The Common Commercial Policy, Member State Powers, and Cycles of Imperfect Delegation

The Common Commercial Policy (CCP) is the EU’s oldest and most well-integrated external policy area, of ‘primordial importance’, over which it exercises exclusive competence. Unlike the CFSP or CSDP, which follow intergovernmental decision-making premised on Member States largely maintaining their veto powers, and the supranational Commission, European Parliament, and Court of Justice enjoying very limited roles, the CCP is largely governed along supranational lines. The Commission plays a central role in the negotiation of trade agreements, the chosen measures to implement the CCP are in the form of directly applicable regulations adopted pursuant to the ordinary legislative procedure, and with some exceptions, the Council must use qualified majority voting when concluding international agreements. Moreover, the Court of Justice has full jurisdiction. Thus, one would expect Member States to have a limited role in shaping the supranational CCP, once competences have been transferred to the EU. Nonetheless, the aim of this paper is to challenge the afore-mentioned assumption and show how various cycles of imperfect competence delegation (‘imperfect delegation’) give ample opportunity to the Member States to continuously mould the CCP. Imperfect delegations are followed by periods of instability that elicit various forms of Commission entrepreneurship, as well as Member State contestation. This is to be expected, ‘as the boundaries of policy fields are anything but innocent descriptions of empirical facts. They are genuinely political statements.’ The Court of Justice will often have to assume the role of arbiter. Eventually, there is stabilization and Member State acceptance, until a new cycle starts, prompted by a new form of imperfect delegation. Part 2 of the paper is a mostly historical overview of Cycle One of imperfect delegation, named ‘Broad Trade’. This cycle, spanning over two decades (1994-2018), is an example of how Member States initially contested the CCP competences over broader trade issues, such as trade in services and the commercial aspects of intellectual property (IP). However, following several rounds of Commission entrepreneurship, Member State contestation, and Court of Justice ‘mediation’ of competing interests, the Member States have now accepted the delegation. Part 3 focuses on Cycle Two of imperfect delegation: ‘Foreign Investment’ (2009-present). In this highly contested area, the Member States used various tactics to dampen the effects of FDI competence delegation, such as making exclusive competences ‘less exclusive’ through the adoption of secondary legislation, pushing for the ‘mixed’ conclusion of international agreements, and curtailing the powers of the Commission. Whilst there are signs of some level of Member State acceptance following these episodes of unified pushback, Cycle Two is yet to be fully stabilized. However, there also cases when Member States did not act with a unified voice and were willing to more easily accept the delegation. Part 4 looks at more recent areas of contestation, such as the blending of national security with concerns of economic security and the EU’s strategic autonomy. Given the importance of national security for Member States, it is expected that the Third Cycle (‘Economic Security’, 2019-present) will also lead to increased Member State contestation.