Balancing Union and Member State Interests: Opinion 1/2008, choice of legal base and the common commercial policy under the Treaty of Lisbon

Abstract

In Opinion 1/2008 on agreements amending the EC's schedules of commitments under the GATS, the Court of Justice interpreted the “Nice version” of art.133 EC and, in particular, the special provision in art.133(6) for joint EC and Member State participation in commercial policy agreements relating to certain service sectors. This contribution analyses the Court's approach to competence and choice of legal base in the context of art.133(6), and argues that in rejecting the classic “centre of gravity” test, this Opinion demonstrates the limitations of that approach in the case of international agreements, particularly where competence boundaries are at issue. It examines the implications of Opinion 1/2008 for the interpretation of art.207 TFEU and the mechanisms included in that new provision for the protection of Member State interests while the EU pursues its interest in establishing a comprehensive, coherent and effective external commercial policy.