Edited by Isabelle Bosse-Platière and Cécile Rapoport
Chapter 2: The Opinion on the free trade agreement with Singapore and its aftermath: some personal reflections
While many of the ramifications of the European Court of Justice’s Opinion 2/15 have yet to be examined, the Opinion contains a number of issues which could potentially affect the conclusion of future free trade agreements (FTAs). First of all, in some crucial passages the Court proposed an evolutionary interpretation of the common commercial policy (CCP). The concept of ‘on an equal footing basis’ represents the crucial, modern idea which lies behind some passages of the Opinion, confirming that trade is no longer just about regulating customs and liberalization. Later judgments have also made a wide interpretation of trade-related aspects of intellectual property. The most controversial issues in the Opinion are found in the Court’s comments about portfolio investments and investor-State dispute settlement (ISDS). As of now, the future perspectives on this point are not clear, and one should expect some challenges in shaping FTAs post-Opinion 2/15. Major problems may arise in those areas which require approval from Member States, even if later judgments have clarified that lack of exclusive competence does not always mean that Member States have to be parties alongside the Union. There, the final decision will depend on the reaction of the Council and on those of the political actors involved in the negotiations and conclusion of such agreements.
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