As a result, by extending the right to wireless funds, Member States would have “retained” responsibility for a higher level of protection. Therefore, the inclusion of such a right in the proposed international agreement could not undermine the EU`s common rules on proliferation law. Member States have moved the “minimum harmonisation” exception beyond the limits of their own logic. As noted above, the purpose of the exception in Findings 2/91 was to allow for an “increase in the bar”; the level of protection already provided by the common EU rules would not be affected, in the principle of the ERTA, if a proposed international agreement provides for a higher level of protection and allows the European legislator to continue to “raise” the bar if he wishes. The ECJ`s “largely covered” approach in its ERTA case line always reminds me of the reverse test it does in cases involving a “functional succession.” In cases where the EU could be bound by an international agreement involving all Member States, but not the EU, the ECJ argues that this can only be done if the areas covered by the agreement have been taken up by the EU in their “entirety”. That is why I am wondering whether the `widely covered` test has a solid legal basis and argument or whether it is merely an instrument to expand the EU`s powers outside? I tend to think it`s the last one. Therefore, if the EU can acquire implicit external competences, it is sufficient that the areas covered by the international agreement are “largely” covered by internal EU rules. However, if the EU is at risk of being subject to international obligations through a functional succession, the “fully covered” test is good for protecting the EU from international obligations. The Council and a number of Member States disagreed with the Commission.

They criticised the Commission`s “wholesale trade” approach, which stated that it was enough to “cover a sector to a large extent” to have an ERTA effect. In the view of the Member States and the Council, “a conclusion [in favour of an ERTA effect] can only be drawn after a precise and specific analysis of the nature and content of the EU rules at issue and the relationship between those rules and the draft agreement establishing that this agreement is likely to affect these rules or change their scope” (point 50). The justification for the exception was reasonable: if the EU legislator itself allows Member States to “raise the bar further” and if the international agreement proposed by the Member States does not prevent the EU from lowering the bar further, the international agreement of the Member States would probably not affect the “common rules or change their scope” within the meaning of the ERTA principle. [3] In the Court`s view, this regime is different from the one at issue in findings 2/91. In this opinion, the UNION wanted to reach an agreement in an area where the EU itself did not have the power to fully harmonize the legislation; its jurisdiction was limited to setting minimum standards (see Article 118 bis CEE).

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