Shared powers: the elephant in the room in the division of powers-debate

Abstract:

The saga surrounding the signing of the Comprehensive Economic and Trade Agreement (CETA) has again brought the issue of the division of foreign affairs powers between the EU and its Member States to the centre of attention of many an EU lawyer. How far do the EU’s exclusive powers to conduct a ‘common commercial policy’ reach? Do implied powers supplement the EU’s express exclusive powers in this area? Is it appropriate to apply a so-called ‘centre of gravity’ test when assessing the vires of a particular EU action on the international scene, or should a piecemeal approach be followed, whereby the inclusion of a single provision that reaches beyond the scope of the EU’s exclusive powers requires a proposed international agreement to be adopted as a ‘mixed’ agreement?

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