding exports, liberalized and non liberalized imports, and defensive measures against dumping or counterfeiting. Given the global nature of commercial transactions, an important aspect of the CCP is the signature of agreements with third countries, especially at the WTO, such as commercial agreements, agreements for limitation of exports, and cooperation agreements.
Those agreements regulate different sectors, such as agriculture, services, and intellectual property rights. We must be aware of the difficulty that this implies: That is the case of agriculture or transports as part of the agreement on servicesrecognized by the Treaty of Lisbon as shared competences26; also, tourism is classified as a supporting competence The diversity of competence types related to trade has been the origin of some difficulties in the EU-WTO framework, as will be seen below, since some of the agreements were of a mixed nature, i.
Taking that problem into account, the Treaty of Lisbon also contributed to the clarification of this situation with a key norm: This norm expressly recognizes the European Union an exclusive competence on the most common negotiation fields at the WTO, considerably reducing the use of mixed agreements.
In those cases, mixed agreements are used, and this remains a challenge for the EU and member States. Firstly, it may contain norms on subject-matters characterized as different types of competences for the EU. Secondly, parties to the agreement are the EU and European member States at the same time. Without this mechanism, every time an agreement has to be signed at the WTO, the difficulty of determining whether the EU or its member States are competent on the subject- matter would cause paralysis.
Instead of trying to clarify doubt, mixed agreements evade controversy enabling member States to operate under the umbrella of the EU capacity to subscribe international treaties on commercial issues Looking at the legal effects of mixed agreements, from a careful reading of the Treaties, it can be inferred that international agreements made by the European Union are subordinated to Primary Law, and prevail over Secondary Law.
The effects of the mixed agreements will differ according to whether the relevant articles of the agreement pertain to European Law or fall under the competence of the individual States. The norms pertaining to European law become part of the European legal system from the moment the agreement enters into force. The norms falling under national competences will become 28 Transports are referred to in another part of the Treaties, in order to ensure policy coherence.
Bourgeosi, Dewost Gaiffe eds. Jurisdiction of the European Court of Justice on the agreements is still a controversial issue. Regarding the issues that might derive from the legal nature of mixed agreements, it seemed that respect of the principle of sincere cooperation32 required the adoption of a Code of Conduct that would regulate the division of competencies in the field and execution of the mixed agreements.
Inthe Permanent Representatives Committee drafted a Code of Conduct for the Council, member States and the Commission, relating to negotiations after the Uruguay Round on financial services. It was approved and entered into force in and it was used untilwhen those negotiations ended.
At a broader level, many attempts were made to adopt a Code of conduct defining the participation of the EU and its Member States in areas of shared power at the WTO. Notwithstanding the lack of a Code of conduct, the EU and its member States have learned from the past and the Treaty of Lisbon regulation of competences has contributed to an improvement in their exercise, as was shown with regard to the content of article of the TFEU. The EU position in negotiation rounds: Its aim is to offer the reader an overview of the position maintained by the EU in commercial policy for the agricultural sector.
Problems and Challenges, in J. Some relevant cases in this field are Les Verts v. Those negotiations focused in different sectors, such as services, raw materials, agriculture or intellectual property rights.
WORLD TRADE ORGANIZATION
The goal of the EU to be able to speak with one voice is not only a matter of legal or institutional instruments. But for the content of the European trade strategy to be common, integration needs to be achieved in economic and social variables. In the subsections below, the position of the EU on agricultural negotiations at the WTO is reviewed. As it has been seen in Section 3, the Common Agricultural Policy constitutes one of the main policies and legal sectors in the European Union.
Besides, as stated below, the common agricultural policy has been defined by the Treaty of Lisbon as a shared competence and therefore the adoption of a common position for all European member States remains a challenge.
Second, some details of the European position on the Doha Round negotiations are offered. The Uruguay Round The GATT contracting parties spent almost eight years in negotiations under the Uruguay Round framework, dealing with very diverse matters, such as tariffs, non-tariff barriers, natural resource products, textiles, agriculture or intellectual property.
Those efforts culminated in the creation of the WTO. A new era began for international trade, in the framework of the rules agreed during those eight years of negotiations and by the adopted policies.
The European Union, as one of the main contracting parties at the WTO, had a strategy for the Round, based on the defense of European interests and determined by the objectives set by the Treaties in each sector.
Agriculture was one of the most difficult sectors in those negotiations. In the Geneva meeting, gradual and substantial reductions in agricultural support and protection were set as a long-term objective.
The European Community supported gradual cuts in agricultural support, based on an aggregate measurement of support AMSthat would serve to calculate support schemes and define their reduction. However, that proposal did not receive support from other actors as the Cairns Group, the United States or Japan.
The next reform would be implemented induring the Uruguay Round of negotiations. Inthe European Union implemented the fourth reform of the Common Agricultural Policy, incorporating the forecasted results of the Uruguay Round.
The Uruguay Round finally included an Agreement on Agriculture adopted inthus regulating market access, domestic support and export competition. The European Commission defined the reform as a first step to prepare the EU agriculture for the future, based on three main aspects: The need for that change towards a more competitive sector was determined by negotiations aimed at reducing support and protection in agriculture, expected for The idea was to create the conditions for EU farmers and the EU food industry to be in a good position to take advantage of the change when it happened The Uruguay Round could be evaluated as successful for the European Union regarding the double membership and competence issues because, notwithstanding the legitimacy problems of the EC in the WTO, the European position was presented unanimously at the negotiation processes.
EU & WTO - Katedra za europsko javno pravo
Now that the Treaty of Lisbon has articulated some institutional reforms promoting, at least in theory, a common position of the European Union and its member States at the WTO, negotiations in the Doha Round give the European Union an opportunity to show how efficient these mechanisms work at the policy level. Global Partnership, Global Opportunities, It has also stated its belief in multilateral liberalization and rule-making.
Among the objectives that the European Commission has established for the Doha negotiations, the creation of trade flows with growing emerging economies such as China, Brazil and India could be highlighted. The European Union also wants to improve access to the services market Agriculture is an essential subject-matter in the Doha Round.
Difficulties in achieving agreements in that and other sectors have created a general feeling of failure among the contracting parties. Those difficulties will hopefully be overcome with political will and negotiation efforts. However, the Doha Agenda is of a global nature and that means that, for the Round to be concluded, agreements must be achieved in every sector, including agriculture.
At first, the Common Agricultural Policy was seen as an obstacle for progress on the Doha negotiations, since export subsidies, domestic support and control of access to markets protected the EU farmers.
However, its reform in showed the EU commitment to eliminate tariffs and other barriers. Negotiations continued and the EU assumed compromises that would be difficult to fulfill with the CAP. Therefore, new reforms were needed in order to achieve international objectives.
Ina new reform of the CAP tried to modernize the sector and make it more market-oriented. At present, a new reform is being discussed after the presentation of a legal proposal by the Commission. The main idea of the proposal is to make the CAP more effective by increasing the competitiveness and the sustainability of the sector So far, the WTO Dispute Settlement system has served to guarantee that stronger members do not prevail over weaker ones and has provided clear rules on retaliatory measures.
However, the system risks being paralysed as Appellate Body members have been reaching the end of their mandates and vacant positions have not been filled.
Since the creation of the WTO, the EU has been one of the biggest users of its dispute settlement system.
WTO | European Union - Member information
The EU, which is represented by the European Commission, has also often sought to improve and clarify WTO agreements by requesting rulings from its panels and its Appellate Body. The European Parliament closely monitors the evolution of disputes involving the EU. The main goal of this, the ninth round of global trade negotiations, is to place development at the heart of the world trade system. The Doha talks seek to give developing countries an increasing role, as the weight of this group in the world trading system has grown enormously over the past decade.
Like the previous rounds, it seeks to further liberalise trade. Negotiators are also charged with reviewing trade rules and adjusting them to the constantly evolving world trading system. The DDA is based on three pillars: However, the talks have stalled over major issues, mainly related to market access. The most significant differences are between the positions of major emerging countries and those of industrialised countries or blocs concerning the way the international trading system should be reshaped.
The EU supported the launch of a broad and ambitious round. It saw it as the best way to deliver economic growth and development gains for all participants and to allow for the necessary trade-offs.
Yet, despite the considerable efforts of a number of participants notably the EUthe successful conclusion of the negotiations as a whole does not seem to be within reach.
In order to overcome the impasse in the Doha negotiations and keep protectionism at bay, WTO members have focused on achieving results in less controversial areas, which could largely deliver on development goals. They pave the way for revamping the WTO, to address new global trade challenges and help shore up the multilateral rules-based trading system.
The European Parliament has been following these talks closely.