Professor Panos Koutrakos:

In our view there are three main reasons for this. The first is that, under the primary law of the EU treaties, the freedom to provide cross-border services within the EU is subject to a public policy exception, which we find in Article 62 of the TFEU in conjunction with Article 52 of the TFEU. Trade in goods within the EU and trade in goods with third countries are also subject to a public policy exception within the EU by virtue of Article 36 of the TFEU, and trade in goods with third countries under Article 24 of the import regulation. The same applies to the free movement of capital, both within the EU and between the EU and third countries, as Article 65(1)(b) of the TFEU tells us.

It would be very odd if EU law were interpreted to mean that the powers of member states to restrict trade in services with third countries was significantly more curtailed than the power to restrict trade in goods, capital and in trade in services. In our view such a conclusion would be problematic and it would be justified by neither a systematic nor a purposive interpretation of EU law. It is difficult to see why, in contrast to all other areas referred to above, member states may not rely on the public policy exception in relation to trade in services with third countries in cases where an EU measure does not expressly prohibit such reliance. That is our first point.

Second, in this case, the primary objective of the Bill is not regulatory. It is rather to pursue a foreign policy objective. If the common commercial policy were interpreted as widely as to encompass any national foreign policy measure that had implications on trade, the freedom of member states to conduct effective foreign policy would be curtailed very substantially.

Third, the objective of the Bill pursued by the restriction on trade in services is consistent with the objectives of the EU common commercial policy. Article 21(2) of the TFEU expressly tells us that EU external action must seek to "consolidate and support democracy, the rule of law, human rights and the principles of international law", and to "preserve peace, prevent conflicts and strengthen international security". Under Article 21(3) of the TFEU, the conduct of the common commercial policy must pursue these objectives which, according to the case law of the Court of Justice, form an "integral part" of the common commercial policy.

On the basis of these three main reasons, we take the view that a member state may rely on public policy to restrict trade in services with a third country where such a restriction meets a number of conditions: it expresses a foreign policy choice on the part of a member state and pursues foreign policy objectives and not trade objectives, even though it may have effects on trade; it is adopted to comply with international law obligations which bind the member states and the EU, such as the Fourth Geneva Convention; it does not contradict a specific EU measure; and it complies with the principle of proportionality.

It is not only on the basis of a service-specific provision of EU law that member states may impose such restrictions. They may also do so on the basis of an express exception that is laid down in the Treaty on the Functioning of the European Union, and in particular in Article 347. This is a provision that has been viewed by the Court of Justice as not just exceptional but "wholly exceptional" for a number of reasons. It enables member states to deviate from any EU legislation in any policy field, therefore in trade in services with third countries too. It enables them to do so on three specific grounds of exceptional seriousness, including in the event of war, serious international tension constituting a threat of war, or to carry out obligations the state has accepted for the purpose of maintaining peace and international security. Reliance on this exceptional provision is subject to the exceptional jurisdiction of the Court of Justice under Article 348 of the TFEU.

In our view, a ban on trade in services in the context of this Bill would be justified under Article 347. First, its objective is to enable Ireland to carry out obligations it has accepted for the purpose of maintaining peace and international security. We understand that such a ban would be adopted to comply with the international obligations set out in the International Court of Justice advisory opinion of July 2024. Such a measure adopted by Ireland in order to comply with international law obligations as a UN member may be considered as a measure adopted to carry out obligations that Ireland has accepted for the purpose of maintaining peace and international security within the meaning of Article 347. Second, the ban also meets the principle of proportionality.

I will repeat one point that was made earlier by Professor Tridimas, that our approach to the issues arising for discussion is strictly legal. We do not express any view on the underlying political issues that arise in this case. I thank the committee and we are at the disposal of the committee members to answer any questions they may have.