Despite the growing importance of services, the continued involvement of EU Member States within EU trade policymaking for services remains insufficiently examined. The Commission v Hungary (Higher Education) case illustrated how Member States retain a decisive role in determining and implementing commitments for international trade in services, even within the Union’s exclusive competence for the Common Commercial Policy. This article examines how EU law structures this continued involvement in relation to the Union’s exclusive competence and how it shapes the operation of EU trade policymaking in services. It shows that the persistence of regulatory flexibilities and the lack of harmonization continue to sustain Member State involvement. While the duty of cooperation enables the Union to act externally in areas where implementation remains nationally embedded, it cannot overcome the underlying structural constraints of trade regulation in services. EU trade policy in services thus operates under something that may be described as a ‘rule of domestic law’: a framework in which the parameters of external liberalization are defined by the contours of Member State regulation.
Common Market Law Review