This blogpost concerns probably my favorite EU law topic: the scope of the Common Commercial Policy (CCP). The scope of the CCP as a source of litigation between the Council and the Commission goes way back and most likely will continue to be so for a considerable time. The reasons are quite simple: the Common Commercial Policy is an important foreign policy tool and exclusive EU competence. As such, Member States are not entitled to act within this politically sensitive field. This is different with respect to shared competences of course, which enable Member States – subject to the Treaties – to continue to make policy that is not in violation of existing secondary legislation. In the most recent edition of this feud between the Commission and the Council, the scope of the Common Commercial Policy was at issue vis-à-vis the scope of internal market competences. Litigation in the past has usually evolved around the relationship between trade (art. 207 TFEU) and environment (art. 192 TFEU), so this case is a welcome variant to that strand of case law already explored in the Daiichi Sankyo case (commented here). In this case the Commission won yet another victory against the Council.
The summer holidays are over and it is time to start with a particularly interesting Grand Chamber ruling by the CJEU from this summer. In Case C-414/11, Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon, the CJEU turned its highly contentious Opinion 1/94 on its head in light of a number of Treaty changes to the scope of the common commercial policy. Significantly, the Court seems less concerned with the potential ‘abuse’ of certain legal bases by regulating ‘internally’ through international agreements. The CJEU also clarified its case law on the distinction between the scope of article 114 TFEU (internal market) as opposed to article 207 TFEU (common commercial policy). Continue reading