2 - EU Decision-Making in Trade, Climate and Investment Regimes Flashcards
What does this lecture on EU decision-making in CTI explore? (5)
1/ division of powers btwn EU institutions for adoption autonomous measures
2/ DP for negotiation and conclusion international agreements
3/ DP for participation in decision-making in international bodies
4/ DP for participation in DS
5/ ability of NPs, EP and public to exercise democratic control over EC and Council in formulation and implementation of IAs
Outline of lecture on EU decision-making in TCI? (4)
1/ negotiation and conclusion of IAs in EU legal order
2/ participation in decision-making in int. bodies
3/ participation in DS
4/ adoption of autonomous measures
What is the nature of the treaty making regime? (2)
1/ hybrid regime
2/ combination exercise of legislative and executive power?
Considerations on int. treaty making? (5)
1/ international treaties = contracts btwn States or IOs
2/ treaties have binding force in IL
3/ treaties may sometimes be subject to additional implementing procedures to gain binding force in domestic legal order
4/ traditionally, foreign affairs are associated with executive power
5/ but with internationalisation of trade and commerce, regulatory IAs appeared and idea of treaty-making power as exclusive part of executive branch has become doubtful
What do trade agreements do? (2)
1/ in past: liberalising and removing tariffs & quotas on certain goods (negative integration)
2/ today: regulation of technical standards, IP rights, procurement, commitments related to labor/HR/climate policy (positive integration)
What are consequences of modern trade agreements and positive integration? (2)
1/ constitutional implications: the deeper the regulation, the greater the need for democratic participation and scrutiny
2/ executive actors need to be effective but must also be prevented from abusing power
Where is EU exclusive competence for CCP codified?
Art. 3(1)(e) TFEU
General considerations on CCP and question of competence? (3)
1/ trade policy = only exclusive competence EU in field of foreign policy
2/ therefore, broad interpretation and frequent use of CCP competence
3/ after 2005 and failure Doha Round at WTO, EU has sought to conclude bilateral trade and investment deals with numerous partners
What are some of the reasons explaining the EU’s practice of concluding bilateral trade and investment deals with numerous partners? (4)
1/ economic reasons
2/ political reasons
3/ geopolitical reasons
4/ access to resources
etc
Are the internal and external law-making procedures in the EU symmetrical? (case law) (3)
1/ see Kazakhstan (2018)
2/ Art. 218 TFEU procedure is designed to reflect externally the DP btwn institutions that applies internally (para 22)
3/ Art. 218 TFEU establishes symmetry btwn procedure for adopting EU measures internally and procedure for adopting IAs (para 22)
Why are internal and external law-making procedures in EU symmetrical according to CJEU in Kazakhstan (2018)?
To guarantee that EP and Council enjoy same powers in relation to a given field (para 22)
How does Art. 218 TFEU balance inputs from different actors? What does this ensure? (case law) (3)
1/ see ETS Australia (2015)
2/ Art. 218 TFEU aims to establish balance between EU institutions
3/ this can be said to ensure democratic control
Overview of Art. 218 TFEU negotiation process? (7)
1/ EC recommendation for a Council decision opening negotiations
2/ start of negotiations: Council decision containing negotiating guidelines + appointment of negotiator
3/ negotiations: led by EC, EC reports to Council special committee and keeps EP informed
4/ signature: EC proposal, Council decision
5/ provisional application: EC proposal, Council decision
6/ consent EP: vote in plenary, majority needed
7/ conclusion: EC proposal, Council decision
Who can be negotiator in matters of CCP?
Only Commission
Who decides who will sign an agreement on EU’s behalf?
Council
What happens after Council took decision to conclude the IA?
Agreement becomes binding source of law in EU legal order
What is necessary before the Council can authorise the opening of negotiations? Legal basis? (2)
1/ Commission recommendation
2/ Art. 207(3) TFEU
How does EC decide there is need for a trade or investment agreement? (3)
1/ impact assessment
2/ public consultation
3/ scoping exercise
What does impact assessment entail? (3)
1/ adoption of good standards for regulation
2/ measuring economic and societal impact of prospective agreement
3/ assessing compatibility of agreement with normative aspirations EU (eg sustainability and HR)
What does public consultations entail?
Gathering inputs from business, civil society, trade unions
What does scoping exercise entail? (2)
1/ reaching out to 3rd country partner
2/ evaluating economic and political (strategic) dimension of agreement
What are important elements of the EC’s recommendation for a Council decision opening negotiations? (5)
1/ reasons and objectives of proposal
2/ legal basis
3/ results of public consultations
4/ substantive provisions (appointment of negotiator)
5/ scope of agreement
Who adopts negotiating directives? Legal basis? (3)
1/ Council
2/ Art. 207 (3) TFEU
3/ Art. 218(2) TFEU
What happens in practice after Commission recommendations for Council decision on opening of negotiations? (3)
1/ Council debates EC’s recommendations
2/ Council might slightly modify EC recommendations
3/ if not, Council decision contains same elements as EC recommendations
Who negotiates? (3)
1/ Art. 17(1) TEU: except for CFSP and other cases in Treaties, EC ensures EU’s external representation
2/ Art. 207(3) TFEU: EC exclusively competent to negotiate on CCP matters in consultation with special committee appointed by Council
3/ if content negotiating directives indicates IA could go beyond scope of CCP, MS should separately appoint EC to negotiate part that goes beyond scope CCP (and not the Council)
Considerations on relationship btwn EC and special committee? (2)
1/ special committee to assist EC in its task of negotiating IA (consultations)
2/ EC to report to special committee regularly
Composition & tasks special committee? (2)
1/ experts appointed by national authorities
2/ discuss process of negotiations, priorities and MS redlines
What are practical implications of relationship EC - special committee?
EC has to balance priorities 3rd country partner and priorities of Council
Which case shed light on the extent of control the special committee may exercise?
ETS Australia (2015)
Key takeaways of ETS Australia judgment on control special committee? (4)
1/ special committee can impose procedural but not substantive requirements on EC
2/ EC is not merely agent of Council, derives its mandate directly from Treaties
3/ Art. 218 TFEU as a whole reflects attempts to respect pcple of institutional balance
4/ EU institutions obliged to cooperate with each other in good faith when accomplishing constitutional tasks
How is the relationship btwn EC and special committee in practice? (3)
1/ very cooperative
2/ usually meet before and after each negotiation round
3/ coordinate EU position in ongoing negotiations
What is right of EP regarding procedure conclusion IAs? Legal basis? (2)
1/ Art. 218(10) TFEU
2/ right to be ‘immediately and fully informed at all stages of the procedure’
What is contribution of Tanzania case (2016) regarding EP right to be informed? (9)
1/ right to be informed must be interpreted broadly
it covers:
2/ authorisation opening negotiations
3/ definition negotiating directives
4/ nomination EU negotiator
5/ designation special committee
6/ completion negotiatons
7/ authorisation signature agreement
8/ decision provisional application agreement before entry into force
9/ conclusion agreement
What is the underlying rationale of the EP’s broadly interpreted right to be informed?
Trade and investment agreements now go further than they used to and often go beyond strict trade issues => EP should be informed
Where have EP’s information rights been codified?
Framework Agreement on relations btwn EP and EC, Annex III, para 5
How are role of EP and democratic pcple interlinked when it comes to conclusion IAs? (2)
1/ Art. 10 TEU: functioning EU founded on representative democracy + direct representation EU citizens at EU level in EP
2/ information requirement of Art. 218(10) TFEU is expression of democratic pcple (Tanzania, para 10)
What is rationale behind role of EP and democratic pcple when it comes to conclusion IAs? (5)
1/ foreign policy + int. negotiations often dominated by executive actors
2/ foreign policy + int. negotiations often untransparent and/or difficult to follow for gnl public
3/ parliaments therefore have institutional role to hold executive actors accountable + prevent abuse of power
4/ EP represents people in supranational dimension, whereas Council reflects intergovernmental dimension of democracy in EU
5/ therefore, ideally, there must be a balance btwn the 2
Procedure for signature of an IA? Legal basis? (3)
1/ Art. 218(5) TFEU
2/ negotiator proposes signature agreement (most often, EC)
3/ Council adopts decision authorising signing agreement + who will sign agreement on EU’s behalf
What does signature of IA amount to? (2)
1/ one of forms of expressing consent to be bound by a treaty (Art. 11 VCLT)
2/ expresses obligation not to defeat object and purpose agreement (Art. 18 VCLT)
What usually happens after signature of IA by EU and other party?
Council sends it to EP to obtain its consent
Procedure for authorisation provisional application IA? Legal basis? (5)
1/ Art. 218(5) TFEU
2/ negotiator proposes, Council decides
3/ EP formally excluded but info requirement applies
4/ politically, EP will always try to express its position before a decision on provisional application is made
5/ cf Rule 115 EP Rules of Procedure
Is provisional application used in practice? (3)
1/ yes, it is practically important
2/ all mixed trade agreements concluded thus far have been provisionally applied
3/ e.g. CETA since 2017
Considerations on consent EP? Legal basis? (4)
1/ Art. 218(6) TFEU
2/ Council can adopt decision concluding IA only after obtaining consent EP
3/ applies to association agreements and agreements covering fields to which OLP applies
4/ OLP applies to trade policy by virtue of Art. 207(2) TFEU
What are practical implications of EP consent? (4)
1/ veto power gives EP political leverage
2/ EP usually attempts to control negotiations as they happen
3/ veto power is however rarely used
4/ but some trade agreements have effectively been frozen bc no prospects of majority in EP (e.g. CAI, EU-Mercosur AA)
How can EP attempt to control negotiations as they happen? (2)
1/ standing rapporteurs
2/ role of INTA Committee (International Trade Committee)
What can be said about the role of national parliaments in the adoption process of IAs? (8)
1/ mixed agreements can only enter into force after approval of EP and NPs
2/ procedure for adoption by NPs determined by national constitutions
3/ therefore, balance of power shifts dramatically: more than 27 veto players
4/ cf CETA deal and veto threat of Parliament Wallonia
5/ even for EU only trade & investment agreements, NPs can still scrutinise national executives and their conduct in Council
6/ is pcple of sincere cooperation (Art. 4(3) TEU) applicable to ratification process of mixed agreements by NPs?
7/ MS and EU institutions have obligation of close cooperation in fulfilling commitments undertaken under joint competence (Mox Plant, para 175)
8/ but how is it enforceable? what does it mean in practice?
What is positive and negative about veto power NPs for approval mixed agreements? (3)
1/ stronger democratic legitimacy
2/ more difficult for IA to enter into force
3/ EU potentially becomes less credible partner
Procedure for conclusion IA? Legal basis? (3)
1/ Art. 218(6) TFEU
2/ negotiator proposes
3/ Council decides on conclusion
What are the rules for the participation of EU in decision-making of international bodies? Legal basis? (5)
1/ Art. 218(9) TFEU
2/ proposal of EC or High Representative EU for Foreign Affairs and Security Policy
3/ Council adopts decision establishing positions to be adopted on EU behalf in body set up by IA
4/ exceptions: acts supplementing or amending institutional framework IA
5/ so Art. 218(9) TFEU only applies to acts applying or implementing existing IA
What can be said about the scope of application of Art. 218(9) TFEU on participation of EU in decision-making of international bodies? (5)
1/ broad scope of application
2/ Art. 218(9) TFEU also applies to establishment of EU positions to be expressed by MS in matters falling within EU non-exclusive competence if EU decides to exercise that competence (cf OIV case, para 52)
3/ Art. 218(9) TFEU applies even if EU is not member of IO (cf OIV case, para 50)
4/ rationale: protecting integrity of EU law and EU acquis in field where it has exercised some competence
5/ also broad understanding of notion ‘acts having legal effects’ (OIV case, paras 62-64)
What is not covered by Art. 218(9) TFEU? Case law? (4)
1/ dispute resolution bodies
2/ Art. 218(9) TFEU only applies to bodies established by IAs that formulate policy and adopt decisions & quasi-legislative acts
3/ dispute resolution bodies are different (ITLOS, para 71)
4/ even if DS body adopted an advisory opinion, this still does not make it a legislative or policy-making body (ITLOS, paras 66-67)
Which provision covers the case of dispute resolution bodies? (2)
1/ Art. 335 TFEU
2/ in such bodies, as a gnl pcple, EU has legal capacity and is to be represented by EC (ITLOS, para 58)
Legal basis for autonomous measures in EU trade policy? (4)
1/ Art. 207(2) TFEU
2/ OLP applies (Art. 294 TFEU)
3/ therefore, no need to negotiate with 3rd country partner, only political agreement among EU institutions is required
4/ therefore, export of EU standards abroad
Which legislative procedure applies to adoption of autonomous measures within envtal policy framework? (2)
1/ Art. 192(1) TFEU
2/ OLP also applies
Example of autonomous measure within trade policy framework?
Proposal for a Reg. on prohibiting products made with forced labour
Examples of autonomous measures adopted within envtal policy framework? (2)
1/ Deforestation Reg.
2/ Carbon Border Adjustment Mechanism
