EU Advisor says EU-Singapore FTA must be ratified by all Member States

Posted on: 22/12/2016

On 21st December 2016 the Advocate General Eleanor Sharpston, QC, an independent advisor to the EU Courts of Justice (CJEU), said that the EU-Free Trade Agreement must be ratified by national parliaments’ before it can become law.  The issue of whether the FTA can be concluded by the EU only (through the EU Council and the European Parliament) is very important and will affect future EU trade agreements (including Brexit negotiations) if the opinion is up-held by the CJEU.  The CJEU ruling is expected wihtin 3 to 6 months of this opinion. 

The text of the EU-Singapore FTA (EUSFTA) was initialled by the European Commission and Singapore in 2013. It covers matters for which the EU has exclusive competence under the EU Treaties to negotiate and conclude agreements, but also features certain topics which, it can be argued, both the EU and Member States have competence over – resulting in a so-called "mixed agreement" (which the EU and the Member States must jointly conclude, with lengthy ratification procedures).

In 2014, the Commission asked the CJEU to rule on the allocation of competences between the EU and the Member States in relation to EUSFTA. The Question asked was:

Does the Union have the requisite competence to sign and conclude alone the Free Trade Agreement with Singapore? More specifically:

—        Which provisions of the agreement fall within the Union’s exclusive competence?

—        Which provisions of the agreement fall within the Union’s shared competence? and

—        Is there any provision of the agreement that falls within the exclusive competence of the Member States?

The Advocate General said that the EU has no external competence to terminate and replace bilateral agreements previously concluded between certain Member States and Singapore (such as bilateral investment treaties, which EUSFTA FDI provisions aim to replace). That power sits exclusively with the relevant Member State, and it would have to take appropriate steps to eliminate any incompatibilities between the agreements to which they are a party and their EU law obligations.

While non-binding, the adviser’s view is a blow to the European Commission, which negotiates trade deals on behalf of EU governments and has faced criticism that important pacts shouldn’t be decided only by Brussels.

The text of the Advocate General's opinion can be found here

EU-Singapore Free Trade Agreement. Authentic text as of May 2015 Read More

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