The Single European Act and 1992:

II. The SEA - Its Missing Reference to Foreign Trade Relations

The SEA intends to amend the three founding treaties of the European Communities and to link the rather loosely-knit "European Political Cooperation" (EPC) to the Community's institutional framework. To the unbiased reader, the amendments could take the appearance of mere "window-dressing": Art. 8A introduces the notion of an "internal market", replacing the well-established one of a "common market" in Art. 2 of the original EEC Treaty. It is difficult to discern differences between these two notions.¹⁰ Consequently, the SEA only purports to realize under a new flag the objectives which had already been set out in the founding treaties of 1951-57, by setting a definite date for the completion of the "internal market", i.e. 31 December 1992,¹¹ and by streamlining the decision-making process, that is by opening the field of harmonization to majority decisions in the Council (Art. 100A). A further reform consists in conceding the European Parliament (EP) a greater influence within the newly designed "procedure of cooperation" under Art. 149. And, finally, the conclusion of treaties of accession and of "association" - whatever that means - have become subject to the prior approval of the European Parliament.In addition, the SEA explicitly confers new legislative powers on the Community: in the field of economic and monetary cooperation, health and safety of workers, regional policy, research and technological development as well as environmental protection - legislative areas in which the Community had already taken actions on the basis of inherent powers or, more specifically, on the basis of Art. 235.

Clearly, the text of the SEA underlines the Member States' introverted intentions to achieve the internal market within the Community. No mention is made, for example, of a reform of the Common Commercial Policy (CCP) under Art. 110 et seq., or of its various instruments which could be applied to protect the internal market against third countries - with the exception of the amendment to Art. 28 which now empowers the Council, deciding by a qualified majority and no longer by unanimity, to alter autonomously the Common Customs Tariff.

Yet, there are three explicit, albeit minor references to foreign relations. First, the fifth paragraph of the preamble to the SEA refers to Europe's responsibility to speak with one voice and act in unity and solidarity in order to defend Europe's common interests. However, the preamble is not legally binding and may only help the interpreter in construing the SEA. It obviously refers to the incorporation of the EPC, as the fifth paragraph of the preamble underlines the importance of maintaining world peace and international security.

The incorporation in Art. 1(3) and Art. 30 SEA of the EPC may be considered a second element which bears on relations with third countries: this incorporation, however, does not add any new competence to the Community. It simply restates existing practices which have been developed by the Member States outside the formal structure of the EC Treaties. The relevant Art. 30 SEA is nevertheless likely to generate more consistency in the EC's external economic policy on the one hand and the more comprehensive foreign policies agreed upon in the framework of the EPC on the other hand - both branches being linked by the obligation of coherence in Art. 30(5) SEA.¹²

The third clause relating to foreign relations is contained in Art. 130R(5) which, in environmental matters, provides for a cooperation between the Community and its Member States on the international level "within their respective spheres of competence." This cooperation is not meant to bar Member States from concluding international agreements on their own (subpara. 2) as long as the Community has not enacted legislation or concluded international agreements in the field of environmental protection.¹³

On the whole, the SEA does not change the CCP as it has developed under the EEC Treaty. Since 1957, one of the primary objectives of the EEC Treaty has been to contribute to the progressive abolition of all restrictions on international trade (cf. 6th paragraph of the preamble to the EEC Treaty). Art. 110(1) expressly mentions the harmonious development of world trade. Since the end of the transitional period on 1 July 1968, the EC has started to act on behalf of its Member States within the framework of GATT and has concluded a number of GATT agreements.¹⁴ This general orientation towards multilateral international cooperation has guided the Community in the negotiations during the Uruguay Round and was not reversed, redirected or in any way revised by the text or the motives of the SEA.

Finally, the White Paper of 1985,¹⁵ in which the Commission laid down the prospects for a true internal market (two years before the SEA came into effect!), does not contain any reference to the CCP except for one short passage on the Communities' identity¹⁶ which, however, could be understood as to give the Community a more "aggressive" approach vis-à-vis third countries. But in essence, the White Paper should be understood as spelling out the legislative programme for the completion of the "internal market." The SEA does not refer explicitly to this Paper, but the Conference of the EC Member States which concluded the SEA did so in one of the many declarations contained in the Final Act.¹⁷

Bearing in mind the brevity of these isolated references to the Community's external relations, the mere language of the SEA should hardly have caused so much concern in many countries outside of the EC. The Community will continue to be bound by its founding treaties and by its international obligations which - according to the doubtful, but widely accepted doctrine of the Court of Justice - take priority over any act of secondary Community law.¹⁸ How then could - judged by its actual wording - the rather harmless SEA have come to be identified with the imagery of a "Fortress Europe"? Would it not be more reasonable to leave the debate to economists and politicians to come up with the final analysis of the external effects of the internal market after 1 January 1993?

Such an approach would overlook a number of genuinely legal implications for third countries which are inherent in the process of creating the internal market under the SEA. It is these indirect legal implications that shall be identified in the following section.

10 See C. D. Ehlermann, `The Internal Market Following the Single European Act', 24 CML Rev. (1987), 361, 369.

11 In a Declaration annexed to the SEA the "Conference" concludes that the date of 31 December 1992 does not create an automatic legal effect. It will have to be seen whether the Court of Justice of the European Communities will ignore this Declaration when interpreting Art. 8 A for the period after 1993. This Declaration cannot be considered an integral part of the SEA. It has not been signed and was not subject to formal ratification. At most the declaration can form part of the "context" of the conclusion of the SEA in accordance with Art. 31 of the Vienna Convention on the Law of Treaties. In addition, Art. 31 SEA stipulates expressly that the Court of Justice shall exercise jurisdiction only with regard to Title II and Art. 32 SEA. This does not refer to the 20 declarations. For further discussion see Toth, `The Legal Status of the Declarations annexed to the Single European Act.', 23 CML Rev. (1986) 803, and D. Simon, `De l'Acte unique au marché unique, 10 JDI (1989) 265, 284.

12 See V. Constantinesco, `Les compétences internationales de la Communauté et des Etats membres à travers l'Acte unique européen', in P. Demaret (ed.), Relations extérieures de la Communauté européenne et du marché intérieur (1986) 63, at 70; Art. 30(12) SEA provides for a revision of the incorporation of the EPC into the SEA by the end of 1992. At present it is not possible to predict the outcome of such a revision.

13 The dividing line between powers still belonging to the Member States and those now held by the EC is still unclear. The position taken in the text is shared , inter alia, by R. Kovar, Table ronde de la Faculté de droit de Strasbourg sur `l'Acte unique', 14 March 1986; see also Constantinesco, supra note 11.

14 E.-U. Petersmann, `The EEC as a GATT Member - Legal Conflict between GATT Law and European Community Law', in M. Hilf, F. Jacobs, E.-U. Petersmann (eds.), The European Community and GATT (1986) 23.

15 Completing the Internal Market, White Paper from the Commission to the European Council, 14 June 1985, COM (85) 310 final.

16 "Moreover the commercial identity of the Community must be consolidated so that our trading partners will not be given the benefit of a wider market without themselves making similar concessions",White Paper, supra note 14, para. 19.

17 OJ (1987) L 169/24 (Declaration on Article 8A of the EEC Treaty).

18 This doctrine of priority is a.o. either based on Art. 228(2). According to which agreements shall be binding on the institutions of the Community or on the necessity of coherence as Community, on its side, too has priority over national law. The relevant case law may be found in the Schlüter 9/73, [1973] ECR 1135, 1157, and International Fruit Company cases 21-24/72 [1972] ECR 1219; for further references see P. Brückner, in J.V. Louis, P. Brückner, Le droit de la Communauté économique européenne, Vol. 12: Relations extérieures (1980) 183, as well as M. Schröder, in H. Groeben et al., Kommentar zum EWG-Vertrag (3rd ed., Vol. 2) (1983), Art. 228, 27-30. The ECJ, however, has not explicitly stated as the questions of priority and has never annulled any rule of secondary Community law on the basis of a conflicting rule of international treaty law. Thus the debate is still open: for a critical assessment see Schröder and Hilf, `The Application of GATT within the Member States of the European Community', in M. Hilf, F. Jacobs, E.-U. Petersmann (eds.) supra note 13, 153, 162 n. 40.

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