The competence to conclude the new generation of free trade agreements: lessons from Opinion 2/15

Opinion 2/15 addresses the question of the external competence of the EU to conclude a free trade agreement with Singapore (EUSFTA). The nature of the EU’s competence determines the conclusion of an EU-only agreement, or a mixed agreement, jointly by the Union and its Member States. The Court of Justice of the European Union held that the EU competence to conclude the EUSFTA is not exclusive, as long as provisions concerning non-direct investments and dispute settlement fall under the shared competence of the Union and its Member States. The Court of Justice made valuable contributions to the interpretation of the scope of the Union’s competence in the field of common commercial policy, comprising sustainable development provisions, as well as to the interpretation of implied external competences, and clarified the status of non-substantive provisions. However, uncertainty remains as far as the meaning and the impact of a shared competence are concerned.