CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EUǧSINGAPORE INVESTMENT PROTECTION AGREEMENT IN THE LIGHT … The significant CJ EU Opinion 2/15 6 changed the architecture of the all FTAs with investment chapters. During the negotiations, the Member States were consistently underlining that the mandate was given to negotiate a mixed agreement (requiring to be concluded by both the EU and the Member States). The Member States argued that the EU together with the Member States has shared competences to several chapters of the agreement, including the investment chapter. Hence the Commission decided to seek the CJ EU’ opinion on the division of the competences between the EU and its Member States in relation to the content of the EU- Singapore FTA. 7 The CJ EU decided in May 2017 on the mixed nature of the agreement as follows: “ The Free Trade Agreement between the European Union and the Republic of Singapore falls within the exclusive competence of the European Union, with the exception of the following provisions, which fall within a competence shared between the European Union and the Member States: – the provisions of Section A (Investment Protection) of Chapter 9 (Investment) of that agreement, in so far as they relate to non-direct investment between the European Union and the Republic of Singapore; – the provisions of Section B (Investor-State Dispute Settlement) of Chapter 9; and – the provisions of Chapters 1 (Objectives and General Definitions), 14 (Transparency), 15 (Dispute Settlement between the Parties), 16 (Mediation Mechanism) and 17 (Institutional, General and Final Provisions) of that agreement, in so far as those provisions relate to the provisions of Chapter 9 and to the extent that the latter fall within a competence shared between the European Union and the Member States. ” 8 It is worth noting that the CJ EU decided on the narrower scope of mixity, in comparison to AG Sharpston opinion under which transport, non-commercial aspects of intellectual property rights and fundamental labour and environmental standards also belongs to shared competence. 9 The confirmed mixed nature of the EU-Singapore FTA would lead to delay in the full application of the treaty. This is because the provisions belonging to shared competence cannot be provisionally applied. Therefore, the agreement was split into two separate agreements: (i) FTA in the exclusive competence of the EU and (ii) Investment Protection Agreement as a mixed agreement in the shared competence of the EU and the Member States. The Investment Protection Agreement was signed in October 2018 by the EU and the Member States. The European Parliament gave its consent on 13 February 2019. The EU-Singapore IPA will come into effect after the ratification process is completed in all Member States, it will not be provisionally applied. The split of FTA into two standalone agreements was a logical and pragmatic implementation of the Opinion 2/15. The same split was also adopted in case of FTA negotiations with 6 Free Trade Agreement with Singapore, ECLI:EU:C:2016:992. 7 In particular, the following questions were submitted to the CJ EU: “ Does the Union have the requisite competence to sign and conclude alone the Free Trade Agreement with Singapore? More specifically, 1. which provisions of the agreement fall within the Union’s exclusive competence? 2. which provisions of the agreement fall within the Union’s shared competence? and 3. is there any provision of the agreement that falls within the exclusive competence of the Member States? ” 8 Opinion 2/15, para 305. 9 Advocate General’s Opinion inOpinion procedure 2/15, ECLI:EU:C:2016:992, para 562. See also LENK, Hannes Mixity in EU ForeignTrade Policy Is Here to Stay: Advocate General Sharpston on the Allocation of Competence for the Conclusion of the EU-Singapore FTA, European Papers , Vol. 2, No. 1, 2017.

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