Beyond parallel powers. EU treaty-making power post-lisbon

Abstract

This chapter examines the competence divide between the EU and the Member States in the field of the common commercial policy, and its relation to the internal division of competence relating to the common market. It considers that in light of the novelties introduced by the Treaty of Lisbon and the developments that have occurred in recent case law and practice, there seems to be an emerging trend pointing to a conceptual and practical separation of EU external and internal powers-which would mark a departure from the so-called principle of parallel powers. As is well known, the latter requires that EU internal competences be mirrored by corresponding parallel external competences. However, it is argued that it does not impose a parallel in the other direction, bringing the authors to the conclusion that the EU has the power to conclude an agreement even in areas where the corresponding internal powers belong to the Member States. The competence of the latter would not be infringed or encroached upon by the conclusion of such an agreement to the extent that the Member States retain the power to implement the agreement at the internal level. This chapter demonstrates that this trend has clearly emerged in the framework of the common commercial policy but it may in principle also apply to other EU external powers.