CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … Art. 6 TFEU). Should the restriction stipulated in Art. 207 (6) TFEU be complied with, the above mentioned fields of trade in services should still fall under the shared competence of the Union and its Member States, and would thus be subject to the so-called “mixed agreements”. 133

133 The delimitation of competence between the Community and its Member States in relation to Art. 133 (5)-(6) TEC was the subject matter of request for opinion 1/08 “ GATS compensation agreements ” (opinion 1/08 was delivered on 30 November 2009), as well as case C-13/07 Commission v. Council (still pending). Although the ECJ interpreted the wording of Art. 133 TEC and not the amended provisions of the TFEU, some of the Court’s reasoning should still be relevant for the new arrangements under Art. 207 TFEU (see, e.g., para. 142, which makes it clear that the requirement of voting procedure (in this case unanimity) merely states the manner in which the competence is to be exercised, but does not prejudice whether it is an exclusive or shared competence). However, given the reasoning in the written and oral pleadings of the European Commission in the above mentioned cases, it can be expected that the Commission will consider all fields of trade in services as falling under the exclusive Union competence under the Treaty of Lisbon, and consequently it cannot be ruled out that there will be future proceedings before the ECJ in order to clarify these issues (especially due to the fact that 15 Member States, including the Czech Republic, supported the Council against the Commission, which demonstrates the importance and sensitivity of this area).

63