Lost in Exclusivity: Implied Non–exclusive External Competences in Community Law

Abstract: Implied non–exclusive competences empower the Community to conclude international agreements and, if such power is used, forestall Member States from acting. With the focus in this field rather on the more momentous category of implied exclusive competences, the very existence of such competences has either been disputed or has been confirmed without further specification. The authors show that, after inconsistent early case law, matters have been clarified by the Lugano Opinion of the European Court of Justice. As a consequence, it is argued for the facilitation test as criterion for the coming into existence of implied nonexclusive competences and yardsticks for its application are suggested. In this context, the authors observe striking analogies to the case law on the delimitation of competences between the pillars. Finally, past and future implications for treaty–making practice are explored, among others by topical example of the Minimum Platform on Investment.