Dáil Éireann Debate, Tuesday - 13 February 2018
317. Deputy Charlie McConalogue asked the Minister for Business, Enterprise and Innovation the ratification procedure at EU and member state level for ratification of potential European trade agreements with the Mercosur trading bloc relating to market access and quotas; the elements that fall under exclusive EU-level competence; and the areas that require national level approval. [7499/18]
Amharc ar fhreagraThe EU’s suite of Free Trade Agreements (FTA’s) has evolved over time, from the ‘First Generation’ FTAs dating back to the 1970’s which focused on tariffs for goods, to the current ‘New Generation’ of FTAs which go beyond the reduction or elimination of conventional tariff barriers to include; non-tariff and regulatory barriers, services, investment, recognition of professional qualifications, intellectual property rights, access to public procurement, regulatory cooperation, sustainable development, labour and environment.
As the Deputy will be aware the Common Commercial Policy is an exclusive competence of the European Union under the Treaty of the Functioning of the European Union. The Lisbon Treaty extended this competence to cover foreign direct investment, as well as making the European Parliament a co-legislator alongside the Council on trade matters. The European Commission acts as lead negotiator on behalf of all EU countries regarding trade agreements with non-EU countries. Member States (in Council) approve negotiating directives (or mandates) before negotiations begin, are kept informed of developments as the negotiations proceed and have final approval at Council.
The European Commission sought the opinion of the Court of Justice of the European Union (CJEU) in relation to the competence of the European Union to sign and conclude the EU Singapore Free Trade Agreement. The CJEU’s Opinion issued on 16 May 2017, and found that the Free Trade Agreement between the EU and the Republic of Singapore (EUSFTA) cannot be signed and concluded by the EU alone: it has to be signed and concluded both by the EU and by each of its Member States, i.e. that it is a ‘Mixed Agreement’. The Opinion found that some aspects of the agreement fall within the EU’s exclusive competence while other aspects will require additional approval from national and regional legislatures. These are referred to as ‘shared competences’. The competences shared between the EU and the Member States are provisions on investment protection in so far as they relate to non-direct foreign investment (i.e., portfolio investments); and provisions on Investor-State Dispute Settlement (ISDS). The implications of the Opinion therefore are that areas relating to market access and quotas as raised by the Deputy fall within the exclusive competence of the European Commission. The Opinion means that those aspects of a trade agreement in respect of which the EU does not have exclusive competence, cannot be applied until ratified by all Member States, including Ireland, according to the requirements of their national law.
Therefore, the ratification process regarding individual trade agreements, including any future EU trade agreement with Mercosur, must be taken on a case-by-case basis depending on the issues comprehended by the agreement. Where appropriate, my Department seeks legal advice on the appropriate ratification process to follow in each case.
