The Legal Service of the Council of the European Union considers that certain measures of the proposed regulation for an anti-coercion instrument (see EUROPE 12849/1) need to be examined. In a note dated 30 August and obtained by EUROPE, it questions the legal basis of three measures proposed by the European Commission to respond to third countries which exert economic coercion on the EU or one of its Member States.
The first action raised by the Legal Service concerns the lifting of obligations on intellectual property rights. The Commission had listed as a possible measure “the suspension of international obligations concerning the commercial aspects of intellectual property rights”.
Lawyers caution that such a step can only be taken if the intellectual property obligations are part of a trade agreement. For example, if the EU failed to fulfil its intellectual property protection obligations towards a third country when these arise from a non-trade-related international agreement or treaty, this would be seen as an over-extension of the common trade policy.
The Legal Service then looked at the Commission’s proposal to exclude a country from certain research funding programmes. This time, it considers that this action should simply be withdrawn, as it does not fall within the scope of the EU’s trade policy.
Finally, the third measure examined concerns the designation of economic operators linked to the government of the coercing third country. This type of action may fall within the remit of EU trade policy, but clarification is needed to ensure this, the Legal Service says.
The EU Council is still waiting for comments from Member States on the proposed regulation for an anti-coercion tool.
See the EU Council’s legal service document: https://aeur.eu/f/2yk (Original version in French by Léa Marchal)