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.
On the 24th of September the CJEU delivered its judgement in the Demirkan case. Ms Demirkan, a Turkish national, had requested a short-term tourist Visa to German authorities to go and visit her stepfather, a German national. However, since the German authorities rejected her request, Ms Demirkan attacked the decision arguing that on the basis of Article 41(1) of the Additional Protocol to the EU–Turkey Association Agreement she was entitled to enter Germany without a Visa because at the time of the conclusion of the Additional Protocol -1970- Turkish nationals did not need a Visa to enter Germany as tourists. On the basis of Ms Demirkan’s claim, the referring court in Berlin addressed two questions to the CJEU. First, it asked whether article 41(1) of the Additional protocol containing the ‘stand-still’ clause on restrictions related to the freedom of establishment and the freedom to provide services included the passive reception of services. Secondly, the referring court asked the CJEU whether a tourist traveling to visit family could be considered as a passive recipient of services when the purpose of traveling is personal and not economical. Continue reading
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