EUROPEAN UNION LAW
W.B. Fisch, Winter 2001
Assignment #37

[Ch. 26 THE EXTERNAL RELATIONS POWERS OF THE EUROPEAN COMMUNITY

[B. The Court of Justice and the Community's Powers in External Relations]
2. The Scope of Explicit Powers: the Rubber Agreement Opinion

INTERNATIONAL AGREEMENT ON NATURAL RUBBER, p. 909 (1979). Opinion of the Court under ex art. 228 on the competence of the Community to enter into the titular agreement.

what is it about the overall structure of the IANR agreement that sets it apart from other international trade agreements?
why is it "not possible" to interpret ex art. 113 so as to exclude such agreements?

is the listing of subject-matters in the article an exclusive one?
are there interests among the MS which correspond to those of natural rubber producers, such that in other sectors the EC might itself seek an agreement like this one?
are "economic policy" (original art. 6, ex arts. 102a ff., ex art. 145) and "commercial policy" (ex arts. 110 ff.) mutually exclusive subjects? What happened to the apparent assumption of the original treaty, that the EEC would deal only with the latter directly, and seek only coordination of MS policies on the former?

if the IANR can properly qualify as one implementing common commercial policy, what other issues of Community competence does it present?
if a proposed international agreement presents both issues over which the Community is exclusively competent and issues over which the MS are exclusively competent, is there a problem with proceeding to negotiate along both tracks, with EC and MS participating?

OPINION 1/94, Supp. p. 347 (1994): GATS and TRIPS - agreements negotiated under GATT relating to trade in services and to trade-related aspects of intellectual property -- and WTO agreement itself, all arising out of "Uruguay Round". Which is competent: EC, MS, or both?

Do services generally fall under the "common commercial policy" (ex 113)?
Do services as defined in GATS fall under ex 113? How do we know?

Cross-frontier supplies not involving movement of persons
Consumption abroad (consumer moving to supplier in another country)
"Commercial presence" (supplier moving to consumer in another country through subsidiary or branch)
"Presence of natural persons" from another country to supply services

Do transport services fall under ex 113? If not, why not?
Do IP protections fall under ex 113? If not, why not?
Does any of the above fall under "implied powers"?

Has the EC acted to establish uniform rules under internal law for the specific sectors?
If the EC has acted in some sectors or portions of sectors but not others, do the MS retain their competence along with that of the Community?

How does the sharing of competence work? Does the MS duty to cooperate in achieving Community objectives give the Community primary responsibility?